UP 2014 Civil Law

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

SUPPORT ................................................... 33
MANAGEMENT OF HOUSEHOLD .............. 34
EFFECT OF NEGLECT OF DUTY ................. 34
EXERCISE OF PROFESSION....................... 34
PERSONS AND FAMILY

RELATIONS
Effect and Application of Laws........... 1
WHEN LAWS TAKE EFFECT .......................... 1
IGNORANCE OF THE LAW ........................... 1
RETROACTIVITY OF LAWS .......................... 1
MANDATORY OR PROHIBITORY LAWS ....... 1
WAIVER OF RIGHTS ..................................... 1
REPEAL OF LAWS ........................................2
JUDICIAL DECISIONS ...................................2
DUTY TO RENDER JUDGMENT ....................2
PRESUMPTION AND APPLICABILITY OF
CUSTOM ......................................................2
LEGAL PERIODS ..........................................2
APPLICABILITY OF PENAL LAWS ................2
SPECIAL CONFLICT OF LAW RULES ............ 6
Property Relations of the Spouses .. 34

MARRIAGE SETTLEMENT RULES ............. 34
DONATIONS BY REASON OF MARRIAGE...35
ABSOLUTE COMMUNITY OF PROPERTY &
CONJUGAL PARTNERSHIP OF GAINS ........ 37
SEPARATION OF PROPERTY OF THE
SPOUSES AND ADMINISTRATION OF
COMMON PROPERTY BY ONE....................47
PROPERTY REGIME OF UNIONS WITHOUT
MARRIAGE ................................................ 49
The Family ....................................... 50

THE FAMILY AS AN INSTITUTION ............. 50
THE FAMILY HOME.................................... 50
Human Relations ............................. 10

ABUSE OF RIGHT........................................ 10
ACTS CONTRARY TO LAW ......................... 10
ACTS CONTRA BONUS MORES .................. 10
PRINCIPLE OF UNJUST ENRICHMENT ....... 10
Paternity and Filiation...................... 52

LEGITIMATE CHILDREN ............................ 52
PROOF OF FILIATION ................................ 54
ILLEGITIMATE CHILDREN ......................... 54
LEGITIMATED CHILDREN .......................... 56
Persons and Personality .................. 10

CAPACITY TO ACT ...................................... 10
DOMICILE AND RESIDENCE OF PERSON ... 14
Adoption ...........................................56
RA 8552 DOMESTIC ADOPTION LAW ..... 57
RA 8043 THE LAW ON INTER-COUNTRY
ADOPTION.................................................. 61
Marriage .............................................15
REQUISITES................................................ 15
EFFECT OF MARRIAGE CELEBRATED
ABROAD AND FOREIGN DIVORCE ............. 18
VOID AND VOIDABLE MARRIAGES ............ 19
Support ............................................ 63
WHAT IT COMPRISES .................................63

WHO ARE OBLIGED ....................................63
SUPPORT DURING MARRIAGE LITIGATION
................................................................... 64
AMOUNT ................................................... 64
WHEN DEMANDABLE ............................... 64
OPTIONS ................................................... 64
ATTACHMENT ........................................... 64
Legal Separation .............................. 29

GROUNDS ................................................. 29
DEFENSES ................................................. 30
WHEN TO FILE ........................................... 30
COOLING-OFF PERIOD AND
RECONCILIATION EFFORTS ...................... 30
CONFESSION OF JUDGMENT ..................... 31
EFFECTS OF FILING PETITION ................... 31
EFFECTS OF PENDENCY ............................. 31
EFFECTS OF LEGAL SEPARATION ............. 31
RECONCILIATION ....................................... 31
Parental Authority ...........................65
GENERAL PROVISIONS ............................. 65

SUBSTITUTE AND SPECIAL PARENTAL
AUTHORITY ............................................... 66
EFFECT OF PARENTAL AUTHORITY UPON
THE PERSONS OF THE CHILDREN ............. 67
EFFECTS OF PARENTAL AUTHORITY UPON
THE PROPERTY OF THE CHILDREN .......... 68
Rights and Obligations Between

Spouses ............................................. 33
ESSENTIAL OBLIGATIONS ......................... 33
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SUSPENSION OR TERMINATION OF
PARENTAL AUTHORITY ............................ 69
CIVIL LAW
PROPERTY
Characteristics .................................. 83
Classification .................................... 83
Emancipation, as amended by
RA6809.............................................. 71
HIDDEN TREASURE .............................. 83

BASED ON MOBILITY [IMMOVABLE OR
MOVABLE] .......................................... 83
BASED ON OWNERSHIP ........................ 87
BASED ON CONSUMABILITY ................. 89
BASED ON SUSCEPTIBILITY TO
SUBSTITUTION ..................................... 89
BASED ON THE CONSTITUTION ............. 89
OTHER CLASSIFICATIONS...................... 89
Summary Judicial Proceedings in the

Family Law ......................................... 71
PROCEDURAL RULES ................................ 71
SEPARATION IN FACT ................................ 61
INCIDENTS INVOLVING PARENTAL
AUTHORITY ................................................ 72
Retroactive Effect ............................. 73
Ownership ........................................ 90
Funeral .............................................. 73
DEFINITION AND CONCEPT ...................... 90

TYPES OF OWNERSHIP ............................. 90
RIGHT IN GENERAL ................................... 90
LIMITATIONS ON OWNERSHIP ................. 92
RELATIVES DUTY AND THE RIGHT TO

ARRANGE FUNERALS .................................. 73
NATURE OF FUNERAL ................................... 73
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

WIFE AFTER AND DURING MARRIAGE ...........74
CONFUSION AND CHANGE OF NAMES ...........74
IN GENERAL .............................................101
PURPOSE ..................................................101
NATURE: QUASI IN REM .......................... 102
JUSTIFICATIONS FOR QUIETING OF TITLE
.................................................................. 102
THE ACTION TO QUIET TITLE DOES NOT
APPLY ....................................................... 102
REQUIREMENTS ....................................... 102
QUIETING OF TITLE V. REMOVAL OF CLOUD
.................................................................. 103
PRESCRIPTION/NON-PRESCRIPTION OF
ACTION ..................................................... 103
Absence............................................. 74
PROVISIONAL MEASURES IN CASE OF
ABSENCE ....................................................75
SUBSEQUENT MARRIAGE CONTRACTED
WHEN ONE SPOUSE IS ABSENT ................75
DECLARATION OF ABSENCE......................75
ADMINISTRATION OF THE PROPERTY OF
THE ABSENTEE .......................................... 77
PRESUMPTION OF DEATH ......................... 77
Co-ownership ................................. 103
Civil Registrar ................................... 78
DEFINITION .............................................. 103

REQUISITES.............................................. 103
WHAT GOVERNS CO-OWNERSHIP .......... 103
CHARACTERISTICS OF CO-OWNERSHIP . 103
SOURCES OF CO-OWNERSHIP .............. 104
RIGHTS OF CO-OWNERS....................... 105
RULES ...................................................... 106
TERMINATION/ EXTINGUISHMENT.......... 107
ART. 407-413 ..............................................78

RA 9048 AS AMENDED BY RA 10172..........78
RULE 108, RULES OF COURT .................... 80
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CIVIL LAW
NO PRESCRIPTION APPLICABLE ............. 157

PRESCRIPTION DISTINGUISHED FROM
LACHES .................................................... 158
PRESCRIPTION OR LIMITATION OF
ACTIONS................................................... 158
Possession ...................................... 108

DEFINITION ............................................. 108
CONCEPT OF POSSESSION ...................... 108
CHARACTERISTICS ................................... 108
ACQUISITION OF POSSESSION ..................110
EFFECTS OF POSSESSION......................... 112
LOSS/TERMINATION OF POSSESSION .....118
OBLIGATIONS AND
CONTRACTS
Usufruct ........................................... 119

CONCEPT .................................................. 119
OBJECTS OF USUFRUCT ........................... 119
CHARACTERISTICS .................................... 119
CLASSIFICATION ....................................... 119
RIGHTS AND OBLIGATIONS OF
USUFRUCTUARY ....................................... 121
SPECIAL CASES OF USUFRUCT................ 125
RIGHTS OF THE OWNER ....................... 127
EXTINGUISHMENT/ TERMINATION ....... 127
CONDITIONS NOT AFFECTING USUFRUCT
.................................................................. 129
Obligations ...................................... 161

IN GENERAL .............................................. 161
NATURE AND EFFECT OF OBLIGATIONS . 162
DIFFERENT KINDS OF CIVIL OBLIGATIONS
.................................................................. 169
NATURAL OBLIGATIONS .......................... 181
EXTINGUISHMENT OF OBLIGATIONS ...... 182
ESTOPPEL ................................................. 191
Contracts.......................................... 191
ESSENTIAL REQUISITES ........................... 191
FORM OF CONTRACTS ............................. 196
KINDS OF CONTRACTS ............................ 196
REFORMATION OF INSTRUMENTS ......... 197
RESCISSIBLE CONTRACTS ....................... 197
VOIDABLE CONTRACTS ........................... 199
UNENFORCEABLE CONTRACTS............... 199
VOID OR INEXISTENT CONTRACTS ........ 200
EFFECT OF CONTRACTS.......................... 204
Easement ........................................ 129

CHARACTERISTICS .............................. 129
CLASSIFICATION.................................. 130
GENERAL RULES....................................... 131
RELEVANCE OF CLASSIFICATIONS ............ 131
CREATION ................................................ 132
RIGHTS AND OBLIGATIONS OF OWNERS OF
DOMINANT AND SERVIENT ESTATES ...... 133
KINDS OF LEGAL EASEMENTS ................. 134
MODES OF ACQUIRING EASEMENT......... 140
EXTINGUISHMENT OF EASEMENTS ........ 140
Quasi-Contracts ............................ 204

NEGOSTIORUM GESTIO .......................... 204
SOLUTIO INDEBITI ............................ 205

OTHER QUASI-CONTRACTS ................. 205
Nuisance ............................................. 71
NUISANCE V. TRESPASS .............................. 141
NUISANCE V. NEGLIGENCE .......................... 142
CLASSES .................................................... 142
DOCTRINE OF ATTRACTIVE NUISANCE ........ 142
LIABILITY IN CASE OF NUISANCE ................. 142
REGULATION OF NUISANCES ...................... 143
SALES
Definition and Essential Requisites
........................................................ 208
Modes of Acquiring Ownership .... 144

OCCUPATION ........................................... 145
DONATION .......................................... 145
TRADITION ............................................... 156
DEFINITION OF SALES ........................... 208

ESSENTIAL REQUISITES OF A CONTRACT
OF SALE ................................................... 208
STAGES OF CONTRACT OF SALE ............ 208
OBLIGATIONS CREATED ......................... 209
Prescription ..................................... 156

DEFINITION .............................................. 156
RATIONALE .............................................. 156
KINDS OF PRESCRIPTION ........................ 156
Parties to a Contract of Sale........... 211

CAPACITY OF PARTIES .............................. 211
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CIVIL LAW
Subject Matter .................................213
Remedies of an Unpaid Seller...... 230
Obligations of the Seller to Transfer

Ownership ....................................... 215
Performance of Contract ............... 232
REQUISITES OF A VALID SUBJECT MATTER

.................................................................. 213
DEFINITION OF UNPAID SELLER ............ 230

REMEDIES OF UNPAID SELLER .............. 230
DELIVERY OF THING SOLD....................... 232

PAYMENT OF PRICE ................................. 233
OBLIGATIONS OF THE VENDOR IN

GENERAL.................................................. 215
SALE BY A PERSON NOT THE OWNER AT
TIME OF DELIVERY ................................... 215
SALE BY A PERSON HAVING A VOIDABLE
TITLE ........................................................ 215
Warranties.......................................234
EXPRESS WARRANTIES ...........................234
IMPLIED WARRANTIES ............................235
EFFECTS OF WARRANTIES ...................... 237
EFFECTS OF WAIVERS ............................. 237
BUYERS OPTIONS IN CASE OF BREACH OF
WARRANTY ............................................. 237
Price................................................. 216
MEANING OF PRICE ................................. 216
REQUISITES FOR A VALID PRICE ............. 216
Breach of Contract .........................239
PREPARATORY ........................................ 218

PERFECTION ........................................... 220
CONSUMMATION ..................................... 221
GENERAL REMEDIES ...............................239

REMEDIES OF THE SELLER [ARTS. 1636,
1594] ........................................................239
REMEDIES OF THE BUYER .......................243
Transfer of Ownership ....................222
Extinguishment of Sale................. 245
Formation of Contract of Sale ........ 218
CAUSES ................................................... 245

EQUITABLE MORTGAGE ......................... 246
PERIOD OF REDEMPTION ........................247
EXERCISE OF THE RIGHT TO REDEEM .... 248
LEGAL REDEMPTION ............................... 248
AGE REDEMPTION ................................... 251
OBLIGATIONS OF THE VENDOR: .............222

MANNER OF TRANSFER ..........................222
Risk of Loss ....................................... 27

GENERAL RULE ........................................ 227
WHEN LOSS OCCURRED BEFORE
PERFECTION ............................................ 227
WHEN LOSS OCCURRED AT TIME OF
PERFECTION ........................................... 227
WHEN LOSS OCCURRED AFTER
PERFECTION BUT BEFORE DELIVERY ..... 227
AFTER DELIVERY ..................................... 227
WHEN OWNERSHIP IS TRANSFERRED.... 227
The Law on Sale of Subdivision and

Condominium (PD 957) ................ 251
DEFINITIONS ............................................ 251
The Condominium Act (RA 4726) 255
Documents of Title ........................ 228
SUCCESSION
DEFINITION ............................................. 228

PURPOSE OF DOCUMENTS OF TITLE ..... 228
NEGOTIABLE DOCUMENTS OF TITLE ..... 228
NON-NEGOTIABLE DOCUMENTS OF TITLE
................................................................. 228
WARRANTIES OF SELLER OF DOCUMENTS
OF TITLE .................................................. 229
RULES ON LEVY/GARNISHMENT OF GOODS
................................................................. 229
General Provisions......................... 260
DEFINITION ............................................. 260
Testamentary Succession .............. 261

WILLS ....................................................... 261
INSTITUTION OF HEIRS ........................... 269
SUBSTITUTION OF HEIRS ........................ 271
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TESTAMENTARY DISPOSITIONS WITH A

CONDITION, A TERM, AND A MODE
LEGITIME .................................................. 272
DISINHERITANCE ..................................... 277
LEGACIES AND DEVISES ......................... 280
CIVIL LAW
RIGHT TO RETURN OF CREDIT RECEIVED
......................................................... 304
RIGHT TO INDEMNITY FOR DAMAGES .. 304
SUIT FOR DAMAGES ........................... 304
RESPONSIBILITY TO PARTNERS........... 304
Legal or Intestate Succession........283
Rights and Obligations of Partners

Inter Se ........................................... 304
GENERAL PROVISIONS ............................283

ORDER OF INTESTATE SUCCESSION .......287
OUTLINE OF INTESTATE SHARES ........... 288
RIGHT TO ASSOCIATE ANOTHER IN SHARE
......................................................... 304
Provisions Common to Testate and

Intestate Succession ..................... 289
RIGHT TO INSPECT PARTNERSHIP BOOKS
......................................................... 304
RIGHT TO FORMAL ACCOUNT .............. 305
PROPERTY RIGHTS OF PARTNERS ....... 305
OWNERSHIP OF CERTAIN PROPERTIES 305
RIGHTS IN SPECIFIC PROPERTY ........... 305
INTEREST IN PARTNERSHIP ................ 306
RIGHT OF ACCRETION ............................ 289

CAPACITY TO SUCCEED BY WILL OR
INTESTACY .............................................. 290
ACCEPTANCE AND REPUDIATION OF THE
INHERITANCE .......................................... 291
COLLATION ............................................. 292
PARTITION AND DISTRIBUTION OF ESTATE .
................................................................. 294
RIGHT TO PARTICIPATE IN MANAGEMENT
......................................................... 306
RIGHT TO PROFITS AND OBLIGATIONS FOR

LOSSES .............................................. 307
OBLIGATION TO RENDER INFORMATION
......................................................... 308
AGENCY AND
PARTNERSHIP
OBLIGATION TO ACCOUNT AND ACT AS

TRUSTEE ........................................... 308
AGENCY ......................................... 298
Obligations of the
Partnership/Partners to Third
Persons........................................... 308
Contract of Partnership ................ 298

DEFINITION........................................ 298
ESSENTIAL FEATURES ........................ 298
PARTIES ............................................ 298
OBJECT .............................................. 298
FORM ................................................ 299
DURATION ......................................... 299
RULES TO DETERMINE EXISTENCE ....... 299
KINDS................................................ 300
KINDS OF PARTNERS .......................... 300
PARTNERSHIP AND OTHER CONTRACTS
DISTINGUISHED .................................. 301
OBLIGATION TO OPERATE UNDER A FIRM

NAME ................................................ 308
LIABILITY OF PARTNERS FOR
PARTNERSHIP CONTRACTS ................. 308
PARTNERSHIP CONTRACTS ................. 309
CONVEYANCE OF PARTNERSHIP REAL
PROPERTY .......................................... 310
LIABILITY OF PARTNERSHIP FOR
ADMISSION BY A PARTNER .................. 310
LIABILITY OF PARTNERSHIP FOR
WRONGFUL ACTS OF A PARTNER ......... 310
LIABILITY OF THE PARTNERSHIP FOR
MISAPPLICATION OF MONEY OR PROPERTY
Rights and Obligations of the

Partnership .....................................303
.......................................................... 310
LIABILITY OF THE OTHER PARTNERS

UNDER ART. 1822 AND 1823 .................. 311
LIABILITY IN CASE OF PARTNERSHIP BY
ESTOPPEL ............................................ 311
RIGHT TO CONTRIBUTION ................... 303

RIGHT TO APPLY PAYMENT RECEIVED TO
PARTNERSHIP CREDIT ........................ 303
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LIABILITY OF AN INCOMING PARTNER .. 312

NOTICE TO OR KNOWLEDGE OF THE
PARTNERSHIP..................................... 312
CIVIL LAW
Kinds of Agency ..............................329

IN GENERAL ....................................... 329
AS TO MANNER OF CREATION ............. 329
AS TO EXTENT OF BUSINESS COVERED 329
AS TO AUTHORITY CONFERRED ........... 329
SPECIAL KINDS .................................. 329
KINDS OF AGENTS ............................... 333
Dissolution and Winding Up...........312

CONCEPTS .......................................... 312
CAUSES OF DISSOLUTION .................... 312
EFFECTS OF DISSOLUTION ................... 314
WINDING UP PARTNERS ...................... 315
RIGHTS OF PARTNERS IN CASE OF
DISSOLUTION...................................... 315
RIGHTS OF PARTNERS IN CASE OF
RESCISSION ........................................ 316
SETTLING OF ACCOUNTS BETWEEN
PARTNERS .......................................... 316
RIGHTS OF CREDITORS OF DISSOLVED
PARTNERSHIP..................................... 317
RIGHTS OF A RETIRED PARTNER OR A
REPRESENTATIVE OF DECEASED PARTNER
Powers of the Agent ...................... 333

AUTHORITY OF AN AGENT.................... 333
KINDS OF AUTHORITY .......................... 333
SCOPE OF AUTHORITY ........................ 334
POWER TO BIND THE PRINCIPAL ......... 334
EFFECTS OF THE ACTS OF AN AGENT ... 334
Obligations of Agent ...................... 335

IN GENERAL ........................................335
OBLIGATION TO CARRY OUT AGENCY ....335
OBLIGATION WHEN AGENT DECLINES ...335
OBLIGATION TO ADVANCE NECESSARY
FUNDS................................................335
OBLIGATION TO ACT IN ACCORDANCE
WITH INSTRUCTIONS ...........................336
OBLIGATION TO PREFER INTEREST OF
PRINCIPAL ..........................................336
OBLIGATION FOR THINGS RECEIVED .....336
RESPONSIBILITY FOR ACTS OF SUBSTITUTE
.......................................................... 318
RIGHT TO AN ACCOUNT ....................... 318
Limited Partnership ....................... 318

DEFINITION......................................... 318
CHARACTERISTICS .............................. 318
GENERAL AND LIMITED PARTNERS
DISTINGUISHED .................................. 318
GENERAL AND LIMITED PARTNERSHIP
DISTINGUISHED .................................. 318
FORMATION....................................... 320
MANAGEMENT ................................... 320
OBLIGATIONS OF A LIMITED PARTNER .. 321
RIGHTS OF A LIMITED PARTNER ...........322
DISSOLUTION......................................323
SETTLEMENT OF ACCOUNTS ............... 324
AMENDMENT OR CANCELLATION OF
CERTIFICATE ...................................... 324
.......................................................... 337
RESPONSIBILITY OF TWO OR MORE

AGENTS .............................................. 337
OBLIGATION FOR SUMS APPLIED TO HIS
OWN USE ............................................ 337
OBLIGATIONS TO THIRD PERSONS....... 338
OBLIGATIONS OF A COMMISSION AGENT
......................................................... 339
RESPONSIBILITY FOR FRAUD AND

NEGLIGENCE ...................................... 340
Contract of Agency .........................325
Obligations of the Principal .......... 340
DEFINITION........................................ 325
CHARACTERISTICS ............................. 325
FORMATION....................................... 325
EFFECT ............................................... 327
AGENCY AND OTHER CONTRACTS
DISTINGUISHED .................................. 327
IN GENERAL ....................................... 340

OBLIGATION TO COMPLY WITH
CONTRACTS ....................................... 340
OBLIGATION FOR COMPENSATION OF
AGENT ............................................... 340
LIABILITY FOR EXPENSES AND DAMAGES
......................................................... 340
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CIVIL LAW
FORECLOSURE [NCC 2112, 2115] ............. 361

EFFECT OF THE SALE OF THE THING
PLEDGED [ART. 2115] .............................. 361
LEGAL PLEDGE / PLEDGE BY OPERATION
OF LAW (ARTS. 2121-2122) ....................... 361
PLEDGE AS DISTINGUISHED FROM
CHATTEL MORTGAGE [ARTS. 2140, 1484]
..................................................................362
PACTUM COMMISSORIUM.......................362
EQUITABLE MORTGAGE ..........................362
Modes of Extinguishment ..............342

IN GENERAL ....................................... 342
REVOCATION BY PRINCIPAL ................ 342
WITHDRAWAL BY AGENT .................... 343
DEATH, CIVIL INTERDICTION, INSANITY OR
INSOLVENCY ...................................... 344
ACCOMPLISHMENT OF OBJECT OR
PURPOSE ........................................... 344
DISSOLUTION OF FIRM OR CORPORATION
EXPIRATION OF TERM......................... 344
Real Mortgage ................................ 363
MORTGAGE .............................................. 363

JUDICIAL FORECLOSURE ........................ 365
EXTRAJUDICIAL FORECLOSURE [ACT NO.
3135] ........................................................365
REDEMPTION ...........................................366
CREDIT TRANSACTIONS
Credit Transactions .......................346
Antichresis ...................................... 367
SECURITY ............................................... 346

TYPES OF CONTRACTS OF SECURITY .... 346
CHARACTERISTICS .................................. 367

SPECIAL REQUISITES ............................... 367
AS DISTINGUISHED FROM OTHER
CONTRACTS ............................................. 367
OBLIGATIONS OF ANTICHRETIC CREDITOR
.................................................................. 367
REMEDIES OF CREDITOR IN CASE OF NONPAYMENT OF DEBT ................................. 368
Loan.................................................346
COMMODATUM [NCC 1935-1952] .............. 347
INTEREST AND SUSPENSION OF USURY
LAW ......................................................... 348
Deposit ........................................... 350
Chattel Mortgage ...........................368
VOLUNTARY DEPOSIT ............................ 350

NECESSARY DEPOSIT .............................. 351
JUDICIAL DEPOSIT ...................................352
CHATTEL MORTGAGE ............................. 368

CHARACTERISTICS ................................. 368
OBLIGATIONS SECURED ......................... 368
PROPERTY COVERED .............................. 368
VALIDITY OF CHATTEL MORTGAGE ........ 368
FORMAL REQUISITES ............................. 368
REGISTRATION OF CHATTEL MORTGAGE
................................................................. 368
FORECLOSURE ........................................ 368
Guaranty and Suretyship ...............352
GUARANTY ...............................................352
SURETYSHIP ............................................352
GUARANTY DISTINGUISHED FROM
SURETYSHIP [ZOBEL, INC. VS. CA, 1998] 352
NATURE AND EXTENT OF GUARANTY ....353
NATURE AND EXTENT OF SURETYSHIP 355
EFFECT OF GUARANTY ........................ 356
EXTINGUISHMENT OF GUARANTY ........ 359
Quasi-Contracts ............................. 370

NEGOTIORUM GESTIO (UNAUTHORIZED
MANAGEMENT) .......................................370
SOLUTIO INDEBITI (UNDUE PAYMENT) .. 371
OTHER QUASI-CONTRACTS ..................... 372
Pledge .............................................359
CHARACTERISTICS ................................. 360
KINDS ...................................................... 360
ESSENTIAL REQUISITES ......................... 360
PROVISIONS APPLICABLE ONLY TO PLEDGE
................................................................. 360
OBLIGATIONS OF PLEDGEE .................... 360
RIGHTS OF PLEDGOR............................... 361
REQUISITES FOR PERFECTION [ARTS.
2093, 2096] ............................................. 361
Concurrence and Preference of

Credits ............................................. 373
WHEN RULES ON PREFERENCE ARE
APPLICABLE ............................................. 373
CLASSIFICATION OF CREDITS ................. 373
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CIVIL LAW
SPECIAL PREFERRED CREDITS ON SPECIFIC

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

INDIVIDUALS............................................383
CORPORATIONS ..................................... 384
CONCEPT ................................................. 384

WHO MAY APPLY .................................... 385
WHERE TO FILE ....................................... 385
PROCEDURE IN ORDINARY LAND
REGISTRATION ....................................... 386
EVIDENCE NECESSARY ........................... 390
REMEDIES ............................................... 390
PETITIONS AND MOTIONS AFTER ORIGINAL
REGISTRATION ....................................... 390
Land Title ........................................ 378

CONCEPT .................................................. 378
Deed ................................................ 378

CONCEPT .................................................. 378
ELEMENTS OF A DEED ............................. 378
Estate .............................................. 378
Judicial Confirmation of Imperfect or

Incomplete Titles ............................392
CONCEPT .................................................. 378

TYPES OF ESTATE .................................... 378
CONCEPT ..................................................392
WHEN APPLICABLE..................................392
WHO MAY APPLY .....................................392
FILING OF THE APPLICATION .................. 393
PROCEDURE IN JUDICIAL CONFIRMATION
.................................................................. 393
EVIDENCE NECESSARY TO SUBSTANTIATE
APPLICATION ........................................... 393
Land Registration ........................... 378

CONCEPT .................................................. 378
NATURE OF LAND REGISTRATION .......... 378
LAWS IMPLEMENTING LAND
REGISTRATION ........................................ 379
PURPOSES OF LAND REGISTRATION ...... 379
OBJECT OF REGISTRATION...................... 379
CLASSIFICATION OF LANDS .................... 379
Cadastral Registration ...................394

CONCEPT ................................................. 394
PROCEDURE IN CADASTRAL
REGISTRATION ...................................... 394
DISALLOWANCE OF REOPENING
CADASTRAL CASES................................. 395
Torrens System ............................... 379

CONCEPT .................................................. 379
HISTORY .................................................. 380
ADVANTAGES ......................................... 380
NATURE .................................................. 380
PURPOSE ................................................ 380
ADMINISTRATION OF THE TORRENS
SYSTEM ................................................... 380
CERTIFICATE OF TITLE ............................ 380
EFFECT OF REGISTRATION UNDER THE
TORRENS SYSTEM ................................... 381
EFFECT OF NON-REGISTRATION .............382
DEALINGS IN LAND BEFORE ISSUANCE OF
DECREE ....................................................382
LACHES ....................................................382
Subsequent Registration ...............395

CONCEPT ................................................. 395
NECESSITY AND EFFECTS OF
REGISTRATION TWO TYPES OF DEALINGS
................................................................. 395
TWO TYPES OF DEALINGS ...................... 395
Non-Registrable Properties.......... 400

CONCEPT ................................................. 400
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CIVIL CODE PROVISIONS DEALING WITH

NON-REGISTRABLE PROPERTIES .......... 400
SPECIFIC KINDS OF NON-REGISTRABLE
PROPERTIES OR LANDS ......................... 400
CIVIL LAW
LEGAL CAUSE ........................................... 417

DOCTRINE OF LAST CLEAR CHANCE ....... 418
CONTRIBUTORY NEGLIGENCE................. 419
Legal Injury ..................................... 419
Dealings with Unregistered Lands.. 42
CLASSES OF INJURY ................................ 419
EFFECTS OF TRANSACTIONS COVERING

UNREGISTERED LAND ............................ 402
PRIMARY ENTRY BOOK AND
REGISTRATION BOOK ............................. 402
PROCESS OF REGISTRATION.................. 402
THIRD PARTY WITH A BETTER RIGHT NOT
PREJUDICED............................................ 402
INVOLUNTARY DEALINGS IN
UNREGISTERED LANDS .......................... 402
Intentional Torts ............................ 420

CONCEPT ................................................. 420
VIOLATIONS OF A PERSONS SECURITY
AND PHYSICAL INJURIES ....................... 420
MALICIOUS PROSECUTION......................423
DEFAMATION, FRAUD AND PHYSICAL
INJURIES ................................................. 424
UNJUST DISMISSAL ................................ 425
INTERFERENCE WITH RELATIONS ......... 425
Negligence ..................................... 429
TORTS AND DAMAGES
TEST OF NEGLIGENCE............................. 429

STANDARD OF CARE .............................. 430
STANDARD OF CARE NEEDED IN SPECIFIC
CIRCUMSTANCES .................................... 430
EVIDENCE .................................................432
PRESUMPTION OF NEGLIGENCE .............432
TORTS .......................................... 404

Principles ....................................... 404
ABUSE OF RIGHT..................................... 404
ACTS CONTRARY TO LAW....................... 405
ACTS CONTRARY TO MORALS ................ 405
UNJUST ENRICHMENT ............................ 406
Special Liability in Particular Cases

......................................................... 437
PRODUCTS LIABILITY .............................. 437
CONSUMER ACT...................................... 438
NUISANCE ............................................... 440
VIOLATION OF CONSTITUTIONAL RIGHTS
................................................................. 442
Classification of Torts .....................407

ACCORDING TO MANNER OF COMMISSION
................................................................. 407
ACCORDING TO SCOPE ........................... 407
Strict Liability ................................. 446
The Tortfeasor ................................407

THE DIRECT TORTFEASOR ..................... 407
PERSONS MADE LIABLE FOR OTHERS ... 407
JOINT TORTFEASORS .............................. 415
POSSESSOR AND USER OF AN ANIMAL. 446

NUISANCE ............................................... 446
PRODUCTS LIABILITY (SUPRA) .............. 447
CONSUMER ACT...................................... 447
Acts of Omission and Its Modalities

......................................................... 415
DAMAGES ................................... 450

Definition........................................ 450
Classification.................................. 450
Proximate Cause ............................ 416
ACCORDING TO PURPOSE ...................... 450

ACCORDING TO MANNER OF
DETERMINATION .................................... 450
SPECIAL AND ORDINARY ....................... 450
CONCEPT OF PROXIMATE CAUSE ........... 416

DEFINITION .............................................. 416
TESTS TO DETERMINE PROXIMATE CAUSE
.................................................................. 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
14
CIVIL LAW
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CIVIL LAW
Effect and Application of

Laws
RETROACTIVITY OF LAWS
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

days following the completion of their
publication either in the Official Gazette, or in a
newspaper of general circulation in the
Philippines, unless it is otherwise provided. (as
amended by E.O. 200)
Exception: When the law itself expressly

provides
Art. 4, CC. Laws shall have no retroactive effect,

unless the contrary is provided.
The Civil Code took effect on August 30, 1950.
Exceptions to Exception:
(1) Ex post facto law
(2) Impairment of contract
(3) In case of remedial statutes
(4) In case of curative statutes
(5) In case of laws interpreting others
(6) In case of laws creating new rights [(Bona v.
Briones (1918)]
(7) Penal laws favorable to the accused
General rules:
The clause "unless it is otherwise provided"
refers to the date of effectivity and not to the
requirement of publication itself, which
cannot in any event be omitted. [Tanada v.
Tuvera (1986)]
Publication is indispensable in every case, but
the legislature may in its discretion provide
that the usual fifteen-day period shall be
shortened or extended. [Tanada v. Tuvera
(1986)]
ACTS CONTRARY TO LAW

Art. 5, CC. Acts executed against the provisions
of mandatory or prohibitory laws shall be void,
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

waiver is contrary to law, public order, public
policy, morals, or good customs, or prejudicial to
a third person with a right recognized by law.
Art. 3, CC. Ignorance of the law excuses no

one from compliance therewith.
Conclusive Presumption That everyone knows
the law, even if they have no actual knowledge
of the law
Waiver the relinquishment of a known right

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
consequences of his conduct; but not ignorance
of law.
In specific instances provided by law, mistake
as to difficult legal questions has been given
the same effect as a mistake of fact.
[Tolentino]
The laws referred to by this article are those of
the Philippines. There is no conclusive
presumption of knowledge of foreign laws.
[Tolentino]
Exceptions:
(1) If the waiver is contrary to law, public order,
public policy, morals or good customs;
(2) If the waiver prejudices a third person;
(3) If the alleged rights do not yet exist;
(4) If the right is a natural right.
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CIVIL LAW
Exception:
This article does not apply to criminal
prosecutions because where there is no law
punishing an act, the case must be dismissed.
[Tolentino]
REPEAL OF LAWS
Art. 7, CC. Laws are repealed only by
subsequent ones, and their violation or nonobservance shall not be excused by disuse, or
custom or practice to the contrary.
PRESUMPTION AND APPLICABILITY

OF CUSTOM
When the courts declared a law to be

inconsistent with the Constitution, the former
shall be void and the latter shall govern
Art. 10, CC. In case of doubt in the interpretation

or application of laws, it is presumed that the
lawmaking body intended right and justice to
prevail.
Administrative or executive acts, orders and

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
countenanced.
TWO KINDS OF REPEAL OF LAW
[Tolentino]
(1) Express or Declared contained in a special
provision of a subsequent law
(2) Implied or Tacit takes place when the
provisions of the subsequent law are
incompatible or inconsistent with those of
an earlier law.
Art. 12, CC. A custom must be proved as a fact,

according to the rules of evidence.
LEGAL PERIODS
Art. 13, CC. When the laws speak of years,
months, days or nights, it shall be understood
that years are of three hundred sixty-five days
each; months, of thirty days; days, of twentyfour hours; and nights from sunset to sunrise.
JUDICIAL DECISIONS
Art. 8, CC. Judicial decisions applying or
interpreting the laws or the Constitution shall
form a part of the legal system of the
Philippines.
If months are designated by their name, they

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.
[1 Camus 38 as cited in Tolentino]
In computing a period, the first day shall be

excluded, and the last day included
POLICY ON LAST DAY BEING A

LEGAL HOLIDAY/SUNDAY
But the Courts interpretation of a statute

constitutes part of the law as of the date it was
originally passed since the Courts construction
merely establishes contemporaneous legislative
intent that the interpreted law carried into
effect. [Senarillos v. Hermosisima (1956)]
DUTY TO RENDER JUDGMENT
If the period arises by statute or orders by the

government, the last day will automatically be
considered the next working day
If the period arises from a contractual
relationship, the act will still be due on that
Legal Holiday/Sunday
General Rule:
APPLICABILITY OF PENAL LAWS
Art. 9, CC. No judge or court shall decline to

render judgment by reason of the silence,
obscurity or insufficiency of the laws.
Art. 14, CC. Penal laws and those of public

security and safety shall be obligatory upon all
who live or sojourn in the Philippine territory,
subject to the principles of public international
law and to treaty stipulations.
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It is the nationality or citizenship of the

individual, which regulates the following
(1) Civil status
(2) Capacity
(3) Condition
(4) Family rights and duties
(5) Laws on Succession
(6) Capacity to succeed
EXEMPTIONS UNDER
INTERNATIONAL LAW (THEORY OF
EXTRATERRITORIALITY):
(1) When the offense is committed by a foreign

sovereign while in Philippine territory
(2) When the offense is committed by
diplomatic representatives
(3) When the offense is committed in a public
or armed vessel of a foreign country.
According to the Supreme Court, it is a conflict

of laws theory by virtue of which jurisdiction over
the particular subject matter affecting a person
is determined by the latters nationality. [Ellis vs.
Republic (1963)]
CONFLICT OF LAWS
CONFLICT OF LAWS/
INTERNATIONAL LAW
PRIVATE
Art. 16, CC. Real property as well as personal

property is subject to the law of the country
where it is situated.
(1) It is a branch or part of Philippine Law which

regulates the application of foreign law
within Philippine jurisdiction in the
resolution of cases involving foreign
elements.
(2) It is that part of municipal law which
governs cases involving a foreign element.
(3) Private International Law is more commonly
known in other jurisdictions as conflict of
laws
However,
intestate
and
testamentary
succession, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
the national law of the person whose succession
is under consideration, whatever may be the
nature of the property and regardless of the
country wherein the property may be found.
SOURCES
(1) Codes and statutes

(2) Treaties and international conventions
(3) Treatises, commentaries, and studies of
learned societies
(4) Judicial decisions
RULE ON PROPERTY
Controlling Law: Lex Situs/Lex ReiSitae

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
(1)
(2)
(3)
(4)
(5)
(6)
(7)
CIVIL LAW
APPLICATION OF THE DOCTRINE OF LEX

SITUS/LEX REISITAE
(1) The capacity to transfer or acquire property
is governed by Lex Situs.
Lex Patriae [Art. 15, CC]

Lex Domicili [Art. 1251 (par. 3), CC]
Lex Situs/ Lex Rei Sitae [Art. 16, CC]
Lex Loci Contractus [Art. 17 (par. 1), CC]
Lex Loci Celebrationis [Art. 71, CC]
Lex Loci Celebrationis [Art. 26 (par. 1), FC]
Lex Loci Intentionis [Art. 1306, CC]
Note: Transfer of property to a foreigner who

subsequently became a Filipino citizen shall be
recognized [Llantino vs. Co Liong Chong]
Art. 15. Laws relating to family rights and duties,

or to the status, condition and legal capacity of
persons are binding upon citizens of the
Philippines, even though living abroad.
(2) The formalities of a contract to convey

property are governed by Lex Situs
Most civil law countries such as the Philippines

follow the NATIONAL LAW THEORY:
(1) Transactions Not Affecting Transfer of Title

or Ownership of Land: Lex Intentionis or Lex
Voluntatis
EXCEPTIONS TO LEX SITUS
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(2) Contracts where Real Property Offered as

Security: The principal contract is the loan
while the mortgage of the land is only an
accessory
(a) Mortgage Lex Situs
(b) Loan Contract Rules on ordinary
contracts
CIVIL LAW
RULE ON SUCCESSION
EXTRINSIC VALIDITY [ARTS. 17, 815-817, CC]
Place of Execution
Applicable Law
Filipino Testator
Philippines
(3) Intestate and Testamentary Succession:

Intestate and testamentary successions
shall be regulated by the national law of the
decedent, with respect to the following (Art.
16(2), CC; Art. 1039, CC)
(a) Order of succession
(b) Amount of successional rights
(c) Intrinsic validity of the testamentary
provisions
(d) Capacity to succeed
Philippine Law
Foreign Country
(1) Law of the place

where he may be
(lex
loci
celebrationis) [Art
815, CC]
(2) Philippine law [III
Tolentino 117]
Alien Testator
Philippines
(1) Philippine Law [Art.

17, CC]
(2) Law of the country
in which he is a
citizen or subject
(lex nationali) [Art.
817, CC]
Foreign Country [Art.

816, CC; Art. 17, CC]
(1) Law of the place in

which he resides
(lex domicilii)
(2) Law of his country
(lex nationali)
(3) Philippine law
where they were
executed (lex loci
celebrationis)
(4) Under a Policy-centered Approach: Forum

court is not bound to look to the law of the
situs when the situs of the movable property
is insignificant or accidental
Questions relating to the validity and effect of
the transfer of the movable property are
governed by the law of the place of principal
use
Where the issue involves considerations other
than the validity and effect of the transfer
itself, governing law is the law of the state
which has real interest
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.

1039, CC]:
(1) Order of succession
(2) Amount of successional rights
(3) Intrinsic validity of the testamentary
provisions
(4) Capacity to succeed
(b) The testator had his domicile in the

foreign country and not in the
Philippines
(c) The will has been admitted to probate in
such country
(d) The fact that the foreign tribunal is a
probate court
(e) The laws of the foreign country on
procedure and allowance of wills
INTERPRETATION OF WILLS
Governed by the National Law of the decedent.
ADMINISTRATION OF ESTATES
Territorial: governed by the law of the place
where the administration takes place, and that
is the law of the country from which the
administrator derives his authority.
REVOCATION
Testator
Applicable Law
Will is revoked in the Philippines

Philippine Domiciliary
CIVIL LAW
TRUSTS
Extrinsic validity: Rule governing wills apply.
Intrinsic validity: lex situs since a trust involves
property [Art. 17, CC]
Philippine Law
Non-domiciliary [Art.
Philippine Law
829, CC]
Will is revoked in a Foreign Country
(1) Philippine Law
(2) Law of the place of
Philippine Domiciliary
revocation (lex loci
actus)
where the will was
made
Non-domiciliary [Art. (2) Law of the place in
829, CC]
which the testator
had his domicile at
the time of the
revocation
Art. 17, CC. The forms and solemnities of

contracts, wills, and other public instruments
shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before
the diplomatic or consular officials of the
Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws
shall be observed in their execution.
Prohibitive laws concerning persons, their acts
or property, and those which have, for their
object, public order, public policy and good
customs shall not be rendered ineffective by
laws or judgments promulgated, or by
determinations or conventions agreed upon in a
foreign country.
PROBATE OF WILLS
Controlling Law: The probate of a will being
essentially procedural in character, the law of
the forum (lex fori) governs.
RULE ON EXTRINSIC VALIDITY OF

CONTRACTS
Wills Proved and Allowed in a Foreign

Country:
(1) A will proved and allowed in a foreign
country in accordance with the laws of that
country may be allowed, filed, and recorded
in the proper Regional Trial Court in the
Philippines [Rule 77, Sec.1, Rules of Court]
(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
GENERAL RULE: LEX LOCI CELEBRATIONIS

The forms and solemnities of contracts xxx shall
be governed by the laws of the country in which
they are executed [Art. 17, CC]
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CONTRACTS BEFORE
DIPLOMATIC/CONSULAR OFFICIALS
The solemnities established by Philippine laws
shall be observed with respect to contracts
executed before diplomatic or consular officials
of the Republic of the Philippines in a foreign
country [Art. 17(2), FC]
CIVIL LAW
unless there are cogent reasons for not

doing so.
(b) Implied
Based
on
the
contemporaneous and subsequent acts
of the parties; often upheld with
reference to the rule of validity of
contracts which presumes that the
parties contemplate to enter into a valid
contract
CONTRACTS ENTERED INTO BY LETTER/

CABLEGRAM, ETC.
A contract accepted by letter or cablegram is
presumed to have been entered into at the
place where the offer was made. (Art. 1319(2))
Art. 18, CC. In matters which are governed by

the Code of Commerce and special laws, their
deficiency shall be supplied by the provisions of
this Code.
THREE POSSIBLE LAWS
Exceptions to the article: Those where special

laws are made to apply suppletorily to the Civil
Code.
(1) Lex Loci Contractus Law of the place where

the contract is made
(a) Advantages
(i) Relative ease in establishing
(ii) Certainty and stability
(b) Disadvantage: Unjust results when
place of making is entirely incidental
e.g. Contract of transportation by common

carriers: In all matters not regulated by this
Code, the rights and obligations of common
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
act is done which is necessary to bring the
binding agreement into being so far as the
acts of the parties are concerned.
SPECIAL CONFLICT OF LAW

RULES
MARRIAGE
(2) Lex Loci Solutionis Law of the place of

performance governs
(a) Advantage Always connected to the
contract in a significant way
(b) Disadvantage Not helpful when the
contract is performed in 2 or more
states with conflicting laws
DEFINITION
Art. 1, FC. Marriage is a special contract of
permanent union between a man and a woman
entered into in accordance with law for the
establishment of conjugal and family life. It is
the foundation of the family and an inviolable
social institution whose nature, consequences,
and incidents are governed by law and not
subject to stipulation, except that marriage
settlements may fix the property relations
during the marriage within the limits provided
by this Code.
(3) Lex Loci Intentionis Law intended by the

parties
Basis: The contracting parties may establish
such stipulations, clauses, terms and
conditions as they may deem convenient,
provided they are not contrary to law,
morals, good customs, public order, or
public policy [Art. 1306, CC]
EXTRINSIC VALIDITY OF MARRIAGE

Formal Requisites of Marriage under
Philippine Law [Art. 3, FC] extraneous to
the parties
(1) Authority of the solemnizing officer
May be express or implied

(a) Express when the parties stipulate
that the contract be governed by a
specific law, such law will be recognized
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(2) Valid marriage license except in the cases

provided for in Chapter 2 of Title I
(marriages of exceptional character)
(3) A marriage ceremony which takes place
with the appearance of the contracting
parties before the solemnizing officer and
their personal declaration that they take
each other as husband and wife in the
presence of not less than two witnesses of
legal age.
CIVIL LAW
(a) Marriages between ascendants and

ascendants of any degree, whether
legitimate or illegitimate; and
(b) Marriages between brothers and sisters,
whether of the full or half-blood
(7) Void marriages for reasons of public policy
[Art. 38, FC]
(a) Marriages between collateral blood
relatives, whether legitimate or
illegitimate, up to the 4th civil degree
(b) Marriages between step-parents and
step-children.
(c) Marriages between the adopting parent
and adopted child
(d) Marriages between the surviving spouse
of the adopting parent and the adopted
child
(e) Marriages between the surviving spouse
of the adopted child and the adopter
(f) Marriages between an adopted child
and a legitimate child of the adopter
(g) Marriages between adopted children of
the same adopter
(h) Marriages between parties where one,
with the intention to marry the other,
killed that other person's spouse, or his
or her own spouse.
Determination of Extrinsic Validity

Art. 26, FC. All marriages solemnized outside
the Philippines in accordance with the laws in
force in the country where they were
solemnized, and valid there as such, shall also
be valid in this country. xxx
Art. 2, Hague Convention. Formal requirements
for marriage are governed by the law of the
state of celebration.
General rule: Lex Loci Celebrationis
Exceptions: The following marriages are void
even if valid in the country where celebrated
[Art. 26, FC]:
(1) Those contracted by any party below 18
years of age even with the consent of
parents or guardians [Art. 35(1), FC]
(2) Bigamous or polygamous marriages not
falling under Art. 41, FC [Art. 35 (4), FC]
(3) Those contracted thru mistake of one
contracting party as to the identity of the
other [Art. 35(5), FC]
(4) Those subsequent marriage without
recording in the civil registry the judgment of
annulment or declaration of nullity,
partition and distribution of properties and
the delivery of the childrens presumptive
legitimes [Art. 35(6), FC]
(5) A marriage contracted by any party who, at
the time of the celebration, was
psychologically incapacitated to comply with
the essential marital obligations of
marriage, even if such incapacity becomes
manifest only after solemnization [Art. 36,
FC]
(6) Incestuous marriages [Art. 37, FC]
These exceptions put into issue the capacity of

the parties to enter into the marriage and
therefore relate to the substantive requirement
for marriage and is governed by lex nationalii.
INTRINSIC VALIDITY OF MARRIAGE
Refers to capacity of a person to marry
Intrinsic validity is determined by the parties
personal law, which may be their domiciliary or
national law.
Laws relating to Family rights and duties,
Status, Condition or Legal capacity of persons
are binding on citizens of the Philippines, even
though living abroad [Art. 15, CC]
When either or both contracting parties are
citizens of a foreign country, it shall be
necessary for them to submit a certificate of
legal capacity to contract marriage, issued by
their respective diplomatic or consular officials,
before they can obtain a marriage license [Art.
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,

where acts executed against the provisions of
mandatory or prohibitory laws are void.
CIVIL LAW
Under Philippine law, personal relations

between the spouses include [Arts. 68, 70-71,
FC]:
(1) Mutual fidelity
(2) Respect
(3) Cohabitation
(4) Support
(5) Right of the wife to use the husbands
family name
Essential Requisites of Marriage under Philippine

Law [Art. 2, FC] concerns parties themselves
(1) Legal capacity of the contracting parties
who must be male and female
(2) Consent freely given in the presence of the
solemnizing officer
Property relations
(1) The Hague Convention declares that the
governing law on matrimonial property is:
(a) The internal law designated by the
spouses before the marriage
(b) In the absence thereof, the internal law
of the state in which the spouses fix
their habitual residence
(2) Rule under Philippine law (Art. 80, FC)
(a) In the absence of a contrary stipulation
in the marriage settlements, the
property relations of the spouses shall
be governed by Philippine laws,
regardless of the place of the
celebration of the marriage and their
residence.
The Hague Convention on Validity of Marriages

allows a contracting state to refuse recognition
of the marriage in the ff. cases:
(1) One of the parties did not freely Consent
(2) Spouses were Related, by blood or adoption
(3) One of the parties did not have the Mental
capacity to consent
(4) One of the spouses was already Married
(5) One of the parties has not attained the
Minimum age, nor acquired the necessary
dispensation
Rule on Proxy Marriages
Proxy marriages, where permitted by the law of
the place where the proxy participates in the
marriage ceremony, are entitled to recognition
in countries adhering to the lex loci celebrationis
rule, at least insofar as formal validity is
concerned.
Rule is inapplicable:
(i) If both spouses are aliens
(ii) With respect to the extrinsic validity
of the contracts affecting property
not situated in the Philippines and
executed in the country where the
property is located
(iii) With respect to the extrinsic validity
of contracts entered into in the
Philippines but affecting property
situated in a foreign country whose
laws require different formalities for
its extrinsic validity.
(3) Doctrine of Immutability of Matrimonial
Property Regime The change of nationality
on the part of the husband or wife does not
affect the original property regime except
when the law of the original nationality
itself changes the marital regime, hence,
the property regime has to change
accordingly.
Internal Philippine law, however, does not

sanction proxy marriages. Arts. 2 and 3 FC both
require that the contracting parties personally
appear before the solemnizing officer for the
marriage to be valid.
Consular Marriages
Marriages between Filipino citizens abroad may
be solemnized by a consul-general, consul or
vice consul of the Republic of the Philippines
(Art. 10, FC).
EFFECTS OF MARRIAGE
Personal relations between the spouses
Governed by the national law of the parties
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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CIVIL LAW
obtained abroad by the alien spouse of a

Filipino citizen before the FC became effective.
DIVORCE AND SEPARATION

RULE UNDER THE HAGUE CONVENTION
The granting of divorce or separation must
comply with the national law of the spouses and
lex fori (law of the place where the application
for divorce is made).
Paragraph 2 of Article 26 should be interpreted

to include cases involving parties who, at the
time of the celebration of the marriage were
Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and
obtains a divorce decree. The Filipino spouse
should likewise be allowed to remarry as if the
other party were a foreigner at the time of the
solemnization of the marriage. The reckoning
point is not the citizenship of the parties at the
time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained
abroad by the alien spouse capacitating the
latter to remarry. [Republic v. Orbecido (2005)]
DIVORCE DECREES OBTAINED BY FILIPINOS

General rule: Decrees of absolute divorce
obtained by Filipinos abroad have no validity
and are not recognized in Philippine
Jurisdiction.
Statutory bases:
(1) Laws relating to Family rights and duties, or
to the Status, Condition and Legal capacity
of persons are binding upon citizens of the
Philippines, even though living abroad [Art.
15, CC]
(2) Prohibitive laws concerning persons, their
acts or property, and those which have for
their object public order, public policy and
good customs, shall not be rendered
ineffective by laws or judgments, or by
determinations or conventions agreed upon
in a foreign country. [Art. 17(3), CC]
VALIDITY OF FOREIGN DIVORCE BETWEEN

FOREIGNERS
A foreign divorce will be recognized in all
contracting states if, at the date of the
institution of the proceedings:
(1) Either spouse had his habitual residence
there;
(2) Both spouses were nationals of that state;
or
(3) If only the petitioner was a national, he
should have his habitual residence there
(Hague Convention on the Recognition of
Divorce and Legal Separation)
Exception:
Art. 26(2), FC. Where a marriage between a
Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under
Philippine law
While there is no provision of law requiring

Philippine courts to recognize a foreign divorce
decree between non-Filipinos such will be
recognized under the principle of international
comity, provided that it does not violate a
strongly held policy of the Philippines. The
divorce decree obtained by a foreign citizen may
be given recognition in Philippine jurisdiction
upon proof of existenceof the divorce decree
and the foreign law governing the divorce.
[Garcia v. Recio (2001)]
Owing to the Nationality Principle, only

Philippine nationals are covered by the policy
against absolute divorces, the same being
considered contrary to our concept of public
policy and morality. However, aliens may obtain
divorces abroad, provided they are valid
according to their national law. And the
marriage tie, when thus severed as to one party,
ceases to bind the other (allowing the Filipino to
remarry). [Van Dorn v. Romillo, Jr. (1985)]
ANNULMENT AND DECLARATION OF

NULLITY
JURISDICTION TO ANNUL
(1) Lex loci celebrationis; or
(2) Place of matrimonial domicile
Note: The Van Dorn case was decided prior to

the effectivity of the FC. It can thus serve as a
basis for the recognition of divorce decree
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GOVERNING LAW
(1) Lex loci celebrationis determines the
consequences of any defect as to form
(2) In general, the same applies with reference
to substantive or intrinsic validity. But with
regard to capacity of the parties to marry,
national law is determinative.
CIVIL LAW
The conduct of a woman of adult age,

maintaining intimate sexual relations with
appellant, with repeated acts of intercourse is
incompatible with the idea of seduction.
[Tanjanco v. Court of Appeals (1966)]
PRINCIPLE
ENRICHMENT
Human Relations
OF
UNJUST
Art. 22, CC. Every person who through an act of

performance by another, or any other means,
acquires or comes into possession of something
at the expense of the latter without just or legal
ground, shall return the same to him.
ABUSE OF RIGHT
Art. 19, CC. Every person must, in the exercise of
his rights and in the performance of his duties,
act with justice, give everyone his due, and
observe honesty and good faith.
Art. 22
(Accion in Rem Verso)
Art. 2154
(Solutio Indebiti)
Not necessarily a Payment should be

mistake in payment
made by mistake
Persons and Personality
Art. 20, CC. Every person who, contrary to law,

wilfully or negligently causes damage to
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
to morals, good customs or public policy shall
compensate the latter for the damage.
Art. 37, CC. Juridical capacity, which is the fitness

to be the subject of legal relations, is inherent in
every natural person and is lost only through
death. Capacity to act, which is the power to do
acts with legal effect, is acquired and may be
lost.
Mere breach of promise to marry is not an

actionable wrong. But to formally set a wedding
and go through all the above-described
preparation and publicity, only to walk out of it
when the matrimony is about to be solemnized,
is quite different. This is palpably and
unjustifiably contrary to good customs for which
defendant must be held answerable in
damages in accordance with Article 21
aforesaid. [Wassmer v. Velez (1964)]
Juridical Capacity
Fitness of man to be the
subject of legal relations
Passive
Aptitude for the Holding
and Enjoyment of rights
Inherent in natural persons
Lost upon death
Article 21 may also be applied in a breach of

promise to marry where the woman is a victim
of moral seduction. Award of damages pursuant
to Article 21 is justified not because of such
promise to marry but because of the fraud and
deceit behind it and the willful injury to her
honor and reputation which followed thereafter.
[Baksh vs. Court of Appeals (1993)]
Can exist without capacity

to act
Cannot be limited or
restricted
Capacity to Act
Power to do acts with
legal effect
Active
Aptitude for the
Exercise of rights
Must be acquired
Lost through death
and other causes
Must
exist
with
juridical capacity
May be restricted or
limited
Juridical capacity can exist even without capacity

to act; the existence of the latter implies that of
the former.
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CIVIL LAW
BIRTH
DEATH
Art. 40, CC. Birth determines personality; but the

conceived child shall be considered born for all
purposes favorable to it, provided that it be born
later with the conditions specified in the
following article.
Art. 42, CC. Civil personality is extinguished by

death. The effect of death upon the rights and
obligations of the deceased is determined by
law, by contract and by will.
Criminal liability ends with death but civil
liability may be charged against the estate
[People v. Tirol, (1981)].
Art. 41, CC. For civil purposes, the fetus is

considered born if it is alive at the time it is
completely delivered from the mothers womb.
However, if the fetus had an intra-uterine life of
less than seven months, it is not deemed born if
it dies within twenty-four hours after its
complete delivery from the maternal womb.
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
alleges the death of one prior to the other, shall
prove the same; in the absence of proof, it is
presumed that they died at the same time and
there shall be no transmission of rights from
one to the other.
Birth complete removal of the fetus from the

mothers womb; before birth, a fetus is merely
part of the mothers internal organs.
Proof that the fetus was alive upon separation is
complete respiration test/sign of independent
life
Intra-Uterine Life
7 months or more
Less than 7 months
Article 43 provides a statutory presumption

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

Alive upon delivery
Alive
only
after
completion of 24
hours from delivery
The statutory presumption of Article 43 was not

applied due to the presence of a credible
eyewitness as to who died first. [Joaquin v.
Navarro, (1948)]
PERSONALITY OF CONCEIVED CHILD

(1) Limited only for purposes favorable to it.
(2) Conditional it depends upon the child
being born alive later.
COMPARE ART. 43 WITH RULE 131, SEC. 3

(JJ), PRESUMPTION OF SURVIVORSHIP
Art. 43
Rule 131, Sec. 3 (jj)
Only use the presumptions when there are no
facts to get inferences from
Only
use
for Cannot be used for
succession purposes
succession purposes
Only during death in
In any circumstance
calamities,
wreck,
battle or conflagration
Period of conception the first 120 days of the

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

RULES OF COURT [RULE 131, SEC. 3, (JJ),
RULES OF COURT]
MINORITY
RA 6809 (1989) An act lowering the age of
majority from twenty-one to eighteen years.
Age
Both under 15
Both above 60
One under 15, the
other above 60
Both over 15 and
under 60; different
sexes
Both over 15 and
under 60; same sex
One under 15 or over
60, the other between
those ages
Effects on Contracts
(1) They cannot give consent to a contract [Art.
1327 (1), CC]
(2) A contract where one of the parties is a
minor is voidable [Art. 1390(1), CC]
(3) A contract is unenforceable when both of
the parties are minors (incapable of giving
consent) [Art. 1403(3), CC]
(4) Minority cannot be asserted by the other
party in an action for annulment [Art. 1397,
CC]
(5) Not obliged to make restitution except
insofar as he has been benefited [Art. 1399,
CC]
(6) Minor has no right to demand the
thing/price voluntarily returned by him [Art.
1426, CC]
(7) Minor has no right to recover voluntarily
paid sum or delivered thing, if consumed in
good faith [Art. 1427, CC]
(8) Must pay reasonable amount for
necessaries delivered to him [Art. 1489, CC]
Presumed Survivor
Older
Younger
One under 15
Male
Older
One between 15 and
60
RESTRICTIONS ON CAPACITY TO ACT

Art. 38, CC. Minority, insanity or imbecility, the
state of being a deaf-mute, prodigality and civil
interdiction are mere restrictions on capacity to
act, and do not exempt the incapacitated
person from certain obligations, as when the
latter arise from his acts or from property
relations, such as easements.
Estoppel
works
against
minors
who
misrepresent their ages in a contract and are
compelled to comply with its terms. (active
misrepresentation done by minors). [Mercado v.
Espiritu, (1918)]
Art. 39, CC. The following circumstances, among

others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deafmute, penalty, prodigality, family relations,
alienage, absence, insolvency and trusteeship.
The consequences of these circumstances are
governed in this Code, other codes, the Rules of
Court, and in special laws.
When
a
minor
made
no
active
misrepresentation as to his minority and such
minority is known to the other party, the
contract is voidable [Art. 1403, CC] as to the
minor. [Bambalan v. Maramba, (1928)]
Capacity to act is not limited on account of

religious belief or political opinion.
Minors are obliged to make restitution insofar as

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
acts or property relations.
Marriages, where one of the parties is below 18,

even with the consent of parents/guardians, are
void [Art. 35, FC].
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CIVIL LAW
Effect on Crimes
General rule: Exempted from criminal liability.
or otherwise communicated to him by 2 persons

[Art. 807, CC]
Exception: Acted with discernment, and the

minor is between 15 and 18 years of age.
Cannot be a witness to the execution of a will

[Art. 820, CC]
INSANITY
Insanity includes many forms of mental disease,
either inherited or acquired. A person may not
be insane but only mentally deficient (idiocy,
imbecility, feeble-mindedness).
PRODIGALITY
A spendthrift or a prodigal is a person, who, by
excessive drinking, gambling, idleness or
debauchery of any kind shall so spend, waste or
lessen his estate as to expose himself or his
family to want or suffering. The acts of
prodigality must show a morbid state of mind.
[Martinez v. Martinez, (1902)]
Effect on Contracts
(1) Incapacity to give consent to a contract [Art.
1327(2), CC]
(2) Contracts entered into during lucid intervals
are valid [Art. 1328, CC]
(3) Restitution of benefits [Art. 1399, CC]
(4) Voidable if one of the parties is insane [Art.
1390, CC]
(5) Unenforceable if both of the parties are
insane [Art. 1403 (3), CC]
It is not the circumstance of prodigality, but the

fact of being under guardianship that restricts
capacity to act.
CIVIL INTERDICTION
Civil interdiction It is an accessory penalty
imposed upon persons who are sentenced to a
principal penalty not lower than reclusion
temporal [Art. 41, RPC].
Offender is deprived of rights of parental
authority, or guardianship, of marital authority,
of the right to manage his property and of the
right to dispose of such by any act inter vivos
[Art. 34, RPC]
Effect on Crimes
General rule: Exempted from criminal liability
Exception: Acted during lucid interval
Effect on Marriage
May be annulled if either party was of unsound
mind unless the such party after coming to
reason, freely cohabited with the other [Art.
45(2), FC]
For the validity of marriage settlements, the

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
the others insanity, or by any relative/guardian
of the insane before the death of either party; or
by the insane spouse during a lucid interval or
after regaining sanity [Art. 47(2), FC]
FAMILY RELATIONS
Justifying circumstance if acted in defense of
person/rights
of
spouse,
ascendants,
descendants, brothers/sisters, and other
relatives up to the 4th civil degree [Art. 11(2),
RPC]
STATE OF BEING DEAF-MUTE

Cannot give consent to a contract if he/she also
does not know how to write [Art. 1327(2), CC]
Voidable if one of the parties is deaf-mute and
does not know how to write
Unenforceable if both of the parties are deafmutes and does not know how to write
Mitigating circumstance if acted in the

immediate vindication of a grave offense/felony
committed against his spouse, ascendants or
relatives of the same civil degree [Art. 13(5),
RPC]
Incestuous and void marriages:
(1) Between ascendants and descendants of
any degree;
Can make a valid will, provided: he must

personally read the will. The contents of the
same have either been read personally by him
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(2) Between brothers and sisters, whether full

or half-blood. [Art. 37, FC]
CIVIL LAW
(3) A person who has been in danger of death

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
VOID, except moderate gifts during family
occasions [Art. 87, FC]
Art. 41, FC. A marriage contracted by any person

during subsistence of a previous marriage shall
be null and void, unless before the celebration
of the subsequent marriage, the prior spouse
had been absent for four consecutive years and
the spouse present has a well-founded belief
that the absent spouse was already dead. In
case of disappearance where there is danger of
death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
Prescription does not run between spouses,

parent and child, guardian and ward (Art. 1109)
General rule: Descendants cannot be compelled
to testify in a criminal case, against his parents
and grandparents
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
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.
Spouses cannot sell property to each other,

except:
(1) Absolute separation is agreed upon in the
marriage settlements
(2) Judicial separation of property [Art. 1490,
CC]
Art. 42, FC. The subsequent marriage referred to

in the preceding Article shall be automatically
terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there
is a judgment annulling the previous marriage
or declaring it void ab initio.
ABSENCE
Art. 390, CC. After an absence of seven years, it
being unknown whether or not the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
A sworn statement of the fact and

circumstances of reappearance shall be
recorded in the civil registry of the residence of
the parties to the subsequent marriage at the
instance of any interested person, with due
notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed.
The absentee shall not be presumed dead for

the purpose of opening his succession till after
an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of five
years shall be sufficient in order that his
succession may be opened.
Art 391, CC. The following shall be presumed
dead for all purposes, including the division of
the estate among the heirs:
DOMICILE AND RESIDENCE OF

PERSON
(1) A person on board a vessel lost during a sea

voyage, or an aeroplane which is missing,
who has not been heard of for four years
since the loss of the vessel or aeroplane;
FOR NATURAL PERSONS
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
years;
FOR JURIDICAL PERSONS
The place where their legal representation is

established, or where they exercise their primary
PAGE 14
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functions, unless there is a law or other provision

that fixes the domicile [Art. 51, CC]
CIVIL LAW
subject to stipulation, except that marriage

settlements may fix the property relations
during the marriage within the limits provided
by this Code.
DOMICILE VS. RESIDENCE
While domicile is permanent (there is intent to

remain), residence is temporary and may be
changed anytime (there is no necessary intent
to remain).
Marriage is a special contract of permanent

union between a man and a woman entered
into in accordance with law for the
establishment of conjugal and family life.
It is the foundation of the family and an
inviolable social institution
Its nature, consequences, and incidents are
governed by law and not subject to stipulation
However, marriage settlements may fix the
property relations during the marriage within
the limits provided by the FC.
Requisites of domicile:
(1) Physical presence in a fixed place
(2) Intent to remain permanently (animus
manendi) [Callejo v. Vera]
KINDS OF DOMICILE
(1) Domicile of Origin Domicile of parents of

a person at the time he was born.
(2) Domicile of Choice Domicile chosen by a
person, changing his domicile of origin.
KINDS OF REQUISITES
(1) Essential Requisites [Art. 2, FC]

(a) Legal Capacity of the contracting
parties, who must be a male and a
female
(b) Consent (of the parties) freely given in
the presence of a solemnizing officer.
(2) Formal Requisites [Art. 3, FC]
(a) Authority of solemnizing officer
(b) A valid marriage license
Except:
(i) Marriages in articulo mortis or when
one or both parties are at the point
of death,
(ii) Marriage in isolated places with no
available means of transportation,
(iii) Marriage among Muslims or other
ethnic cultural communities,
(iv) Marriages of those who have lived
together as husband and wife
without any legal impediment for at
least 5 years
(c) Marriage Ceremony:
(i) Appearance of contracting parties
in the presence of a solemnizing
officer
(ii) Personal declaration that they take
each other as husband and wife in
the presence of not less than 2
witnesses
A 3rd requisite is necessary: intention not to

return to ones domicile as his permanent
place.
(3) Domicile by Operation of Law (i.e., Article
69, domicile of minor)
A married woman does not lose her
domicile to her husband. [RomualdezMarcos vs. Comelec (1995)]
Family Code
The Family Code took effect on August 3, 1988.
Marriage
REQUISITES
NATURE OF MARRIAGE
Art. 1, FC. Marriage is a special contract of
permanent union between a man and a woman
entered into in accordance with law for the
establishment of conjugal and family life. It is
the foundation of the family and an inviolable
social institution whose nature, consequences,
and incidents are governed by law and not
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Fraud here refers to matters which relate to the

marital relation:
Non-disclosure of previous conviction by final
judgment of a crime involving moral
turpitude;
Concealment of pregnancy by another man;
Concealment of a sexually transmitted
disease;
Concealment of drug addiction, alcoholism,
lesbianism, or homosexuality
EFFECT OF ABSENCE OF REQUISITES

Absence
Void
CIVIL LAW
Defect or Irregularity
Voidable
ESSENTIAL REQUISITES
AGE
Legal Capacity Male or female 18 years old
and above, not under any of the impediments
mentioned in Art. 37 (incestuous marriages) &
Art. 38 (marriages against public policy), may
contract marriage. [Art. 5, FC]
CEREMONY
No prescribed form or religious rite for the
solemnization of marriage is required. [Art. 6,
FC]
MUST BE MALE AND FEMALE

Changing of sex in ones birth certificate on the
basis of sex reassignment was denied;
otherwise, it would result in confusion and
would allow marriage between persons of the
same sex which is in defiance of the law, as
marriage is a union between a man and a
woman. [Silverio v. Republic, (2007)]
The couple's written agreement where they

declare themselves as husband and wife, signed
by them before a judge and two capable
witnesses, even though it was independently
made by them, still counts as a valid ceremony.
[Martinez v. Tan, (1909)]
Minimum requirements prescribed by law:
(1) Appearance
of
contracting
parties
personally before the solemnizing officer
[Art. 3, FC]
(2) Personal declaration that they take each
other as husband and wife. [Art. 3, FC]
(3) Presence of at least two witnesses of legal
age. [Art. 3, FC]
(4) The declaration shall be contained in the
Marriage Certificate. [Art. 6, FC]
(5) Marriage certificate shall be signed by the
contracting parties and their witnesses and
attested by the solemnizing officer. [Art. 6,
FC]
Note: The best source for citing the requirement

of male/female is still statutory, as provided
explicitly in the Family Code.
CONSENT FREELY GIVEN
Consent here refers to the consent of the
contracting parties; not of the parent/guardian
in those cases where such consent is required
(when either party is between 18 to 21 years of
age).
Absence
A marriage entered into by a person whose real
intent is to avoid prosecution for rape is void for
total lack of consent. The accused did not
intend to be married. He merely used such
marriage to escape criminal liability. [People v.
Santiago, (1927)]
In a marriage in articulo mortis, when one or

both parties are unable to sign the marriage
certificate, it shall be sufficient for one of the
witnesses to write the name of said party, which
shall be attested by the solemnizing officer. [Art.
6, par. 2, FC]
Defect
Art. 45, FC. A marriage may be annulled for any
of the following causes existing at the time of
the marriage: xxx (3) that the consent of either
party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts
constituting the fraud, freely cohabited with the
other as husband and wife.
Places where marriage SHALL be publicly

solemnized:
(1) Chambers of the judge or in open court
(2) Church, chapel, or temple
(3) Office of the consul-general, consul, or viceconsul [Art. 8, FC]
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CIVIL LAW
Exceptions:
(1) Marriages performed in articulo mortis or in
remote places. [Art. 29, FC]
(2) Where both parties request in writing that
marriage be solemnized at a place
designated by them.
marriages unless either or both parties

believed in good faith that the solemnizing
officer had legal authority to do so. [Art. 35
(2)]
(2) Absence & Irregularity of Authority of a
solemnizing officer
Non-compliance with this requirement does not

invalidate the marriage (premise: more
witnesses = more people can notify officer of
impediments to marriage).
Where a judge solemnizes a marriage outside

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

(1) Incumbent member of the Judiciary within
his jurisdiction. [Art. 7, FC]
(2) Priest, Rabbi, Imam or Minister of any
Church or Religious Sect. Must be:
(a) Duly authorized by his church or
religious sect
(b) Registered with the civil registrar
general
(c) Acting within the limits of the written
authority granted to him by his church
or religious sect.
(d) At least one of the contracting parties
belongs to the solemnizing officers
church or religious sect. [Art. 7, FC]
Absence
Authority by church/sect
Registered w/ civil registrar
Acting w/in written authority
Either party belong to that
church/sect
A marriage which preceded the issuance of the

marriage license is void and the subsequent
issuance of such license cannot render valid the
marriage. Except in cases provided by law, it is
the marriage license that gives the solemnizing
officer the authority to solemnize a marriage.
[Aranes v. Occiano (2002)].
LICENSE REQUIRED
General rule
License required
Issued by local registrar of city or municipality
where either contracting party habitually resides
[Art. 9, FC]
Effect
VOID
VOID
IRREGULARITY
Each contracting party should file separately.

[Art. 11, FC]
IRREGULARITY
License valid in any part of the Philippines for

120 days from date of issue, automatically
cancelled at the expiration of such period. [Art.
20, FC]
(3) Ship Captain or Airplane Chief may

solemnize a marriage in articulo mortis
between passengers or crew members [Art.
7, 31, FC]
(4) A Military commander of a unit may
solemnize marriages in articulo mortis
between persons w/in the zone of military
operation. [Art. 7, 32, FC]
(5) Consul-general, consul or vice-consul may
solemnize marriages between Filipino
citizens abroad. [Art. 7, 10, FC]
(6) Municipal and City Mayors [LGC sec. 444455]
Foreign National
When either or both parties are foreign
nationals: Certificate of legal capacity to contract
marriage, issued by a diplomatic or consular
official, shall be submitted before a marriage
license can be obtained [Art. 21, FC]
Stateless persons or refugees from other
countries: affidavit stating circumstances
showing capacity to contract marriage, instead
of certificate of legal capacity [Art. 21, FC]
Exceptions [Art. 35, FC]:

(1) Marriage is void when solemnized by any
person not legally authorized to perform
PAGE 17
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CIVIL LAW
its inexistence, rendering the marriage VOID.

[Republic v. CA and Castro (1994)]
Exceptions
(1) Marriage in Articulo mortis [Art. 27, FC]
The marriage may be solemnized without
the necessity of a marriage license.
It remains valid even if ailing party
survives.
(2) Between passengers or crew members in a
ship or airplane [Art. 31, FC]
(3) Persons within a military zone [Art. 32, FC]
(4) Marriage in Remote and inaccessible places
[Art. 28, FC]
(5) Marriages by Muslims and Ethnic cultural
minorities provided they are solemnized in
accordance with their customs, rites or
practices. [Art. 33, FC]
(6) Marriage by parties who have Cohabited for
at least 5 years without any legal
impediment to marry each other. [Art. 34,
FC; Ninal vs. Badayog (2000)]
Before a marriage can be solemnized, a valid

marriage license must be presented first,
otherwise, it is VOID. [Moreno v. Bernabe (1995)]
Non-existence of a marriage contract does not
invalidate the marriage as long as all the
requisites for its validity are properly complied
with. [People v. Borromeo (1984)]
Marriage Certificate Where parties declare that
they take each other as husband and wife;
contains the following:
(1) Full name, sex, age of party
(2) Citizenship, religion, habitual residence
(3) Date and precise time of celebration of
marriage
(4) That marriage license was properly issued
(except in marriages of exceptional
character)
(5) That parental consent was secured, when
required
(6) That requirement as to parental advice was
complied with, when required
(7) That parties have entered into marriage
settlements, if any (Art. 22)
Requisites for the 5-year cohabitation to be valid

for the exemption from acquiring a marriage
license:
(1) The man and woman must have been living
together as husband and wife for at least
five years before the marriage;
(2) The parties must have no legal impediment
to marry each other;
(3) The fact of absence of legal impediment
between the parties must be present at the
time of marriage;
(4) The parties must execute an affidavit
stating that they have lived together for at
least five years [and are without legal
impediment to marry each other]; and
(5) The solemnizing officer must execute a
sworn statement that he had ascertained
the qualifications of the parties and that he
had found no legal impediment to their
marriage. [Borja-Manzano v. Judge Sanchez
(2001)]
Not an essential or formal requisite without

which the marriage will be void [Madridejo v. de
Leon (1930)]
Best evidence that a marriage does exist.
[Tenebro v. CA (2004)]
EFFECT
OF
MARRIAGES
CELEBRATED ABROAD AND
FOREIGN DIVORCE
MARRIAGES CELEBRATED ABROAD
General rule: Marriages solemnized abroad in

accordance with the laws in force in that country
shall be valid in the Philippines. [Art 26, FC]
MARRIAGE CERTIFICATE
Absence and irregularity of marriage license
and contract
There is a presumption of regularity of official
acts, and the issuance of the Civil Registrar of a
Certificate of Due Search and Inability to Find
the application for a marriage license certifies
Exceptions:
(1) Marriage between persons below 18 years
old [Art. 35(1), FC]
(2) Bigamous or polygamous marriage [Art.
35(4), FC]
(3) Mistake in identity [Art. 35 (5), FC]
PAGE 18
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(4) Marriages void under Article 53 [Art. 35 (6),

FC]
(5) Psychological incapacity [Art. 36, FC]
(6) Incestuous marriages [Art. 37, FC]
(7) Marriage void for reasons of public policy
[Art. 38, FC]
Essential requisites
Inherent in the parties,
carried everywhere
Lex nationalii Laws
relating to family rights
and duties, or to the
status, condition, and
legal capacity of persons
are binding upon Phil
citizens even though living
abroad [Art. 15, CC]
Foreign marriages void
under Phil law due to lack
of an essential requisite,
even if valid under foreign
laws,
will
not
be
recognized.
CIVIL LAW
Citizenship at the time the divorce is obtained

determines its validity. Since H was no longer a
Filipino citizen when he divorced W, the
nationality principle did not apply to him
anymore and the divorce is valid. [Llorente v. CA
(2000)]
A divorce decree obtained by the foreign spouse
is recognized under Phil law if it is executed in
accordance with the foreigners national law.
The party must prove divorce as a fact and that
said divorce is obtained in conformity with the
law allowing it, before the Philippine courts can
take judicial notice. [Garcia v. Recio (2001)]
Formal requisites
Requirements
independent of the
parties
Lex loci celebrationis if
valid where celebrated,
then valid everywhere;
forms of contracting
marriage are to be
regulated by the law
where it is celebrated.
[Art. 26, FC]
VOID
AND
MARRIAGES
VOIDABLE
PRESUMPTION OF MARRIAGE
Foreign marriages may

be void under Phil law
due to absence of a
formal requisite under
foreign laws.
Presumption in favor of a valid marriage [Art

220, CC]
The presumption that a man and a woman
deporting themselves as husband and wife
have entered into a lawful contract of
marriage is satisfactory if uncontradicted.
[Sec. 3 (aa), Rule 131, ROC]
In marriages of exceptional character, the
existence of the marriage is presumed, even in
the total absence of a marriage license. [Vda.
De Jacob v CA (1999)]
If a marriage certificate is missing, and all
means have not yet been exhausted to find it,
then the marriage is presumed to exist [Sevilla
v. Cardenas (2006)]
PROOF OF FOREIGN MARRIAGE
In order that it may be upheld:

(1) Provisions of the foreign law
(2) Celebration of the marriage in accordance
with said provisions
FOREIGN DIVORCES
Those obtained by Filipino citizens are void

under Philippine law.
If the foreign spouse obtains a valid divorce
decree abroad capacitating him/her to remarry,
the Filipino spouse shall have capacity to
remarry under Philippine law. [Art. 26, FC]
Absence of a marriage certificate is not proof of

absence of marriage.
To prove the fact of marriage, the following
would constitute competent evidence:
(1) The testimony of witnesses to matrimony;
(2) Documentary photos or videos of the
wedding;
(3) The couples public cohabitation; and
(4) Birth and baptismal certificates of children
born during the union. [Trinidad v CA (1998)]
A divorce obtained by the foreign spouse in

accordance with the said spouses national law
is recognized in the Philippines and releases
Filipino spouse from their marriage. [Van Dorn v.
Romillo (1985)]
The citizenship of the spouses at the time of the
divorce determines their capacity to obtain a
valid divorce. [Quita v. Dandan (1998)]
PAGE 19
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CIVIL LAW
Molina Guidelines:
(1) The burden of proof to show the nullity of
the marriage belongs to the plaintiff. This is
to be investigated by the OSG for collusion.
(2) The root cause of the psychological
incapacity must be: (a) medically or clinically
identified, (b) alleged in the complaint, (c)
sufficiently proven by the experts, (d) clearly
explained in the decision.
(3) The incapacity must be proven to be existing
at the time of the celebration of the
marriage.
(4) Such incapacity must also be shown to be
medically or clinically permanent or
incurable.
(5) Such illness must be grave enough to bring
about the disability of the party to assume
the essential obligations of marriage.
(6) The essential marital obligations must be
those embraced by Articles 68 up to 71 of
the Family Code as regards the husband
and wife as well as Articles 220, 221, and
225 of the same Code in regard to parents
and their children.
(7) Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not
controlling/decisive, should be given great
respect by our courts.
(8) The trial court must order the prosecuting
attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision
shall be handed down unless the Solicitor
General issues a certification. [Republic v.
Molina, (1997)]
VOID MARRIAGES
TYPES OF VOID MARRIAGES
(1) Absence of any formal/essential requisites
(2) Psychologically Incapacitated spouse
(3) Incestuous Marriages
(4) Marriages contrary to public policy
(5) Void subsequent marriages
Absence of requisites
Art. 4(1), FC. The absence of any essential or
formal requisites shall render the marriage void
ab initio, except as stated in Article 35 (a).
Art. 5, FC: Any male or female of the age of
eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38,
may contract marriage.
Void from the Beginning [Art. 35, FC]
(1) Marriage where any party is below eighteen
years of age even with the consent of
parents or guardians
(2) Marriage solemnized by any person not
legally authorized to perform marriages
unless such marriages were contracted with
either or both parties believing in good faith
that the solemnizing officer had legal
authority to do so.
Ones belief in good faith that the
solemnizing officer has the required
authority is a mistake of fact, and not of law.
(3) Marriage solemnized without a valid
marriage license, except in marriages under
exceptional circumstances
(4) Bigamous or polygamous marriages not
falling under Article 41 (Art. 41: subsequent
marriage by present spouse who obtained a
declaration of presumptive death for absent
spouse prior to the subsequent marriage)
(5) There is a mistake as to the identity of the
other contracting party
(6) Subsequent marriages that are void under
Article 53 (Non-compliance with Art. 52)
3 characteristics for determining psychological

incapacity: gravity, antecedent, and incurability.
[Santos v. Bedia-Santos, (1995)]
Refusal of husband to have sex was interpreted
as psychological incapacity. A man who can
but wont is psychologically incapacitated. [Tsoi
v. CA, (1997)]
Psychological incapacity maybe established by
the totality of the evidence presented. Personal
medical examination could be dispensed with.
[Marcos v. Marcos (2000)]
Psychological incapacity
Contracted by any party who, at the time of the
celebration, was psychologically incapacitated
to comply with the essential marital obligations
of marriage, even if such incapacity becomes
manifest only after its solemnization [Art. 36, FC]
PAGE 20
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There is no requirement that the respondent be

medically examined first. [Republic v. San Jose
(2007)]
CIVIL LAW
Void subsequent marriages

No Judicial Declaration of Nullity
A person entered into a subsequent marriage
without first getting a judicial declaration of
nullity of the first void marriage [Art. 40, FC]
Pathological liar considered as psychological

incapacity, Molina guidelines met. [Antonio v.
Reyes, (2006)]
Presumptive Death
Failure of the spouse present to obtain a judicial
declaration of presumptive death before
entering a subsequent marriage [Art. 41, FC]
Incestuous marriages
(1) Between ascendants and descendants of
any degree, legitimate or illegitimate
(2) Between brothers and sisters, whether full or
half blood, legitimate or illegitimate [Art. 37,
FC]
Bad Faith of Both Spouses

Both spouses entering a subsequent marriage
after presumptive death, who acted in bad faith
[Art. 44, FC]
Against public policy

(1) Between
collateral
blood
relatives,
legitimate or illegitimate, up to the fourth
civil degree.
(2) Between step-parents and step-children.
(3) Between parents-in-law and children-inlaw.
(4) Between adopting parent and adopted child.
(5) Between the surviving spouse of the
adopting parent and the adopted child.
(6) Between the surviving spouse of the adopted
child and the adopter.
(7) Between an adopted child and a legitimate
child of the adopter.
(8) Between adopted children of the same
adopter.
(9) Between parties where one, with the
intention to marry the other, killed that other
person's spouse, or his or her own spouse.
[Art. 38, FC]
Non-Recording
Subsequent marriage of spouses, where the
requirements of recording under Art. 52 have
not have been complied with, shall be null and
void. [Art. 53, FC]
Art. 52, FC. The judgment of annulment or of
absolute nullity of the marriage, the partition
and distribution of the properties of the spouses
and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate
civil registry and registries of property;
otherwise, the same shall not affect third
persons.
Previous marriage declared void ab initio or
annulled
Art. 40, FC. The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgment declaring such previous marriage
void.
Stepbrothers and stepsisters can marry because

marriages between them are not among those
enumerated in Article 38.
Relationships outside of Art. 37 and 38 which
are not impediments to marriage: brother-inlaw with sister-in-law, stepbrother with
stepsister, guardian with ward, adopted with
illegitimate child of the adopter, adopted son of
the husband with adopted daughter of the wife,
parties who have been convicted of adultery.
In order to have a subsequent marriage:

(1) The previous marriage should be judicially
declared void or annulled (final judgment)
[Terre v. Terre (1992), Atienza v. Brillantes
(1995)]
(2) Must comply with the requirements of Art.
52
Under the Civil Code (superseded by the Family
Code), there was no need for a judicial
declaration of nullity of a previous marriage for
PAGE 21
UP LAW BOC
a subsequent marriage to be valid [People v.

Mendoza (1954)]
CIVIL LAW
(b) There is danger of death under the

circumstances set forth in Art. 391 CC
attendant to the disappearance;
(c) The spouse present had a well-founded
belief that the missing person is dead;
and
(d) Judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the absent
spouse).
Even if the judges first marriage contracted in

1965 was void for not having a marriage license,
the requirement for a judicial declaration of
nullity in Art. 40 still applies for his subsequent
marriage contracted in 1991. [Atienza v.
Brillantes, (1995)]
Where both marriages were contracted prior to
the effectivity of the FC, the requirement of Art.
40 does not apply to the second marriage
where a right is already vested and on which the
FC cannot have retroactive effect. [Apiag v.
Cantero, (1997)]
Extraordinary circumstances [Art. 391, CC]:

(1) On board vessel lost at sea voyage, airplane,
(2) Armed Forces in war, or
(3) Danger of death under other circumstances,
existence not known
The judicial declaration of nullity can be invoked

for purposes other than remarriage. Article 40
was interpreted as being a requirement for
purposes of remarriage but not limited for that
purpose. Separation of property is also a valid
purpose for filing for a judicial declaration of
nullity. [Domingo v. CA, (1993)]
Institution of a summary proceeding is not

sufficient. There must also be a summary
judgment. [Balane]
Only the spouse present can file or institute a
summary proceeding for the declaration of
presumptive death of the absentee. [Bienvenido
case]
The word solely in Art. 40 referred to

validating subsequent marriages but NOT to
limiting the purposes for which a judicial
declaration of nullity can be invoked. [Domingo
v. CA, (1993)]
There must have been diligent efforts on the

part of the deserted spouse to locate the absent
spouse. These diligent efforts correspond to the
requirement of the law for a well-founded
belief.
Subsequent Marriage when one spouse is

absent
Effect of Reappearance of Absent Spouse

General rule: The subsequent marriage remains
valid.
Requirements for Subsequent Marriage to be

Valid When Prior Spouse is Absent: [Art. 41, FC]
(1) Subsequent marriage due to ordinary
absence where:
(a) Absent spouse had been absent for 4
consecutive years;
(b) The spouse present had a well-founded
belief that absent spouse is dead; and
(c) Judicial declaration of presumptive
spouse).
(2) Subsequent marriage due to extraordinary
absence where:
(a) Absent spouse had been missing for 2
consecutive years;
Exception: It is automatically terminated by the

recording of the affidavit of reappearance of the
absent spouse at the instance of any interested
person, with due notice to the spouses of the
subsequent marriage. [Art. 42, FC]
It is the recording of the affidavit of
reappearance that automatically terminates the
subsequent marriage. Hence, if absentee
spouse reappears without recording affidavit of
reappearance, then there is no legal effect.
Meanwhile, absentee spouse cannot remarry.
[Tolentino]
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Exception to the exception: If there is a

judgment annulling the previous marriage or
declaring it void ab initio. [Art. 42, FC]
Art. 390, CC. After an absence of 7 years, it

Good Faith
Period of absence for Presumptive Death is
mandatory thus cannot be shortened by good
faith and if be done so will be void.

an absence of 10 years. If he disappeared after
the age of 75 years, an absence of 5 years shall
be sufficient in order that his succession may be
opened.
Difference between Absence in the Civil Code

and Family Code
Family Code
Art. 391, CC. The following shall be presumed

Civil Code
As to period
4 years under normal Absent for at least 7

circumstances
years
2
years
under 4
years
extraordinary
extraordinary
circumstances
circumstances
CIVIL LAW

under

years;
As to remarriage
In order to remarry, Declaration
of
summary proceeding presumptive death is not
is necessary
necessary

under other circumstances and his
existence has not been known for four years.
As to who can institute the action
Although 7 years is required for the presumption

of death of an absentee in the CC, the FC makes
an exception for the purpose of remarriage by
limiting such requirement to 4 years.
Can be instituted by
the spouse present,
any interested party, The spouses themselves
and the subsequent
spouse
Effects of Termination of Bigamous Marriage

under Art. 42 [Art. 43, FC; Art. 44, FC]
Art. 43:
(1) Children of subsequent marriage
conceived prior to its termination considered
legitimate; custody and support decided by
court in a proper proceeding
(2) Property regime dissolved and liquidated
(party in bad faith shall forfeit his/her share
in favor of the common children or if there
are none, children of the guilty spouse by a
previous marriage, and in case there are
none, to the innocent spouse)
(3) Donation propter nuptias remains valid,
(but if the donee contracted marriage in bad
faith, donations are revoked by operation of
law)
As to effect on subsequent marriage

Subsequent
marriage
is
automatically
Upon
reappearance,
terminated by the judicial proceeding is
recording
of
an necessary to declare
affidavit
of marriage null and void
reappearance of the
absent spouse
As to ground
Well founded belief
Generally believed to be
that the absent
dead
spouse is dead
PAGE 23
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(4) Insurance benefits innocent spouse may

revoke designation of guilty party as
beneficiary, even if such designation is
stipulated as irrevocable
(5) Succession rights Party in bad faith shall
be disqualified to inherit from the innocent
spouse, whether testate or intestate
VOIDABLE
MARRIAGE
CIVIL LAW
OR
ANNULLABLE
In case either or both of the contracting parties,

not having been emancipated by a previous
marriage, are between the ages of eighteen and
twenty-one, In addition to the requirements of
the preceding articles:
(1) Exhibit to the local civil registrar the consent
to their marriage of their father, mother,
surviving parent or guardian, or persons
having legal charge of them, in the order
mentioned
(2) Manifested in writing by the interested
party, who personally appears before the
proper local civil registrar, or
(3) In the form of an affidavit made in the
presence of two witnesses and attested
before any official authorized by law to
administer oaths
(4) The personal manifestation shall be
recorded in both applications for marriage
license, and the affidavit, if one is executed
instead, shall be attached to said
applications. [Art 14, FC]
Article 44 (Donations):
If both spouses of the subsequent marriage
acted in bad faith, all donations by reason of
marriage and testamentary dispositions made
by one party in favor of the other are revoked by
operation of law.
ACTION OR DEFENSE OF NULLITY

PRESCRIPTION
Art. 39, FC. The action or defense for the
declaration of absolute nullity of a marriage
shall not prescribe. (as amended by RA 8533)
WHO MAY FILE THE PETITION FOR NULLITY
Only an aggrieved or injured spouse may file a
petition for annulment of voidable marriages or
declaration of absolute nullity of void marriages.
Such petition cannot be filed by compulsory or
intestate heirs of the spouses or by the State.
The Committee is of the belief that they do not
have a legal right to file the petition.
Compulsory or intestate heirs have only inchoate
rights prior to the death of their predecessor,
and, hence, can only question the validity of the
marriage of the spouses upon the death of a
spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular
courts. [Enrico v. Heirs of Sps. Medinaceli (2007),
also reiterated in Carlos v. Sandoval (2008)]
GROUNDS FOR ANNULMENT

x x x A defect in any of the essential requisites
shall render the marriage voidable as provided
in Article 45. [Art. 4, FC)
Art 45, FC. Marriage may be annulled on the
following grounds existing at time of marriage:
(1) One of the parties is 18 or above but below
21 years old, and there is no parental
consent.
(2) Either party was of unsound mind (insanity).
(3) The consent of either party was obtained
through fraud (different from mistake in
identity)
(4) The consent of either party was obtained
through force, intimidation, or undue
influence.
(5) Either party is physically incapable of
consummating the marriage (impotence;
this is different from sterility, which is the
inability to produce offspring).
(6) Either party has a serious and incurable
sexually-transmissible disease, even if not
concealed.
HOW TO ATTACK A VOID MARRIAGE

General rule: Void marriages may be attacked
collaterally or directly.
Exception: A person in a void marriage must first
file for a declaration of nullity in order to
subsequently marry.
PAGE 24
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CIVIL LAW
Law presumes sanity, burden of proof on party

alleging insanity
Action to Annul
Action in rem, concerns status of parties; res is
relation between parties or marriage tie;
jurisdiction depends on nationality or domicile
not the place of celebration.
Fraud
Only those enumerated in Art. 46:
(1) Non-disclosure of previous conviction by
final judgment of a crime involving moral
turpitude
(2) Concealment by wife at the time of
marriage, that she was pregnant by another
man
(3) Concealment of STD regardless of nature
existing at time of marriage
(4) Concealment of drug addiction, habitual
alcoholism, homosexuality, lesbianism
existing at time of marriage
GROUNDS FOR ANNULMENT EXPLAINED

Lack of parental consent
18 x < 21 without parental consent
Ratified by party 18 or above but below 21
upon free cohabitation upon reaching 21.
Parents whose consents were wanting may
ratify before 21; this right can be waived;
however, the Code Commission believes that
no such ratification can be made by the
parent. [Tolentino]
No other misrepresentation or deceit of

character, health, rank, fortune or chastity shall
constitute fraud.
In defending the requirement of parental

consent, the Court held that the State has
power to make adjustments in the
constitutional rights of minors based on the
following grounds: 1) the peculiar vulnerability
of children, 2) to protect minors from immature
decision making and prevent unstable
marriages, 3) on the presumption that parents
act in the best interests of their children in child
rearing. [Moe v. Dinkins, (1981)]
Conviction of crime: requisites are

(1) Moral turpitude
(2) Conviction
Concealment of pregnancy
Fraud against very essence of marriage;
importance of procreation of children; an
assault to the integrity of the union by
introducing alien blood
If husband knew of pregnancy, the marriage
cannot be annulled on the ground of
concealment
Insanity
Mental incapacity or insanity is a vice of
consent; insanity
(1) of varying degrees
(2) curable being an illness capable of
ratification or convalidation
(3) has lucid intervals
(4) ground only for annulment in many
countries
Can be ratified by cohabitation after insanity is
cured or during a lucid interval
Mere mental weakness is not a ground for
annulment, but if found grave enough, it may
amount to psychological incapacity.
Intoxication, somnambulism where one had
no mental capacity to give consent is
equivalent to insanity
Must exist at the time of the celebration of the
marriage. Insanity that occurs after the
celebration of marriage does not constitute a
cause for nullity [Katipunan v. Tenorio (1937)]
May be ratified upon free cohabitation after

knowledge of fraud.
Art. 45 STD
Ground for annulment
Art. 46 STD
The STD is a type of
fraud which is a
ground for annulment
Does not have to be

Must be concealed
concealed
Must be serious and Need not be serious
incurable
nor incurable
It is the concealment
The STD itself is the
that gives rise to the
ground for annulment
annulment
PAGE 25
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Effect of cure to fraud in Art. 46:

Recovery or rehabilitation from STD, drug
addiction, and habitual alcoholism will not bar
action for annulment; the defect is not the
disease, but the FRAUD which VITIATED
CONSENT.
CIVIL LAW
May be ratified upon cohabitation after force,

intimidation, or undue influence has ceased or
disappeared.
Impotency
Must exist at time of marriage, and be
continuous and incurable. If incapacity can be
remedied or is removable by operation, NOT
ANNULLABLE [Sarao v. Guevarra(1940)]
W gave birth 3 months after marriage, H filed

for annulment: concealment of non-virginity.
Denied. Court held that it was unbelievable that
husband could not have noticed when wife had
been at least 6 months pregnant prior to
marriage. [Buccat v. Mangonon de Buccat,
(1941)]
Physical condition: sexual intercourse with a

person of the opposite sex is impossible, not
mere sterility
Only the potent spouse can file the action for
annulment and he/she must not have been
aware of the others impotency at the time of
marriage [Sempio-Diy]
The Supreme Court granted annulment

because the wife concealed the fact that she
was 4 months pregnant during the time of the
marriage. Since Delizo was naturally plump,
Aquino could hardly be expected to know, by
mere looking, whether or not she was pregnant
at the time of the marriage. [Aquino v. Delizo,
(1960)]
If he/she was aware, it is implied that he/she

renounced copulation by consenting to the
marriage. [Tolentino]
When both spouses are impotent, marriage
cannot be annulled because neither spouse is
aggrieved. [Sempio-Diy]
An impotent plaintiff could not have expected
copulation with the other spouse. [Tolentino]
It is the concealment of homosexuality, and not

homosexuality per se, that vitiates the consent
of the innocent party. Such concealment
presupposes bad faith and intent to defraud the
other party in giving consent to the marriage.
[Almelor v. RTC, (2008)]
Potency presumed; party who alleges impotency

has burden of proof [Jimenez v. Canizares
(1960)]
Force, intimidation, Undue influence

FORCE must be one as to prevent party from
acting as a free agent; will destroyed by
fear/compulsion
Refusal of wife to be examined DOES NOT

PRESUME impotency because Filipino women
are inherently shy & bashful; TC must order
physical examination because w/o proof of
impotency, she is presumed potent; to order her
to undergo physical exam does not infringe her
right against self-incrimination [Jimenez v.
Canizares]
Note: If she continues to refuse the physical
exam, she can be held in contempt & ordered
confined in jail until she does so
INTIMIDATION must be one as to compel the

party by a reasonable/well-grounded fear of an
imminent and grave evil upon his
person/properties
DEGREE OF INTIMIDATION: age, sex, condition
of person borne in mind
Threat or intimidation as not to act as FREE
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
e.g., fear of causing distress to parents,
grandparents, etc.
Relative Impotency may now be invoked

because there are cases where one is impotent
with respect to his/her spouse but not with
other men or women.
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CIVIL LAW
Reason: danger to the health of spouse &

offspring/s
Same as incurable impotency
Not subject to ratification cannot be
ratified or convalidated by cohabitation:
(1) Affliction of STD is unknown to the other
spouse [Balane]
(2) The other spouse must also be free from a
similar STD. [Balane]
Example: penile erection to other women

possible; unusually large penis cannot fit with
abnormally small vagina
Sexually-transmissible disease serious and
incurable
Should exist at the time of the marriage
Should be found serious
Should appear to be incurable
WHO MAY FILE, PRESCRIPTION, RATIFICATION

Ground
(Art. 45)
Who can file

(Art. 47)
Party 18 or above but below
Lack
of
21
parental
Parent or guardian who did
consent
not give consent
Sane spouse with no
knowledge of the others
insanity
Prescription
Ratification
(Art. 47)
(Art. 45)
Within 5 years after
attaining 21.
Free cohabitation
Before party below 21 attaining age of 21.
reaches 21.
after
Any time before the death

of either party
Free cohabitation of insane
Legal guardian of insane
Insanity
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
PAGE 27
UP LAW BOC
Marriages Not Subject to Ratification/

Convalidation by cohabitation
(1) One spouse is incurably impotent (Art. 47, FC
prescription: 5 years)
(2) One spouse has an incurable STD (Art. 47, FC
prescription: 5 years)
PRESENCE OF PROSECUTOR
Art. 48, FC. To prevent collusion between the
parties, fabrication or suppression of evidence, the
prosecuting attorney or fiscal shall appear on
behalf of the State.
In a legal separation or annulment case, the
prosecuting attorney must first rule out collusion
as a condition sine qua non for further
proceedings. A certification by the prosecutor
that he was present during the hearing and even
cross-examined the plaintiff does not suffice to
comply with the mandatory requirement. [Corpuz
v. Ochoterena, (2004)]
EFFECT OF PENDING
ACTIONS/DECREE
(1) The court shall provide for the support of the

spouses,
(2) The custody and support of the common
children, giving paramount consideration to
their moral and material welfare, their choice
of parent with whom they wish to remain.
(3) The court shall also provide for visitation
rights of other parent. [Art. 49, FC]
DECISIONS ON THE NULLIFICATION OF THE
MARRIAGE
Art. 48 (2), FC. In the cases referred to in the
preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of
judgment.
Stipulation of facts An admission by both parties
after agreeing to the existence of any of the
grounds or facts that would constitute a
void/voidable marriage
Confession of judgment The admission by one
party admitting his/her fault to cause the
invalidity of the marriage.
CIVIL LAW
EFFECTS OF NULLITY
Art. 50(1), FC. The effects provided for by
paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the proper cases to
marriages which are declared void ab initio or
annulled by final judgment under Articles 40 and
45.
Final judgment in such cases shall provide for the:
(1) Liquidation, partition, and distribution of the
properties of the spouses
(2) Custody and support of the common children
(3) Delivery of their presumptive legitimes
(a) Unless such matters had been
adjudicated
in
previous
judicial
proceedings (Art. 50(2))
(b) All creditors of the spouses/property
regime shall be notified of the
proceedings for liquidation [Art. 50(2 and
3), FC]
In the partition, the conjugal dwelling and lot shall
be adjudicated to the spouse with whom majority
of the common children remain [Arts. 50(4), 102
and 129, FC]
Presumptive legitimes, computed as of the date of
the final judgment, shall be delivered in cash,
property or sound securities:
Unless the parties, by mutual agreement
judicially approved, had already provided for
such [Art. 51(1), FC]
The children/guardian/trustee of property may
ask for the enforcement of the judgment [Art.
51(2), FC]
The delivery of the presumptive legitimes shall
not prejudice the ultimate successional rights,
but the value of the properties already received
shall be considered as advances on their
legitime [Art. 51(3), FC]
General rule: children born or conceived within
void marriages are illegitimate.
Exceptions:
(1) Children conceived or born before the
judgment under Article 36 has become final
and executory [Art. 54, FC]
(2) Children conceived or born of subsequent
marriages under Article 53 Art. 54, FC]
PAGE 28
UP LAW BOC
JURISDICTION
For marriages celebrated under both civil and
Muslim rites, Sharia courts do not have exclusive
jurisdiction. The Judiciary Reorganization Act of
1980 provided that regional trial courts have
jurisdiction over all actions involving the contract
of marriage and marital relations. [Tamano v.
Ortiz, (1998)]
Legal Separation
GROUNDS
SEPARATION
FOR
LEGAL
Note: The grounds for legal separation are

exclusive. [Art. 55, FC]
These must be filed within 5 years after
occurrence of cause [Art. 57, FC]:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a
common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;
(3) Attempt of respondent to corrupt or induce
the petitioner, a common child, or a child of
the petitioner, to engage in prostitution, or
connivance
in
such
corruption
or
inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the
respondent;
(7) Contracting by the respondent of a
subsequent bigamous marriage, whether in
the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of
the petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one
year.
Adultery is not a continuing crime; it is
consummated at every moment of carnal
knowledge. Thus, every sexual act is a ground for
CIVIL LAW
legal separation. [People v. Zapata and Bondoc

(1951)]
For sexual infidelity as a ground for legal
separation, there is no need for a prior conviction
for concubinage, because legal separation only
requires a preponderance of evidence, as opposed
to proof beyond reasonable doubt. [Gandioco v.
Pearanda (1989)]
The death of one party in a legal separation case
abates the action. This is because the death of
either spouse automatically dissolves the
marriage. An action for legal separation is also
purely personal between the spouses. [Lapuz Sy v.
Eufemio (1972)].
Abandonment is not mere physical estrangement
but also financial and moral desertion. There
must be an absolute cessation of marital
relations, duties, and rights with the intention of
perpetual separation. [Dela Cruz. v. Dela Cruz
(1968)]
ACTS OF VIOLENCE ACCORDING TO

RA 9262:
(1) Causing physical harm to the woman or her

child;
(2) Threatening to cause the woman or her child
physical harm;
(3) Attempting to cause the woman or her child
physical harm;
(4) Placing the woman or her child in fear of
imminent physical harm;
(5) Attempting to compel or compelling the
woman or her child to engage in conduct
which the woman or her child has the right to
desist from or desist from conduct which the
woman or her child has the right to engage in,
or attempting to restrict or restricting the
woman's or her child's freedom of movement
or conduct by force or threat of force, physical
or other harm or threat of physical or other
harm, or intimidation directed against the
woman or child. This shall include, but not
limited to, the following acts committed with
the purpose or effect of controlling or
restricting the woman's or her child's
movement or conduct:
PAGE 29
UP LAW BOC
(6)
(7)
(8)
(9)
(a) Threatening to deprive or actually

depriving the woman or her child of
custody to her/his family;
(b) Depriving or threatening to deprive the
woman or her children of financial support
legally due her or her family, or
deliberately providing the woman's
children insufficient financial support;
(c) Depriving or threatening to deprive the
woman or her child of a legal right;
(d) Preventing the woman in engaging in any
legitimate
profession,
occupation,
business or activity or controlling the
victim's own money or properties, or solely
controlling the conjugal or common
money, or properties;
Inflicting or threatening to inflict physical
harm on oneself for the purpose of controlling
her actions or decisions;
Causing or attempting to cause the woman or
her child to engage in any sexual activity which
does not constitute rape, by force or threat of
force, physical harm, or through intimidation
directed against the woman or her child or
her/his immediate family;
Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that
alarms or causes substantial emotional or
psychological distress to the woman or her
child. This shall include, but not be limited to,
the following acts:
(a) Stalking or following the woman or her
child in public or private places;
(b) Peering in the window or lingering outside
the residence of the woman or her child;
(c) Entering or remaining in the dwelling or
on the property of the woman or her child
against her/his will;
(d) Destroying the property and personal
belongings or inflicting harm to animals
or pets of the woman or her child; and
(e) Engaging in any form of harassment or
violence;
Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her
child, including, but not limited to, repeated
verbal and emotional abuse, and denial of
financial support or custody of minor children
of access to the woman's child/children.
CIVIL LAW
DEFENSES
GROUNDS FOR
SEPARATION
DENYING
LEGAL
(1) Condonation by aggrieved party [Art. 56, FC]

(2) Consent by aggrieved party to the commission
of the offense [Art. 56, FC]
(3) Connivance between parties in the
commission of the offense [Art. 56, FC]
(4) Mutual guilt or recrimination between
spouses in the commission of any ground for
legal separation [Art. 56, FC]
(5) Collusion between parties to obtain decree of
legal separation [Art. 56, FC]
(6) Prescription of action for legal separation [Art.
57, FC: 5 years from occurrence of the cause of
action]
(7) Reconciliation of parties during pendency of
action [Art. 66 (1), FC]
(8) Death of either party during pendency of
action [Lapuz-Sy vs. Eufemio]
WHEN TO FILE/TRY ACTIONS
An action for legal separation shall be filed within

five years from the time of the occurrence of the
cause. [Art. 57, FC]
COOLING-OFF
PERIOD
AND
RECONCILIATION EFFORTS
Action cannot be tried before six months have

elapsed from the filing of the petition [Art. 58, FC]
Actions cannot be tried unless the court has
attempted to reconcile the spouses, and
determined
that
despite
such
efforts,
reconciliation is highly improbable [Art. 59, FC]
Note: This is without prejudice to judicial
determination of custody of children, alimony, and
support pendente lite.
Courts can still resolve other issues, pending the
waiting period or cooling off period. In resolving
other issues, courts should try not to touch, as
much as possible, on the main issue (i.e. adultery
if that is the ground used). However, Court must
still receive evidence if just to settle incidental
issues of support and custody. [Araneta vs.
Concepcion, (1956)]
PAGE 30
UP LAW BOC
Note: This provision of the Family Code dictating a

mandatory 6-month cooling-off period does not
apply in cases where violence, as used in RA 9262
(Anti-Violence Against Women and their
Children), is alleged. The case should be heard as
soon as possible by the court.
(3)
(4)
CONFESSION OF JUDGMENT
No decree of legal separation shall be based upon
a stipulation of facts or a confession of judgment
[Art. 60, (1). FC]
Note: Art. 60 par. 1 applies only if the judgment
was based solely on the stipulation of facts or
solely on the confession of judgment. Thus, if
other grounds were used, Art. 60 par. 1 is not
applicable. [Balane]
The prohibition on confession of judgment does
not mean that the Court will not grant petition if
one party admits to being guilty of the charges of
adultery. The point of this provision is that the
Court should still admit evidence, not decide just
based on an admission of guilt. Because what is
prohibited is handing down a decree of legal
separation based solely on a confession of
judgment. [Ocampo v Florenciano (1960)]
(5)
(6)
(7)
(8)
CIVIL LAW
shall be forfeited in favor the common

children, previous children, or innocent
spouse, in that order [Art. 63. cf. Art. 43(2),
FC].
Custody of the minor children shall be
awarded to the innocent spouse [Art. 63, cf.
Art 213, FC]
Guilty spouse shall be disqualified from
inheriting from innocent spouse by intestate
succession. The provisions in favor of the
guilty party in the will of the innocent spouse
shall also be revoked by operation of law. [Art.
63, FC]
Donations in favor of the guilty spouse may be
revoked [Art. 64, FC] but this action prescribes
after 5 years from the decree of legal
separation.
Innocent spouse may also revoke designation
of guilty spouse as beneficiary in an insurance
policy, even if such stipulations are
irrevocable. [Art. 64. FC, cf. PD 612, sec. 11]
Obligation for mutual support ceases, but the
court may order the guilty spouse to support
the innocent spouse. [Art. 198, FC]
The wife shall continue to use the surname of
the husband even after the decree for legal
separation. [Laperal v. Republic (1992)]
RECONCILIATION
EFFECTS OF FILING PETITION

(1) The spouses are entitled to live separately, but
the marital bond is not severed. [Art. 61 (1), FC]
(2) Administration of community or conjugal
property If there is no written agreement
between the parties, the court shall designate
one of them or a third person to administer
the ACP or CPG. [Art. 61(2), FC]
EFFECTS OF PENDENCY
The Court shall provide for: [Art. 62, cf. Art. 49. FC]
(1) Support of spouses
(2) Custody of children the court shall give
custody of children to one of them, if there is
no written agreement between the spouses.
(3) Visitation rights of the other spouse
EFFECTS OF LEGAL SEPARATION

(1) The spouses can live separately [Art. 63, FC]
but the marriage bonds are not severed.
(2) The ACP or CPG shall be dissolved and
liquidated, and the share of the guilty spouse
Should the spouses reconcile, they should file a

corresponding joint manifestation under oath of
such reconciliation, duly signed by them and filed
with the court in the same proceeding for legal
separation. [Art. 65, FC]
Effects of reconciliation:
(1) Proceedings for legal separation shall be
terminated at whatever stage. [Art. 66, FC]
(2) If there is a final decree of legal separation, it
shall be set aside. [Art. 66, FC]
(3) The separation of property and forfeiture of
share of guilty spouse shall subsist, unless the
spouses agree to revive their former property
regime or to institute another property
regime. [Art. 66 cf. Art. 67, FC]
(4) Joint custody of children is restored.
(5) The right to intestate succession by guilty
spouse from innocent spouse is restored.
The right to testamentary succession
depends on the will of the innocent spouse.
PAGE 31
UP LAW BOC
CIVIL LAW
ANNEX TO VOID AND VOIDABLE MARRIAGES

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

Void/Voidable Marriages
Legal Separation
Support for the spouses

Custody and support for the children
Visitation rights to the other spouse
EFFECTS OF AFFIDAVIT OF REAPPEARANCE, JUDICIAL DECLARATION OF

NULLITY, ANNULMENT AND LEGAL SEPARATION
Void Marriages
Severed
Status of Marriage
Void ab initio
Terminated Marriage
Voidable
[Art. 41, FC]
Marriages
Status of Marital ties
Severed
Severed
Legal Separation
Not Severed
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
PAGE 32
UP LAW BOC
CIVIL LAW
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

Between Husband and
Wife
If the wife abandons the family domicile (vs

obligation of cohabitation) with justifiable
cause i.e. being forced to perform lewd
sexual acts, the husbands obligation to
support her is not terminated. The law will
not permit the husband to terminate the
obligation to support his wife by his own
wrongful acts in driving the wife to seek
protection in her parents home. [Goitia v.
Campos Rueda (1916)]
ESSENTIAL OBLIGATIONS
(1) Live together (cohabitation) [Art. 68, FC]
Exception: One spouse living abroad or
there are valid and compelling reasons [Art.
69 (2), FC] at the discretion of the court.
A court cannot compel a married woman to

go back to her husband, but the court may
decree that support be terminated. [Arroyo
v. Vasquez de Arroyo (1921)]
Exception to exception: Incompatibility with

the solidarity of the family [Art. 69 (2), FC]
FAMILY DOMICILE
(2) Observe mutual love, respect, and fidelity
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.

[Art. 69 (1), FC]
A person has a purely personal right to

consortium (Constitutional right to liberty).
Court cannot order a man to go back to the
conjugal dwelling. (Shows that what is in
Family Code is not the former spousal unity
doctrine (Old England)). [Ilusorio v. Bildner
(2000)]
SUPPORT
From the conjugal property; if none, income or

the fruits of their separate properties; if none,
from their separate properties (liable in
proportion to their properties).
PAGE 33
UP LAW BOC
CIVIL LAW
If BEFORE the objection, enforce resulting

obligation against the separate property of the
spouse who has not obtained consent. [Art.
73,FC]
MANAGEMENT OF HOUSEHOLD
This is the right and duty of both spouses.
EFFECT OF NEGLECT OF DUTY

In case the other spouse neglects his or her
duties or commits acts which tend to bring
danger, dishonor or injury to the family, the
aggrieved party may apply to the court for relief.
[Art. 72, FC]
Property Relations of the

Spouses
MARRIAGE SETTLEMENTS
Injury contemplated is physical, moral,

emotional or psychological, not financial.
The other spouse may only object on valid,

serious, and moral grounds.
Art. 75, FC. Future spouses may agree upon, in

the marriage settlement, which property regime
will govern their marriage (ACP, CPG, complete
separation of property, other regimes). However,
in the absence of a marriage settlement, or
when the regime agreed upon is void, the
system of absolute community of property as
established by this Code shall govern.
In case of disagreement, the Court shall decide

whether:
(1) The objection is proper, and
(2) Benefit has accrued to the family before OR
after the objection.
Marriage settlements are considered accessory

to the marriage, therefore as per Art. 81,
stipulations in consideration of future marriage
and donations will be void if the marriage does
not take place.
EXERCISE OF PROFESSION
Either spouse may exercise any legitimate

profession, without need for consent of the
other.
MARRIAGE SETTLEMENT RULES
When modifications can

be made
Requirements of
marriage settlements
and any modification
thereof [Art. 77, FC]
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 abandoned spouse petitions the court for judicial separation of property
[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
the marriage is recorded and in registries of property
If executed by a person below 21 y.o., valid only when persons required to give
consent to the marriage (father, mother, or guardian, respectively) are made
parties to the agreement [Art. 78, 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]
PAGE 34
UP LAW BOC
Mateo v. Lagua (1969): Donations propter

nuptias are without onerous consideration,
marriage being merely the occasion or motive
for the donation, not its cause. Being liberalities,
they remain subject to reduction for
inofficiousness upon the donors death, if they
should infringe the legitime of a forced heir.
DONATIONS BY REASON OF
MARRIAGE
Solis v. Barroso (1928): In donations propter

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

Sources of rules
governing donations
propter nuptias
Rules for donations

before marriage
Grounds for
revocation of
donation propter
nuptias [Art. 86, FC]
CIVIL LAW
Made before the celebration of marriage

Made in consideration of marriage
In favor of one or both of the future spouses
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
consideration thereof
Donations made in favor of persons other than the spouses even if founded on the
intended marriage
Spouses to each other
Parents of one or both spouses
Third persons to either or both spouses
Family code provisions [Arts. 82-87, FC]
Ordinary donation provisions [Art. 83; Title III of Book III, NCC]
Provisions on testamentary succession and the formalities of wills for donations on
future property [Art. 84, par. 2, 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]
Donations of property subject to encumbrances
(1) Are considered valid.
(2) In case of foreclosure:
(a) if property value < obligation, donee shall not be liable for the deficiency
(b) if property value > obligation, donee shall be entitled to the excess [Art. 85,
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.
(4) Upon legal separation, if the donee is the guilty spouse.
(5) If there is a resolutory condition, and it is not complied with.
(6) When donee has committed an act of ingratitude: [Art. 765, CC]
(a) An offense against person or property of donor, or his wife or children
under parental authority.
(b) An imputation to the donor of any criminal offense, or any act involving
moral turpitude, even if proven, unless the crime is committed against the
donee, his wife or children under his authority.
(c) Refusing to support the donor, if he/she is legally required to do so.
PAGE 35
UP LAW BOC
Effects of judicial
declaration of nullity
Rules for donations

during marriage
Rules for donations

between commonlaw spouses
CIVIL LAW
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
donee, the donation propter nuptias is still forfeited.
Effects provided for by Art. 43(2), (3), (4), and (5) and by Art. 44 shall also apply to
marriages that are declared void ab initio or annulled by final judgment under
Article 40 (Judicial declaration of nullity) and 45 (Voidable marriages). [Art. 50,
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
relation to the parties or the property itself, that their rights are being interfered
with. Here, the insurance company of the donated car cannot assail the validity of
the donation. In addition, the codal exception of 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
donations between spouses during marriage. [Matabuena v Cervantes, (1971)]
The donation made by a man to a woman was held valid because no proof was
shown that they were still living in a common-law relationship at the time of the
donation. [Sumbad v. CA, (1999)]
DISTINGUISHED FROM ORDINARY DONATIONS

Donations propter nuptias
Does not require express acceptance
May be made by minors [Art. 78, FC]
May include future property
If present property is donated and property is not
absolute community, limited to 1/5 [Art. 84, FC]
Grounds for revocation in Art. 86
Ordinary donations
Express acceptance necessary
Cannot be made by minors
Cannot include future property
No limit to donation of present property provided
legitimes are not impaired
Grounds for revocation in donation laws
PAGE 36
UP LAW BOC
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.
PAGE 37
CIVIL LAW
UP LAW BOC
CIVIL LAW
COMPARISON OF ACP AND CPG

ABSOLUTE COMMUNITY PROPERTY
When it
commences
At the precise moment of the celebration of the

marriage [Art. 88, FC]
All the property owned by the spouses at the time

of the celebration of the marriage or acquired
thereafter [Art. 91, FC]
CONJUGAL PARTNERSHIP OF GAINS

Default property regime for marriages
celebrated before the Family Code took effect
(August 3, 1988)
For marriages after the Family Code, if agreed
to by the parties through a marriage
settlement.
Proceeds, products, fruits, and income of their
separate properties
Everything acquired by them within marriage
through their own efforts
Under the ACP, spouses cannot exclude specific

properties from the regime.
Everything acquired by them by chance
Winnings from gambling shall accrue to the

community property [Art. 95, FC]
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
fishing or hunting
(6) Livestock existing at dissolution of
partnership in excess of what is brought
by either spouse to the marriage
(7) Acquired by chance, such as winnings
from gambling or betting
Moral damages arising from a contract paid
from the CPG [Zulueta v. Pan Am (1973)]
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 ownerspouse [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)
What it
consists of
PAGE 38
UP LAW BOC
CIVIL LAW

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
dissolution of the CPG
Property belonging to one spouse converted
into another kind totally different in nature
from its original form during marriage
becomes conjugal in the absence of proof that
the expenses of the conversion were
exclusively for the account of the original
owner-spouse, subject to reimbursement of
the value of the original property from the
conjugal partnership
What it
consists of
(continued)
Properties acquired before the marriage, for those

with legitimate descendants with a former marriage
(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 brought into the marriage by each

spouse as his/her own
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
belonging to either spouse
What
remains
exclusive
property
General rule: Properties for personal use
Exception: Jewelry
PAGE 39
Plata purchased property when she was

single. When married, she and her husband
Bergosa co-signed a mortgage on the
property. Upon foreclosure, Bergosa was sued
for illegal detainer. A writ of execution on the
property was carried out but Plata refused to
leave the premises. SC ruled that Plata
cannot be held in contempt. Property is not
conjugal.
Her husband signing as comortgagor 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
UP LAW BOC
CIVIL LAW

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
of the cost of improvement
What
remains
exclusive
property
(continued)
1.
Presumption
All properties acquired during the marriage form

part of the ACP, unless it be proven that they are
excluded. [Art. 93, FC]
PAGE 40
Money received under the Social Security Act

is not conjugal, although the employeespouse contributes to the SS with his salaries,
but belongs to the designated beneficiary
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
unless the contrary is prove. [Art 116, FC]
The party who invokes the presumption must
first prove that the property was acquired
during the marriage [Acabal v. Acabal (2005)]
UP LAW BOC

Art. 94, FC
(1) Support of the following:
(a) Spouses;
(b) Common children;
(c) Legitimate
children
of
previous
marriage;
(d) Illegitimate children follow the
provisions on Support; ACP liable in case
of absence or insufficiency of the
exclusive property of the debtor-spouse
but the payment shall be considered as
advance to the share of the debtorspouse.
(2) Expenses to enable either spouse to
commence/
complete
a
professional/vocational course or activity for
self-improvement;
(3) Value donated or promised by both spouses
in favor of common legitimate children for
the exclusive purpose of commencing/
completing a professional/vocational course
or activity for self-improvement
Charges and
obligations
Debts and obligations:

(1) Contracted during the marriage by
administrator-spouse for the benefit of the
community;
(2) Contracted during the marriage by both
spouses;
(3) Contracted during the marriage by one
spouse with the consent of the other;
(4) Contracted by either spouse without the
consent of the other to the extent that the
family may have been benefitted;
(5) Contracted before marriage by either spouse
insofar as they redounded to the benefit of
the family;
(6) Contracted before marriage by either spouse
which have not redounded to the benefit of
the family in case of absence or insufficiency
of the exclusive property of the debtorspouse but the payment shall be considered
as an advance to the share of the debtorspouse.
(7) Incurred by either spouse by reason of a
crime or quasi-delict in case of absence or
insufficiency of the exclusive property of the
debtor-spouse but the payment shall be
considered as an advance to the share of the
debtor-spouse.
PAGE 41
CIVIL LAW

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

Taxes and expenses:
(1) Taxes, liens, charges and expenses, including
major and minor repairs, upon the
community property;
(2) Taxes and liens for mere preservation made
during the marriage upon the separate
property of either spouse used by the family;
(3) Expenses of litigation between the spouses
unless the suit is found to be groundless.
Charges
and
Obligations
(continued)
If community property is insufficient, the spouses

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

Taxes and expenses:
(1) Taxes, liens, charges and expenses,
including major and minor repairs, upon
the conjugal partnership property;
(2) Taxes and expenses for mere preservation
during the marriage upon the separate
property of either spouse;
(3) Expenses of litigation between the
spouses unless the suit is found to be
groundless.
If conjugal partnership property is insufficient,
the spouses are solidarily liable for the unpaid
balance from their separate properties except
for:
(1) Debts contracted by either spouse before
marriage which have not redounded to
the benefit of the family;
(2) Support of illegitimate children; and
(3) Liabilities incurred by either spouse arising
from crime or quasi-delict.
Gambling losses of any kind (i.e. legal or
illegal) shall be borne by the losing spouses
separate property [Art. 123, 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)]
PAGE 42
UP LAW BOC
General rule: Administration of property

belongs to both spouses, jointly. If they
disagree, the husbands decision prevails.
However, the wife has 5 years to seek recourse
from the court. Otherwise, it is presumed she
agreed to his decision. [Art. 96, FC]
Ownership,
administration,
enjoyment, and
disposition
Exception: When the other spouse is

incapacitated, or unable to participate in the
administration, e.g. when abroad. Capacitated
spouse may assume sole powers of
administration. However, power is limited to
administration.
Either spouse may, through a will, dispose of his

or her interest in the community property. [Art.
97, FC] However, the will should refer only to his
or her share in the community property.
PAGE 43
CIVIL LAW

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)]
Art. 124 contemplates a situation where one
spouse is absent, or separated in fact or has
abandoned the other or consent is withheld or
cannot be obtained. Such rules do not apply
to cases where the non-consenting spouse is
incapacitated or incompetent to give consent
i.e. in coma. The proper remedy is to file for
guardianship under the ROC. Even assuming
that the rules on summary proceedings apply,
the power of the administrator is the same as
a guardian. So a spouse who desires to sell
conjugal property as administrator must still
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
property requires the following:
(1) Consent or approval by both spouses, or
(2) Judicial authority secured in court
[Art. 124, (2) FC]
UP LAW BOC

General rule: Donation of one spouse without
the consent of the other is not allowed. [Art. 98,
FC]
Ownership,
administration,
2.
enjoyment, and
disposition
(continued)
Dissolution of
the regime
Exceptions:
(1) Moderate donations to charity due to
family rejoicing or distress
(2) Moderate gifts by each spouse to the other
due to family rejoicing
Moderation depends on the familys socioeconomic status.
CIVIL LAW
Donation of CPG must be with the consent of

the other spouse except moderate donations
for charity, on occasions of family rejoicing, or
family distress [Art. 125; cf. Art. 98, FC]
ACP allows donations in excess of one-fifth of

present property of future spouses because the
donation would form part of the community
property once the marriage is celebrated. [Art.
84]
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
and 64
(3) Annulment or judicial declaration of
(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
PAGE 44
UP LAW BOC
Effect of de
facto
separation
Rules on de facto separation [Art. 100]

De facto separation does not affect the ACP,
except that:
1. Spouse who leaves the conjugal home
without just cause shall not be entitled to
support; however, he/she is still required to
support the other spouse and the family
2. If consent is necessary for transaction but is
withheld or otherwise unobtainable,
authorization may be obtained from the
court
3. Support for family will be taken from the
ACP
4. If ACP is insufficient, spouses shall be
solidarily liable
5. If it is necessary to administer or encumber
separate property of spouse who left,
spouse present may ask for judicial
authority to do this
6. If ACP is not enough and one spouse has no
separate property, spouse who has property
is liable for support, according to provisions
on support.
Abandonment [Art. 101, FC]

Present/aggrieved spouse may petition the
court for:
(1) Receivership
(3) Authority to be the sole administrator of
the absolute community, subject to
precautionary conditions that the court
may impose
Rules on
Abandonment
A spouse is deemed to have abandoned the

other when he or she has left the conjugal
dwelling without any intention of returning.
Spouse is prima facie considered to have
abandoned the other spouse and the family if
he or she has:
(1) Left for a period of 3 months
(2) Failed to inform the other spouse of his or
her whereabouts for a period of 3 months
PAGE 45
CIVIL LAW

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

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
agreed upon in the marriage
the provisions of law on forfeitures and
settlements
delivery of presumptive legitimes
(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.
PAGE 46
UP LAW BOC
CIVIL LAW
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
[Art. 135, FC]
(1) Spouse of petitioner has been sentenced to a
penalty which carries with it the penalty of
civil interdiction
(2) Spouse of petitioner is judicially declared an
absentee
(3) Loss of parental authority of the spouse of
petitioner has been decreed by the court
(4) Spouse of petitioner has abandoned the
latter or failed to comply with his or her
obligations to the family
(5) The spouse granted the power of
administration in the marriage settlements
has abused that power
(6) At the time of the petition, the spouses have
been separated in fact for at least 1 year and
reconciliation is highly improbable.
Grounds for Return to Previous Regime

[Art. 141, FC]
(1) Termination of the civil interdiction
(2) Reappearance of absentee spouse
(3) Restoration of parental authority to the spouse
previously deprived of it
(4) When the spouse who left the conjugal home
without legal separation resumes common life
with the other
(5) When the court, being satisfied that the spouse
granted the power of administration in will not
again abuse that power, authorizes the
resumption of said administration
(6) Reconciliation and resumption of common life
of the spouses who had been separated in fact
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.
PAGE 47
UP LAW BOC
When it
applies
What it
consists of
CIVIL LAW
SEPARATION OF PROPERTY
Agreed upon in the marriage settlements by the spouses
Mandatory under Arts. 103 & 130 (subsequent marriages contracted by a surviving
spouse without judicial settlement of previous property regime)
Default property regime when there is reconciliation between spouses after judicial
separation of property
Present or future property or both
Each spouses earnings from his or her own profession, business, or industry
Natural, industrial or civil fruits of spouses separate properties
May be total or partial
If partial, property not considered separate is presumed to pertain to the ACP

Family expenses: Both spouses are liable in proportion to their income; if insufficient,
based on the current value of their separate properties
Liabilities
Creditors for family expenses: Spouses solidarily liable
Spouses may own, dispose, possess, and administer separate estates without the
consent of the other
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)]
PAGE 48
UP LAW BOC
CIVIL LAW
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
Art. 38
Other void marriages due to absence of formal
requisite
Salaries and wages
Owned in equal shares
Separately owned by parties
Properties acquired through exclusive funds
Remains exclusive, provided there is proof
Remains exclusive
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,
(2) Validity of marriage or a legal separation,
(3) Any ground for legal separation,
(4) Future support (as it is presumed to be
needed for the survival of the one receiving
support),
(5) Jurisdiction of courts,
(6) Future legitime
Art. 149, FC. The family, being the foundation of

the nation, is a basic social institution which
public policy cherishes and protects.
Consequently, family relations are governed by
law and no custom, practice or agreement
destructive of the family shall be recognized or
given effect.
THE
FAMILY
INSTITUTION
AS
AN
Whenever a stranger is a party in a case

involving family members, the requisite showing
of earnest efforts to compromise is no longer
mandatory, as such inclusion of a stranger takes
the case out of the ambit of Art. 151. [Hontiveros
v. RTC (1999)]
ASPECTS OF FAMILY RELATIONS

(1) External Aspect
(a) Governed by law [Art. 149, FC]
(b) Only in this aspect can third persons
and the public interest be concerned
(2) Internal Aspect
(a) Sacred to the family and inaccessible to
law because law must respect the
freedom of action of man
(b) e.g. spiritual relations, sexual relations
of spouses, profession and career of
spouses, practices and customs of
family
THE FAMILY HOME

CONSTITUTED
(1) Jointly by the husband and the wife

(2) By an unmarried head of a family;
INCLUDES
(1) Dwelling house where they and their family

reside
(2) The land on which it is situated [Art. 152, FC]
FAMILY RELATIONS INCLUDE:

(1)
(2)
(3)
(4)
CIVIL LAW
Between husband and wife

Between parents and children
Among other ascendants and descendants
Among brothers and sisters, full or half
blood
Art. 157, FC. The actual value of the family home

shall not exceed, at the time of the constitution,
the amount of Three hundred thousand pesos
(P300,000.00) in urban areas, and Two
hundred thousand pesos (P200,000.00) in
rural areas or such amounts as may hereafter be
fixed by law.
General rule [Art. 151, FC]: No suit between

members of the same family shall prosper.
Exception: If it should appear in a verified
complaint or petition that:
(1) Earnest efforts towards a compromise have
been made;
(2) Such efforts have failed; and
(3) Such earnest efforts and the fact of failure
must be alleged.
A person may constitute and be the beneficiary

of only one family home [Art. 161, FC]
Note: The case will be dismissed if it is shown

that no such efforts were made.
(1) It is deemed constituted from time of actual

occupation as a family residence
(2) It must be owned by person constituting it
(3 It must be permanent
The provisions of the Chapter on Family Home

shall govern existing family residences insofar
as said provisions are applicable [Art. 162, FC]
GUIDELINES
The rule shall not apply to cases which may not

be the subject of compromise.
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(4) Rule applies to valid and voidable and even

to common-law marriages under Arts.147
and 148
(5) It continues despite death of one or more
spouses or unmarried head of family for 10
years or as long as there is a minor
beneficiary [Art.159, FC]
REQUIREMENTS FOR THE SALE,

ALIENATION,
DONATION,
ASSIGNMENT, OR ENCUMBRANCE
OF THE FAMILY HOME
(1) The written consent of the person

constituting it,
(2) That of the spouse of the person
constituting it, and
(3) That of majority of the beneficiaries of legal
age. [Art. 158, FC]
RULES ON EXEMPTION OF FAMILY

HOME
General rule: The family home is exempt from

the following from the time of its constitution
and so long as any of its beneficiaries actually
resides therein [Art. 153, FC]:
(1) Execution
(2) Forced sale
(3) Attachment
If there is a conflict, the Court will decide.
IN CASE OF DEATH OF ONE OR BOTH

SPOUSES OR THE UNMARRIED
HEAD OF THE FAMILY
The family home shall continue despite the

death of one or both spouses or of the
unmarried head of the family for a period of 10
years, or for as long as there is a minor
beneficiary. [Art. 159, FC]
Exceptions [Art. 155, FC]:

(1) Nonpayment of taxes.
(2) Debts incurred prior to the constitution of
the family home.
(3) Debts secured by mortgages on the
premises before or after such constitution.
(4) Debts due to laborers, mechanics,
architects, builders, materialmen and others
who have rendered service or furnished
material for the construction of the building.
BENEFICIARIES
HOME
OF
THE
CIVIL LAW
The heirs cannot partition the home unless the

court finds compelling reasons therefore. [Art.
159, FC]
REQUISITES FOR CREDITOR TO

EXECUTE UPON THE FAMILY HOME
FAMILY
(1) He must be a judgment creditor;

(2) His claim is not among those exempted
under Article155, and
(3) He has reasonable grounds to believe that
the family home is worth more than the
maximum amount fixed in Art. 157.
(1) Husband and wife, or an unmarried person

who is the head of the family
(2) Parents (may include parent-in-laws),
ascendants, descendants, brothers and
sisters (legitimate/illegitimate), who are
living in the family home and who depend
on the head of the family for support. [Art.
154, FC]
PROCEDURE TO AVAIL OF RIGHT UNDER

ART. 160
(1) The creditor must file a motion in the court
proceeding where he obtained a favorable
decision for a writ of execution against the
family home.
(2) There will be a hearing on the motion where
the creditor must prove that the actual
value of the family home exceeds the
maximum amount fixed by the FC either at
the time of its constitution or as a result of
improvements introduced thereafter.
(3) If the creditor proves that the actual value
exceeds the maximum amount the court
will order its sale in execution.
REQUISITES TO BE A BENEFICIARY
(1) The
relationship
is
within
those
enumerated;
(2) They live in the family home; and
(3) They are dependent for legal support on the
head of the family.
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CIVIL LAW
Paternity and Filiation
(4) If the family home is sold for more than the

value allowed, the proceeds shall be
applied as follows:
(a) First, the obligation enumerated in
Article 157 must be paid
(b) Then the judgment in favor of the
creditor will be paid, plus all the costs of
execution
(c) The excess, if any, shall be delivered to
the judgment debtor
Kinds of Filiation [Arts. 163, 164, 165, FC]:

(1) Natural
(a) Legitimate
(b) Illegitimate
(2) Legal Fiction (Adoption)
LEGITIMATE CHILDREN
The proof that the house is the family home

must be alleged against creditors; applied the
rule in Art. 160, FC. [Versola v. Mandolaria
(2006)]
WHO ARE LEGITIMATE CHILDREN
Those conceived or born during the marriage of

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
beneficiary should satisfy all requisites; he must
be dependent on the head of the family. Since
the grandson still had parents who are legally
obliged for his support, he was not deemed a
beneficiary. [Patricio v. Dario III (2006)]
NATURAL/BIOLOGICAL
A child conceived or born during a valid
marriage is presumed to belong to that
marriage, regardless of the existence of
extramarital relationships. [Liyao v. Liyao
(2002)]
ARTIFICIAL INSEMINATION
Requisites to be considered legitimate:
(1) Artificial insemination made on wife
(2) Sperm comes from any of the following:
(a) Husband
(b) Third person donor
(c) Husband and third person donor
(3) In case of donor sperm, husband and wife
must authorize/ratify insemination in a
written instrument:
(a) Executed & signed by husband and wife
before the birth of the child.
(b) Recorded in the civil registry together
with the birth certificate of the child.
[Art. 164, FC]
Article 159 imposes the proscription against the

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

can impugn the legitimacy of the child. [BenitezBadua v. CA (1994)]
Common children born before the annulment

are legitimate, and therefore entitled to support
from each of the spouses. [De Castro v. AssidaoDe Castro, (2008)]
LEGITIMACY WITH REGARD TO THE

MOTHER
Child considered legitimate although [Art. 167,
FC]:
(1) Mother may have declared against its
legitimacy
(2) Mother may have been sentenced as an
adulteress (also applies to wife who was
raped)
IMPUGNING LEGITIMACY
Grounds for impugning legitimacy of a child are:

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

contracted another marriage within 300 days
after the termination of the former marriage,
the following rules shall govern in the absence
of proof to the contrary [Art 168, FC]:
(1) If born before 180 days after the
solemnization of the subsequent marriage
child is considered conceived during the
former marriage, provided it be born within
300 days after termination of the former
marriage
(2) If born after 180 days following the
celebration of the subsequent marriage
child is considered conceived during such
marriage, even if it be born within 300 days
after the termination of the former marriage
Mere proximate separation between the

spouses is not sufficient physical separation to
constitute as ground for impugning legitimacy.
[Macadangdang v. CA (1980)]
The legitimacy or illegitimacy of a child born

after 300 days following the termination of the
marriageburden of proof upon whoever
alleges the status. [Art. 169, FC]
Serious illness of the husband which absolutely

prevented him from having sexual intercourse
with his wife, like if the husband was already in
comatose or a vegetable, or sick with syphilis in
the tertiary stage so that copulation was not
possible. But tuberculosis, even in its most
crucial stage, does not preclude copulation
between the sick husband and his wife. [Andal v.
Macaraig (1951)]
If nobody asserts the legitimacy or illegitimacy

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

impugning legitimacy, covered by Art. 166(2),
under biological or other scientific reasons.
But this is only conclusive of the fact of nonpaternity. [Jao v. CA (1987)]
ACTION FOR IMPUGNING LEGITIMACY [Arts.

170 and 171, FC]
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

in the same city or municipality where the
child was born or his birth was recorded.
(2) Within 2 years if the husband or all heirs
live in the Philippines but do not reside in
the same city or municipality where the
child's birth took place or was recorded
(3) Within 3 years if the husband or all heirs
live outside the Philippines when the child's
birth took place or was recorded in the
Philippines
CIVIL LAW
possession of status as legitimate child

(b) Any other means stated by the rules of
court or special laws
Only in the absence of primary evidence can
secondary evidence be admitted.
ACTION FOR CLAIMING FILIATION

(LEGITIMATE CHILDREN) [Art. 173, FC]
(1) The child can bring the action during his or

her lifetime
(2) If the child dies during minority or in a state
of insanity, such action shall be transmitted
to his heirs, who shall have a period of five
years within which to institute the action.
(3) The action commenced by the child shall
survive notwithstanding the death of either
or both of the parties
If the birth of the child has been concealed or

was unknown to the husband, the above periods
shall be counted:
(1) From the discovery or knowledge of the birth
of the child, or
(2) From the discovery or knowledge of its
registration, whichever is earlier.
RIGHTS OF LEGITIMATE CHILDREN
General rule: Only the husband can impugn the

legitimacy of a child. If he does not bring an
action within the prescribed periods, he cannot
file such action anymore thereafter, and this is
also true with his heirs.
[Art. 174, FC]

(1) To bear the surnames of the father and the
mother, in conformity with the provisions of
the Civil Code on surnames
(2) To receive support from their parents, their
ascendants, and in proper cases, their
brothers and sisters, in conformity with the
provisions of the Code on support
(3) To be entitled to the legitimate and other
successional rights granted to them by the
Civil Code
Exception: That the heirs of the husband may

file the action or continue the same within the
periods prescribed in Art. 170 [Art. 171, FC]:
(1) If the husband died before the expiration of
the period fixed for bringing his action
(2) If he should die after the filing of the
complaint
without
having
desisted
therefrom
(3) If the child was born after the death of the
husband.
ILLEGITIMATE CHILDREN
Illegitimate children may establish their
illegitimate filiation in the same way and on the
same evidence (primary or secondary) as
legitimate children. [Art. 175, FC]
Legitimacy can only be attacked directly.

[Sayson v. CA (1992)]
ACTION FOR CLAIMING FILIATION
PROOF OF FILIATION
[Art. 175, FC]

(1) For actions based on primary evidence, the
same periods stated in Art. 173 apply.
(2) For actions based on secondary evidence,
the action may only be brought during the
lifetime of the alleged parent.
Legitimate children may establish their filiation

by any of the following [Art. 172, FC]:
(1) Primary Evidence
(a) Their record of birth appearing in the
civil registry.
(b) An admission of his filiation by his
parent in a public document or a private
handwritten instrument and signed by
said parent
(2) Secondary Evidence
(a) Proof of open and continuous
Baptismal certificates are given probative value

only for births before 1930. Birth certificates
must be signed by the parents and sworn for it
to be admitted as evidence. [Mendoza v. Melia
(1966)]
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CIVIL LAW
Mere possession of status as an illegitimate

child does not make a recognized illegitimate
child but is only a ground for bringing an action
to compel judicial recognition by the assumed
parent. [Gono-Javier vs. Court of Appeals (1994)]
Unsigned birth certificates are not evidence of

recognized filiation. [Baluyut v. Baluyut (1990)]
Baptismal certificates are only conclusive of the
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.
Diaz (2007)]
Marriage certificates cannot be used as proof of

filiation. [Lim v. CA (1975)]
There are four significant procedural aspects of

a traditional paternity action that parties have
to face: a prima facie case, affirmative defenses,
presumption of legitimacy, and physical
resemblance between the putative father and
the child. A prima facie case exists if a woman
declaressupported by corroborative proof
that she had sexual relations with the putative
father; at this point, the burden of evidence
shifts to the putative father. Further, the two
affirmative defenses available to the putative
father are: (1) incapability of sexual relations
with the mother due to either physical absence
or impotency, or (2) that the mother had sexual
relations with other men at the time of
conception. [Gotardo v. Buling (2012)]
Rule 130, Sec. 40 is limited to objects commonly

known as family possessions reflective of a
family's reputation or tradition regarding
pedigree like inscriptions on tombstones,
monuments, or coffin plates. [Jison v. CA (1998)]
Signature of the father on the birth certificate is
considered as an acknowledgement of paternity
and mere presentation of a duly authenticated
copy of such certificate will successfully
establish filiation. [Eceta v. Eceta (2004)]
Su padre (Your father) ending in a letter is
only proof of paternal solicitude and not of
actual paternity. Signature on a report card
under the entry of Parent/Guardian is likewise
inconclusive of open admission. [Heirs of
Rodolfo Baas v. Heirs of Bibiano Baas (1985)]
To prove open and continuous possession of the

status of an illegitimate child, there must be
evidence of the manifestation of the permanent
intention of the supposed father to consider the
child as his, by continuous and clear
manifestations of parental affection and care,
which cannot be attributed to pure charity.
[Perla v. Baring and Perla (2012)]
By open and continuous possession of the

status of a legitimate child is meant the
enjoyment by the child of the position and
privileges usually attached to the status of a
legitimate child, like bearing the paternal
surname, treatment by the parents and family
of the child as legitimate, constant attendance
to the child's support and education, and giving
the child the reputation of being a child of his
parents. [De Jesus v. Syquia (1933)]
Meanwhile, the lack of participation of the

supposed father in the preparation of a
baptismal certificate renders this document
incompetent to prove paternity. Baptismal
certificates are per se inadmissible in evidence
as proof of filiation and they cannot be admitted
indirectly as circumstantial evidence to prove
the same. [Perla v. Baring and Perla (2012)]
DNA evidence can be used as proof of paternity.

[Agustin v. CA (2005)]
The due recognition of an illegitimate child in a
record of birth, a will, a statement before a court
of record, or in any authentic writing, is in itself a
consummated act of acknowledgement of the
child, and no further court action is required. [De
Jesus v. Estate of Decedent Juan Gamboa Dizon
(2001)]
RIGHTS OF ILLEGITIMATE CHILDREN
[Art. 176, FC]

(1) Use the surname and be under the parental
authority of the mother
(2) However, may use the surname of their
father if
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(a) Their filiation has been expressly

recognized by the father through the
record of birth appearing in the civil
register; or
(b) There is an admission in a public
document or private handwritten
instrument made by the father.
(c) Provided, the father has the right to
institute an action before the regular
courts to prove non-filiation during his
lifetime [RA 9255]
CIVIL LAW
(3) Legitimation of children who died before the

celebration of the marriage shall benefit
their descendants [Art. 181, FC]
GROUNDS
FOR
LEGITIMATION
IMPUGNING
(1) The subsequent marriage of the child's

parents is void.
(2) The child allegedly legitimated is not
natural.
(3) The child is not really the child of the
alleged parents. [Sempio-Dy]
The use of the word may in Art. 176 readily

shows that an acknowledged illegitimate
child is under no compulsion to use the
surname of his illegitimate father. The word
may is permissive and operates to confer
discretion upon the illegitimate children.
[Grande v. Antonio (2014)]
RIGHTS
The same as those of legitimate children [Art.
179, FC]
IMPUGNING LEGITIMATION [Art. 182,
(3) Shall be entitled to support in conformity

with the Family Code
(4) Legitime shall consist of one-half of the
legitime of a legitimate child.
FC]
(1) May be made only by those who are
prejudiced in their rights
(2) Within five years from the time their cause
of action accrues
LEGITIMATED CHILDREN
Adoption
Legitimated children are illegitimate children

who because of the subsequent marriage of
their parents are, by legal fiction, considered
legitimate.
Legitimation
Adoption
Legal effect
The law merely makes The law creates by
legal what exists by fiction a relation which
nature
did not in fact exist
Persons affected
Natural children
Strangers (generally)
Procedure
Extrajudicial acts of Always by judicial
parents
decree
Who should apply
Both parents, with
exceptions allowing
Both parents
only one of them to
apply [RA 8552]
Effect on parent-child relationship
Same status and
rights with that of a
Creates a relationship
legitimate child not
only between the child
only in relation to the
and the adopting
legitimizing parents
parents
but also to other
relatives
TO BE CAPABLE OF LEGITIMATION
(1) The child must have been conceived and

born outside of wedlock; and
(2) The parents, at the time of the child's
conception, were not disqualified by any
impediment to marry each other, or
disqualified only because either or both of
them were below 18 y.o. [Art. 177 as
amended by RA 9858]
PROCEDURE AND EFFECTS
(1) Legitimation shall take place by a

subsequent valid marriage between the
parents. The annulment of a voidable
marriage shall not affect the legitimation.
[Art. 178, FC]
(2) Effects of legitimation shall retroact to the
time of the childs birth [Art. 180, FC]
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Adoption a juridical act, which creates

between two persons a relationship similar to
that which results from legitimate paternity and
filiation.
CIVIL LAW
(5) Has submitted all the necessary clearances

and such certifications as may be required
**Items 3, 4 and 5 may be waived under the
following circumstances:
(1) Adopter is a former Filipino Citizen who
seeks to adopt a relative within the 4th
degree of consanguinity or affinity
(2) Adopter seeks to adopt the legitimate or
illegitimate child of his/her Filipino spouse
(3) Adopter is married to a Filipino Citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse
It requires a proceeding in rem, and may only be

proven by a judicial decree issued by a court of
competent jurisdiction, not by open and
continuous cohabitation.
REPUBLIC ACT NO. 8552

DOMESTIC ADOPTION LAW
(FEBRUARY 25, 1998)
WHO CAN ADOPT
GUARDIANS
With respect to their wards, after the
termination of the guardianship and clearance
of his/her accountabilities.
FILIPINO CITIZENS [Sec. 7a]

(1) Of legal age
(2) With full civil capacity and legal rights
(3) Of good moral character and has not been
convicted of any crime involving moral
turpitude
(4) Emotionally and psychologically capable of
caring for children
(5) At least sixteen (16) years older than
adoptee, except when adopter is biological
parent of the adoptee or is the spouse of the
adoptees parent
(6) In a position to support and care for his/her
children in keeping with the means of the
family
(7) Has undergone pre-adoption services
JOINT ADOPTION
General rule: Husband and wife shall adopt
jointly.
Exceptions:
(1) If one spouse seeks to adopt the legitimate
child of the other
(2) If one of the spouses seeks to adopt his/her
illegitimate child provided that the other
spouse has signified his/her consent
(3) If spouses are legally separated from each
other
If spouses jointly adopt, parental authority shall
be jointly exercised by them.
ALIENS [Sec. 7b]

Same for Filipinos provided further that:
(1) His/her country has diplomatic relations
with the Philippines
(2) Has been living in the Philippines for 3
continuous years prior to the filing of
application and maintains such residence
until the decree is entered (provided that
absences not exceeding 60 days per 1 year
for professional, business, or emergency
reasons are allowed)
(3) Has been certified by his/her diplomatic or
consular office or any appropriate
government agency that he/she has the
legal capacity to adopt in his/her country
(4) His/her government allows the adoptee to
enter his/her country as his/her adoptee
WHO CAN BE ADOPTED [Sec. 8]
(1) Minor who has been administratively or

judicially declared available for adoption
(2) Legitimate child of one spouse by another
(3) Illegitimate child by a qualified adopter to
improve the childs status to that of
legitimacy
(4) A person of legal age if, prior to the
adoption, said person has been consistently
considered and treated by the adopter(s) as
his/her child since minority
(5) A child whose previous adoption has been
rescinded
(6) A child whose biological or adoptive
parent(s) has died, provided that no
PAGE 57
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proceedings shall be initiated within 6

months from the time of death of said
parent(s)
CIVIL LAW
PRE-ADOPTION PROCEDURES
VOLUNTARY COMMITMENT OF BIOLOGICAL
MOTHER WANTING TO PUT HER CHILD UP
FOR ADOPTION
EXCEPTIONS TO THE REQUIREMENT OF A

CERTIFICATION THAT THE CHILD IS
AVAILABLE FOR ADOPTION [Sec. 4]
(1) Adoption of an illegitimate child by his/her
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
Counseling on her options other than

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

relinquishment to cope with feelings of
loss, etc. and other services for his/her
reintegration to the community
Biological parent(s) who decide to keep the

child shall be provided with adequate
services and assistance to fulfill their
parental responsibilities
A decree of adoption shall be effective as of the

date the original petition was filed. It also
applies in case the petitioner dies before the
issuance of the decree of adoption to protect
the interest of the adoptee.
Biological parent(s) who decide to put the

child for adoption shall sign the Deed of
Voluntary Commitment (DVC) which shall
be rescissible within 3 months from signing
of the same
PAGE 58
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INVOLUNTARY
COMMITMENT
ABANDONED OR NEGLECTED CHILD
OF
CIVIL LAW
ADOPTION PROCEDURES
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
Director of the DSWD (5 days each)
Application for Adoption

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
(1) Social
Case
Study
Report
by
DSWD/LGU/institution charged with childs
custody
(2) Proof of efforts to locate the childs
parents/known relatives
(a) Written
certification
that
a
local/national radio/TV case was aired
on 3 different occasions
(b) Publication in 1 newspaper of general
circulation
(c) Police report / barangay certification of
due diligence
(d) Returned registered mail to last known
address of parents
(3) Birth certificate, if available
(4) Recent
photo
and
photo
upon
abandonment of child
Placement
Supervised Trial Custody
Home Study Report
Recommendation and Consent of DSWD
File Petition for Adoption within 30 days
from Receipt of Consent from DSWD
Adoption Decree
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)]
PAGE 59
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WHO MAY
ADOPTED
NOT
ADOPT/
BE
CIVIL LAW
(5) When only collateral blood relatives survive,

ordinary rules of legal or intestate succession
shall apply
Art. 184 (as amended by RA 8552), FC.

The following may not adopt:
(1) The guardian, with respect to the ward, prior
to the approval of the final accounts
rendered upon the termination of the
guardianship
(2) Any person convicted of a crime of moral
turpitude
NAME
Art. 365, CC. An adopted child shall bear the
surname of the adopter.
RA 8552 allows the change of first name to be
instituted in the same proceeding as the
adoption: the decree of adoption shall state
the name by which the child is to be known.
RIGHTS OF AN ADOPTED CHILD

PARENTAL AUTHORITY
Except in cases where the biological parent is
the adopters spouse, all legal ties between
biological parent and adoptee shall be severed,
and the same shall then be vested on the
adopters. [Sec. 16]
NATIONALITY
Adoption does not confer citizenship: Philippine
citizenship may be lost/acquired [only] in the
manner provided by law. [Sec. 3, Art. 4,
Constitution]
The right to confer citizenship belongs to the
State (political) and cannot be granted by a
citizen through adoption. Adoption creates a
relationship between the adopter and adoptee,
not between the State and the adoptee.
LEGITIMACY
The adoptee shall be considered the legitimate
son/daughter of the adopters for all intents and
purposes, and as such is entitled to all rights
and obligations provided by law to legitimate
children born to them without discrimination of
any kind. [Sec. 17]
RESCISSION OF ADOPTION
Adoptee may file action for rescission, with the

assistance of DSWD if he/she is a minor or over
18 but incapacitated, based on the following
grounds [Sec. 19]:
(1) Repeated physical and verbal maltreatment
by adopters despite having undergone
counseling
(2) Attempt on life of adoptee
(3) Sexual assault or violence
(4) Abandonment or failure to comply with
parental obligations
SUCCESSION
In legal and intestate succession, the adopter
and the adoptee shall have reciprocal rights of
succession without distinction from legitimate
filiation. However, if the adoptee and his/her
biological parents had left a will, the law on
testamentary succession shall govern. [Sec. 18]
Art. 190, FC as amended. Rules on legal or
intestate succession to the estate of the
adoptee:
(1) Legitimate and illegitimate children,
descendants and the surviving spouse of the
adoptee shall inherit in accordance with the
ordinary rules of legal/intestate succession
(2) When the surviving spouse OR illegitimate
children AND adopters concur, they shall
inherit on a 50-50 basis
(3) When the surviving spouse AND illegitimate
children AND adopters concur, they shall
inherit on a 1/3-/1/3-1/3 basis
(4) When only adopters survive, they shall
inherit 100% of the estate
Adoption, being in the best interest of the child,

shall not be subject to rescission by the adopter.
However, the adopter may disinherit the child
based on these causes [Art. 919, CC]:
(1) Conviction of an attempt on the life of the
adopter
(2) Having accused, without grounds, the
adopter of a crime punishable by
imprisonment for more than 6 years
(3) Conviction of adultery/concubinage with
the adopters spouse
PAGE 60
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(4) Having caused the adopter to make or

change a will by force, intimidation or undue
influence
(5) Refusal without just cause to support the
adopter
(6) Maltreatment of the adopter by word/deed
(7) Living a dishonorable/disgraceful life
(8) Conviction of a crime which carries with it
the penalty of civil interdiction
punished for such act, PROVIDED [Sec. 22 (RA

8552)]:
(1) The simulation was for the childs best
interest
(2) Child has been treated consistently as his
own
(3) Petition filed within 5 years of RA 8552s
effectivity (2003)
THREE-IN-ONE PROCEDURE
(1) Correction of entries in birth certificate
(2) Deed of Voluntary Commitment
Declaration of abandonment
(3) Adoption decree
EFFECTS OF RESCISSION [Sec. 20]:

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

THE LAW ON INTER-COUNTRY
ADOPTION
(JUNE 7, 1995)
Inter-country Adoption the socio-legal process
of adopting a Filipino child by a foreigner or a
Filipino citizen permanently residing abroad
where the petition is filed, the supervised trial
custody is undertaken, and the decree of
adoption is issued outside the Philippines.
Rescission contemplates a situation where the

adoption decree remains valid until its
termination.
RECTIFICATION
BIRTH
CIVIL LAW
WHO CAN ADOPT
Any foreign national or a Filipino citizen

permanently residing abroad who has the
qualifications and none of the disqualifications
under the Act may file an application if he/she:
(1) Is at least 27 years of age and at least 16
years older than the child to be adopted, at
the time of application unless the adopter is
the parent by nature of the child to be
adopted or the spouse of such parent;
(2) If married, his/her spouse must jointly file
for the adoption;
(3) Has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws, and has
undergone the appropriate counseling from
an accredited counselor in his/her country;
(4) Has not been convicted of a crime involving
moral turpitude;
(5) Is eligible to adopt under his/her national
law;
(6) Is in a position to provide the proper care
and support and to give the necessary
SIMULATED
Simulation of birth is the tampering of LCR

records to make it appear that a certain child
was born to a person who is not his/her
biological parent, causing said child to lose
his/her true identity/status.
Sec. 21-b (RA 8552). Any person who shall cause
the fictitious registration of the birth of a child
under the name(s) of a person(s) who is not
his/her biological parent(s) shall be guilty of
simulation of birth, and shall be punished by
prision mayor in its medium period and a fine
not exceeding P50,000.00.
A person who has, prior to the effectivity of RA
8552, simulated the birth of a child shall not be
PAGE 61
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moral values and example to all his

children, including the child to be adopted;
(7) Agrees to uphold the basic rights of the
child as embodied under Philippine laws,
the U.N. Convention on the Rights of the
Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act;
(8) Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed under his/her national
laws;
(9) Possesses all the qualifications and none of
the disqualifications provided in applicable
Philippine laws.
CIVIL LAW
advantage in favor of the adopted child. In the

instant case, however, to hold that parental
authority had been retroactively lodged in the
adopting parents so as to burden them with
liability for a tortuous act that they could not
have foreseen and which they could not have
prevented would be unfair and unconscionable.
[Tamargo v. CA (1992)]
Adoption is a juridical act, proceeding in rem.
Because it is artificial, the statutory
requirements in order to prove it must be strictly
carried out. Petition must be announced in
publications and only those proclaimed by the
court are valid. Adoption is never presumed.
[Lazatin v. Campos (1979)]
WHO CAN BE ADOPTED
Validity of facts behind a final adoption decree

cannot be collaterally attacked without
impinging on that courts jurisdiction. [Santos v.
Aranzanso (1966)]
Legally-free child one who has been

voluntarily or involuntarily committed to the
DSWD of the Philippines, in accordance with the
Child and Youth Welfare Code.
Participation of the appropriate government

instrumentality in performing the necessary
studies and precautions is important and is
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
child cannot be adopted locally (last resort).
Consent for adoption must be written and

notarized. [Landingin v. Republic (2006)]
Only a legally-free child may be the subject of

inter-country adoption.
Adopted children do not have a right to

represent their adopters in successional
interests. Although an adopted child is deemed
to be a legitimate child and have the same
rights as the latter, these rights do not include
the right of representation (because the
adopted child has no right to inherit from the
grandparent). The relationship created by the
adoption is between only the adopting parents
and the adopted child. It does not extend to the
blood relatives of either party. [Sayson v. CA
(1992)]
In order that such child may be considered for

placement, the following documents must be
submitted to the Board:
(1) Child study
(2) Birth Certificate / Foundling Certificate
(3) Deed of Voluntary Commitment/ Decree of
Abandonment/ Death Certificate of parents
(4) Medical Evaluation / History
(5) Psychological Evaluation, as necessary
(6) Recent photo of the child
Where the petition for adoption was granted
after the child had shot and killed a girl, the
Supreme Court did not consider the retroactive
effect given to the decree of adoption so as to
impose a liability upon adopting parents at a
time when adopting parents had no actual or
physically custody over the child. Retroactive
effect may perhaps be given to the granting of
the petition for adoption where such is essential
to permit the accrual of some benefit or
PAGE 62
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Support
The order of liability among ascendants and

descendants would be:
(1) Legitimate children and descendants,
(2) Legitimate parents and ascendants,
(3) Illegitimate children and their descendants.
[Tolentino]
WHAT IT COMPRISES
Consists of everything indispensable for

sustenance, dwelling, clothing, medical
attendance, education and transportation, in
keeping with the financial capacity of the family.
[Art. 194, FC]
Education includes a persons schooling or
training for some profession, trade or
vocation, the right to which shall subsist
beyond the age of majority. [Art. 194, FC]
Transportation includes expenses in going to
and from school, or to and from place of work.
[Art. 194, FC]
When two or more are obliged to give support,

the payment shall be divided between them in
proportion to their resources;
Also, in case of urgent need and by special
circumstances, judge may order only one
obligor to furnish support without prejudice to
reimbursement from other obligors of the share
due from them [Art. 200, FC].
If there are multiple recipient sand only one
obligor, and the latter has no sufficient means to
satisfy all claims:
(1) Observe order in Article 199 as to whose
claim shall be satisfied first;
(2) But if the concurrent obligees are the
spouse and a child subject to parental
authority, the child shall be preferred. [Art.
200, FC]
WHO ARE OBLIGED

To support each other:
(1) Spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their children (legitimate and
illegitimate) and the children of the latter
(legitimate and illegitimate);
(4) Legitimate brothers and sisters, whether of
full or half-blood; [Art. 195, FC]
(5) Illegitimate brothers and sisters, whether of
full or half-blood, except when the need for
support of one (of age) is due to a cause
imputable to his/her fault or negligence.
[Art. 196, FC]
The above preference given to a child under

parental authority over the spouse should
prevail only if the person obliged to support
pays it out of his separate property. So if the
support comes from ACP or CPG, the above rule
of preference for the child does not apply.
[Tolentino]
Both legitimate and illegitimate children are

entitled to support.
PROPERTIES
SUPPORT
ANSWERABLE
CIVIL LAW
Even if the parents-in-law were the ones who

called for the physicians services for the
childbirth of their daughter-in-law, it is the
womans husband who is bound to pay the fees
due to the physician. [Pelayo v. Lauron (1909)]
FOR
From the separate property of the obligor. If no

separate property, the ACP/CPG (if financially
capable) shall advance the support, to be
deducted from the obligors share upon
liquidation of such regime. [Art. 197, FC]
Man is still liable for support in arrears since the

mother advanced it from a stranger (the uncle
of the daughters). [Lacson v. San Jose-Lacson
(1968)]
ORDER OF SUPPORT
If there are multiple obligors [Art. 199, FC]:

(1) Spouse
(2) Descendants, nearest in degree
(3) Ascendants, nearest in degree
(4) Brothers and Sisters
Acknowledgment of and commitment to

comply with support obligation through a note
in his own handwriting is proof that a demand
was made. [Lacson v. Lacson (2006)]
PAGE 63
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The amount of support is variable and, for this

reason, no final judgment on the amount of
support is made as the amount shall be in
proportion to the resources or means of the
giver and the necessities of the recipient.
[Gotardo v. Buling (2012)]
spouses ceases. (But in legal separation, court

may order guilty spouse to give support to
innocent spouse.) [Art. 198, FC]
Note: De facto separation does not affect the
ACP and the CPG, except that the spouse who
leaves the conjugal home without just cause
shall not be entitled to support. [Art. 100, FC]
STRANGER GIVES SUPPORT
When, without the knowledge of the person

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

FAILS TO GIVE SUPPORT
CIVIL LAW
AMOUNT
The amount of support is in proportion to the
means of the provider and the needs of the
receiver, and can be reduced or increased if such
circumstances change. [Arts. 201, 202, FC]
OR
WHEN DEMANDABLE
The obligation to give support shall be
demandable from the time the person who has
a right to receive the same needs it for
maintenance, but it shall not be paid except
from the date of judicial or extra-judicial
demand. [Art. 203, FC]
When the person obliged to give support

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

accordance with the Rules of Court. [Art. 203,
FC]
CONTRACTUAL SUPPORT OR THAT

GIVEN BY WILL
Payment shall be made within the first 5 days of

each corresponding month. When the recipient
dies, his heirs shall not be obliged to return
what he has received in advance. [Art. 203, FC]
The excess in amount beyond that required for

legal support shall be subject to levy on
attachment or execution. [Art. 208, FC]
OPTIONS
Reason: The amount of support agreed upon in

the contract or given in the will can be more
than what the recipient needs [Sempio-Diy].
(1) Payment of the amount; or

(2) Receiving and maintaining the recipient in
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
manifestly beyond the contemplation of the
parties. [Art. 208, FC]
ATTACHMENT
The right to receive support as well as any
money or property obtained as such support
shall not be levied upon on attachment or
execution. [Art. 205, FC]
SUPPORT DURING MARRIAGE

LITIGATION
This is to protect that which the law gives to the

recipient against want and misery. [Tolentino]
Pending legal separation or annulment, and for

declaration of nullity, support pendente lite for
spouses and children will come from the
ACP/CPG. After final judgment granting the
petition, mutual support obligation between
PAGE 64
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Parental Authority
CIVIL LAW
(2) Cannot be renounced, transferred or

waived, except in cases authorized by law
[Art. 210, FC]
(3) Jointly exercised by the father and the
mother [Art. 211, FC]
(4) Purely personal and cannot be exercised
through agents
(5) Temporary
GENERAL PROVISIONS
Parental authority is the mass of rights and

obligations which parents have in relation to the
person and property of their children until their
emancipation, and even after this under certain
circumstances [Manresa].
PARENTAL PREFERENCE RULE
The natural parents, who are of good character

and who can reasonably provide for the child,
are ordinarily entitled to custody as against all
persons. [Santos v. CA (1995)]
PARENTAL AUTHORITY INCLUDES
[Art. 209]:
(1) The caring for and rearing of children for
civic consciousness and efficiency;
(2) The development of the moral, mental and
physical character and well-being of said
children
WHO EXERCISES AUTHORITY IN

CASES OF DEATH, ABSENCE,
UNSUITABILITY, REMARRIAGE, OR
SEPARATION OF PARENTS
Parental authority and responsibility may not be

renounced or transferred except in the cases
authorized by law. [Art. 210, FC]
(1) In case one parent is absent or already dead,

the present or surviving parent [Art. 212, FC]
Remarriage of the surviving parent shall
not affect his/her parental authority over
the children, unless the court appoints
another person to be the guardian of the
children or their property [Art. 212, FC]
(2) In case of a void/annulled marriage, and
there is no agreement between spouses, the
parent designated by the court [Art. 43(1),
FC; Art. 49, FC]
(3) Innocent spouse gets custody of minor
children in legal separation [Art. 63(3), FC]
(4) The court shall take into account all
relevant considerations, especially the
choice of the child over seven years of age,
unless the parent chosen is unfit [Art. 213(1),
FC]
(5) Substitute parental authority [Art. 214, FC]
(a) In case of death, absence or
unsuitability of the parents, substitute
parental authority shall be exercised by
the surviving grandparent
(b) When several grandparents survive, the
one designated by the court shall
exercise parental authority, taking into
account all relevant considerations,
especially the choice of the child over
seven years of age, unless the
grandparent chosen is unfit
CASES
WHEN
PARENTAL
AUTHORITY AND RESPONSIBILITY
MAY
BE
TRANSFERRED
OR
RENOUNCED
(1) Adoption;
(2) Guardianship; or
(3) Commitment of the child in an entity or
institution engaged in childcare or in a
childrens home.
RULES AS TO THE EXERCISE OF

PARENTAL AUTHORITY
(1) Jointly exercised by the father and mother

overt heir common children, but in case of
disagreement, the father's decision shall
prevail, unless there is a judicial order to the
contrary [Art. 211, FC]
(2) Exercised by the mother if the child is
illegitimate [Art.176, FC]
(3) Children under parental authority shall
always observe respect and reverence
towards their parents and are obliged to
obey them [Art. 211, FC]
CHARACTERISTICS OF PARENTAL
AUTHORITY
(1) Natural right and duty of parents [Art. 209,

FC]
PAGE 65
UP LAW BOC
DESCENDANTS
PRIVILEGE
REFUSAL TO TESTIFY [Art. 215, FC]
OF
SUBSTITUTE PARENTAL AUTHORITY

OVER DISADVANTAGED CHILDREN
General rule: No descendant shall be

compelled, in a criminal case, to testify against
his parents and grandparents.
Exception:
When
such
testimony
indispensable in:
(1) a crime against the descendant, or
(2) a crime by one parent against the other.
CIVIL LAW
[Art. 217, FC]

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

(1) Foundlings
(2) Abandoned
(3) Neglected
(4) Abused
(5) Others similarly situated
TENDER YEARS PRESUMPTION
No child under 7 years of age shall be separated

from the mother, unless the court finds
compelling reasons to order otherwise. [Art.
213(2); Gamboa v. CA (2007)]
PERSONS EXERCISING SPECIAL

PARENTAL AUTHORITY [Art. 218, FC]
Examples of compelling reasons are:

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

(2) The individual, entity or institution engaged
in childcare
Note: Exercised over minor child while under
their supervision, instruction or custody.
Alleged lesbianism [Gualberto v. Gualberto

(2005)], prostitution or infidelity to husband
does not necessarily make a mother unfit as
parent. It must be shown that such lesbianism,
prostitution or infidelity adversely affects the
child.
Substitute Parental
Authority
Special Parental
Authority
It
is
exercised
concurrently with the
parental authority of
the parents and rests
on the theory that
It is exercised in case
while the child is in the
of death, absence, or
custody of the person
in case of unsuitability
exercising
special
of parents.
parental authority, the
parents temporarily
relinquish
parental
authority over the
child to the latter.
SUBSTITUTE AND SPECIAL

PARENTAL AUTHORITY
PERSONS EXERCISING SUBSTITUTE
PARENTAL AUTHORITY IN DEFAULT
OF PARENTS
OR JUDICIALLY
APPOINTED GUARDIAN
In order:
(1) The surviving grandparent [Art. 214, FC]
(2) Oldest brother or sister, over 21 years old,
unless unfit or unqualified.
(3) Childs actual custodian, over 21 years old,
unless unfit or unqualified.
The special parental authority and responsibility

applies to all authorized activities, whether
inside or outside the premises of the school,
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.
PAGE 66
UP LAW BOC
CIVIL LAW
(4) To administer their property and to use the

fruits and income for the support of the
children and collective daily needs of the
family [Art. 225 and 226, FC]
(5) To give or withhold consent to their
marriage, their marriage settlements, their
donations by reason of marriage, adoption,
and employment [Tolentino]
(6) To disinherit them for just cause [Tolentino]
LIABILITY OF THOSE EXERCISING

SPECIAL PARENTAL AUTHORITY
OVER THE CHILD [Art. 219, FC]
(1) Principal and solidary liability for damages

caused by the acts or omissions of the minor
child while under their special parental
authority
(2) Subsidiary liability for the parents and
judicial guardians of the minor, or those
exercising substitute parental authority over
such minor for his acts and omissions
Art. 220 which states that the parent has a right

to impose necessary discipline on the child does
not authorize the parent to invade or disregard
the childs honor and dignity under the mask of
discipline. Such acts can never be justified as
parental punishment. [People v. Silvano (1999)]
Both groups can use the defense that they

exercised proper diligence to avoid liability
DOCTRINE OF VICARIOUS LIABILITY
[Art. 2180 (2, 3, 7, 8), CC]

(1) The father, and in case of his death, the
mother are responsible for the damages
caused by their minor children who live in
their company
(2) Guardians are liable for damages caused by
the minors or incapacitated persons who
are under their authority and live in their
company
(3) Teachers or heads of establishments of arts
and trades shall be liable for damages
caused by their pupils and students or
apprentices, so long as they remain in their
custody
DUTIES OF PARENTS UPON THE

PERSON OF THE CHILDREN
(1) To support them, providing for their

upbringing in accordance with their means
[Art. 220, FC]
(2) To educate, instruct, and provide them with
moral and spiritual guidance and love and
understanding [Art. 220, FC]
(3) To furnish them with good and wholesome
educational materials, supervise their
activities, recreation and association with
others, protect them from bad company,
and prevent them from acquiring habits
detrimental to their health [Art. 220, FC]
(4) To perform such other duties as are
imposed by law [Art. 220, FC]
(5) To give their lawful inheritance [Tolentino]
(6) To protect them from unlawful aggression
[Tolentino]
(7) To answer for damages caused by their fault
or negligence and for the civil liability for
crimes committed by them. [Art. 221, FC]
Responsibility in Art. 2180 shall cease when the

persons responsible mentioned prove that they
observed all the diligence of a good father of
the family
EFFECT OF PARENTAL
AUTHORITY UPON THE
PERSONS OF THE CHILDREN
SUBSTITUTE REPRESENTATION
The courts may appoint a guardian of the childs

property, or a guardian ad litem when the best
interests of the child so requires. [Art. 222, FC]
RIGHTS OF PARENTS UPON THE

PERSON OF THE CHILDREN
(1) To keep them in their company [Art. 220,

FC]
(2) To represent them in all matters affecting
their interests [Art. 220, FC]
(3) To demand from them respect and
obedience and impose necessary discipline
on them [Art. 220, FC]
COURT
ASSISTANCE
IN
DISCIPLINE OF THE CHILD
THE
(1) The parents or, in their absence or

incapacity, the individual, entity or
institution exercising parental authority,
may petition the proper court of the place
PAGE 67
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where the child resides, for an order

providing for disciplinary measures over the
child. [Art. 223, FC]
(2) The child shall be entitled to the assistance
of counsel, either of his choice or appointed
by the court, and a summary hearing shall
be conducted wherein the petitioner and
the child shall be heard. [Art. 223, FC]
(3) If the court finds the petition meritorious,
disciplinary measures may include the
commitment of the child for not more than
30 days in entities or institutions engaged in
childcare or in childrens homes duly
accredited by the proper government
agency. [Art. 224, FC]
The parent exercising parental authority
shall not interfere with the case of the
child whenever committed but shall
provide for his support. [Art. 224, FC]
Upon proper petition or at its own
instance, the court may terminate the
commitment of the child whenever just
and proper. [Art. 224, FC]
(4) If the court finds the petitioner at fault,
irrespective of the merits of the petition, or
when the circumstances so warrant, the
court may also order the deprivation or
suspension of parental authority or adopt
such other measures as it may deem just
and proper. [Art. 223, FC]
CIVIL LAW
bond of not less than 10% of the value of

the childs property or annual income.
PROCEDURE IN THE APPROVAL OF

THE PARENTS BOND [Art. 225, FC]
(1) A verified petition for approval of the bond

shall be filed in the proper court of the place
where the child resides.
(2) If the child resides in a foreign country, the
petition shall be filed in the proper court of
the place where the property or any part
thereof is situated.
(3) The petition shall be docketed as a
summary special proceeding. The court
shall determine the amount of the bond,
but shall not be less than 10% of the market
value of the childs property or of his annual
income.
OWNERSHIP OF CHILDS
ACQUISITIONS
The property of the unemancipated child earned

or acquired with his work or industry or by
onerous or gratuitous title shall belong to the
child in ownership and shall be devoted
exclusively to the latters support and education,
unless the title or transfer provides otherwise.
[Art. 226, FC]
PARENTS USUFRUCT
The right of the parents over the fruits and

income (not the property itself) of the childs
property shall be limited primarily to the childs
support and secondarily to the collective daily
needs of the family. [Art. 226, FC]
EFFECTS OF PARENTAL
AUTHORITY UPON THE
PROPERTY OF THE CHILDREN
[Art. 225, FC]
(1) The father and mother shall jointly exercise
legal guardianship over the property of the
minor common child without court
appointment.
(2) In case of disagreement, the fathers
decision shall prevail, unless there is judicial
order to the contrary.
(3) The ordinary rules on guardianship shall be
merely suppletory except when the child is
under substitute parental authority, or the
guardian is a stranger, or a parent has
remarried, in which case the ordinary rules
on guardianship shall apply.
(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
WHEN PARENTS ENTRUST THE

MANAGEMENT
OF
THEIR
PROPERTIES TO A CHILD [Art. 227, FC]
If the parents entrust the management or

administration of any of their properties to an
unemancipated child, the net proceeds of
such property shall belong to the owner.
The child shall be given a reasonable monthly
allowance in an amount not less than that
which the owner would have paid if the
administrator were a stranger, unless the
owner grants the entire proceeds to the child.
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In any case, the proceeds thus given in whole

or in part shall not be charged to the childs
legitime.
(5) Subjects the child or allows him to be

subjected to acts of lasciviousness
The aforesaid grounds are to include cases
which resulted from culpable negligence of the
parent or the person exercising parental
authority.
SUSPENSION OR TERMINATION
OF PARENTAL AUTHORITY;
RA 7610, CHILD ABUSE LAW
If the degree of seriousness or the welfare of the

child so demands, the court may deprive the
guilty party of parental authority or adopt such
other measures as may be proper.
PARENTAL AUTHORITY
PERMANENTLY TERMINATES
(1)
(2)
(3)
(4)
CIVIL LAW
Upon death of parents [Art. 228, FC]

Upon death of child [Art. 228, FC]
Upon emancipation of child [Art. 228, FC]
If the parents exercising parental authority
has subjected the child or allowed him to be
subjected to sexual abuse [Art. 232, FC]
PERMANENT DEPRIVATION OF
PARENTAL AUTHORITY ON
GROUNDS OF SEXUAL ABUSE [Art. 232,
FC]
If the person exercising parental authority has
subjected or has allowed the child to be
subjected to sexual abuse, such person shall be
permanently deprived of authority over the
child.
In the case of death of parents, there is no

absolute termination of parental authority
because while the child is still a minor, the
grandparents, brothers and sisters, or a
guardian may exercise substitute parental
authority over the child [Art. 216, FC]
SCOPE
OF
SUBSTITUTE
AND
SPECIAL PARENTAL AUTHORITY [Art.
TERMINATION
OF
PARENTAL
AUTHORITY WHICH CAN BE REVIVED
BY FINAL JUDGMENT [Art. 229, FC]
233, FC]
The person exercising substitute parental
authority shall have the same authority over
the person of the child as the parents.
In no case shall the school administrators,
teacher or individual engaged in childcare
exercising special parental authority inflict
corporal punishment upon the child.
(1) Upon adoption of the child;

(2) Upon the appointment of a general
guardian for the child;
(3) Upon judicial declaration of
(a) Abandonment of the child in a case
filed for the purpose
(b) Absence or incapacity of the person
exercising parental authority
(4) Upon final judgment of a competent court
divesting the party concerned of parental
authority.
RA 7610, CHILD ABUSE LAW

PERSONS LIABLE
(1) Those who engage in or promote, facilitate
or induce child prostitution which include,
but are not limited to, the following:
(a) Acting as a procurer of a child
prostitute;
(b) Inducing a person to be a client of a
child prostitute by means of written or
oral advertisements or other similar
means;
(c) Taking advantage of influence or
relationship to procure a child as
prostitute;
(d) Threatening or using violence towards a
child to engage him as a prostitute; or
GROUNDS FOR SUSPENSION OF

PARENTAL AUTHORITY [Art. 230 and
231, FC]
(1) Conviction of parent for crime which carries
with it the penalty of civil interdiction
(2) Treats child with excessive harassment and
cruelty
(3) Gives corrupting orders, counsel, or
example
(4) Compels child to beg
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(e) Giving monetary consideration, goods

or other pecuniary benefit to a child
with intent to engage such child in
prostitution.
(2) Those who commit the act of sexual
intercourse of lascivious conduct with a
child exploited in prostitution or subject to
other sexual abuse
(3) Those who derive profit or advantage
therefrom, whether as manager or owner of
the establishment where the prostitution
takes place, or of the sauna, disco, bar,
resort, place of entertainment or
establishment serving as a cover or which
engages in prostitution in addition to the
activity for which the license has been
issued to said establishment.
(4) Any person who, not being a relative of a
child, is found alone with the said child
inside the room or cubicle of a house, an
inn, hotel, motel, pension house, apartelle
or other similar establishments, vessel,
vehicle or any other hidden or secluded area
under circumstances which would lead a
reasonable person to believe that the child
is about to be exploited in prostitution and
other sexual abuse.
(5) Any person who is receiving services from a
child in a sauna parlor or bath, massage
clinic, health club and other similar
establishments.
(6) Any person who shall engage in trading and
dealing with children including, but not
limited to, the act of buying and selling of a
child for money, or for any other
consideration, or barter
(7) Any person who lets a child to travel alone
to a foreign country without valid reason
therefor and without clearance issued by
the Department of Social Welfare and
Development or written permit or
justification from the child's parents or legal
guardian
(8) Any person, agency, establishment or childcaring institution who recruits women or
couples to bear children for the purpose of
child trafficking
(9) Any doctor, hospital or clinic official or
employee, nurse, midwife, local civil registrar or
any other person who simulates birth for the
purpose of child trafficking
CIVIL LAW
(10) Any person who engages in the act of

finding children among low-income
families, hospitals, clinics, nurseries, daycare centers, or other child-caring
institutions who can be offered for the
purpose of child trafficking
(11) Any pregnant mother who executes an
affidavit of consent for adoption for a
consideration
(12) Any person who shall hire, employ, use,
persuade, induce or coerce a child to
perform in obscene exhibitions and indecent
shows, whether live or in video, or model in
obscene publications or pornographic
materials or to sell or distribute the said
materials
(13) Any person who shall commit any other acts
of child abuse, cruelty or exploitation or to
be responsible for other conditions
prejudicial to the child's development
(14) Any person who shall keep or have in his
company a minor, 12 years or under or who
is 10 years or more his junior in any public or
private place, hotel, motel, beer joint,
discotheque, cabaret, pension house, sauna
or massage parlor, beach and/or other
tourist resort or similar places
Exception: Any person who is related
within the fourth degree of consanguinity
or affinity or any bond recognized by law,
local custom and tradition or acts in the
performance of a social, moral or legal
duty
(15) Any person who shall induce, deliver or offer
a minor to any one prohibited by RA 7610 to
keep or have in his company a minor.
(16) Any person, owner, manager or one
entrusted with the operation of any public
or private place of accommodation, whether
for occupancy, food, drink or otherwise,
including residential places, who allows any
person to take along with him to such place
or places any minor herein described.
(17) Any person who shall use, coerce, force or
intimidate a street child or any other child
to:
(a) Beg or use begging as a means of living;
(b) Act as conduit or middlemen in drug
trafficking or pushing; or
(c) Conduct any illegal activities.
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Emancipation
CIVIL LAW
SEPARATION IN FACT
[as amended by RA
A verified petition alleging the following facts is

required when [Art. 239]:
(1) A husband and wife are separated in fact;
or,
(2) One has abandoned the other
6809]
Art. 234, FC. Emancipation takes place by the
attainment of majority. Unless otherwise
provided, majority commences at the age of
eighteen years.
SITUATION
Where one of them seeks judicial authorization

for a transaction where the consent of the other
spouse is required by law but such consent is
withheld or cannot be obtained
Art. 236, FC. Emancipation shall terminate

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

(1) Attach the proposed deed, if any,
embodying the transaction, if none, shall
describe in detail the said transaction and
state the reason why the required consent
thereto cannot be secured.
(2) The final deed duly executed by the parties
shall be submitted to and approved by the
court.
Contracting marriage shall require parental

consent until the age of twenty-one.
Nothing in this Code shall be construed to
derogate from the duty or responsibility of
parents and guardians for children and wards
below twenty-one years of age mentioned in the
second and third paragraphs of Article 2180 of
the Civil Code.
SEPARATE CLAIM FOR DAMAGES
Claims for damages by either spouse, except

costs of the proceedings, may be litigated only
in a separate action. [Art. 240,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
a minor in a recorded public instrument.
JURISDICTION
Jurisdiction over the petition shall, upon proof of

notice to the other spouse, be exercised by the
proper court authorized to hear family cases, if
one exists, or in the regional trial court or its
equivalent sitting in the place where either of
the spouses resides. [Art. 241, FC]
Summary Judicial
Proceedings in the Family
Law
NOTIFICATION TO OTHER SPOUSE
[Art. 242, FC]

(1) Upon the filing of the petition, the court
shall notify the other spouse, whose consent
to the transaction is required, of said
petition, ordering said spouse to show cause
why the petition should not be granted, on
or before the date set in said notice for the
initial conference.
(2) The notice shall be accompanied by a copy
of the petition and shall be served at the
last known address of the spouse
concerned.
PROCEDURAL RULES
PROVIDED FOR IN THIS TITLE
SHALL APPLY TO [Art. 238, FC]
(1) Separation in fact between husband and
wife
(2) Abandonment by one of the other
(3) Incidents involving parental authority
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CIVIL LAW
INCIDENTS INVOLVING
PARENTAL AUTHORITY
PROCEDURE
(1) A preliminary conference shall be
conducted by the judge personally without
the parties being assisted by counsel.
(2) After the initial conference, if the court
deems it useful, the parties may be assisted
by counsel at the succeeding conferences
and hearings. [Art. 243, FC]
(3) If the petition is not resolved at the initial
conference, said petition shall be decided in
a summary hearing.
Basis of summary hearing (at the sound
discretion of the court):
(a) Affidavits
(b) Documentary evidence
(c) Oral testimonies at the courts sound
discretion. If testimony is needed, the
court shall specify the witnesses to be
heard and the subject-matter of their
testimonies, directing the parties to
present said witnesses. [Art. 246(a),
FC]
PROCEDURE
(1) Such petitions shall be verified and filed in

the proper court of the place where the
child resides. [Art. 250, FC]
(2) Upon the filing of the petition, the court
shall notify the parents or, in their absence
or incapacity, the individuals, entities or
institutions exercising parental authority
over the child. [Art. 251, FC]
Petitions filed under Articles 223, 225 and 235
of this Code involving parental authority shall
be verified. [Art. 249, FC]
The rules in Chapter 2 hereof shall also govern
summary proceedings under this Chapter
insofar as they are applicable [Art. 253, FC]
The foregoing rules in Chapter 2 (Separation in
Fact) and (Incidents Involving Parental
Authority) hereof shall likewise govern summary
proceedings filed:
(1) Declaration of presumptive death [Art. 41,
FC]
(2) Delivery of presumptive legitime [Art. 51, FC]
(3) Fixing of family domicile [Art. 69, FC]
(4) Disagreements regarding one spouses
profession, occupation, business, or activity
[Art. 73, FC]
(5) Disposition or encumbrance of common
property in ACP where one spouse is
incapacitated or unable to participate in the
administration; administration of absolute
community in a disagreement and the wife
takes recourse within five years [Art. 96, FC]
(6) Disposition or encumbrance of common
property in CPG where one spouse is
incapacitated or unable to participate in the
administration;
administration
of
partnership property in a disagreement and
the wife takes recourse within five years,
[Art. 124, FC]
WHEN APPEARANCE OF SPOUSES

REQUIRED
(1) In case of non-appearance of the spouse

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

final and executory. [Art 247]
RULES APPLICABLE FOR

ADMINISTERING OR ENCUMBERING
SEPARATE PROPERTY OF SPOUSE
The petition for judicial authority to administer

or encumber specific separate property of the
abandoning spouse and to use the fruits or
proceeds thereof for the support of the family
shall also be governed by these rules. [Art. 248,
FC]
When wife and husband are de facto separated

and the CPG is insufficient, the spouse present
shall, upon a petition, be given judicial authority
to administer or encumber any specific property
of the other spouse and use the fruits and
PAGE 72
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CIVIL LAW
proceeds thereof to satisfy the latters share.

[Art. 127, FC]
No human remains shall be retained, interred,

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,

or wrongfully interferes with a funeral shall be
liable to the family of the deceased for
damages, material and moral [Art. 309, CC]
This Code shall have retroactive effect insofar as

it does not prejudice or impair vested or
acquired rights in accordance with the Civil
Code or other laws. [Art 256, FC]
FUNERAL EXPENSES
The construction of a tombstone or mausoleum

shall be deemed a part of the funeral expenses,
and shall be chargeable to the conjugal
partnership property, if the deceased is one of
the spouses [Art. 310, CC].
Funeral
RELATIVES DUTY AND RIGHTS
TO ARRANGE FUNERALS
The duty and the right to make arrangements
for the funeral of a relative shall be in
accordance with the order established for
support, under Article 294 [Art. 305, CC]:
(1) Spouse
(2) Descendants in the nearest degree. In case
of descendants of the same degree, the
oldest shall be preferred.
(3) The ascendants in the nearest degree. In
case of ascendants, the paternal shall have
a better right.
(4) The brothers and sisters, the oldest shall be
preferred.
(5) Municipal authorities, if there are no
persons who are bound to support or if such
persons are without means.
GUIDELINES
IN
MAKING
FUNERAL ARRANGEMENTS
(1) The persons who are preferred in the right

to make funeral arrangements may waive
the right expressly or impliedly in which
case the right and duty immediately
descend to the person next in the order.
(2) It must be in keeping with the social
position of the deceased.
(3) Law shall prevail over the will of the persons
who have the right to control the burial of
deceased exhumation, evidential purpose,
disposition of corpse by deceased,
mutilation of corpses and autopsies.
(4) Corpses which are to be buried at public
expenses may also be used for scientific
purposes under certain conditions.
(5) Expressed wishes of the deceased is given
priority provided that it is not contrary to law
and must not violate the legal and
reglementary
provisions
concerning
funerals and disposition of the remains
(time, manner, place or ceremony)
(6) In the absence of expressed wishes, his
religious beliefs or affiliation shall
determine the funeral rights.
(7) In case of doubt, the persons in Art. 199
shall decide.
(8) Any person who disrespects the dead or
interferes with the funeral shall be liable for
material and moral damages.
NATURE OF FUNERAL
Every funeral shall be in keeping with the social

position of the deceased. [Art. 306]
The funeral shall be [Art. 307, CC]:
(1) In accordance with the expressed wishes of
the deceased.
(2) In the absence of such expression, his
religious beliefs or affiliation shall
determine the funeral rites.
(3) In case of doubt, the form of the funeral
shall be decided upon by the person obliged
to make arrangements for the same, after
consulting the other members of the family
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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,
the wife shall continue using her name and
surname employed before the legal
separation. [Art. 372, CC]
(4) A widow may use the deceased husband's
surname as though he were still living, in
accordance with Article 370. [Art 373, CC]
SURNAMES OF CHILDREN
(1) Legitimate and legitimated children shall

principally use the surname of the father.
[Art. 364, CC]
(2) An adopted child shall bear the surname of
the adopter. [Art. 365, CC]
(3) A natural child acknowledged by both
parents shall principally use the surname of
the father. If recognized by only one of the
parents, a natural child shall employ the
surname of the recognizing parent. [Art 366,
CC]
(4) Natural children by legal fiction shall
principally employ the surname of the
father. [Art. 367, CC]
(5) Illegitimate children referred to in Article 287
shall bear the surname of the mother. [Art
368, CC]
(6) Children conceived before the decree
annulling a voidable marriage shall
principally use the surname of the father.
[Art. 369, CC]
WIFE AFTER
MARRIAGE
AND
CIVIL LAW
CONFUSION AND CHANGE OF

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

subject of an action for damages and other
relief. [Art. 377, CC]
(1) A married woman may use [Art. 370, CC]:

(a) Her maiden first name and surname
and add her husband's surname, or
(b) Her maiden first name and her
husband's surname or
(c) Her husband's full name, but prefixing a
word indicating that she is his wife, such
as "Mrs."
The wife cannot claim an exclusive
right to use the husbands surname.
She cant be prevented from using it;
but neither can she restrain others
from using it. [Tolentino]
(2) In case of annulment of marriage, and the
wife is the guilty party, she shall resume her
maiden name and surname. If she is the
innocent spouse, she may resume her
maiden name and surname. However, she
may choose to continue employing her
former husband's surname, unless [Art. 371,
CC]:
(a) The court decrees otherwise, or
The unauthorized or unlawful use of another

person's surname gives a right of action to the
latter [Art. 378, CC]
The employment of pen names or stage names
is permitted, provided it is done in good faith
and there is no injury to third persons. Pen
names and stage names cannot be usurped.
[Art. 379, CC]
Except as provided in the preceding article, no
person shall use different names and surnames.
[Art 380, CC]
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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
case of disappearance where there is danger of
death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
PROVISIONAL MEASURES IN
CASE OF ABSENCE
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
alleges the death of one prior to the other, shall
prove the same; in the absence of proof, it is
presumed that they died at the same time and
there shall be no transmission of rights from
one to the other.
SUBSEQUENT MARRIAGE
CONTRACTED WHEN ONE
SPOUSE IS ABSENT
General rule: Marriage contracted by any person

during the subsistence of a previous marriage is
void.
Article 43 provides a statutory presumption

when there is doubt on the order of death
between persons who are called to succeed each
other (only).
Exceptions:
The following subsequent marriage of the
present spouse is valid:
(1) Subsequent marriage due to ordinary
absence where:
(a) The prior spouse had been absent for 4
consecutive years;
(b) The spouse present had a well-founded
belief that absent spouse is dead; and
(c) Judicial declaration of presumptive
spouse).
(2) Subsequent marriage due to extraordinary
absence where:
(a) The prior spouse had been missing for 2
consecutive years;
(b) There is danger of death attendant to
the disappearance [Art. 391, Civil Code];
(c) The spouse present had a well-founded
belief that the missing person is dead;
and
(d) Judicial declaration of presumptive
spouse).
The statutory presumption of Article 43 was not

applied due to the presence of a credible
eyewitness as to who died first. [Joaquin v.
Navarro (1948)]
PRESUMPTION IN THE RULES OF

COURT (RULE 131, SEC. 3, (JJ.)
(PRESUMPTION OF SURVIVORSHIP)
Age
Both under 15
Both above 60
One under 15, the other
above 60
Both over 15 and under
60; different sexes
Both over 15 and under
60; same sex
One under 15 or over 60,
the other between those
ages
CIVIL LAW
Presumed Survivor
Older
Younger
One under 15
Male
Older
One between 15 and 60
Applicable only to two or more persons who

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

sufficient. There must also be a summary
judgment. [Balane]
Only the deserted spouse can file or institute a
summary proceeding for the declaration of
presumptive death of the absentee. [Bienvenido
case]
Art. 41, CC. A marriage contracted by any person

during subsistence of a previous marriage shall
be null and void, unless before the celebration
of the subsequent marriage, the prior spouse
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There must have been diligent efforts on the

part of the deserted spouse to locate the absent
spouse. These diligent efforts correspond to the
requirement of the law for a well-founded
belief.
CIVIL LAW
WHO MAY BE APPOINTED

REPRESENTATIVE
AS
(1) Spouse present shall be preferred when

there is no legal separation.
(2) If no spouse or spouse is incapacitated, any
competent person.
Exception to the Exception:
DECLARATION OF ABSENCE
Art. 381, CC. When a person disappears from his

domicile, his whereabouts being unknown, and
without leaving an agent to administer his
property, the judge, at the instance of an
interested party, a relative, or a friend, may
appoint a person to represent him in all that
may be necessary.
Art. 384, CC. Two years having elapsed without

any news about the absentee or since the
receipt of the last news, and five years in case
the absentee has left a person in charge of the
administration of his property, his absence may
be declared
This same rule shall be observed when under

similar circumstances the power conferred by
the absentee has expired.
Art. 385, CC. The following may ask for the

declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may
present an authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of
the absentee some right subordinated to
the condition of his death.
Art. 382, CC. The appointment referred to in the

preceding article having been made, the judge
shall take the necessary measures to safeguard
the rights and interests of the absentee and
shall specify the powers, obligations and
remuneration of his representative, regulating
them, according to the circumstances, by the
rules concerning guardians.
Article 386, CC. The judicial declaration of

absence shall not take effect until six months
after its publication in a newspaper of general
circulation.
Art. 383, CC. In the appointment of a

representative, the spouse present shall be
preferred when there is no legal separation.
WHEN MAY ABSENCE BE DECLARED
If the absentee left no spouse, or if the spouse

present is a minor, any competent person may
be appointed by the court.
(1) Two years without any news about the

absentee
(2) Five years if the absentee left a person in
charge of administration of his property
(3) Declaration takes effect only after six
months after publication in a newspaper of
general circulation
REQUISITES TO APPOINT
REPRESENTATIVE
The judge may appoint a person to represent

absentee when:
(1) Person disappears from his domicile
(2) His whereabouts are unknown
(3) No agent to administer his property
(4) An interested party, a relative, or a friend
files the action
WHO MAY ASK FOR A DECLARATION

OF ABSENCE
(1) Spouse present

(2) Heirs instituted in a will, who may present an
authentic copy of the same;
(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
PROPERTY OF THE ABSENTEE
CIVIL LAW
PRESUMPTION OF DEATH
Art. 390, CC. After an absence of 7 years, it
Art. 387, CC. An administrator of the absentee's

property shall be appointed in accordance with
Article 383.

an absence of 10 years. If he disappeared after
the age of 75 years, an absence of 5 years shall
be sufficient in order that his succession may be
opened.
Art. 388, CC. The wife who is appointed as an

administratrix of the husband's property cannot
alienate or encumber the husband's property, or
that of the conjugal partnership, without judicial
authority.
Art. 389, CC. The administration shall cease in
any of the following cases:
(1) When the absentee appears personally or
by means of an agent;
(2) When the death of the absentee is proved
and his testate or intestate heirs appear;
(3) When a third person appears, showing by a
proper document that he has acquired the
absentee's property by purchase or other
title.
Art. 391, CC. The following shall be presumed

years;
In these cases the administrator shall cease in

the performance of his office, and the property
shall be at the disposal of those who may have a
right thereto.
General rule: A person shall be presumed dead

for all purposes after absence for a period of 7
years.
WHO MAY ADMINISTER THE

PROPERTY
(1) Spouse present shall be preferred when

there is no legal separation
(2) If no spouse or spouse is incapacitated, any
competent person
Exception: Succession
In succession, 10 years is required for
presumption of death.
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

office, and property shall be disposed in favor of
those who have a right thereto when:
(1) Absentee appears personally or by means of
an agent
(2) Testate or intestate heirs appear, upon proof
of death of absentee
(3) Third person appears, with a proper
document showing he has acquired
absentees property by purchase or other
title
Only 4 years is required for presumption to arise

if:
years;
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CIVIL LAW
Art. 409, CC. In cases of legal separation,

adoption, naturalization and other judicial
orders mentioned in the preceding article, it
shall be the duty of the clerk of the court which
issued the decree to ascertain whether the same
has been registered, and if this has not been
done, to send a copy of said decree to the civil
registry of the city or municipality where the
court is functioning.
Although 7 years is required for the presumption

of death of an absentee in the Civil Code, Art. 41
of the Family Code makes an exception for the
purpose of remarriage by limiting such
requirement to 4 years.
Art. 41 also limits the required 4 years in Art. 391
for absence under exceptional circumstances to
only 2 years.
Art. 410, CC. The books making up the civil

register and all documents relating thereto
shall be considered public documents and shall
be prima facie evidence of the facts therein
contained.
Art. 392, CC. If the absentee appears, or without

appearing his existence is proved, he shall
recover his property in the condition in which it
may be found, and the price of any property that
may have been alienated or the property
acquired therewith; but he cannot claim either
fruits or rents.
Art. 411, CC. Every civil registrar shall be civilly

responsible for any unauthorized alteration
made in any civil register, to any person
suffering damage thereby. However, the civil
registrar may exempt himself from such liability
if he proves that he has taken every reasonable
precaution to prevent the unlawful alteration.
Civil Registrar
Art. 413, CC. All other matters pertaining to the

registration of civil status shall be governed by
special laws.
ARTICLES 407-413
Art. 407, CC. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
RA 9048 AS AMENDED BY RA
10172
AN ACT AUTHORIZING THE CITY OR

MUNICIPAL CIVIL REGISTRAR OR THE
CONSUL GENERAL TO CORRECT A CLERICAL
OR TYPOGRAPHICAL ERROR IN AN ENTRY
AND/OR CHANGE OF FIRST NAME OR
NICKNAME IN THE CIVIL REGISTER WITHOUT
NEED OF A JUDICIAL ORDER, AMENDING FOR
THIS PURPOSE ARTICLES 376 AND 412 OF
THE CIVIL CODE OF THE PHILIPPINES
Art. 408, CC. The following shall be entered in

the civil register:
(1) Births;
(2) Marriages;
(3) Deaths;
(4) Legal Separations;
(5) Annulments of marriage;
(6) Judgments declaring marriages void from
the beginning;
(7) Legitimations;
(8) Adoptions;
(9) Acknowledgments of natural children;
(10) Naturalization;
(11) Loss, or
(12) Recovery of citizenship;
(13) Civil interdiction;
(14) Judicial determination of filiation;
(15) Voluntary emancipation of a minor; and
(16) Changes of name.
General rule: No entry in a civil register shall be

changed or corrected without a judicial order
Exception:
Clerical or typographical errors;
Change of: first name or nickname, day and
month in the date of birth, or sex of a person
This exception applies where it is patently clear
that there was a clerical or typographical error
or mistake in the entry, which can be corrected
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UP LAW BOC
or changed by the concerned city or municipal

civil registrar or consul general in accordance
with the provisions of this Act and its
implementing rules and regulations
CIVIL LAW
Citizens of the Philippines who are presently

residing or domiciled in foreign countries may
file their petition, in person, with the nearest
Philippine Consulates.
Clerical or typographical error to a mistake

committed in the performance of clerical work in
writing, copying, transcribing or typing an entry
in the civil register that is harmless and
innocuous (i.e. misspelled name, misspelled
place of birth, mistake in the entry of day and
month in the date of birth or the sex of the
person or the like, which is visible to the eyes or
obvious to the understanding, and can be
corrected or changed only by reference to other
existing record or records)
The petitions filed with the city or municipal civil

registrar or the consul general shall be
processed in accordance with this Act and its
implementing rules and regulations.
All petitions for the clerical or typographical
errors and/or change of first names or
nicknames may be availed of only once.
GROUNDS
Before the amendment by RA 10172, no

correction must involve the change of sex,
nationality, age or status of the petitioner. After
the amendment, change of sex can now be
subjected to correction without judicial order
under the rules of this Act.
WHO MAY FILE THE PETITION AND WHERE?

(1) Any person having direct personal interest in
the correction of a clerical or typographical
error in an entry and/or change of first
name or nickname in the civil register
(2) Verified petition with the local civil registry
office of the city or municipality
(a) where the record being sought to be
corrected or changed is kept
(b) where the interested party is presently
residing or domiciled, if it will be
impractical to submit in the place where
record is kept (i.e. when party has
migrated to another place in the
country)
(c) nearest Philippine Consulates, if the
petitioner is presently residing or
domiciled in foreign countries
Civil Register the various registry books and

related certificates and documents kept in the
archives of the local civil registry offices,
Philippine Consulates and of the Office of the
Civil Registrar General.
Sec. 3. Who May File the Petition and Where. Any
person having direct and personal interest in
the correction of a clerical or typographical error
in an entry and/or change of first name or
nickname in the civil register may file, in person,
a verified petition with the local civil registry
office of the city or municipality where the
record being sought to be corrected or changed
is kept.
All petitions for the clerical or typographical

errors and/or change of first names or
nicknames may be availed of only once.
In case the petitioner has already migrated to

another place in the country and it would not be
practical for such party, in terms of
transportation expenses, time and effort to
appear in person before the local civil registrar
keeping the documents to be corrected or
changed, the petition may be filed, in person,
with the local civil registrar of the place where
the interested party is presently residing or
domiciled. The two (2) local civil registrars
concerned will then communicate to facilitate
the processing of the petition.
Sec. 4. Grounds for Change of First Name or

Nickname. The petition for change of first name
or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce.
(2) The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known
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UP LAW BOC
by that first name or nickname in the

community: or
(3) The change will avoid confusion.
CIVIL LAW
weeks in a newspaper of general circulation.

Furthermore, the petitioner shall submit a
certification from the appropriate law
enforcement agencies that he has no pending
case or no criminal record.
Sec. 5. Form and Contents of the Petition. The

petition for correction of a clerical or
typographical error, or for change of first name
or nickname, as the case may be, shall be in the
form of an affidavit, subscribed and sworn to
before any person authorized by the law to
administer oaths. The affidavit shall set forth
facts necessary to establish the merits of the
petition and shall show affirmatively that the
petitioner is competent to testify to the matters
stated. The petitioner shall state the particular
erroneous entry or entries, which are sought to
be corrected and/or the change sought to be
made.
The petition and its supporting papers shall be

filed in three (3) copies to be distributed as
follows: first copy to the concerned city or
municipal civil registrar, or the consul general;
second copy to the Office of the Civil Registrar
General; and third copy to the petitioner
RULE 108, RULES OF COURT

CANCELLATION OR CORRECTION
ENTRIES IN THE CIVIL REGISTRY
OF
Sec. 1. Who may file petition. Any person

interested in any act, event, order or decree
concerning the civil status of persons which has
been recorded in the civil register, may file a
verified petition for the cancellation or
correction of any entry relating thereto, with the
Court of First Instance of the province where the
corresponding civil registry is located.
The petition shall be supported with the

following documents:
(1) A certified true machine copy of the
certificate or of the page of the registry book
containing the entry or entries sought to be
corrected or changed.
(2) At least two (2) public or private documents
showing the correct entry or entries upon
which the correction or change shall be
based; and
(3) Other documents which the petitioner or
the city or municipal civil registrar or the
consul general may consider relevant and
necessary for the approval of the petition.
Sec. 2. Entries subject to cancellation or

correction. Upon good and valid grounds, the
following entries in the civil register may be
cancelled or corrected:
(a) births;
(b) marriages;
(c) deaths;
(d) legal separations;
(e) judgments of annulments of marriage;
(f) judgments declaring marriages void from
the beginning;
(g) legitimations;
(h) adoptions;
(i) acknowledgments of natural children;
(j) naturalization
(k) election, loss or recovery of citizenship
(l) civil interdiction;
(m) judicial determination of filiation;
(n) voluntary emancipation of a minor; and
(o) changes of name.
No petition for correction of erroneous entry

concerning the date of birth or the sex of a
person shall be entertained except if the
petition is accompanied by earliest school
record or earliest school documents such as, but
not limited to, medical records, baptismal
certificate and other documents issued by
religious authorities; nor shall any entry
involving change of gender corrected except if
the petition is accompanied by a certification
issued by an accredited government physician
attesting to the fact that the petitioner has not
undergone sex change or sex transplant. The
petition for change of first name or nickname, or
for correction of erroneous entry concerning the
day and month in the date of birth or the sex of
a person, as the case may be, shall be published
at least once a week for two (2) consecutive
Sec. 3. Parties. When cancellation or correction

of an entry in the civil register is sought, the civil
registrar and all persons who have or claim any
PAGE 80
UP LAW BOC
(3)
(4)
(5)
(6)
CIVIL LAW
Deaths
Legal separations
Judgments of annulments of marriage
Judgments declaring marriages void from
the beginning
(7) Legitimations
(8) Adoptions
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name
interest which would be affected thereby shall

be made parties to the proceeding.
Sec. 4. Notice and publication. Upon the filing of
the petition, the court shall, by an order, fix the
time and place for the hearing of the same, and
cause reasonable notice thereof to be given to
the persons named in the petition. The court
shall also cause the order to be published once
a week for three (3) consecutive weeks in a
province.
Sec. 5. Opposition. The civil registrar and any
person having or claiming any interest under
the entry whose cancellation or correction is
sought may, within fifteen (15) days from notice
of the petition, or from the last date of
publication of such notice, file his opposition
thereto.
Sec. 6. Expediting proceedings. The court in
which the proceeding is brought may make
orders expediting the proceedings, and may
also grant preliminary injunction for the
preservation of the rights of the parties pending
such proceedings.
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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UP LAW BOC
PROPERTY
CIVIL LAW
(4) Statues, reliefs, paintings or other

objects for use or ornamentation, placed in
buildings or on lands by the owner of the
immovable in such a manner that it reveals
the intention to attach them permanently to
the tenements;
(5) Machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which
may be carried on in a building or on a piece
of land, and which tend directly to meet the
needs of the said industry or works;
(6)
Animal
houses, pigeon-houses,
beehives, fish ponds or breeding places of
similar nature, in case their owner has
placed them or preserves them with the
intention to have them permanently
attached to the land, and forming a
permanent part of it; the animals in these
places are included;
(7) Fertilizer actually used on a piece of
land;
(8) Mines, quarries, and slag dumps, while
the matter thereof forms part of the bed,
and waters either running or stagnant;
(9) Docks and structures which, though
floating, are intended by their nature and
object to remain at a fixed place on a river,
lake, or coast;
(10) Contracts for public works, and
servitudes and other real rights over
immovable property.
Property
All things which are, or may be, the object of
appropriation. [NCC 414]
Characteristics
(1) Utility capacity to satisfy human wants
(2) Substantivity and Individuality separate and
autonomous existence
(3) Susceptibility of being appropriated what
cannot be appropriated because of their
distance, depth, or immensity cannot be
considered things (i.e. stars, ocean)
Classification
HIDDEN TREASURE
Hidden treasure any hidden and unknown
deposit of money jewels or other precious
objects, the lawful ownership of which does not
appear. [NCC 439]
Owner of the land, building or other property on
which the hidden treasure was found, also owns
it, subject to:
(1) Right of a finder by chance who is not a
trespasser/intruder: of treasure
(2) Right of a usufructuary who finds treasure:
of treasure
(3) Right of State to acquire things of interest to
science or the arts [NCC 438]
BASED ON MOBILITY
[IMMOVABLE OR MOVABLE]
CATEGORIES OF IMMOVABLES
(1) By nature
(2) By incorporation
(3) By destination
(4) By analogy
REAL OR IMMOVABLE PROPERTY
NCC 415.
(1) Land, buildings, roads and constructions
of all kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while
they are attached to the land or form an
integral part of an immovable;
(3) Everything attached to an immovable in
a fixed manner, in such a way that it cannot
be separated therefrom without breaking
the material or deterioration of the object;
Immovables by Nature: cannot be moved from

place to place; their intrinsic qualities have no
utility except in a fixed place (Par. 1 & 8)
(1) Par. 1
(a) Building - their adherence to the land
must be permanent and substantial.
(b) Buildings have been considered as
immovables, despite:
PAGE 83
UP LAW BOC
PROPERTY
(i) Treatment by the parties e.g. they

constitute a separate mortgage on the
building and the land [Punzalan v.
Lacsamana]
(ii) Separate Ownership i.e. a building on
rented land is
still considered an
immovable. [Tolentino]
CIVIL LAW
Immovables by Destination: are essentially

movables but by the purpose for which they
have been placed in an immovable, partake of
the nature of an immovable [Par. 4, 5, 6 & 9]
(1) Par. 4
(a) Requisites:
(i) Placed by the owner or by the
tenant (as agent);
(ii) With intention of attaching them
permanently even if adherence
will not involve breakage or injury.
(b) Where the improvement or ornaments
placed by the lessee are not to pass to
the owner at the expiration of the lease,
they remain movables for chattel
mortgage purposes. [Davao Sawmill v.
Castillo(1935)]
(2) Par. 8
(a) Mineral Deposits
(i) Minerals still deposited in the soil
(ii) When
minerals
have
been
extracted, they become chattel.
(b) Slag Dump: dirt and soil taken from a
mine and piled upon the surface of the
ground. Minerals can be found inside
the dump.
(c) Waters: those still attached to or running
thru the soil or the ground.
Par. 3 v. Par. 4
Par. 3
Cannot be separated
from
immovable
without breaking or
deterioration
Immovables by Incorporation: are essentially

movables but are attached to an immovable in
such a way as to be an integral part [Par. 2, 3, &
7]
(1) Par. 2
(a) Trees and plants: only immovables when
they are attached to the land or form an
integral part of an immovable
(i) When they have been cut or
uprooted, they become movables.
(b) By special treatment of Act 1508
(Chattel Mortgage Law), growing crops
may be subject of a Chattel Mortgage.
(c) For the purpose of attachment: growing
crops are to be attached in the same
manner as realty. (Rule 59, Sec. 7)
Need not be placed by

the owner
Real
property
incorporation
by
Par. 4
Can be separated
from
immovable
without breaking or
deterioration
Must be placed by
the owner, or by his
agent, expressed or
implied
Real property by
incorporation
and
destination
(2) Par. 5
(a) Immovability depends upon their being
destined for use in the industry or work
in the tenement;
(i) The moment they are separated,
(from the immovable or from the
industry or work in which they are
utilized) they recover their condition
as movables.
(ii) If it is still needed for the industry
but separated from the tenement
temporarily, the property continues
to be immovable.
(b) Requisites for Immovability in Par. 5:
(i) Placed by the owner or the tenant
(as agent);
(ii) The
machine,
receptacle,
instrument, implement must also
(2) Par. 3
(a) Res vinta in Roman Law
(b) Attachment in a fixed manner:
breakage or injury in case of separation
will be substantial e.g. wells, sewers,
aqueducts and railways
(i) Whether attached by the owner
himself or some other person
(3) Par. 7
Actually used (it has been spread over the
land)
PAGE 84
UP LAW BOC
PROPERTY
be ESSENTIAL to the business in

order to be considered realty.
[Mindanao Bus Co. v City Assessor
(1962)]
(c) Except: Estoppel
(d) Parties may, by agreement, treat as
personal property that which by nature
would be real, as long as no third
parties would be prejudiced. That
characterization is effective between the
parties. [Makati Leasing v. Wearever
(1983)]
(e) Effect of Attachment
(i) Machinery becomes part of the
immovable.
(ii) The installation of machinery and
equipment in a mortgaged sugar
central for the purpose of carrying out
the
industrial
functions
and
increasing production, constitutes a
permanent improvement on said
sugar central and subjects said
machinery and equipment to the
mortgage
constituted
thereon.
[Berkenkotter v. Cu Unjieng(1935)]
CIVIL LAW
Parties may by agreement treat as, but

effective only as to them.
It is based, partly, upon the principle of
estoppel. [Evangelista vs. Alto Surety(1958)]
For purposes of taxation, improvements on

land are commonly taxed as realty, even
though for some purposes, they might be
considered as personalty.
It is a familiar phenomenon to see things
classified as real property for purposes of
taxation, which on general principle, might
be considered personal property. [Manila
Electric v. Central Bank (1962)]
PERSONAL OR MOVABLE
NCC 416 & 417.

(1) Those
movables
susceptible
of
appropriation which are not included in
the preceding article;
(2)Real property which by any special
provision of law is considered as
personalty;
(3) Forces of nature which are brought under
control by science; and
(4)In general, all things which can be
transported from place to place without
impairment of the real property to which
they are fixed.
(5)Obligations and actions which have for
their object movables or demandable
sums; and
(6)Shares of stock of agricultural,
commercial and industrial entities,
although they may have real estate.
(3) Par. 6
Requisites:
(a) Placed by the owner or the tenant (as
agent);
(b) With the intention of permanent
attachment;
(c) Forming a permanent part of the
immovable.
(4) Par. 9:
A floating house tied to a shore and used
as a residence is considered real property,
considering that the waters on which it
floats are considered immovables.
But if the floating house makes it a point
to journey from place to place, it assumes
the category of a vessel, and is considered
a movable.
TESTS TO DETERMINE MOVABLE CHARACTER

(1) By exclusion
Everything NOT included in Article 415
Parties cannot by agreement treat as
immovable that which is legally movable.
Immovables by Analogy: Contracts for public

works, servitudes, other real rights over
immovable property e.g. usufruct and lease of
real property for a period of 1 year and
registered [Par. 10]
(2) By description
(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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UP LAW BOC
(b) Without substantial injury to

immovable to which it is attached.
PROPERTY
CIVIL LAW
the
but a donation of a movable may be

made orally or in writing. [NCC 748]
The steel towers built by MERALCO are not

buildings or constructions since they are
removable and merely attached to a square
metal frame by means of bolts, which when
unscrewed could easily be dismantled and
moved from place to place, without breaking
the material or causing deterioration to the
object they are attached. [Board of
Assessment Appeals v. Meralco]
(3) For ACQUISITIVE PRESCRIPTION:

Real property can be acquired by
prescription in 30 years (bad faith) and 10
years (good faith). (NCC 1137, 1134)
Movables can be acquired by prescription
in 8 years (bad faith) and 4 years (good
faith). (NCC 1132)
(4) Actions for RECOVERY OF POSSESSION:
Possession of real property - recovered
through accion reivindicatoria, accion
publiciana, forcible entry and unlawful
detainer.
Possession of movable property recovered through replevin.
(3) By special provision of law

Growing crops under the Chattel Mortgage
Law
Machinery installed by a lessee not acting
as agent of the owner [Davao Sawmill v.
Castillo]
Intellectual property considered personal
property; it consists in the pecuniary
benefit which the owner can get by the
reproduction or manufacture of his work.
(5) VENUE of actions:

Real actions - Actions concerning real
property are commenced in the court that
has jurisdiction over the area where the
real property is situated. [Rules of Court
Rule 4 Sec. 1]
Personal actions - Commenced where the
plaintiff or any of the principal plaintiffs,
or where the defendant or any of the
principal defendants resides, or if a nonresident defendant, where he may be
found, at the election of the plaintiff. [Rule
4 Sec. 2]
(4) By forces of nature

e.g. electricity, gas, heat, oxygen
IMPORTANCE
AND
SIGNIFICANCE
OF
CLASSIFICATION UNDER THE CIVIL CODE
(1) In CRIMINAL LAW:

Usurpation of property can take place only
with respect to real property. [RPC 312]
Robbery and theft can be committed only
against personal property. [RPC 293, 308]
(6) The GOVERNING LAW (Private International

Law):
Immovables - governed by the law of the
country where they are located.
Movables - governed by the personal laws
of the owner. (which in some cases is the
law of his nationality and in other cases,
the law of his domicile)
(2) In the FORM OF CONTRACTS Involving

Movables and Immovables:
(a) Subject matter of specific contracts:
Only real property can be the subject
of real mortgage [NCC 2124] and
antichresis. [NCC 2132]
Only personal property can be the
subject of voluntary deposit [NCC
1966], pledge [NCC 2094] and chattel
mortgage. [Act 1508]
(7) In affecting THIRD PERSONS:

In transactions involving real property
must be recorded in the Registry of
Property to affect third persons.
In transactions involving personal
property registration is not required,
except for chattel mortgages. [Chattel
Mortgage Register, NCC 2140]
(b) Donations of real property are required

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
are considered neither public nor private
property.
Includes natural resources such as minerals,

coal, oil and forest.
(4) Patrimonial property:
(a) Owned by the State over which it has
the same rights as private individuals in
relation to their own property.
(b) Subject to the administrative laws and
regulations on the procedure of
exercising such rights. E.g. friar lands,
escheated properties and commercial
buildings.
(c) Purpose:
(i) Enables the State to attain its
economic ends.
(ii) Serves as a means for the States
subsistence and preservation.
(iii) Enables the State to fulfill its
primary mission.
(d) Conversion of Property of Public
Dominion for Public Use to Patrimonial
Property:
(i) Property of public dominion, when
no longer intended for public use or
for public service, shall form part of
the patrimonial property of the
State [NCC 422, Civil Code]
(ii) An express Declaration by the State
(either by the Congress or by the
President, if the power was provided
by law) that the public dominion
property has been converted into
patrimonial property, even though it
was classified as alienable or
disposable. [Heirs of Malabanan v.
Republic (2009)]
PUBLIC DOMINION
Property of public dominion is outside the
commerce of man. They cannot be the subject
matter of private contracts, cannot be acquired
by prescription and they are not subject to
attachment and execution nor burdened with a
voluntary easement.
Public
Dominion
Public Domain
Public Lands
CIVIL LAW
As defined by NCC 420

Used in Art XII, Section 2,
1987 Constitution
Public Land Act
CHARACTERISTICS
Not owned by the State but pertains to
it as territorial sovereign; to hold in trust
for the interest of the community.
Purpose: For public use, and not for use
by the State as a juridical person.
Cannot be the subject of appropriation
either by the State or by private
persons.
CLASSIFICATIONS
Administered by the State [NCC 420]
(1) Those intended for public use. (roads, canals,
rivers, torrents, ports and bridges
constructed by the State, banks, shores,
roadsteads, and others of similar character)
Administered by Municipal Corporations

[NCC 424]
May be used by everybody, even by

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
provincial roads, city streets, municipal
streets, the squares, fountains, public
waters, promenades, and public works for
(2) Those intended for some public service:

may be used only by authorized persons but
exists for the benefit of all.
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public service paid for by said provinces,

cities, or municipalities.
(2) Property belonging to private persons, either

individually or collectively [NCC 425]
Property of private ownership, besides the
patrimonial property of the State,
provinces, cities, and municipalities,
consists of all property belonging to
private persons, either individually or
collectively.
Refers to all property belonging to private
persons, natural or juridical, either
individually or collectively (co-owned
property)
(2) Patrimonial
property
of
Municipal
Corporations:
The province or municipality, as a juridical
entity, also possesses private property to
answer for its economic necessities.
Classification of Properties of provinces,
cities, and municipalities [Salas v.
Jarencio, (1972)]
(i) Properties acquired with their own
funds in their private or corporate
capacity over which the political
subdivision has ownership and
control.
(ii) Properties of public dominion held in
trust for the States inhabitants are
subject to the control and supervision
of the State.
Determination (two different views)

(1) Determined by how the property was used
In Province of Zamboanga v. City of
Zamboanga (1968), property was
considered patrimonial for they were not for
public use.
(2) Determined by how the property was
acquired
According to Salas v. Jarencio (1972), the
absence of a title deed to any land, showing
that it was acquired with its private or
corporate funds, the presumption is that
such land came from the State upon the
creation of the municipality.
A municipal corporation must prove that

they acquired the land with their own
corporate funds
o Presumption: that land comes from the
State upon the creation of the
municipality. All lands in the possession
of the municipality
o Except for those acquired with its private
funds, are deemed to be property of public
dominion, held in trust for the State for
the benefit of its inhabitants.
CIVIL LAW
Conversion
Alienable Public Land converted to Private
Property through Prescription
Alienable public land held by a
possessor
personally/through
predecessors-in-interest,
openly,
continuously and exclusively for 30
years is CONVERTED to private
property by the mere lapse or
completion of the period. The
application for confirmation is mere
formality, because land had already
been converted, giving rise to a
registrable title. [Director of Lands v.
IAC(1986)]
Congress has paramount power to dispose

of lands of public dominion in a
municipality, the latter being a subdivision
only for purposes of local administration.
[Salas v. Jarencio, (1972)]
Private Ownership
Can be exercised by the State in its private
capacity or by private persons.
Kinds
(1) Patrimonial property - Property owned by the
State and its political subdivisions in their
private capacity; all property of the State
not included in NCC 420 (on public
dominion) [NCC 421-424]
Private Land converted to Property of Public

Dominion
through
abandonment
and
reclamation
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BASED ON THE CONSTITUTION

[ARTICLE XII, SEC 3]
Through the gradual encroachment or

erosion by the ebb and flow of the tide,
private property may become public IF
the
owner
appears
to
have
ABANDONED the land, and permitted
it to be totally destroyed so as to
become part of the shore. The land
having disappeared on account of the
gradual erosion, and having remained
submerged until they were reclaimed by
the government, they are public land.
[Government v. Cabangis(1929)]
BASED ON
[NCC 418]
CIVIL LAW
(1)
(2)
(3)
(4)
Public Agricultural Land;

Mineral Land;
Timber Land;
National Parks.
OTHER CLASSIFICATIONS
BY THEIR PHYSICAL EXISTENCE
(1) Corporeal
All property the existence of which can be
determined by the senses. (res qui tangi
possunt)
(2)
Incorporeal
(a) Things having abstract existence,
created by man and representing value.
(b) Includes rights over incorporeal things,
credits, and real rights other than
ownership over corporeal things.
CONSUMABILITY
Only applies to movable property, determined by

nature.
CONSUMABLE
(1) Movables which cannot be used in a
manner appropriate to their nature without
their being consumed. (e.g. food)
(2) Consumable goods cannot be the subject
matter of a commodatum unless the
purpose of the contract is not the
consumption of the object, as when it is
merely for exhibition.
BY THEIR AUTONOMY OR DEPENDENCE

(1) Principal
Those to which other things are considered
dependent or subordinated, such as the
land on which a house is built.
(2) Accessory
Those which are dependent upon or
subordinated to the principal. They are
destined to complete, enhance or ornament
another property.
NON-CONSUMABLE
All others not falling under consumable e.g.
money in coin.
BY SUSCEPTIBILITY TO DETERIORATION
(1) Deteriorable
Those that deteriorate through use or by
time.
(2) Non-deteriorable.
BASED ON SUSCEPTIBILITY TO
SUBSTITUTION
Only applies to movables, determined by the
intention of the parties.
BY REASON OF THEIR SUSCEPTIBILITY TO

DIVISION
(1) Divisible
Those which can be divided physically or
juridically without injury to their nature. E.g.:
piece of land or an inheritance.
(2) Indivisible
Those which cannot be divided without
destroying their nature or rendering
impossible the fulfillment of the juridical
relation of which they are object.
FUNGIBLES
Things that, because of their nature or the will
of the parties, are capable of being substituted
by others of the same kind, not having a distinct
individuality.
NON-FUNGIBLES
(1) Things that cannot be substituted for
another;
(2) If the parties agreed that the same thing be
returned, it is not fungible.
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RIGHT IN GENERAL
BY REASON OF DESIGNATION
(1) Generic
That which indicates its homogenous
nature, but not the individual such as a
horse, house, dress, without indicating it.
(2) Specific
That which indicates the specie or its nature
and the individual, such as the white horse
of X.
RIGHTS INCLUDED IN OWNERSHIP
(1) Right to enjoy and dispose of a thing,

without other limitations than those
established by law.
(2) Right of action against the holder and
possessor of the thing in order to recover it.
BUNDLE OF RIGHTS
(1) Jus Utendi: Right to enjoy and receive what
the property produces.
(2) Jus Fruendi: Right to receive the fruits.
(3) Jus Accessiones: Right to the accessories.
(4) Jus Abutendi: Right to consume a thing by
use.
(5) Jus Disponendi: Right to alienate,
encumber, transform or even destroy the
thing owned.
(6) Jus Vindicandi: Right to recover possession
of property based on a claim of ownership.
(7) Jus Possidendi: Right to possess the
property. (Implied from all the other rights)
Ownership
DEFINITION AND CONCEPT
[NCC
428]
EXISTENCE IN POINT OF TIME

(1) Present
Those which exist in actuality, either
physical or legal, such as, the erected
building.
(2) Future
Those which do not exist in actuality, but
whose existence can reasonably be
expected with more or less probability, such
as ungathered fruits.
CIVIL LAW
PROTECTING PROPERTY
Independent
right
of
exclusive
enjoyment and control of a thing.
Has the purpose of deriving all
advantages required by the reasonable
needs of the owner/holder of right and
promotion of general welfare.
A complete subjection to an owners
will.
May be exercised in everything not
prohibited by public law or the rights of
another.
BASIC DISTINCTIONS
REAL RIGHT v. PERSONAL RIGHT
Real Rights
Rights that confer upon its holder an
autonomous power to derive directly from a
thing
certain
economic
advantages
independently of whoever the possessor of the
thing.
TYPES OF OWNERSHIP
Personal Rights
Rights of a person to demand from another as a
definite passive subject, the fulfillment of a
prestation to give, to do or not to do.
(1) Full Ownership: With complete rights over

the property.
(2) Naked Ownership: Absence of jus fruendi
and jus utendi.
(3) Sole Ownership: Ownership vested only in
one person.
(4) Co-Ownership: Ownership vested in 2 or
more persons.
Real Rights
Definite active subject
who has a right against
ALL persons generally
as an indefinite passive
subject.
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Personal Rights
Definite active subject
(creditor)
and
a
definite
passive
subject (debtor).
UP LAW BOC
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Real Rights
Personal Rights
Object is generally a Subject matter is
corporeal thing.
always an incorporeal
thing.
Generally extinguished Personal
right
by
the
loss
or survives the subject
destruction of the thing matter.
over which it is
exercised.
It is directed against It is binding or
the whole world, giving enforceable
only
rise to real actions against a particular
against 3rd persons.
person giving rise to
personal
actions
against such debtor.
CIVIL LAW
ACTIONS TO RECOVER OWNERSHIP AND

POSSESSION OF PROPERTY
Actions to Recover Possession
Immovable Property
Accion Reivindicatoria
Recovery of ownership of real property.
Including but not limited to possession.
Prescription of Action: 30 years.
Accion Publiciana
Recovery of a better right to possess (de jure).
Judgment as to who has the better right
of possession.
Also, actions for ejectment not filed
within 1 year must be filed as accion
publiciana.
Prescription: 10 years.
REAL ACTION v. PERSONAL ACTION (ROC,

Rule 4 Sec 1-2)
Accion Interdictal
A summary action for recovery of physical
possession through either an action for Forcible
Entry or Unlawful Detainer.
Prior physical possession by the plaintiff
is not required.
The action must be filed within 1 year
AFTER
dispossession/unlawful
possession/demand to vacate.
Real action
Actions affecting title to or possession of real
property or any interest therein.
Personal action
All other actions.
ACTION IN REM v. ACTION IN PERSONAM v.
ACTION QUASI IN REM
Distinction between forcible entry and unlawful

detainer
(1) Forcible Entry: Lawful possessor deprived
through FISTS:
FISTS (Force, Intimidation, Strategy,
Threats, Stealth)
Prescription: 1 year from dispossession
(force, intimidation, threats) or from
knowledge of dispossession (strategy,
stealth).
Action in rem
Action against a property, judgment binding
against the whole world.
Action in personam
Action against a specific person, judgment
binding against that particular person.
Action quasi in rem
Action against a specific property with respect
to a person.
(2) Unlawful Detainer: Possessor refused to

vacate upon demand by owner.
Legal possession (by permission/
tolerance) becomes unlawful upon failure
to vacate.
Prescription of action: 1 year from last
notice to vacate.
REMEDIES
DOCTRINE OF SELF-HELP [NCC 429-430]
The owner may use such force as may be
reasonably necessary to repel or prevent an
actual or threatened unlawful physical
invasion or usurpation of his property.
Every owner may enclose or fence his land or
tenements by any other means without
detriment to servitudes constituted thereon.
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Movable property
CIVIL LAW
TAXATION
Forced contribution to the operation of
government.
Replevin
For manual delivery of property
Prescription of Right: 4 years (GF) or 8 years
(BF)
EMINENT DOMAIN
Property taken for public use/purpose, but
subject to due process and payment of just
compensation.
Requisites for recovery of property [NCC 434]

(1) Property must be identified;
Through a relocation survey and a title
properly identifying boundaries and
location.
Requisites: To justify the exercise of the right of

eminent domain, the following requisites must
all be present:
(a) Private property as the object of the
expropriation;
(b) The property is taken by the State or by
competent authority;
(c) The purpose of the taking is for public use;
(d) The taking must be attended with due
process of law; and
(e) There is payment of just compensation.
(2) Plaintiff must rely on the strength of his title

and not on weakness of defendants title.
Right must be founded on positive title
and not on lack or insufficiency of
defendants.
Ei incumbit probatio qui dicit, non qui
negat: He who asserts, not he who denied
must prove.
SPECIFIC LIMITATIONS
Imposed by law, sic utere tuo, nuisance, state of
necessity, easements, and those voluntarily
imposed by the owner: servitudes, mortgages
imposed by contract.
LIMITATIONS ON OWNERSHIP
LIMITATIONS ON THE RIGHT OF
OWNERSHIP PROVIDED BY THE LAW
(1) Legal Servitudes: once requisites are satisfied,

the servient owner may ask the Court to
declare the existence of an easement.
(a) Art. 644 & 678: Aqueduct
(b) Art. 679: Planting of trees
(c) Art. 670: Light and View
(d) Art. 649 & 652: Right of Way
(e) Art. 637: Passage of water from upper to
lower tenements
(f) Art. 676: Drainage of buildings
(g) Art. 684-687: Lateral and subjacent
support
GENERAL LIMITATIONS
Taxation, eminent domain, police power
POLICE POWER
Property taken with no compensation for
general welfare.
When any property is condemned or seized by
competent authority in the interest of health,
safety or security, the owner thereof shall not
be entitled to compensation, unless he can
show that such condemnation or seizure is
unjustified. [Art. 436, Civil Code]
(2) Must not injure the rights of a third person

(a) Sic Utere Tuo Ut Alienum Non Laedas
(b) The owner of a thing cannot make use
thereof in such manner as to injure the
rights of a third person. [NCC 431]
Requisites: To justify the exercise of police

power, the following must appear [US v
Toribio(1910)]:
(a) The interests of the public generally, require
such interference (as distinguished from
those of a particular class); and
(b) The means are reasonably necessary for the
accomplishment of a purpose, and not
unduly oppressive.
(3) Actions in a State of Necessity

The owner of a thing has no right to prohibit
the interference of another with the same, if
the interference is necessary to avert an
imminent danger and the threatened
damage, compared to the damage arising to
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CIVIL LAW
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
Forcible Entry/Unlawful
Detainer
Accion Publiciana
Venue
Summon
Real Action
In personam
Real Action
In personam
Real Action
In personam
Prayer
Basis
Possession Prior
physical
possession
Possession Real right of
Possession
Possession Ownership
Accion Reividicatoria
Reconveyance
Quieting of Title
Replevin
Prescription
1 year
10 years
[NCC 555(4)]
GF: 10 years
BF: 30 years
[NCC 1137]
Unless--Torrens Title -- Unless
laches
Real Action
In personam
Title
Real Action
Quasi-in rem
Personal
Action
In personam
Quieting
Ownership
of Title
Possession Ownership
PAGE 93
Ownership
10 years
(NCC 1456)
Imprescriptible
GF: 4 years
BF: 8 years
UP LAW BOC
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Accession
Accession the right by virtue of which the
owner of a thing becomes the owner of
everything that is produced thereby, or which is
incorporated or attached thereto, either
naturally or artificially. [NCC 440]
Accessories things joined to or included with
the principal thing for the latters
embellishment, better use, or completion.
CLASSIFICATION OF
ACCESSION
(1) Accession Discreta (fruits) the right
pertaining to the owner of a thing over
everything produced thereby (by internal
forces).
(2) Accession Continua the right pertaining to
the owner of a thing over everything that is
incorporated or attached thereto either
naturally or artificially; by external forces (by
external forces).
(a) Over Immovables
(i) Industrial
(ii) Natural
(1) Alluvion
(2) Avulsion
(3) Change of Course of River
(4) Formation of Islands
(b) Over Movables
(i) Conjunction and Adjunction
(ii) Commixtion and Confusion
(iii) Specification
In cases where there is a clear and convincing

evidence to prove that the principal and the
accessory are not owned by one and the same
person or entity, the presumption shall not be
applied and the actual ownership shall be upheld.
In a number of cases, we recognized the separate
ownership of the land from the building and
brushed aside the rule that accessory follows the
principal. [Villasi v. Garcia (2014)]
Fruits: all periodical additions to a principal thing
produced by forces inherent to the thing itself.
Kinds of Fruits
(1) Natural spontaneous products of soil and the
young and other products of animals [NCC 442
(1)].
Under the rule partus sequitur ventrem, to the
owner of female animals would also belong the
young of such animals although this right is lost
when the owner mixes his cattle with those of
another.
(2) Industrial produced by lands of any kind
through cultivation or labor [NCC 442 (2)].
Standing trees are not fruits since they are
considered immovables although they produce
fruits themselves. However, they may be
considered as industrial fruits when they are
cultivated or exploited to carry on an industry.
(3) Civil Fruits easily prorated for under NCC 544
they are deemed to accrue daily and belong to
the possessor in good faith in that proportion.
Note:
(a) Natural and Industrial Fruits are real
property while still ungathered.
(b) Only those that are manifest or born are
considered as natural or industrial fruits.
WITH RESPECT TO IMMOVABLES

Accession Discreta
Right of ownership to the fruits. [NCC 441]
General Rule: To the owner of the principal
belongs the natural, industrial and civil fruit.
Exceptions:
(1) Possession in good faith
(2) Usufruct
(3) Lease
(4) Antichresis
CIVIL LAW
Principles Applicable to Accession Discreta

(1) Time of Accrual depending on kind:
Annuals: from the time seedlings appear on
the ground.
Perennials: from the time fruits actually
appear on the plants.
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Young of animals: from the time they are

in the womb, although unborn
beginning of maximum ordinary period of
gestation.
Fowls: from the time of incubation.
(2) A receiver of fruits has the obligation to pay
the expenses incurred by a third person in
the production, gathering and preservation.
[NCC 443]
Exception: Receiver does not have to pay if
fruits are recovered before gathering from
a possessor in bad faith, receiver does NOT
have to pay indemnity.
But if recovered after fruits have been
gathered, receiver must pay since the
fruits have been separated from
immovable, hence accession principles
will not apply.
CIVIL LAW
On the part of owner of materials: Allows the use of

his materials without protest.
On the part of the builder, planter and sower: Knows
that he does not have title to the land, nor the right
to build thereon OR no permission of the owner of
the materials to pay their value.
Note:
Bad faith leads to liability for damages and the
loss of the works or the improvement without
reimbursement.
Bad faith of one party neutralizes the bad faith of
the other.
(2) Accession Continua Natural: Land deposits, etc.
(a) Alluvium: Soil is gradually deposited on
banks adjoining the river.
Requisites:
(1) Deposit of soil or sediment is gradual
and imperceptible;
(2) As a result of the action of the currents
of the waters of the river;
(3) Land where the accretion takes place is
adjacent to the banks of the rivers; and
(4) Deemed to Exist: When the deposit of
the sediment has reached a level higher
than the highest level of the water
during the year.
Principles Applicable to Accession Continua

(1) Accession Continua Artificial or Industrial:
Building, planting or sowing on land owned
by another (over immovables).
General Rule: Whatever is built, planted or
sown on the land of another +
improvements or repairs made thereon,
belong to the owner of the land subject to
the rules on BPS.
Effect:
The riparian owner automatically owns the
Alluvion BUT it does not automatically
become registered property. [Reynante v CA
(1992)]
Presumptions:
(a) All works, sowing and planting are
presumed made by the owner.
(b) All works are presumed made at the
owners expense, unless the contrary is
proved.
(c) The owner of the principal thing owns
the natural, industrial and civil fruits,
except when the following persons exist:
(i) Possessor in Good Faith
(ii) Usufructuary
(iii) Lessee
(iv) Antichretic creditor
Rationale
To offset the owners loss from possible
erosion due to the current of the river;
To compensate for the subjection of the
land to encumbrances and legal
easements.
(b) Avulsion: A portion of land is segregated
from one estate by the forceful current of a
river, creek or torrent and transferred to
another.
Meaning of bad faith

On the part of the landowner: Whenever the
building, planting or sowing was done with the
knowledge and without opposition on his part.
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Requisites:
(1) Segregation and transfer of land is
sudden and abrupt;
(2) Caused by the current of the water;
and
(3) The portion of land transported
must be known and identifiable.
OR
(4) Can also apply to sudden transfer
by other forces of nature such as
land transferred from a mountain
slope because of an earthquake.
CIVIL LAW
(d) Formation of Islands

They belong to the State if:
(i) Formed on the SEAS within the jurisdiction
of the Philippines.
(ii) Formed on LAKES.
(iii) Formed on NAVIGABLE or FLOATABLE
RIVERS:
(1) Capable of affording a channel or
passage for ships and vessels;
(2) Must be sufficient not only to float
bancas and light boats, but also bigger
watercraft;
(3) Deep enough to allow unobstructed
movements of ships and vessels.
Effect:
The ownership of the detached property
is retained by the owner subject to
removal within 2 years from the
detachment.
TEST: can be used as a highway of

commerce, trade and travel.
(c) Change Of Course Of River
They belong to the Owners of the nearest margins

or banks if:
(i) Formed through successive accumulation of
alluvial deposits
(ii) On
NON-NAVIGABLE
and
NONFLOATABLE RIVERS
(iii) If island is in the middle: divided
longitudinally in half.
Requisites:
(1) Change in the natural course of the
waters of the river; and
(2) Such
change
causes
the
abandonment of the river beds.
Natural Bed: ground covered by its
waters during 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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CIVIL LAW
Landowner
Good Faith
Bad Faith
Rights of Landowner [NCC 448]
(1) Pay damages; and

(a) Buy (only after payment of indemnity (2) Allow removal; or
for necessary, useful and ornamental (3) Buy or pay for value of
expenses [NCC 546 and 548]);
improvement.
(b) Sell to BP (unless the value of the land
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]
Bad Faith
Builder,
Planter,
Sower
[BPS]
Good Faith
Options:
Absolute Duties of Landowner [NCC

447]:
Options:
(a) Appropriate the improvements without
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.
PAGE 97
SAME AS
GF: GF
UP LAW BOC
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CIVIL LAW
Landowner
Good Faith
Material
Man
Good
Faith
Bad
Faith
Bad Faith
Rights of Landowner: [NCC 447]
Absolute Duties of Landowner: [NCC

447]
To buy the improvements unless M (1) Pay damages; and
can remove without damage.
(2) Allow removal in any event; or
(3) Pay for value.
Absolute Rights of Landowner [NCC
447]
(1) To appropriate the materials
without payment.
(2) Right to damages from M.
Landowner
Good faith
Options:
(a) Right to acquire
improvements and pay
indemnity to BPS; subsidiarily
liable to OM;
(b) Sell the land to BP except if
the value of the land is
considerably more; or
(c) Rent to sower.
Good faith
Options:
(a) Right to acquire
improvements and pay
indemnity to BPS;
(b) Sell land to BP except if the
value of the land is
(c) Rent to sower.
Good faith
(1) Landowner has right to collect
damages from BPS in any
case and the option to either:
(a) Acquire improvements
w/o paying for indemnity;
(b) Demolition or restoration;
or
(c) Sell to BP, or to rent to
sower
(2) Pay necessary expenses to
BPS.
BPS
SAME AS
GF: GF
Owner of Material
Good faith
Good faith
(1) Right of retention until (1) Collect value of material
necessary and useful expenses
primarily from BPS and
are paid;
subsidiarily to landowner if
(2) To pay value of materials to
BPS is insolvent; and
OM.
(2) Limited right of removal (if
the removal will not cause
any injury)
Good faith
Bad faith
(1) Right of retention until (1) Lose the material without
necessary
and
useful
right to indemnity.
expenses are paid.
(2) Must pay for damages to
(2) Keep BPS without indemnity
BPS.
to OM and collect damages
from him.
Bad faith
Bad faith
Recover necessary expenses for (1) Recover value from BPS (as if
preservation of land from
both are in good faith)
landowner unless landowner (2) If BPS acquires improvement,
sells land.
remove materials if feasible
w/o injury
(3) No action against landowner
but may be liable to
landowner for consequential
damages
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CIVIL LAW
Landowner
BPS
Owner of Material
Bad faith
Same as when all acted in good
faith under Article 453
Bad faith
(1) Acquire improvement after
paying indemnity and
damages to BPS unless the
latter decides to remove.
(2) Subsidiarily liable to OM for
value of materials.
Bad faith
Options:
(a) Acquire improvements after
indemnity; subsidiarily liable
to OM for value of materials;
(b) Sell the land to BP except if
the value of the land is
(c) Rent to sower.
Good faith
(1) Landowner has right to collect
damages from BPS in any
case and the option to either:
(a) Acquire improvements
w/o paying for indemnity;
(b) Demolition or restoration;
or
(c) Sell to BP, or to rent to
sower
(2) Pay necessary expenses to
BPS.
(3) Subsidiarily liable to OM.
Bad faith
Acquire improvements and pay
indemnity and damages to BPS
unless the latter decides to
remove materials.
Bad faith
Good faith
(1) May remove improvements.
(2) Be indemnified for damages
in any event.
(3) Pay OM the value of the
materials.
Bad faith
Good faith
(1) Remove materials if possible
w/o injury
(2) Collect value of materials
from BPS; subsidiarily from
landowner
Bad faith
(a) Right of retention until
necessary expenses are paid.
(b) Pay value of materials to OM
and pay him damages.
Good faith
(a) Collect value of materials
subsidiarily from landowner.
(b) Collect damages from BPS.
(c) Absolute right to remove
materials in any event.
Bad faith
(1) Right to necessary expenses.
(2) Pay value of materials to OM.
(3) Pay damages to OM/LO.
Good faith
(1) Collect value of materials
subsidiarily from landowner
(2) Collect damages from BPS
(3) If BPS acquires
improvements, absolute right
of removal in any event.
Good faith
(1) Receive indemnity for
damages.
(2) Absolute right of removal of
improvements in any event.
Bad faith
(1) No right to indemnity.
(2) Loses right to material.
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CIVIL LAW
owner of the accessory for its value in its

uncontroverted state.
WITH RESPECT TO MOVABLE

PROPERTY
Three Types
(1) Conjunction or Adjunction - process where 2
movables belonging to different owners are
attached to each other to form a single object.
(2) Mixture the union of material where the
components lose their identity.
Kinds:
(a) Commixtion mixture of solids
(b) Confusion mixture of liquids and gases
(3) Specification transforming/giving of a new
form to anothers material through labor.
Adjunction
Requisites:
(1) There are 2 movables belonging to 2 different
owners;
(2) They are united in such a way that they form a
single object; and
(3) They are so inseparable that their separation
would impair their nature or result in
substantial injury to either component.
Kinds of Adjunction:
(1) Inclusion or engraftment e.g. a diamond is
set on a gold ring
(2) Soldadura or soldering e.g. when lead is
united or fused to an object made of lead
(a) It is ferruminacion if both the accessory and
principal objects are of the same metal;
and
(b) Plumbatura, if they are of different metals
(3) Escritura or writing e.g. when a person writes
on paper belonging to another;
(4) Pintura or painting e.g. when a person
paints on canvas belonging to another;
(5) Tejido or weaving e.g. when threads
belonging to different owners are used in
making textile
Ownership of new object formed by adjunction
(1) If union was made in good faith
The owner of principal thing acquires the
accessory, with obligation to indemnify the
(2) If union was in bad faith, NCC 470 applies:

Owner of accessory in bad faith loses the
thing incorporated and has the obligation to
indemnify the owner of the principal thing
for damages.
If owner of principal is in bad faith, owner of
the accessory has a right to choose between
the owner of principal paying him its value
or that the thing belonging to him be
separated, even though for this purpose it
be necessary to destroy the principal thing;
and in both cases, there shall be indemnity
for damages
Test to determine the principal thing
In the order of application, the principal is that:
(1) To which the other has been united as an
ornament or for its use or perfection (Rule of
importance and purpose).
(2) Of greater value.
(3) Of greater volume.
(4) That of greater merits, taking into
consideration all the pertinent legal
provisions, as well as the comparative merits,
utility and volume of their respective things.
[Manresa]
When separation allowed
(1) When separation will not cause any injury; or
(2) When the accessory is much more precious:
(a) Owner of accessory may demand
separation even though the principal
thing may suffer.
(b) Owner who caused the union shall bear
the expenses for separation even if he
acted in good faith.
(3) When the owner of the principal is in bad
faith.
Mixture
Kinds of Mixtures:
(1) Commixtion: mixture of solid things
(2) Confusion: mixture of liquid things
Rules:
(1)
Mixture by will of the owners:
(a) Primarily governed by their stipulations.
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(b) In the absence of stipulation, each owner

acquires a right or interest in the mixture
in proportion to the value of his material.
(2) Mixture caused by an owner in good faith or by
chance
(a) Share of each owner shall be proportional
to the value of the part that belonged to
him.
(b) If things mixed are exactly the same kind,
quality and quantity, divide the mixture
equally.
(c) If things mixed are of different kind or
quality, a co-ownership arises.
(d) If they can be separated without injury,
the owners may demand separation.
(e) Expenses are borne by the owners pro
rata.
(f) NOTE: Good faith does not necessarily
exclude negligence, which gives rise to
damages.
(3)
Mixture caused by an owner in bad faith

(a) Actor forfeits the thing belonging to him.
(b) Actor also becomes liable for damages.
(4) Mixture made with knowledge and without

objection of the other owner
Rights to be determined as though both acted
in good faith.
CIVIL LAW
(b) To demand indemnity for the material.

If the owner was in bad faith, maker may
appropriate the new thing without paying the
owner OR require the owner to pay him the value
of the thing or his work, with right to indemnity
(2)
Person in bad faith

General rule:
(a) Owner may either appropriate the new
thing to himself without paying the maker
OR
(b) Owner may demand value of material plus
damages
Exception:
The first option is not available in case the
value of the work, for artistic or scrientific
reasons, is considerably more than that of the
material
(3) Person made use of material with consent and

without objection of owner
Rights shall be determined as though both
acted in good faith
Definition:
Takes place when the work of a person is done on
the material of another, such material, in
consequence of the work itself, undergoes a
transformation.
Quieting of Title or Interest

in and Removal or
Prevention of Cloud over
Title to or Interest in Real
Property
Rules:
IN GENERAL
(1) Person in good faith

General rule:
Worker becomes the owner but must
indemnify the owner (who was also in good
faith) for the value of the material.
A remedy or form of proceeding originating in

equity jurisprudence. Equity comes to the aid of
the plaintiff who would suffer if the instrument
(which appear to be valid but is in reality void,
ineffective, voidable or unenforceable) was to be
enforced.
Specification
Exception:
If the material is more valuable than the new
thing, the owner of the material may choose:
(a) To take the new thing but must pay for
the work or labor; or
PURPOSE
(1) To declare:
(a) The invalidity of a claim on a title; or
(b) The invalidity of an interest in property.
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(2) To free the plaintiff and all those claiming

under him from any hostile claim on the
property.
NATURE: QUASI IN REM
A suit against a particular person or persons in

respect to the res and the judgment will apply
only to the property in dispute.
The action to quiet title is characterized as
proceeding quasi in rem. Technically, it is neither
in rem nor in personam. In an action quasi in
rem, an individual is named as a defendant.
However, unlike suits in rem, a quasi in rem
judgment is conclusive only between the parties.
[Spouses Portic v. Cristobal]
JUSTIFICATIONS FOR QUIETING

OF TITLE
(1) To prevent future or further litigation on the
ownership of the property.
(2) To protect the true title and possession.
(3) To protect the real interest of both parties.
(4) To determine and make known the precise
state of the title for the guidance of all.
THE ACTION TO QUIET TITLE

DOES NOT APPLY:
(1) To questions involving interpretation of
documents;
(2) To mere written or oral assertions of claim,
unless made in a legal proceeding or
asserting that an instrument or entry in
plaintiffs favor is not what it purports to be;
(3) To boundary disputes;
(4) To deeds by strangers to the title unless
purporting to convey the property of the
plaintiff;
(5) To instruments invalid on their face; or
(6) Where the validity of the instrument involves a
pure question of law.
REQUIREMENTS
REQUISITES OF AN ACTION TO QUIET
TITLE
(1) There is a CLOUD on title to real property or

any interest to real property;
(2) The plaintiff must have legal or equitable title
to, or interest in the real property; and
CIVIL LAW
(3) Plaintiff must return the benefits received

from the defendant.
There is a CLOUD on title to real property or
any interest to real property
Cloud on title means a semblance of title, either
legal or equitable, or a claim or a right in real
property, appearing in some legal form but which
is, in fact, invalid or which would be inequitable to
enforce.
A cloud exists if:
(1) There is a claim emerging by reason of:
(a) Any instrument e.g. a contract, or any
deed
of
conveyance,
mortgage,
assignment, waiver, etc. covering the
property concerned;
(b) Any record, claim, encumbrance e.g. an
attachment, lien, inscription, adverse
claim, lis pendens, on a title; or
(c) Any proceeding e.g. an extrajudicial
partition of property.
(2) The claim should appear valid or effective and
extraneous evidence is needed to prove their
validity or invalidity;
(a) Test: Would the owner of the property in
an action for ejectment brought by the
adverse party be required to offer
evidence to defeat a recovery?
(b) As a general rule, a cloud is not created by
mere verbal or parole assertion of
ownership or an interest in property.
(3) Such instrument, etc. is, in truth and in fact,
invalid, ineffective, voidable, or unenforceable,
or has been extinguished or terminated, or
has been barred by extinctive prescription;
and
(4) Such instrument, etc. may be prejudicial to
the true owner or possessor.
The plaintiff must have legal or equitable title
to, or interest in the real property [NCC 477]
(1) Legal title: the party is the registered owner of
the property.
(2) Equitable title: the person has the beneficial
ownership of the property.
The plaintiff must return the benefits received
from the defendant [NCC 479]
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QUIETING OF TITLE V. REMOVAL

OF CLOUD
REQUISITES OF AN ACTION TO
PREVENT A CLOUD:
(1) Plaintiff has a title to a real property or

interest therein;
(2) Defendant is bent on creating a cloud on the
title or interest therein. The danger must not
be merely speculative or imaginary but
imminent; and
(3) Unless the defendant is restrained or stopped,
the title or interest of the plaintiff will be
prejudiced or adversely affected.
PRESCRIPTION/NONPRESCRIPTION OF ACTION
Co-ownership
DEFINITION
The form of ownership when the ownership of an
undivided thing or right belongs to different
persons. [NCC 484]
REQUISITES
(1) Plurality of owners ;
(2) Object must be an undivided thing or right ;
and
(3) Each co-owners right must be limited only to
his ideal or abstract share of the physical
whole.
WHAT GOVERNS COOWNERSHIP
PRESCRIPTION OF ACTION
(1) Contracts ;
(2) Special laws; and
(3) The Civil Code
(1) When the plaintiff is in possession of the

property, the action to quiet title does not
prescribe.
The rationale for this rule has been aptly
stated thus:
The owner of real property who is in
possession thereof may wait until his
possession is invaded or his title is attacked
before taking steps to vindicate his right. A
person claiming title to real property, but not
in possession thereof, must act affirmatively
and within the time provided by the statute.
Possession is a continuing right as is the right
to defend such possession. So it has been
determined that an owner of real property in
possession has a continuing right to invoke a
court of equity to remove a cloud that is a
continuing menace to his title. Such a menace
is compared to a continuing nuisance or
trespass which is treated as successive
nuisances or trespasses, not barred by statute
until continued without interruption for a
length of time sufficient to affect a change of
title as a matter of law." [Pingol v. CA]
(2) When the plaintiff is not in possession of the
property, the action to quiet title may
prescribe.
(a) 10 yrs. ordinary prescription
(b) 30 yrs. extraordinary prescription
CIVIL LAW
CHARACTERISTICS OF COOWNERSHIP
(1) There are 2 or more co-owners.
(2) There is a single object which is not materially
or physically divided and over which and his
ideal share of the whole.
(3) There is no mutual representation by the coowners.
(4) It exists for the common enjoyment of the coowners.
(5) It has no distinct legal personality.
(6) It is governed first of all by the contract of the
parties; otherwise, by special legal provisions,
and in default of such provisions, by the
provisions of Title III on Co-ownership.
There are ideal shares defined but not
physically identified [NCC 485]
(1) The share of the co-owners, in the benefits as
well as in the charges, shall be proportional to
their respective interests.
(2) Any stipulation in a contract to the contrary
shall be void.
(3) The portions belonging to the co-owners in
the co-ownership shall be presumed equal,
unless the contrary is proved.
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Each co-owner has absolute control over his

ideal share
Every co-owner has absolute ownership of his
undivided interest in the co-owned property and is
free to alienate, assign or mortgage his interest
except as to purely personal rights. While a coowner has the right to freely sell and dispose of
his undivided interest, nevertheless, as a coowner, he cannot alienate the shares of his other
co-owners nemo dat qui non habet. [Acabal v.
Acabal]
CIVIL LAW
Article 90: if matter is not provided in the FC

Chapter on ACP, then rules on coownership will apply
(2) Purchase creating implied trust:
If two or more persons agree to purchase
property and by common consent, the legal
title is taken in the name of one of them for
the benefit of all, a trust is created by force of
law in favor of the others in proportion to the
interest of each. [NCC 1452]
Mutual respect among co-owners with regard

to use, enjoyment, and preservation of the
things as a whole
(1) The property or thing held pro-indiviso is
impressed with a fiduciary character: each coowner becomes a trustee for the benefit of his
co-owners and he may not do any act
prejudicial to the interest of his co-owners.
(2) Until a judicial division is made, the respective
part of each holder cannot be determined.
The effects of this would be:
(a) Each co-owner exercises, together with
the others, joint ownership over the pro
indiviso property, in addition to his use
and enjoyment of the same
(b) Each co-owner may enjoy the whole
property and use it.
(3) Easement of Party Wall: co-ownership of partowners of a party wall (NCC 658)
Only limitation: a co-owner cannot use or enjoy the

property in a manner that shall injure the interest
of his other co-owners. [Pardell v. Bartolome]
Article 494, Civil Code. No co-owner shall be obliged to

remain in the co-ownership. Each co-owner may
demand at any time the partition of the thing owned
in common, insofar as his share is concerned.
SOURCES OF CO-OWNERSHIP
Law,
contract,
succession,
testamentary
disposition or donation inter vivos, fortuitous
event or chance, and by occupancy
LAW
(1) Cohabitation: co-ownership between common

law spouses
The Family Code, in the following provisions,
made the rules on co-ownership apply:
Article 147: between a man and a woman
capacitated to marry each other
Article 148: between a man and a woman
not capacitated to marry each other
(4) Condominium Law: co-ownership of the

common areas by holders of units
Sec. 6, RA 4726. The Condominium Act. Unless
otherwise expressly provided in the enabling or
master deed or the declaration of restrictions, the
incidents of a condominium grant are as follows:
(c) Unless otherwise, provided, the common
areas are held in common by the holders of
units, in equal shares, one for each unit.
CONTRACT
By Agreement of Two or More Persons
Nevertheless, an agreement to keep the thing

undivided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended by
a new agreement.
A donor or testator may prohibit partition for a period
which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner or coheir against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the co-ownership.
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By the creation of a Universal Partnership

of all present property
NCC 1778. A partnership of all present property is
that in which the partners contribute all the
property which actually belongs to them to a
common fund, with the intention of dividing the
same among themselves, as well as all the profits
which they may acquire therewith.
NCC 1779. In a universal partnership of all present
property, the property which belonged to each of
the partners at the time of the constitution of the
partnership, becomes the common property of all
the partners, as well as all the profits which they
may acquire therewith.
CIVIL LAW
BY FORTUITOUS EVENT OR BY
CHANCE
(1) Co-ownership between owners of 2 things

that are mixed by chance or by will of the
owners:
[NCC 472] Each owner shall acquire a right
proportional to the part belonging to him, bearing
in mind the value of the things mixed or confused.
(2) Hidden Treasure [NCC 438]
When the discovery is made on the property of
another, or of the State or any of its
subdivisions, and by chance, one-half shall be
allowed to the finder.
A stipulation for the common enjoyment of any

other profits may also be made; but the property
which the partners may acquire subsequently by
inheritance, legacy, or donation cannot be
included in such stipulation, except the fruits
thereof.
BY OCCUPANCY
SUCCESSION
Articles are kept secret among the members and

any one of the members may contract in his own
name with third persons are governed by the
provisions relating to co-ownership.
Intestate succession: co-ownership between the

heirs before partition of the estate
NCC 1078. Where there are two or more heirs, the
whole estate of the decedent is, before its
partition, owned in common by such heirs, subject
to the payment of debts of the deceased.
For as long as the estate is left undivided the
heirs will be considered co-owners of the
inheritance.
If one of the heirs dies, his heirs will in turn be
co-owners of the surviving original heirs.
TESTAMENTARY DISPOSITION OR
DONATION INTER VIVOS
(1) When a donation is made to several persons

jointly, it is understood to be in equal shares,
and there shall be no right of accretion
among them, unless the donor has otherwise
provided. [NCC 753]
(2) A donor or testator may prohibit partition for a
period which shall not exceed 20 years.
Harvesting and Fishing: Co-ownership by two or

more persons who have seized a res nullius thing
BY ASSOCIATIONS AND SOCIETIES

WITH SECRET ARTICLES
RIGHTS OF CO-OWNERS
RIGHT TO SHARE IN THE BENEFITS AS
WELL AS THE CHARGES [NCC 485]
Proportional to their interests;

Stipulation to the contrary is void;
Portion belonging to the co-owners is presumed
equal.
RIGHT TO USE THE THING OWNED IN

COMMON [NCC 486]
Limitations:
That he use the thing in accordance with the
purpose for which it is intended.
That he uses it in such a way as to not injure the
interest of the co-ownership or prevent the other
co-owners from using it.
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RIGHT TO BRING AN ORDER IN

EJECTMENT [NCC 487]
RIGHT TO COMPEL OTHER CO-OWNERS TO
CONTRIBUTE
TO
THE
EXPENSES
OF
PRESERVATION AND TO THE TAXES [NCC 488]
(1) Any one of the other co-owners may exempt
himself by renouncing so much of his
undivided interest as may be equivalent to his
share of the expenses and taxes.
(2) No waiver if it is prejudicial to the coownership
RIGHT TO REPAIR [NCC 489]

(1) Repairs for preservation may be made at the
will of one of the co-owners but he must first
notify his co-owners.
(2) Expenses to improve or embellish, decided
upon by a majority.
RIGHT TO OPPOSE ALTERATIONS [NCC

491]
(1) Consent of all the others is needed to make

alterations, even if the alteration benefits all.
(2) If the withholding of the consent is clearly
prejudicial to the common interest, the courts
may afford relief
(3) Reason for the rule: alteration is an act of
ownership, not of mere administration.
RIGHT TO FULL OWNERSHIP OF HIS PART AND
OF THE FRUITS AND BENEFITS PERTAINING
THERETO [NCC 493]
(1) Therefore he may alienate, assign or
mortgage it, and even substitute another
person in its enjoyment except when personal
rights are involved.
(2) The effect of the alienation or the mortgage,
with respect to the co-owners, shall be limited
to the portion which may be allotted to him in
the division upon the termination of the coownership.
RIGHT TO PARTITION [NCC 494]

(1) Each may demand at any time the partition of
the thing, insofar as his share is concerned.
(2) An agreement to keep the thing undivided for
a certain period NOT exceeding 10 years is
valid.
(3) Term may be extended by a new agreement.
CIVIL LAW
(4) Donor or testator may prohibit partition, period

NOT to exceed 20 years.
(5) No partition may be made if prohibited by
law.
(6) Right does not prescribe.
RIGHT TO REDEMPTION [NCC 1619]
(1) May exercise this in case the shares of other
co-owners are sold to a third person
(2) If 2 or more co-owners wish to exercise this
right, redemption will be made in proportion
to their share in the thing
Note: Rules on Co-Ownership Not Applicable to
CPG or ACP.
(1) These are governed by the Family Code.
(2) Even void marriages and cohabitation of
incapacitated persons are governed by FC 50,
147, and 148.
RULES
ON RENUNCIATION
(1) Other co-owners may choose not to

contribute to the expenses by renouncing so
much of his undivided interest as may be
equivalent to his share of the necessary
expenses and taxes.
(2) Renunciation must be express; thus, failure to
pay is not a renunciation of the right.
(3) Requires the consent of other co-owners
because it is a case of dacion en pago
(cessation of rights) involving expenses and
taxes already paid. (J.B.L. Reyes)
(4) Cannot renounce his share if it will be
prejudicial to another co-owner.
REPAIRS FOR PRESERVATION
(1) First, notify other co-owners, as far as

practicable.
(2) Co-owner may advance expenses for
preservation even without prior consent; he is
entitled to reimbursement.
EMBELLISHMENTS OR
IMPROVEMENTS
(1) Notify co-owners of improvements and

embellishments to be made.
PAGE 106
If no notification is made, the co-owner who

advanced the expenses will only have the
UP LAW BOC
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CIVIL LAW
right to be reimbursed if he proves the

necessity of such repairs and the
reasonableness of the expenses.
Registration under the Torrens system is

constructive notice of title but it NOT SUFFICIENT
NOTICE of the act of repudiation. [Adille v CA]
Exception: If proven that had there been a

notification, they could have hired another
who would charge less or that they know of a
store that sells the needed material at a
cheaper price
PARTITION OR DIVISION
The reimbursement will be limited to the

amount that should have been spent had he
notified the others, and the difference shall be
borne by him alone.
(2) Decisions by the majority must be followed.
TERMINATION/
EXTINGUISHMENT
TOTAL DESTRUCTION OF THING OR LOSS OF
THE PROPERTY CO-OWNED
Is there still co-ownership if a building is
destroyed?Yes, over the land and the debris.
MERGER OF ALL INTERESTS IN ONE PERSON
ACQUISITIVE PRESCRIPTION
By whom
(1)
A third person. [NCC 1106]
(2)
A co-owner against the other co-owners.
Requisites for acquisitive prescription against coowners [Adille v CA (1988)]:
(1) A co-owner repudiates the co-ownership;
(2) The act of repudiation is clearly made known
to other co-owners;
(3) The evidence thereon is clear and conclusive;
and
(4) The co-owner has been in possession thru
open, continuous, exclusive and notorious
possession of the property for the period
required by law.
Note: there is a presumption that possession of a
co-owner is NOT adverse
Procedure for Partition

Governing rule: Rule 69 of the Rules of Court.
How: By agreement of parties or by judicial
decree.
Form: Oral or Written (Statute of Frauds does
not operate here because it is not a conveyance
of property but a mere segregation or
designation of which parts belong to whom)
The Rules of Court do not preclude agreements
or settlements.
Action for Partition will determine:
(1) Whether or not the plaintiff is indeed a coowner of the property
(2) HOW will the property be divided between the
plaintiff and defendant.
Effect:
(1) Confers exclusive ownership of the property
adjudicated to a co-heir.
(2) Co-heirs shall be reciprocally bound to
warrant the title to and the quality of each
property adjudicated.
(3) Reciprocal obligation of warranty shall be
proportionate to the respective hereditary
shares of co-heirs.
(4) An action to enforce warranty must be
brought within 10 years from the date the
right accrues.
(5) The co-heirs shall not be liable for the
subsequent insolvency of the debtor of the
estate.
Unless partition is effected, each heir cannot
claim sole ownership over a definite portion of the
land. Heirs become the undivided owner of the
whole estate. Until said partition, he cannot
alienate a specific part of the estate. Until then,
they can only sell their successional rights.
[Carvaria v. CA]
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

interest of the co-owners who made the
assignment or alienation.
Intervention of creditors and assignees
General Rule: Creditors may take part in the
division. They need to establish the existence of
the credit during co-ownership.
Right of Possession
(jus possessionis)
Independent right
Right to possess
(jus possidendi)
Incident to
ownership
Possession includes the idea of occupation. It

cannot exist without it. (Exceptions: NCC 537)
CHARACTERISTICS
Exception: If the partition was already executed

Exception to the exception: If there was fraud, or a
previous formal opposition to the partition.
Rules on notice to creditors and assignees:
(1) The law does not expressly require previous
notice to the creditors and assignees before a
partition, but the right of creditors and
assignees to take part in the division
presupposes the duty to notify.
(2) If notice is not given, the partition will not be
binding on them.
(3) Once notice has been given, it is the duty of
creditors and assignees to intervene and
make known their stand.
(a) If they fail, they cannot question the
division made, except in cases of fraud.
(b) If they formulate a formal question, they
can contest such partition
Partition in case co-owners cannot agree on the
partition of an indivisible thing (NCC 498)
Possession
DEFINITION
The holding of a thing or the enjoyment of a right.
[NCC 523]
CONCEPT OF POSSESSION
CIVIL LAW
To possess, in a grammatical sense, means to

have, to physically and actually occupy a thing,
with or without right. [Sanchez Roman]
It is the holding of a thing or a right, whether by
material occupation or by the fact that the thing
or the right is subjected to the action of our will.
[Manresa]
It is an independent right apart from ownership.
ESSENTIAL
POSSESSION
REQUISITES
OF
(1) Corpus possessionis: Holding (actual or

constructive) of a thing or exercise of a right, if
right is involved.
(a) General Rule: Possession and cultivation
of a portion of a tract under claim of
ownership of all is a constructive
possession of all, if the remainder is not in
adverse possession of another. [Ramos v.
Director of Lands (1918)]
(b) Doctrine of constructive possession applies
when the possession is under title calling
for the whole. It does not apply where
possession is without title.
(2) Animus possidendi: Intention to possess
(a) There is no possession if the holder does
not want to exercise the rights of a
possessor.
(b) Implied from the acts of the possessor.
(c) May be contradicted and rebutted by
evidence to prove that the person who is
in possession does not in fact exercise
power or control and does not intend to
do so.
DEGREES OF POSSESSION
(1) Mere holding or possession without title and in

violation of the right of the owner
(a) e.g. possession of a thief or usurper of
land
(b) Here, both the possessor and the public
know that the possession is wrongful.
(2) Possession with juridical title but not that of
ownership
(a) e.g. possession of a tenant, depository
agent, bailee trustee, lessee, antichretic
creditor.
(b) This possession is peaceably acquired.
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(c) This degree of possession will never ripen

into full ownership as long as there is no
repudiation of concept under which
property is held.
(3) Possession with just title or title sufficient to
transfer ownership, but not from the true
owner
(a) e.g. possession of a vendee from a vendor
who pretends to be the owner.
(b) This degree of possession ripens into full
ownership by lapse of time.
(4) Possession with a just title from the true owner
(a) This is possession that springs from
ownership.
CASES OF POSSESSION
Possession for Oneself, or Possession
Exercised in Ones Own Name and Possession
in the Name of Another [NCC 524]
(1) In ones own name the fact of possession and
the right to such possession is found in the
same person.
(2) In the name of another the one in actual
possession is without any right of his own, but
is merely an instrument of another in the
exercise of the latters possession.
Kinds of possession in the name of another
(a) Necessary arises by operation of law
e.g. representatives who exercise possession
in behalf of a conceived child, juridical
persons, persons not sui juris and the conjugal
partnership
(b) Voluntary effected through the mutual
consent of the parties
(i) e.g. agents or administrators appointed
by the owner or possessor.
(ii) Third person may also voluntary exercise
possession in the name of another, but it
does not become effective unless ratified
by the person in whose name it is
exercised.
CIVIL LAW
Possession in the Concept of an Owner, and

Possession in the Concept of a Holder with the
Ownership Belonging to Another [NCC 525]
(1) Possession in Concept of Holder:
(a) One who possesses as a mere holder, not
in the concept of owner, acknowledges in
another a superior right which he believes
to be ownership, whether his belief be
right or wrong.
(b) e.g. tenant, usufructuary, borrower in
commodatum.
(2) Possession in Concept of Owner:
(a) May be exercised by the owner himself or
one who claims to be so.
(b) When a person claims to be the owner of a
thing, whether he believes so or not,
acting as an owner, and performing acts
of ownership, and he is or may be
considered as the owner by those who
witness his exercise of proprietary rights,
then he is in the possession of an owner.
This is the kind of possession that ripens
into ownership under Article 540, when
such possession is public, peaceful and
uninterrupted. [see Art. 1118].
Effects of Possession in Concept of an Owner
(1) Converted into ownership by the lapse of time
necessary for prescription.
(2) Possessor can bring all actions necessary to
protect his possession, availing himself of any
action which an owner can bring, except
accion reivindicatoria which is substituted by
accion publiciana.
(3) He can ask for the inscription of possession in
the registry of property.
(4) Upon recovering possession from one who has
unlawfully deprived him of it, he can demand
fruits and damages.
(5) He can do on the thing possessed everything
that the law authorizes an owner to do; he can
exercise the right of pre-emption and is
entitled to the indemnity in case of
appropriation.
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

belief that the person from whom he
received a thing was the owner of the
same and could convey his title.
(b) It implies freedom from knowledge and
circumstances which ought to put a
person on inquiry.
(c) The belief of a possessor that he is the
owner of the thing must be based upon
the title or mode of acquisition, such as a
sale, a donation, inheritance or other
means of transmitting ownership; for
without this, there can be no real, wellgrounded belief of ones ownership.
(d) Error in the application of the law, in the
legal solutions that arise from such
application, in the appreciation of legal
consequence of certain acts, and in the
interpretation of doubtful provisions or
doctrines, may properly serve as basis for
good faith.
(e) A misconception of the law, no matter
how honest cannot have the effect of
making one a possessor in good faith
when he does not hold a title valid in form
or a deed sufficient in terms to transfer
property.
(2) Possessor in bad faith one who knows his
title is defective.
(a) Only personal knowledge of the flaw in
the title or mode of acquisition can make
him a possessor in bad faith for bad faith
is not transmissible from one person to
another.
(b) Mistake upon a doubtful or difficult
question of law as a basis of good faith.
(c) Mistake or ignorance of the law, by itself,
cannot become the basis of good faith.
What makes the error or ignorance a basis
of good faith is the presence of an
apparent doubt or difficulty in the law.
In other words, the law is complex,
ambiguous, or vague such that it is open
to two or more interpretations.
(d) When the ignorance of the law is gross
and inexcusable, as when a person of
average intelligence would know the law,
such ignorance cannot be the basis of
good faith. Otherwise, the intendment of
Article 3 which states that, Ignorance of
CIVIL LAW
the law excuses no one from compliance

therewith, will be defeated.
What Things May be Possessed [NCC 530]
Only things and rights which are susceptible of
being appropriated may be the object of
possession.
What May Not Be Possessed by Private
Persons
(1) Res Communes
(2) Property of Public Dominion
(3) Right under discontinuous and/or nonapparent easement
ACQUISITION OF POSSESSION
WAYS OF ACQUIRING POSSESSION
[NCC 531]
(1) By material occupation

(a) Material occupation used in its ordinary
meaning and not in its technical meaning
under NCC 712, which defines occupation
as a mode of acquiring ownership.
(b) Possession
acquired
by
material
occupation is only possession as a fact,
not the legal right of possession.
(c) Constructive delivery is considered as an
equivalent of material occupation in two
situations where such occupation is
essential to the acquisition of possession:
(i) Tradicion brevi manu takes place
when one who possess a thing by title
other than ownership, continues to
possess the same under a new title,
that of ownership.
(ii) Tradicion constitutum possessorium
takes place when the owner alienates
the thing, but continues to possess
the same under a different title.
(2) By subjection to the action of ones will
(a) This mode refers more to the right of
possession than to possession as a fact.
The action of our will must be juridical,
in the sense that it must be according to
law.
(b) It includes:
(i) Tradicion symbolica by delivering
some object or symbol placing the
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thing under the control of the

transferee.
(ii) Tradicion longa manu by the
transferor pointing out to the
transferee the things that are being
transferred.
(3) By execution of proper acts under legal
formalities
(a) This mode refers to juridical acts or the
acquisition of possession by sufficient title
evidenced by the performance of required
formalities.
(b) Examples:
(i) Donations;
(ii) Succession;
(iii) Contracts (like a sale with right to
repurchase);
(iv) Judicial possession;
(v) Execution of judgments;
(vi) Execution and registration of public
instruments;
(vii) Inscription of possessory information
titles.
(c) The execution of the required formalities
is equivalent to delivery of the property.
BY WHOM MAY POSSESSION BE

ACQUIRED [NCC 532]
(1) By the same person

(2) By his legal representative
(3) By his agent
(4) By any person without any power whatsoever
but subject to ratification, without prejudice
to proper case of negotiorum gestio [Arts.
2144, 2149, 2150]
(5) Qualifiedly, minors and incapacitated persons
By the same person
Elements of personal acquisition:
(1) Must have the capacity to acquire possession;
(2) Must have the intent to possess; and
(3) The possibility to acquire possession must be
present.
By his legal representative
Requisites of acquisition through another:
(1) That the representative or agent has the
intention to acquire the thing or exercise the
right for another, and not for himself; and
(2) That the person for whom the thing has been
acquired or the right exercised, has the
CIVIL LAW
intention of possessing such thing or

exercising such right,
Note:
(a) Bad faith is personal and intransmissible.
Only the person who acted in bad faith
must suffer its effects; his heir should not
be saddled with the consequences.
(b) Good faith can only benefit the person
who has it; and the good faith of the heir
cannot erase the effects of bad faith of his
predecessor.
By any person without any power whatsoever
but subject to ratification, without prejudice to
proper case of negotiorum gestio [NCC 2144,
2149, 2150]
(a) Whoever voluntarily takes charge of the agency
or management of the business or property of
another, without any power from the latter, is
obliged to continue until the termination of
the affair and its incidents, or to require the
person concerned to substitute him, if the
owner is in a position to do so.
(b) This juridical relation does not arise in either
of these instances:
(i) When the property or business is not
neglected or abandoned;
(ii) If in fact the manager has been tacitly
authorized by the owner.
Qualifiedly, minors and incapacitated persons
[NCC 535]
(1) Incapacitated all those who do not have the
capacity to act (insane, lunatic, deaf-mutes
who cannot read and write, spendthrifts and
those under civil interdiction).
(2) Object of possession things only, not rights.
(3) Method of acquisition material occupation;
acquisition by means for which the
incapacitated person has the capacity, such as
acquisition by succession, testate or intestate,
or by donations propter nuptias, pure and
simple donations.
WHAT DO NOT AFFECT POSSESSION

[NCC 537]
(1) Acts merely tolerated

(a) Those which because of neighborliness or
familiarity, the owner of property allows
another person to do on the property;
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(b) Those services or benefits which ones

property can give to another without
material injury or prejudice to the owner,
who permits them out of friendship or
courtesy;
(c) Acts of little disturbances, which a person,
in the interest of neighborliness or friendly
relations permits others to do on his
property, although continued for a long
time, no right will be acquired by
prescription.
(2) If there are two or more possessors, the one

longer in possession;
(3) If the dates of possession are the same, the
one who presents a title; or
(4) If all conditions are equal, the thing shall be
placed in judicial deposit
pending
determination of possession or ownership
through proper proceedings.
Note: Permissive use merely tolerated by the

possessor cannot affect possession and
cannot be the basis of acquisitive prescription.
Possession to constitute the foundation of
prescriptive right must be possession under
claim of title; it must be adverse. [Cuaycong v.
Benedicto]
RIGHTS OF A POSSESSOR IN GOOD

FAITH
(2) Acts executed clandestinely and without the

knowledge of the possessor [NCC 1108]
Possession has to be in the concept of an
owner, public, peaceful and uninterrupted.
(3) Acts of violence as long as the possessor
objects thereto (i.e. he files a case) [NCC 536]
(a) Possession cannot be acquired through
force or intimidation.
Includes forcibly taking away the property
from another and also when one occupied
the property in the property in the
absence of another, and repels the latter
upon his return.
(b) Effect on Possession: Acts mentioned do
not constitute true possession. They do
not interrupt the period of prescription
nor affect the rights to the fruits.
RULES TO SOLVE CONFLICTS OF

POSSESSION [NCC 538]
General Rule: Possession cannot be recognized in

two different personalities, except in cases of copossession by co-possessors without conflict of
claims of interest.
In case of conflicting possession preference is
given to:
(1) Present possessor or actual possessor;
EFFECTS OF POSSESSION
(1) Right to be protected and respencted in

possession; (NCC 539)
(2) Right to bring action to restore possession;
(3) Right to the fruits already received; (NCC.
544)
(4) Right to a share in pending fruits and the
production, gathering, and preservation of
such; (NCC. 545)
(5) Right to necessary expenses; (NCC. 546)
(6) Right to retain the thing until reimbursed;
(NCC. 546)
(7) Right to remove useful improvements
removable without damage to the principal
thing or to refund its value; (upon election by
the owner) (NCC. 547)
(8) Right to recover removable ornaments. (NCC.
548)
OBLIGATIONS OF A POSSESSOR IN
GOOD FAITH
(1) Pay in proportion to the charges, expenses of

cultivation and the net proceeds upon
cessation of good faith; (NCC 545)
(2) Costs of litigation; (NCC 550)
(3) Liability to the deterioration/loss of a thing
possessed if acted through fraudulent
intent/negligence. (NCC 552)
RIGHTS OF A POSSESSOR IN BAD

FAITH
(1) Right to be respencted in possession; (NCC
539)
(2) Right to necessary expenses and the
production, gathering, and preservation of
fruits; (NCC. 545 and 546)
(3) Does not have right to reimbursement of
expenses for luxury but may remove them as
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long as the principal thing suffers no injury, or

may sell them to the owner.
OBLIGATIONS OF A POSSESSOR IN
GOOD FAITH
(1) Reimburse the value of the fruits received and

which the legitimate possessor could receive;
(NCC 549)
(2) Pay in proportion to the charges, expenses of
cultivation and the net proceeds upon
cessation of good faith; (NCC 545)
(3) Costs of litigation; (NCC 550)
(4) Liability to the deterioration/loss of a thing
possessed in every case, including fortuitous
events. (NCC 552)
RIGHT TO BE PROTECTED IN HIS

(1) Every possessor has a right to be respected in

his possession; if disturbed, possessor has a
right to be protected in or restored to said
possession.
(2) Every possessor includes all kinds of
possession, from that of an owner to that of a
mere holder, except that which constitutes a
crime.
(3) Reason for the rule: To prevent anyone from
taking the administration of justice into his
own hands. Even the owner cannot forcibly
eject the possessor, but must resort to the
courts.
Actions to Recover Possession:
(1) Forcible entry and Unlawful detainer (Summary
proceedings)
(a) Action by a person deprived of the
possession of any land or building by
force, intimidation, strategy, threat, or
stealth (FISTS) at any time within 1 year
after such unlawful deprivation (Rule 70)
(b) May ask for writ of preliminary mandatory
injunction within 10 days from filing of
complaint in forcible entry (NCC 539).
(c) The same writ is available in unlawful
detainer actions upon appeal. (NCC 1674)
(2) Accion Publiciana
(a) This action is based on the superior right
of possession; no issue of ownership is
settled.
CIVIL LAW
(b) Action for the recovery of possession of

real property upon mere allegation and
proof of a better title.
(c) This must be instituted within 10/30 years
(or else acquisitive prescription will deny
recovery).
(3) Accion Reivindicatoria
(a) This action is for the recovery of
possession based on a claim of
ownership.
(b) It is an action setting up title and the right
to possession.
(c) This action is not barred by a judgment in
an action for forcible entry and unlawful
detainer.
(4) Action for Replevin
(a) This is a prayer to recover possession of
movable property
Rules:
(1) Lawful possessor can employ self-help (NCC
429)
(2) To consolidate title by prescription, the
possession must be under claim of ownership,
and it must be peaceful, public and
uninterrupted.
(3) It is only the conviction of ownership
externally manifested, which generates
ownership.
(4) Acts of possessory character done by virtue of
a license or mere tolerance by the real owner
are not sufficient and will not confer title by
prescription or adverse possession.
(5) The following cannot acquire title by
prescription:
(a) Lessees, trustees, pledges, tenants on
shares or planters and all those who hold
in the name or representation of another;
(b) Mere holders placed in possession of the
property by the owner, such as agents,
employees;
(c) Those holding in a fiduciary character, like
receivers, attorneys, depositaries and
antichretic creditors;
(d) Co-owner, with regard to common
property; Except: When he holds the same
adversely against all of them with notice
to them of the exclusive claim of
ownership.
(i) Possession of real property presumes
possession of the movables therein
(NCC 542);
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(ii) Each co-owner is deemed to have

exclusive possession of the part which
may be allotted to him upon the
division, for the entire period during
which the co-possession lasted.
Legal interruption of possession in good faith

Takes place when an action is filed against him
from the time he learns of the complaint, from the
time he is summoned to the trial.
Interruption in the possession of the

whole or a part of a thing possessed in
common shall be to the prejudice of all
the possessors. (NCC 543)
Effect of cessation of good faith (NCC 545)

(a) If at the time the good faith ceases, there
should be any natural or industrial fruits, the
possessor shall have a right to a part of the
expenses of cultivation, and to a part of the
net harvest, both in proportion to the time of
the possession.
(b) The charges divided on the same basis by the
two possessors.
Charges Those which are incurred, not
on the thing itself but because of it (e.g.
taxes, contributions in favor of the
government)
(c) The owner of the thing may give the possessor
in good faith the right to finish the cultivation
and gathering of the growing fruits, as an
indemnity for his part of the expenses of
cultivation and the net proceeds.
The possessor in good faith who refuses to
accept this concession shall lose the right to
be indemnified in any other manner.
ENTITLEMENT
TO
FRUITS
POSSESSOR IN GOOD/BAD FAITH

[NCC 544, 549]
(1) Possessor in good faith is entitled to the fruits
received before the possession is legally
interrupted.
(2) Natural and industrial fruits are considered
received from the time they are gathered or
severed.
(3) Civil fruits are deemed to accrue daily and
belong to the possessor in good faith in that
proportion.
Provision is based on the following reasons of
equity:
The fruits received are generally used for the
consumption and livelihood of the possessor,
and his life and expenses may have been
regulated in view of such fruits.
The owner has been negligent in not
discovering or contesting the possession of the
possessor; it would be unjust after the possessor
has been thus allowed to rely on the efficacy of
the title, to require him to return the fruits he
has received on the basis of that title.
Between the owner, who has abandoned his
property and left it unproductive, and the
possessor, who has contributed to the social
wealth, by the fruits he has produced, the law
leans toward the latter.
RIGHT OF THE POSSESSOR IN GOOD FAITH
Only limited to the fruits of the thing. He must
restore the fruits received from the time such
good faith ceased. He has no rights to the objects
which do not constitute fruits.
When fruits are insufficient

There should only be reimbursement of expenses;
but each possessor should suffer a proportionate
reduction due to the insufficiency of the harvest.
REIMBURSEMENT FOR EXPENSES

POSSESSOR IN GOOD/BAD FAITH
[NCC546-552]
NECESSARY EXPENSES
(1) Imposed by the thing itself for its preservation
and have no relation to the desire or purpose
of the possessor.
(2) They are the cost of living for the thing and
must be reimbursed to the one who paid
them, irrespective of GF or BF.
(a) Only the possessor in GF may retain the
thing until he has been reimbursed
therefor.
(3) The
expenses
are
not
considered
improvements; they do not increase the value
of the thing, but merely prevent them from
becoming useless.
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USEFUL EXPENSES
(1) Incurred to give greater utility or productivity
to the thing, e.g. Wall surrounding an estate,
an irrigation system, planting in an
uncultivated land, a fishpond, an elevator in
the building, electric lighting system
(2) They are reimbursed only to the possessor in
GF as a compensation or reward for him. A
possessor in BF cannot recover such
expenses.
(3) If the useful improvements can be removed
without damage to the principal thing, the
possessor in good faith may remove them,
unless the person who recovers the
possession refunds the expenses or pays the
increase in value which the thing may have
acquired by reason thereof.
EXPENSES FOR LUXURY
(1) They do not affect the existence or the
substance of the thing itself, but only the
comfort, convenience or enjoyment of the
possessor.
(2) They are not the subject of reimbursement,
because the law does not compensate
personal whims or caprices, e.g. Opening of a
garden, placing fountains and statues in it,
adorning the ceilings with paintings, and the
walls with reliefs.
Useful Expenses
Expenses for Luxury
Those which increased

Those which merely
the income derived
embellished the thing
from the thing
Result: Increase in the
products,
either
absolutely, or because
of greater facilities for Result:
Benefit or
producing them
advantage is only for
the convenience of
Includes
expenses definite possessors
resulting in real benefit
or advantage to the
thing
Result:
Benefit or The utility is for the
advantage is only for possessor or particular
the convenience of persons alone and is
definite possessors
therefore accidental.
CIVIL LAW
Note:
(1) Costs of litigation over the property shall be
borne by every possessor. [NCC 550]
(2) Improvements caused by nature or time shall
always inure to the benefit of the person who
has succeeded in recovering possession [NCC
551]
Includes all the natural accessions referred
to by articles 457-465, and all those that do
not depend upon the will of the possessor.
(e.g. widening of the streets, rising of
fountains of fresh or mineral water, increase
of foliage of trees)
Possessor in GF
Possessor in BF
Fruits Received
Entitled to the fruits
Must reimburse the
while possession is in
legitimate possessor
GF and before legal
(549)
interruption (544)
Pending Fruits
Entitled to part of the
expenses of cultivation,
and to a part of the net
harvest, in proportion
to the time of the
possession.
Must reimburse the

legitimate possessor
Indemnity may be, at
(549)
the owners option,
1. In money, OR
2. By allowing full
cultivation
and
gathering of the fruits
(545)
Charges
Must share with the
legitimate possessor, in
Same as with GF (545)
proportion to the time
of the possession (545)
Necessary Expenses
Right
reimbursement
retention
in
meantime (546)
PAGE 115
to
and
Reimbursement only
the
(546)
UP LAW BOC
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Possessor in GF
When the owner can recover

(a) Has lost the thing; or
(b) Has been unlawfully deprived thereof.
Possessor in BF
Useful Expenses
Right of retention until
reimbursed; Owners
option to reimburse
him either for expenses
or for increase in value
which the thing may
have acquired (546)
No
right
to
reimbursement and no
Limited
right
of right of removal (547)
removal should not
damage principal and
owner
does
not
exercise option of
paying the expenses or
increase in value (547)
Ornamental Expenses
Limited
right
removal (548)
of Limited
right
removal (549)
of
Deterioration or Loss
No liability unless due
to fraud or negligence Liable in every case
after becoming in BF (552)
(552)
Costs of Litigation
Bears cost (550)
CIVIL LAW
Bears cost (550)
LOSS OR UNLAWFUL DEPRIVATION

OF A MOVABLE PROPERTY
POSSESSION OF MOVABLE ACQUIRED IN
GOOD FAITH (IN CONCEPT OF OWNER) IS
EQUIVALENT TO TITLE [NCC 559]
(1) Possessor has actual title which is defeasible
only by true owner.
Requisites of Title
(a) Possession in GF;
(b) The owner has voluntarily parted with the
possession of the thing; and
(c) The possession is in the concept of an
owner.
(2) Nevertheless, one who has lost any movable
or has been unlawfully deprived thereof may
recover it from the person in possession.
(3) If the current possessor has acquired it in

good faith at a public sale, owner must
reimburse the price paid in order to recover
the property.
PERIOD TO RECOVER [NCC 1140, 1132, 1133]
(1) Actions to recover movable properties prescribe
after 8 years from the time the possession
thereof is lost, unless the possessor has
acquired the ownership by prescription for a
lesser period.
(2) Ownership of movable properties prescribes
through uninterrupted possession for 4 years
in good faith.
(3) Ownership of personal property also
prescribes through uninterrupted possession
for 8 years, without need of any other
condition.
(4) Movable properties possessed through a
crime can never be acquired through
prescription.
FINDER OF LOST MOVABLE [NCC 719-720]
(1) Whoever finds a movable, which is not a
treasure, must return it to its previous
possessor.
(2) If the previous possessor is unknown, the
finder shall immediately deposit it with the
mayor of the city or municipality where the
finding has taken place.
(3) The finding shall be publicly announced by
the mayor for two consecutive weeks in the way
he deems best.
(4) If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be sold
at public auction eight days after the
publication.
(5) Six months from the publication having
elapsed without the owner having appeared,
the thing found, or its value, shall be awarded
to the finder. The finder and the owner shall
be obliged, as the case may be, to reimburse
the expenses.
(6) If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, onetenth of the sum or of the price of the thing
found.
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DISTINGUISHED FROM VOIDABLE TITLE [NCC

1506]
(1) A seller of goods with a voidable title not
avoided at the time of the sale: The buyer
acquires a good title to the goods, provided he
buys them in good faith, for value, and
without notice of the seller's defect of title.
(2) A movable lost or which the owner has been
unlawfully deprived acquired by a possessor
in good faith at a public sale: The owner can
always recover the movable provided he
reimburses the price paid.
EFFECTS OF POSSESSION IN THE

CONCEPT OF AN OWNER
Possession may lapse and ripen into full

ownership.
General Rule: Presumption of just title and cannot
be obliged to show or prove it. [NCC 541]
Basis: Possession is presumed ownership,
unless the contrary is proved. This presumption
is prima facie and it prevails until contrary is
proved.
Just title that which is legally sufficient to
transfer the ownership or the real right to which
it relates.
For the purposes of prescription, there is just
title when the adverse claimant came into
possession of the property through one of the
modes recognized by law for the acquisition of
ownership or other real rights, but the grantor
was not the owner or could not transmit any
right. [NCC 1129]
Exception: For the purposes of prescription, just
title must be proved; it is never presumed. [NCC
1131]
(1) Possessor may bring all actions necessary to
protect his possession except accion
reivindicatoria.
(2) May employ self-help under Art. 429.
Possessor may ask for inscription of such real
right of possession in the registry of property.
(3) Has right to the fruits and reimbursement of
expenses (assuming he is possessor in good
faith)
(4) Upon recovery of possession which he was
unlawfully deprived of, may demand fruits
and damages.
CIVIL LAW
(5) Generally, he can do on the things possessed

everything that the law authorizes the owner
to do until he is ousted by one who has a
better right.
(6) This is whether possession is in good faith or
in bad faith [NCC. 528]
PRESUMPTION IN FAVOR OF THE

POSSESSORFOR
ACQUISITIVE
PRESCRIPTION
(1) Of good faith until contrary is proved (NCC

527)
(a) Presumption is only juris tantum because
possession is the outward sign of
ownership. Unless such proof of bad faith
is presented, the possessor will be held to
be in good faith.
(b) So long as the possessor is not actually
aware of any defect invalidating his title,
he is deemed a possessor in good faith.
(2) Of continuity of initial good faith in which
possession was commenced; possession in
good faith does not lose this character except
in case and from the moment possessor
became aware or is not unaware of improper
or wrongful possession (NCC 528)
(a) Good faith ceases from the date of the
summons to appear at the trial. [Cordero v
Cabral (1983)]
(b) Good faith ceases when there is:
(i) Extraneous evidence; or
(ii) A suit for recovery of the property by
the true owner.
(2) Of enjoyment of possession in the same
character in which possession was required
until contrary is proved [NCC 529]
(3) Of non-interruption of possession in favor of
present possessor who proves possession at a
previous time until the contrary is proved [NCC
554]
(a) Possession is interrupted for the purposes
of prescription, naturally or civilly. [NCC
1120]
(b) Possession is naturally interrupted when
through any cause it should cease for
more than one year [NCC 1121]
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(c) Old possession is not revived if a new

possession should be exercised by the
same adverse claimant [NCC 1121]
(d) If the natural interruption is for only one
year or less, the time elapsed shall be
counted in favor of the prescription [NCC
1122]
(e) Civil interruption is produced by judicial
summons to the possessor. [NCC 1123]
(f) Judicial summons shall be deemed not to
have been issued and shall not give rise to
interruption [NCC 1124]:
(i) If it should be void for lack of legal
solemnities;
(ii) If the plaintiff should desist from the
complaint or should allow the
proceedings to lapse;
(iii) If the possessor should be absolved
from the complaint
(g) In all these cases, the period of the
interruption shall be counted for the
prescription
(4) Non-interruption of possession of property
unjustly lost but legally recovered [NCC. 561]
(5) Other presumptions with respect to specific
properties of property rights
(a) Of extension of possession of real property
to all movables contained therein so long
as in is not shown that they should be
excluded (NCC 542)
(b) Non-interruption of possession of
hereditary property (NCC 553)
(i) Possession of hereditary property is
deemed transmitted to the heir
without interruption and from the
moment of the death of the decedent
(c) Of just title in favor of possessor in concept
of owner (NCC 541)
(d) Exclusive Possession of Common Property
(NCC. 543)
LOSS/TERMINATION OF
(1) By the abandonment of the thing;
(2) By an assignment made to another either by
onerous or gratuitous title;
(3) By the destruction or total loss of the thing, or
because it goes out of commerce;
CIVIL LAW
(4) By the possession of another, subject to the

provisions of Art. 537, if the new possession
has lasted longer than 1 year. But the real
right of possession is not lost till after the
lapse of 10 years.
ABANDONMENT
Includes the giving up of possession, and not

necessarily of ownership by every possessor.
It is the opposite of occupation. It consists of the
voluntary renunciation of all the rights which
the person may have in a thing, with intent to
lose such a thing. To be effective, it is necessary
that it be made by a possessor in the concept of
an owner.
It must be clearly appear that the spes
recuperandi is gone and the animus revertendi is
finally given up.
ASSIGNMENT, EITHER GRATUITOUS

OR ONEROUS
Complete transmission of ownership rights to

another person, gratuitously or onerously.
POSSESSION
BY
ANOTHER;
IF
POSSESION HAS LASTED LONGER
THAN ONE YEAR; REAL RIGHT OF
POSSESSION NOT LOST AFTER 10
YEARS SUBJECT TO NCC 537
(1) Acts merely tolerated, and those executed

clandestinely and without the knowledge of
the possessor of a thing, or by violence, do not
affect possession.
(2) Possession that is lost here refers only to
possession as a fact (de facto), not the legal
right of possession (de jure). It is the
possession that the new possessor acquires.
(3) Real right of possession is lost only after 10
years.
(4) After 1 year, the actions for forcible entry and
unlawful detainer can no longer be brought.
But accion publiciana may still be instituted to
recover possession de jure.
RULES FOR LOSS OF MOVABLES
(1) The possession of movables is not deemed

lost so long as they remain under the control
of the possessor, even though for the time
being he may not know their whereabouts.
(NCC 556)
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(2) Control judicial control or right, or that the

thing remains in ones patrimony.
(3) Wild animals are possessed only while they
are under one's control. (NCC 560)
(a) Domesticated or tamed animals if they
retain the habit of returning to the
premises of the possessor.
KINDS OF ANIMALS
(1) Wildthose which live naturally independent

of man.
(2) Domesticatedthose which, being wild by
nature, have become accustomed to
recognize the authority of man. When they
observe this custom, they are placed in the
same category as domestic and when they
lose it, they are considered as wild.
(3) Domestic or Tamethose which are born and
reared ordinarily under the control and care of
man; they are under the ownership of man,
and do not become res nullius unless they are
abandoned.
Usufruct
CONCEPT [NCC 562]
Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form
and substance, unless the title constituting it or
the law otherwise provides.
OBJECTS OF USUFRUCT
(1) Independent Rights

A servitude which is dependent on the
tenement to which it attaches cannot be the
object of usufruct.
(2) Things
Non-consumable things.
Consumable things, but only as to their
value if appraised, or on an equal quantity
and quality if they were not appraised.
(3) Unproductive things
e.g. sterile or absolutely unproductive land, or
things for mere pleasure, such as promenades,
statues or paintings, even if they do not
produce any utility.
CIVIL LAW
CHARACTERISTICS
(1) It is a real right;
(2) Of temporary duration;
(3) The purpose is to derive all advantages from
the thing due to normal exploitation.
NATURAL CHARACTERISTICS
(1) Includes only the right to use (jus utendi) and

the right to the fruits (jus fruendi).
(2) Usufructuary must preserve the form or
substance of the thing.
(a) Preservation is a natural requisite, not
essential because the title constituting it or
the law may provide otherwise.
(b) Reason for preserving form and substance
(i)
To
prevent
extraordinary
exploitation;
(ii)
To prevent abuse, which is
frequent;
(iii)
To prevent impairment.
(c) Exception: In an abnormal usufruct,
alteration is allowed.
(3) Usufruct is extinguished by the death of the
usufructuary.
(a) Natural because a contrary intention may
prevail.
CLASSIFICATION
BY ORIGIN
(1) Voluntary: created by the will of private

persons
(a) By act inter vivos such as contracts and
donations:
(i) By alienation of the usufruct;
(ii) By retention of the usufruct;
(iii) Where a usufruct is constituted inter
vivos and for valuable consideration,
the contract is unenforceable unless
in writing.
(b) By act mortis causa such as testament.
(2) Legal: as provided by law.
Usufruct of parents over the property of
unemancipated children. (now limited to the
collective daily needs of the family, FC 26)
(3) Mixed: created both by law and the acts of
persons.
(a) The rights and duties of the usufructuary
provided by law may be modified or
eliminated by the parties.
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(b) The title constituting the usufruct may

validly authorize the usufructuary to
alienate the thing itself held in usufruct.
(i) If the usufructuary is authorized to
alienate the thing in case of necessity,
it is the usufructuary who determines
the question of necessity.
(b) In case they were not appraised, he has

the right to return the same quantity and
quality, or pay their current price at the
time the usufruct ceases. [NCC 574]
(c) In reality, the usufruct is not upon the
consumable things themselves, but upon
the sum representing their value or upon
a quantity of things of the same kind and
quality.
(d) The usufructuary, in effect, becomes the
owner of the things in usufruct, while the
grantor becomes a mere creditor entitled
to the return of the value or of the things
of the same quantity and quality (as if
converted into a simple loan).
BY PERSON ENJOYING THE RIGHT OF

USUFRUCT
(1) Simple: only one usufructuary enjoys the

property.
(2) Multiple: several usufructuaries enjoy the
property.
(a) Simultaneous: at the same time.
(b) Successive: one after the other.
LIMITATIONS ON SUCCESSIVE USUFRUCT
(1) If usufruct is by donation, ALL donees must be
alive. [NCC 756]
(2) Fiduciary or first heir and the second heir must
be alive at the time of the death of the
testator. [NCC 863]
(3) If by testamentary succession, there must be
only 2 successive usufructuaries, and both
must be alive or at least already conceived at
the time of the testators death. [NCC 869]
BY OBJECT OF USUFRUCT
Usufruct may be constituted on the whole or a
part of the fruits of the thing or on a right,
provided it is not strictly personal or
intransmissible. [NCC 564]
RIGHTS
(1) Must not be strictly personal or
intransmissible.
(2) Usufruct over a real right is by itself a real
right.
(a) Right to receive present or future support
cannot be the object of the usufruct.
THINGS
(1) Normal: involves non-consummable things
where the form and substance are preserved.
(2) Abnormal or irregular: when the usufruct
includes things which cannot be used without
being consumed.
(a) The usufructuary has right to make use of
them under the obligation of paying their
appraised value at the termination of the
usufruct, if they were appraised when
delivered.
CIVIL LAW
BY THE EXTENT OF THE USUFRUCT
AS TO THE FRUITS
(1) Total: all consumed by the usufruct.
(2) Partial: only on certain aspects of the
usufructs fruits.
AS TO THE OBJECT
(1) Singular: only on particular property of the
owner.
(2) Universal: pertains to the whole property;
A universal usufructuary must pay the debts
of the naked owner, if stipulated. Article 758
and 759 on donations apply.
NCC 758: When the donation imposes upon

the donee the obligation to pay the debts of
the donor, if the clause does not contain any
declaration to the contrary, the former is
understood to be liable to pay only the debts
which appear to have been previously
contracted. In no case shall the donee be
responsible for the debts exceeding the value
of the property donated, unless a contrary
intention clearly appears.
NCC 759: There being no stipulation
regarding the payment of debts, the donee
shall be responsible therefor only when the
donation has been made in fraud of creditors.
The donation is always presumed to be in
fraud of creditors, when at the time thereof
the donor did not reserve sufficient property
to pay his debts prior to the donation.
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BY THE TERMS OF THE USUFRUCT

(1) Pure: no terms or conditions.
(2) Conditional: either suspensive or resolutory.
(3) With a term or period
(a) Ex die: from a certain day.
(b) In diem: up to a certain day.
(c) Ex die in diem: from a certain day up to a
certain day.
CIVIL LAW
Right to fruits pending at the beginning of

usufruct
Fruits pending at the
Fruits pending at the
beginning of the
termination of the
usufruct
usufruct
Belong to the
usufructuary
Belong to the naked

owner
Without
need
to The
owner
shall
reimburse the expenses reimburse
to
the
to the owners
usufructuary ordinary
cultivation
expenses
from the proceeds of
the fruits (not to exceed
the value of the fruits)

USUFRUCTUARY
RIGHTS
AS TO THE THING AND ITS FRUITS
Right to enjoy the property to the same extent
as the owner, but only with respect to its use
and the receipt of its fruits.
(1) Usufructuary cannot extract products which
do not constitute fruits because he is bound to
preserve the form and substance of the thing.
(2) Usufructuary rights may be transferred,
assigned or otherwise disposed of by the
usufructuary.
(3) Not exempt from execution and can be sold at
public auction.
As to hidden treasure, usufructuary is
considered a stranger without a right to a
share, unless he is also the finder of the
treasure
(1) With respect to hidden treasure which may be
found on the land or tenement, he shall be
considered a stranger.
(2) Hidden treasure belongs to the owner of the
land, building, or other property on which it is
found.
(3) Nevertheless, when the discovery is made on
the property of another, or of the State or any
of its subdivisions, and by chance, one-half
thereof shall be allowed to the finder.
Without prejudice to the Rights of innocent 3rd

right of 3rd persons e.g. parties should not be
if the fruits had been prejudiced.
planted by a possessor
in good faith, the
pending crop expenses
and charges shall be
prorated between said
possessor
and
the
usufructuary
Fruits already matured at the time of the
termination of the usufruct, which ordinarily
would have already been gathered by the
usufructuary, may remain ungathered for no fault
imputable to him, but because of malice or an act
imputable to the naked owner or a 3rd person, or
even due to force majeure or fortuitous event.
Right to civil fruits
(1) Civil fruits deemed to accrue daily, and
belong to the usufructuary in proportion to
the time the usufruct may last.
(2) Whenever a usufruct is constituted on the
right to receive a rent or periodical pension,
whether in money or in fruits, or in the interest
on bonds or securities payable to bearer, each
payment due shall be considered as the
proceeds or fruits of such right.
(3) Whenever it consists in the enjoyment of
benefits accruing from a participation in any
industrial or commercial enterprise, the date
of the distribution of which is not fixed, such
benefits shall have the same character.
(a) In either case they shall be distributed as
civil fruits.
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Right to enjoy any increase through accessions

and servitudes, including products of hunting
and fishing.
Right to lease the thing
General rule: The usufructuary may lease the thing
to another but this shall terminate upon the
expiration of the usufruct, saving leases of rural
lands, which shall be considered as subsisting
during the agricultural year.
Exceptions:
(1) Legal usufructs cannot be leased.
(2) Caucion juratoria (lease would show that the
usufructuary does not need the property
badly)
Effect of the transfer of right:
(1) The transfer or lease of the usufruct does NOT
terminate the relation of the usufructuary with
the owner.
(2) Death of the transferee does not terminate
the usufruct but it terminates upon the death
of the usufructuary who made the transfer.
Rules as to Lease
(1) The property in usufruct may be leased even
without the consent of the owner.
(2) The lease should be for the same period as
the usufruct.
(a) EXCEPT: leases of rural lands continues for
the remainder of the agricultural year.
(b) A lease executed by the usufructuary
before the termination of the usufruct and
subsisting after the termination of the
usufruct must be respected, but the rents
for the remaining period will belong to the
owner.
(c) If the usufructuary has leased the lands or
tenements given in usufruct, and the
usufruct should expire before the
termination of the lease, he or his heirs
and successors shall receive only the
proportionate share of the rent that must
be paid by the lessee. [NCC, 568]
(3) It is the usufructuary and not the naked owner
who has the right to choose the tenant.
(a) As corollary to the right of the
usufructuary to all the rent, to choose the
tenant, and to fix the amount of the rent,
she necessarily has the right to choose
herself as the tenant thereof; and, as long
CIVIL LAW
as the obligations she had assumed

towards the owner are fulfilled. [Fabie v.
Gutierrez David(1945)]
(4) A lease executed by the owner before the
creation of the usufruct is not extinguished by
such usufruct.
Limitations on the Right to Lease the Property
(1) Usufructuary cannot alienate a thing in
usufruct:
(a) Cannot alienate or dispose of the objects
included in the usufruct;
(b) Cannot renounce a servitude;
(c) Cannot mortgage or pledge a thing.
(d) EXCEPT:
(i) When the right of usufruct is
converted into the right of ownership;
(ii) When the things are consumable;
(NCC 574);
(iii) When the things by their nature are
intended for sale, such as the
merchandise in a commercial
establishment; and
(iv) When the things, whatever their
nature, are delivered under appraisal
as equivalent to their sale.
(2) Future crops may be sold but such sale would
be void if not ratified by the owner.
(a) The buyers remedy is to recover from the
usufructuary.
(3)
Only voluntary usufruct can be alienated.
(4) The usufructuary-lessor is liable for the act of
the substitute.
(a) A usufructuary who alienates or leases his
right of usufruct shall answer for any
damage which the things in usufruct may
suffer through the fault or negligence of
the person who substitutes him. [NCC,
590]
Right to improve the thing, but improvement
inures to the benefit of the naked owner
(1) Usufructuary
is
not
entitled
to
reimbursement.
(2) Whenever the usufructuary can remove the
improvements without injury to the property
in usufruct, he has the right to do so, and the
owner cannot prevent him from doing so even
upon payment of their value.
(3) This right does not involve an obligation if
the usufructuary does not wish to exercise it,
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he cannot be compelled by the owner to

remove the improvements.
(4) This right to remove improvements can be
enforced only against the owner, not against a
purchaser in good faith to whom a clean title
has been issued.
(5) Usufructuary may set off the improvements
against any damage to the property.
(a) The improvements should have increased
the value of the property, and that the
damages are imputable to the
usufructuary.
(b) Increase in value and the amount of
damages are set off against each other.
(c) If the damages exceed the increase in
value, the difference should be paid by the
usufructuary as indemnity.
(d) If the increase in value exceeds the
damages, and the improvements are of
such nature that they can be removed
without injury to the thing in usufruct, the
settlement of the difference must be
agreed upon by the parties.
(e) If the improvements cannot be removed
without injury, the excess in value accrues
to the owner.
(6) Registration of improvements to protect
usufructuary against 3rd persons
AS TO THE LEGAL RIGHT OF USUFRUCT
ITSELF
Right to mortgage right of usufruct
(1) The usufructuary may alienate his right of
usufruct, even by a gratuitous title; but all the
contracts he may enter into as such
usufructuary shall terminate upon the
expiration of the usufruct. [NCC. 572]
(2) Does not include parental usufruct because of
personal and family considerations.
Right to alienate the usufruct except in purely
personal usufructs or when title constituting it
prohibits the same
Parental usufruct is inalienable.
OBLIGATIONS
AT THE BEGINNING OF THE USUFRUCT OR
BEFORE EXERCISING THE USUFRUCT
(1) To make, after notice to the owner or his
legitimate representative, an inventory of all
CIVIL LAW
the property, which shall contain an appraisal

of the movables and a description of the
condition of the immovables; and
(2) To give security, binding himself to fulfill the
obligations imposed upon him in accordance
with this Chapter.
Note: These requirements are NOT conditions
precedent to the commencement of the right of
the usufruct but merely to the entry upon the
possession and enjoyment of the property.
To Make An Inventory:
(1) Requisites:
(a) Immovables must be described; and
(b) Movables must be appraised because
they are easily lost or deteriorated.
(2) Concurrence of the owner in the making of the
inventory.
(3) Expenses for the making of the inventory are
borne by the usufructuary.
(4) The inventory may be in a private document,
except when immovables are involved. (a
public instrument is prescribed to affect 3rd
persons)
(5) Failure to make an inventory does not affect
the rights of the usufructuary to enjoy the
property and its fruits.
(a) A prima facie presumption arises that the
property was received by the usufructuary
in good condition.
(b) Even if he is already in possession, he may
still be required to make an inventory.
(6) Exception to the requirement of inventory
(a) When no one will be injured, the
usufructuary may be excused from this
obligation.
To give a bond for the faithful performance of
duties as usufructuary:
(1) Any kind of sufficient security is allowed, e.g.
cash, personal bond, mortgage.
(2) No bond is required in the following:
(a) No prejudice would result; [Art. 585]
(b) Usufruct is reserved by a donor; [Art. 584]
(i) Gratitude on the donees part
demands that the donor be excused
from filing the bond.
(c) Title constituting usufruct excused
usufructuary.
(3) A usufructuary may take possession under a
caucion juratoria (bond by oath): [Art. 587]
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(a) It is only by way of exception that a

caucion juratoria is allowed, and only
under the special circumstances:
(i) Proper court petition;
(ii) Necessity for delivery of furniture,
implements or house included in the
usufruct;
(iii) Approval of the court; and
(iv) Sworn promise.
(b) A usufructuary under this can neither
alienate his right nor lease the property, for
that would mean that he does not need
the dwelling or the implements and
furniture.
(4) Effect of filing a bond
(a) Retroactivity: upon giving the security, the
usufructuary will be entitled to all the
benefits accruing since the time when he
should have begun to receive them.
(5) Effect of failure to give bond: [NCC 586]
(a) The owner may demand that the
immovable properties be placed under
administration;
(i) That the movable properties be sold;
(ii) That the public bonds, instruments of
credit payable to order or to bearer be
converted into registered certificates
or deposited in a bank or public
institution; and
(iii) That the capital or sums in cash and
the proceeds of the sale of the
movable property be invested in safe
securities.
(b) The owner may, until the usufructuary
gives security, retain in his possession the
property in usufruct as administrator,
subject to the obligation to deliver to the
usufructuary the net proceeds, after
deducting the sums, which may be agreed
upon or judicially allowed him for such
administration.
DURING THE USUFRUCT
(1) To take care of the thing like a good father of
a family;
(2) To undertake ordinary repairs;
(3) To notify owner of need to undertake
extraordinary repairs;
(4) To pay for annual charges and taxes on the
fruits;
(5) To notify owner of any act detrimental to
ownership;
CIVIL LAW
(6) To shoulder the costs of litigation regarding

the usufruct; and
(7) To answer for fault or negligence of alienee,
lessee or agent of usufructuary.
To take care of the thing like a good father of a
family
(1) When damages are caused to the property by
the fault or negligence of the usufructuary,
the naked owner need not wait for the
termination of the usufruct before bringing
the action to recover proper indemnity.
(2) The bad use of a thing, which causes
considerable injury, entitles the owner to
demand the delivery and administration of
the thing.
(3) The exercise of this remedy does NOT
extinguish the usufruct.
To undertake ordinary repairs
The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct.
[NCC 592]
(1)
Ordinary repairs:
(a) Such as are required by the wear and tear
due to the natural use of the thing and
are indispensable for its preservation;
(b) Deteriorations or defects arise from the
natural use of the thing;
(c) Repairs are necessary for the preservation
of the thing.
(2) The usufructuary is bound to pay only for the

repairs made during the existence of the
usufruct.
(a) If the defects existed already at the time
the usufruct began, the obligation to
defray the ordinary repairs falls upon the
owner.
(3) If the defects are caused by the ordinary use of
the thing, the usufructuary may exempt
himself from making the repairs by returning
to the owner the fruits received during the
time that the defects took place.
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Except: When the ordinary repairs are due to

defects caused by the fault of the usufructuary
UP LAW BOC
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(4) If the usufructuary fails to make the repairs

even after demand, the owner may make
them at the expense of the usufructuary
To notify owner of need to undertake
extraordinary repairs
(1)
Extraordinary repairs
(a) Those
caused
by
exceptional
circumstances, whether or not they are
necessary for the preservation of the
thing; or
(b) Those caused by the natural use of the
thing, but are not necessary for its
preservation.
(2) General Rule: Naked owner must make the
extraordinary repairs.
The usufructuary is obliged to pay legal
interest on the amount while usufruct lasts.
(3) If the extraordinary repairs are indispensable,
and the naked owner fails to undertake them,
the usufructuary may make such repairs.
(a) Requisites:
(i) There must be due notification to the
naked owner of the urgency if it is
not urgent, there is no obligation to
give notice;
(ii) The naked owner failed to make them;
and
(iii) The repair is needed for preservation.
(b) The usufructuary that has made the
extraordinary repairs necessary for
preservation is entitled to recover from
the owner the increase in value, which the
tenement acquired by reason of such
works.
(c) Usufructuary may retain until he is paid.
To pay for annual charges and taxes on the
fruits
It is well settled that a real tax, being a burden
upon the capital, should be paid by the owner of
the land and not by a usufructuary. There is no
merit in the contention of distinguishing public
lands into alienable and indisposable. All
properties owned by the government, without any
distinction, are exempt from taxation. [Board of
Assessment Appeals of Zamboanga del Sur v.
Samar Mining Company, Inc.(1971)]
CIVIL LAW
To notify owner of any act detrimental to

ownership (NCC 601)
To shoulder the costs of litigation regarding
the usufruct (NCC 602)
To answer for fault or negligence of the
alienee, lessee or agent of the usufructuary
(NCC 590)
The usufructuary is made liable for the acts of the
substitute. While the substitute answers to the
usufructuary, the usufructuary answers to the
naked owner.
AT THE TIME OF THE TERMINATION

OF THE USUFRUCT
To deliver the thing in usufruct to the owner in the

condition in which he has received it, after
undertaking ordinary repairs.
Exception: Abnormal usufruct A thing of the
same kind, quantity and quality is returned; if with
appraised value, must return value appraised.
SPECIAL CASES OF USUFRUCT

USUFRUCT OVER A PENSION OR A
PERIODICAL INCOME [NCC 570]
(1) Each payment due shall be considered as the
proceeds or fruits of such right.
(2) The usufruct shall be distributed as civil fruits.
USUFRUCT OF PROPERTY OWNED IN

COMMON [NCC 582]
(1) The usufructuary takes the place of the owner

as to:
(a) Management;
(b) Fruits; and
(c) Interest.
(2) Effect of partition:
(a) The right of the usufructuary is not
affected by the division of the property in
usufruct among the co-owners.
(b) After partition, the usufruct is transferred
to the part allotted to the co-owner.
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USUFRUCT CONSTITUTED ON A FLOCK

OR HERD OF LIVESTOCK [NCC 591]
(1) On sterile stock: same rules on consumable
property govern. (i.e. replacement upon
termination)
(2)
On fruitful stock:
(a) Must replace ordinary losses of the stock
with the young if:
(i) Some animals die from natural
causes; or
(ii) Some animals are lost due to rapacity
of beasts of prey.
(b) No obligation to replace if:
(i) There is a total loss of animals
because of some unexpected or
unnatural loss (like contagious
disease or any other uncommon
event, provided the usufructuary has
no fault); or
(1) If all perish, the usufructuary
should deliver the remains to the
owner.
(ii) There is a partial loss.
(1) If a part of the stock perishes, the
usufruct
subsists
on
the
remainder.
USUFRUCT OVER FRUIT BEARING

TREES
AND
SPROUT
AND
WOODLANDS [NCC575-576]
The usufructuary can:

(1) Use dead trunks and those cut off or uprooted
by accident;
(2) Make usual cuttings that owner used to do;
and
(3) Cut the trees that are not useful.
USUFRUCT ON A RIGHT OF ACTION

[NCC 578]
(1) The action may be instituted in the

usufructuarys name. As the owner of the
usufruct, he is properly deemed a proper
party-in-interest.
(2) If the purpose is the recovery of the property
or right, he is still required under Art. 578 to
obtain the naked owners authority.
(3) If the purpose is to object to or prevent
disturbances over the property, no special
authority from the naked owner is needed.
CIVIL LAW
USUFRUCT
ON
PROPERTY [NCC 600]
MORTGAGED
(1) When the usufruct is universal and some

objects are mortgaged, apply Art. 598.
(2) If the usufructuary mortgaged the usufruct
himself, he is liable to pay his own debt.
USUFRUCT
OVER
AN
PATRIMONY [NCC 598]
ENTIRE
Applies when:
(1) The usufruct is a universal one
(2) And the naked owner Has debts or is
obliged to make periodical payments
(whether or not there be known capital)
General rule: The usufructuary is not liable for the
owners debts.
Exceptions:
(1) When it is so stipulated; in which case the
usufructuary shall be liable for the debt
specified;
(2) If there is no specification, he is liable only for
debts incurred by the owner before the
usufruct was constituted; or
(3) When the usufruct is constituted in fraud of
creditors.
In no case shall the usufructuary be responsible
for debts exceeding the benefits under the
usufruct. (except when the contrary intention
appears)
USUFRUCT OVER DETERIORABLE

PROPERTY [NCC 753]
(1) The usufructuary shall have the right to make

use thereof in accordance with the purpose for
which they are intended.
(2) It is sufficient if the usufructuary returns the
things in the condition in which they may have
been found at the time of the expiration of the
usufruct despite ordinary defects caused by
use and deterioration produced by age and
time.
Except: when sucgh defects were caused
through the usufructuarys fraud and
negligence.
(3) If the usufructuary does not return the things
upon the expiration of the usufruct, he should
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pay an indemnity equivalent to the value of

the things at the time of such expiration.
USUFRUCT
OVER
PROPERTY [NCC 574]
CONSUMABLE
(1) The usufructuary shall have the right to make

use of them under the obligation of paying
their appraised value at the termination of the
usufruct, if they were appraised when
delivered.
(2) If not appraised, he shall have the right to
return at the same quantity and quality, or
pay their current price at the time the usufruct
ceases.
RIGHTS OF THE OWNER

(1) At the beginning of the usufruct (see
obligations of usufructuary at the beginning of
the usufruct)
(2) During the usufruct
(a) Retains title to the thing or property.
(b) He may alienate the property: he may not
alter the form or substance of the thing;
nor do anything prejudicial to the
usufructuary.
(c) He may construct buildings, make
improvements and plantings, provided:
(1) The value of the usufruct is not
impaired; and
(2) The rights of the usufructuary are not
prejudiced.
EXTINGUISHMENT/
TERMINATION [NCC 603]
(1) By the death of the usufructuary, unless a

contrary intention clearly appears;
(2) By the expiration of the period for which it was
constituted, or by the fulfillment of any
resolutory condition provided in the title
creating the usufruct;
(3) By merger of the usufruct and ownership in
the same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person
constituting the usufruct; or
(7) By prescription.
CIVIL LAW
DEATH OF USUFRUCTUARY
EXCEPTIONS
(1) In multiple usufructs: it ends at the death of
the last survivor (NCC 611)
(a) If simultaneously constituted: all the
usufructuaries must be alive (or at least
conceived) at the time of constitution.
(b) If successively constituted:
(i) If by virtue of donation all the
donees-usufructuaries must be living
at the time of the donation;
(ii) If by will there should only be 2
successive usufructuaries and both
must have been alive at the time of
testators death.
(2) If the period is fixed by reference to the life of
another or there is a resolutory condition.
Death does not affect the usufruct and the
right is transmitted to the heirs of the
usufructuary until the expiration of the term
or the fulfillment of the condition.
(3) When a contrary intention clearly appears:
(a) If the usufructuary dies before the
happening of a resolutory condition, the
usufruct is extinguished.
(b) Usufruct is personal and it CANNOT be
extended beyond the lifetime of the
usufructuary. [Sanchez Roman and SC]
EXPIRATION
OF
PERIOD
OR
FULFILLMENT
OF
RESOLUTORY
CONDITION IMPOSED ON USUFRUCT
BY
PERSON
CONSTITUTING
USUFRUCT
(1) In favor of juridical persons [NCC. 605]

(a) Usufruct cannot be constituted in favor of
a town, corporation, or association for
more than fifty years.
(b) If before the expiration of such period the
town is abandoned, or the corporation or
association is dissolved, the usufruct shall
be extinguished.
(2) Time that may elapse before a 3rd person
attains a certain age. [NCC. 606]
(a) Usufruct subsists for the number of years
specified, even if the 3rd person should die
before the period expired unless the
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usufruct has been expressly granted only

in consideration of the existence of the
person.
MERGER OF RIGHTS OF USUFRUCT

AND NAKED OWNERSHIP IN ONE
PERSON
Illustration: H was the usufructuary of land owned

by X. x dies, leaving in his will, the naked
ownership of the land to H. the usufruct is
extinguished because now H is both the naked
owner and the usufructuary.
RENUNCIATION OF USUFRUCT
(1) Waiver: A voluntary surrender of the rights of
the usufructuary, made by him with the intent
to surrender them.
(2) Limitations:
(a) Must be express: tacit renunciation is not
sufficient;
(b) Does not need the consent of naked
owner; and
(c) If made in fraud of creditors, they may
rescind the waiver through an action
under Article 1381 (accion pauliana).
CIVIL LAW
Situation
Art. 608
If destroyed property is insured before termination of
the usufruct
When insurance
If
owner
rebuilds,
premium paid by owner usufruct subsists on
and usufructuary (par. 1) new building.
If owner does not
rebuild, interest upon
insurance
proceeds
paid to usufructuary.
When the insurance
taken by the naked
owner only because
usufructuary refuses to
contribute
to
the
premium (par. 2)
Owner
entitled
to
insurance money (no
interest
paid
to
usufructuary).
If he does not rebuild,
usufruct continues over
remaining land and/or
owner may pay interest
on value of both
materials and land
(607).
If
owner
rebuilds,
usufruct
does
not
continue
on
new
building, but owner
must pay interest on
value of land and old
materials.
When insurance taken

by usufructuary only
depends on value of
usufructuarys insurable
interest
Insurance
proceeds
goes
to
the
usufructuary.
No
obligation
to
rebuild.
Usufruct continues on
the land.
Owner has no share in
insurance proceeds.
EXTINCTION OR LOSS OF PROPERTY [NCC

608]
Situation
Effect
Art. 607
If destroyed property is not insured
If the building forms Usufruct continues over
part of an immovable the land and materials
under usufruct
(plus interests), if owner
does not rebuild.
If usufruct is on the Usufruct continues over
building only
the land and materials
(plus interests), if owner
does not rebuild.
If
owner
rebuilds,
usufructuary
must
allow owner to occupy
the land and to make
use of materials; but
the owner must pay
interest on the value of
both the land and the
materials.
Effect
TERMINATION OF THE RIGHT OF

PERSON
CONSTITUTING
THE
USUFRUCT
Example: usufructs constituted by a vendee a retro

terminate upon redemption.
PRESCRIPTION
(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
person.
(3) There can be no prescription as long as the
usufructuary receives the rents from the lease
of the property, or he enjoys the price of the
sale of his right.
CONDITIONS
USUFRUCT
NOT
EXPRORPIATION
OF
USUFRUCT [NCC 609]
AFFECTING
THING
IN
3 SITUATIONS
(1) If naked owner alone was given the indemnity,
he has the option:
(a) To replace with equivalent thing; or
(b) To pay to the usufructuary legal interest
on the indemnity. This requires a security
to be given by the naked owner for the
payment of the interest.
(2) If both the naked owner and the usufructuary
were separately given indemnity, each owns
the indemnity given to him, the usufruct being
totally extinguished.
(3) If usufructuary alone was given the indemnity,
he must give it to the naked owner and
compel the latter to return either the interest
or to replace the property. He may even
deduct the interest himself, if the naked
owner fails to object.
BAD USE OF THING IN USUFRUCT [NCC

610]
Bad use does not extinguish the usufruct but:

(1) Entitles the owner to demand delivery and
administration of the thing.
(2) The bad use must cause considerable injury
not to the thing, but to the owner.
CIVIL LAW
Easement
(1) An encumbrance imposed upon an
immovable for the benefit of another
immovable belonging to a different owner.
[NCC. 613]
(2) A real right which burdens a thing with a
prestation of determinate servitudes for the
exclusive enjoyment of one who is NOT an
owner of a tenement.
(3) A real right by virtue of which the owner has
to ABSTAIN from doing or ALLOW somebody
else to do something to his property for the
benefit of another.
Dominant Estate the immovable in favor of
which the easement is established.
Servient Estate the immovable which is subject
to the easement .
CHARACTERISTICS
ESSENTIAL FEATURES:
(1) It is a real right it gives an action in rem or

real action against any possessor of the
servient estate
(a) Owner of the dominant estate can file a
real action for enforcement of right to an
easement
(b) Action in rem: an action against the thing
itself, instead of against the person.
(2) It is a right enjoyed over another property (jus
in re aliena) it cannot exist in ones property
(nulli res sua servit)
When the dominant and the servient estates
have the same owner, the easement is
extinguished. Separate ownership is a
prerequisite to an easement.
(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

possess the servient estate.
(b) There exists a limitation on ownership: the
dominant owner is allowed to enjoy or use
part of the servient estate, or imposes on
the owner a restriction as to his enjoyment
of his own property.
(i) Being an abnormal limitation of
ownership, it cannot be presumed.
(5) It creates a relation between tenements
There is no transfer of ownership, but a
relationship is created, depending on the type
of easement.
(6) Generally, it may consist in the owner of the
dominant estate demanding that the owner of
the servient estate refrain from doing
something (servitus in non faciendo) or that the
latter permit that something be done over the
servient property (servitus in patendo), but not
in the right to demand that the owner of the
servient do something (servitus in faciendo)
except if such act is an accessory obligation to
a praedial servitude (obligation propter rem)
Servient owner merely allows something to be
done to his estate.
Exceptions: Praedial servitudes
(a) Right to place beams in an adjoining wall
to support a structure.
(b) Right to use anothers wall to support a
building.
(7) It is inherent or inseparable from estate to
which they actively or passively belong (NCC
617)
(a) Easements are merely accessory to the
tenements, and a quality thereof. They
cannot exist without tenements.
(b) Easements exist even if they are not
expressly stated or annotated as an
encumbrance on the titles.
(8) It is intransmissible it cannot be alienated
separately from the tenement affected or
benefited
Any alienation of the property covered carries
with it the servitudes affecting said property.
But this affects only the portion of the
tenement with the easement, meaning the
CIVIL LAW
portions unaffected can be alienated without

the servitude.
(9) It is indivisible (NCC 618)
(a) If the servient estate is divided between
two or more persons, the easement is not
modified, and each of them must bear it
on the part that corresponds to him.
(b) If the dominant estate is divided between
two or more persons, each of them may
use the easement in its entirety, without
changing the place of its use, or making it
more burdensome in any other way.
(10) It has permanence once it attaches, whether
used or not, it continues and may be used
anytime
Perpetual: exists as long as property exists,
unless it is extinguished.
CLASSIFICATION
AS TO RECIPIENT OF BENEFITS
(1) Real or Praedial: exists for the benefit of a

particular tenement.
(2) Personal: exists for the benefit of persons
without a dominant tenement e.g. usus
habitatio (right to reside in a house) and
operae servorum (right to the labor of slaves)
in Roman law.
AS TO CAUSE OR ORIGIN
(1) Legal: created by law, whether for public use

or for the interest of private persons.
Once requisites are satisfied, the owner of
the dominant estate may ask the Court to
declare that an easement is created.
Example: Natural drainage of waters,
Abutment of land, Aqueduct, etc.
(2) Voluntary: Created by the will of the owners of
the estate through contract.
Note: There is no such thing as a JUDICIAL
EASEMENT. The Courts cannot create easements,
they can only declare the existence of one, if it
exists by virtue of the law or will of the parties.
AS TO ITS EXERCISE [NCC 615]
(1) Continuous: Use is or may be incessant,

without the intervention of any man
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(2) Discontinuous: Used at intervals,

dependent upon the acts of man.
PROPERTY
and
Note: This classification is important in

determining prescription: only continuous and
apparent easements can be created by
prescription.
AS INDICATION OF ITS EXISTENCE
(1) Apparent: Made known and continually kept in

view by external signs that reveal the use and
enjoyment of the same.
(2) Non-apparent: No external indication of their
existence.
Note: Also important for purposes of prescription.
BY THE OBJECT OR OBLIGATION

IMPOSED [NCC 616]
(1) Positive: Imposes upon the owner of the

servient estate the obligation of allowing
something to be done, or doing it himself.
(2) Negative: Prohibits the owner of the servient
estate from doing something that he could
lawfully do if the easement did not exist.
e.g. Negative Easement of Light and View: An
opening is made on the wall of the dominant
estate, and the easement consists of imposing
upon the servient estate the obligation to not
build anything that would obstruct the light.
(3) Servitus servitutes esse non potes: There can be

no servitude over another servitude.
(4) A servitude must be exercised civiliter in a
way least burdensome to the owner of the
land.
(5) A servitude must have a perpetual cause
RELEVANCE OF
CLASSIFICATIONS
DETERMINES WHAT EASEMENTS CAN
BE ACQUIRED BY PRESCRIPTION
Continuous and apparent easements may be

acquired by prescription of 10 years [NCC. 620]
DETERMINES WHAT EASEMENTS CAN

BE ACQUIRED BY TITLE
(1) Continuous nonapparent easements, and

discontinuous ones, whether apparent or not,
may be acquired only by virtue of a title. [NCC.
622]
(2) The existence of an apparent sign of
easement between two estates, established or
maintained by the owner of both, shall be
considered, as a title in order that the
easement may continue actively and
passively.
Unless: At the time the ownership of the two
estates is divided, the contrary should be
provided in the title of conveyance of either of
them, or the sign aforesaid should be
removed before the execution of the deed.
This provision shall also apply in case of the
division of a thing owned in common by two or
more persons. [NCC. 624]
Note: Prescription starts to run from service of

notarial prohibition.
GENERAL RULES
(1) Nulli res sua servi: No one can have a servitude

over ones own property.
(2) Servitus in faciendo consistere nequit: A
servitude cannot consist in doing.
(a) Although some easements seem to
impose a positive prestation upon the
owner of the servient estate, in reality, the
primary obligation is still negative.
(b) Illustration: Under Article 680: the owner
of a tree whose branches extend over to a
neighboring property is required to cut off
the extended branches, but the real
essence of the easement is the obligation
NOT TO ALLOW the branches of the tree
to extend beyond the land.
CIVIL LAW
DETERMINES HOW TO COMPUTE THE

PRESCRIPTIVE PERIOD [NCC 621]
(1) In positive easements, from the day on which

the owner of the dominant estate, or the
person who may have made use of the
easement, commenced to exercise it upon the
servient estate.
(2) In negative easements, from the day on which
the owner of the dominant estate forbade, by
an instrument acknowledged before a notary
public, the owner of the servient estate from
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executing an act which would be lawful

without the easement.
DETERMINES HOW EASEMENT IS LOST

BY PRESCRIPTION [NCC 631 (2)]
CIVIL LAW
the law does not prohibit it or no injury is

suffered by a third person. [NCC 636]
BY
WILL
OF
THE
(VOLUNTARY EASEMENTS)
OWNERS
By nonuser for 10 years:

(1) With respect to discontinuous easements, this
period shall be computed from the day on
which they ceased to be used.
(2) With respect to continuous easements, from
the day on which an act contrary to the same
took place.
Every owner of a tenement or a piece of land may

establish the easements that he may deem
suitable and best. [NCC 688]
CREATION
LEGAL EASEMENTS
BY TITLE
(1) Continuous and apparent easements may be

acquired by virtue of a title. [NCC 620]
(2) Continuous nonapparent easements, and
discontinuous ones, whether apparent or not,
are acquired only by virtue of a title. [NCC
622]
(3) The absence of a document or proof showing
the origin of an easement which cannot be
acquired by prescription may be cured by a
deed of recognition by the owner of the
servient estate or by a final judgment. [NCC
623]
(4) The existence of an apparent sign of
easement between two estates, established or
maintained by the owner of both, shall be
considered as a title in order that the
easement may continue actively and
passively.
Unless: at the time the ownership of the two
estates is divided, the contrary should be
provided in the title of conveyance of either of
them, or the sign aforesaid should be
removed before the execution of the deed.
This provision shall also apply in case of the
division of a thing owned in common by two or
more persons. [NCC 624]
BY LAW (LEGAL EASEMENTS)
(1) Easements imposed by law have for their

object either public use or the interest of
private persons. [NCC 634]
(2) These easements may be modified by
agreement of the interested parties, whenever
BY PRESCRIPTION
Continuous and apparent easements may be

acquired by prescription of 10 years. [NCC 620]
LAW GOVERNING LEGAL EASEMENTS
For public easements
(1) Special laws and regulations relating thereto.
(ex: PD 1067 and PD 705)
(2) By the provisions of Chapter 2, Title VII, Book
II, NCC.
For private legal easements
(1) By agreement of the interested parties
whenever the law does not prohibit it and no
injury is suffered by a 3rd person.
(2) By the provisions of Chapter 2, title VII, Book
II.
VOLUNTARY EASEMENTS
(1) Every owner of a tenement or piece of land

may establish thereon the easements which
he may deem suitable, and in the manner and
form which he may deem best. [NCC 688]
(2) The owner of a thing, the usufruct of which
belongs to another, may impose, without the
consent of the usufructuary, any servitudes
which will not injure the right of usufruct.
[NCC 689]
(3) Whenever the naked ownership belongs to
one person and the beneficial ownership to
another, no perpetual voluntary easement
may be established thereon without the
consent of both owners. [NCC 690]
(4) Consent of all co-owners is required to impose
an easement on an undivided tenement. [NCC
691]
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(a) The owner of the dominant estate may

make repairs at his expense, but he
cannot alter the easement or make it
more burdensome. [NCC 627]

OWNERS OF DOMINANT AND
SERVIENT ESTATES
RIGHTS
OWNER
OF
DOMINANT
ESTATE
(1) To use the easement and exercise all rights

necessary for it [NCC 625, 626]
(a) The owner of the dominant estate is
granted the right to use the principal
easement, and all accessory servitudes.
(b) Example: Easement of drawing water
carries with it the easement of right of way
to the place where water is drawn.
(c) Limitation: Only for the original
immovable and the original purpose.
(2) To do at his expense all necessary works for
the use and preservation of the easement
[NCC 627]
The necessity of the works determines extent
of such works.
(3) In a right of way, to ask for change in width of
easement sufficient for needs [NCC 651]
(4) To renounce totally the easement, if he desires
to be exempt from contributing to the
expenses.
The needs of the dominant property
ultimately determine the width of the
passage. And these needs may vary from time
to time. [Encarnacion v. Court of Appeals]
OBLIGATIONS OF DOMINANT ESTATE

OWNER
(1) To use the easement for the benefit of

immovable and in the manner originally
established [NCC 626]
If established for a particular purpose, the
easement cannot be used for a different one.
However, if established in a general way,
without specific purpose, the easement can be
used for all the needs of the dominant estate.
(2) To notify the owner of the servient estate
before making repairs and to make repairs in a
manner least inconvenient to the servient
estate [NCC 627(2)]
(3) Not to alter the easement or render it more
burdensome
CIVIL LAW
(4) To contribute to expenses of works necessary

for use and preservation of servitude, if there
are several dominant estates, unless he
renounces his interest [NCC 628]
(a) The contribution is in proportion to the
benefits which each may derive from the
work.
(b) Anyone who does not wish to contribute
may exempt himself by renouncing the
easement for the benefit of the others.
(c) If the owner of the servient estate should
make use of the easement in any manner
whatsoever, he shall also be obliged to
contribute to the expenses in the
proportion stated, saving an agreement to
the contrary.
RIGHTS OF THE SERVIENT ESTATE

OWNER
(1) To retain ownership and use of his property

(a) The owner of the servient estate retains the
ownership of the portion on which the
easement is established, and may use the
same in such a manner as not to affect the
exercise of the easement. [NCC 630]
(b) The servient owner must respect the use of
the servitude, but retains ownership and use
of the same, in a manner not affecting the
easement.
(2) To change the place and manner of the use of
the easement [NCC 629]
General rule: The owner of the servient estate
cannot impair the use of the servitude.
Exceptions:
(a) By reason of either:
(i) The place/manner originally assigned,
the use of such easement has become
VERY INCONVENIENT to the owner; or
(ii) The easement should prevent him from
making any important works, repairs or
improvements thereon;
(b) The change must be done at his expense;
(c) He offers another place or manner equally
convenient; and
(d) The change is done in such a way that no
injury is caused to the dominant owner or to
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those who may have a right to use the

easement.
(3) To use the easement
May use the easement but must also
contribute proportionately to the expenses.
OBLIGATIONS OF SERVIENT ESTATE

OWNER
(1) Not to impair the use of the easement [NCC
629(1)]
(2) To contribute proportionately to expenses if he
uses the easement [NCC 628(2)]
Unless there is an agreement to the contrary
(3) To pay for the expenses incurred for the change
of location or form of the easement
KINDS OF LEGAL EASEMENTS

(1) Natural drainage [NCC 637]
(2) Riparian banks [NCC 638]
(3) Drainage of buildings [NCC 674]
(4) Dam [NCC 639]
(5) Drawing water [NCC 640-41]
(6) Aqueduct [NCC 642-646]
(7) Sluice gate [NCC 647]
(8) Right of way [NCC 649-657]
(9) Party wall [NCC 658-666]
(10) Light and view [NCC 667-681]
(11) Intermediate distances [NCC 677-681]
(12) Nuisance [NCC 682-683]
(13) Lateral and subjacent support [NCC 684-687]
NATURAL DRAINAGE
(1) Lower estates are obliged to receive the waters

which naturally and without the intervention of
man descend from the higher estates (as well
as the stones or earth which they carry with
them).
(2) The owner of the lower estate cannot do any
works that will impede this easement.
(3) The owner of the higher estate cannot do any
works that will increase the burden.
RIPARIAN BANKS
(1) The banks of rivers and streams are subject

throughout their entire length and within a
zone of 3 meters along their margins, to the
easement of public use in the general interest
of navigation, floatage, fishing, and salvage.
CIVIL LAW
(2) Estates adjoining the banks of navigable or

floatable rivers are subject to the easement of
towpath for the exclusive service of river
navigation and floatage.
(3) If it be necessary to occupy lands of private
ownership, the proper indemnity shall first be
paid.
DRAINAGE OF BUILDINGS
(1) The owner of a building is obliged to construct

its roof or covering in such manner that the
rain water shall fall on his own land or on a
street or public place, and NOT on the land of
his neighbor, even though the adjacent land
may belong to two or more persons, one of
whom is the owner of the roof.
(2) Even if it should fall on his own land, the owner
shall be obliged to collect the water in such a
way as not to cause damage to the adjacent
land or tenement.
DAM
Whenever it should be necessary to build a dam,

and the person who is to construct it is not the
owner of the banks, or lands which must support
it, he may establish the easement of abutment of
a dam, after payment of the proper indemnity.
DRAWING WATER
(1) Compulsory easements for drawing water or for

watering animals can be imposed only for
reasons of public use in favor of a town or
village, after payment of the proper indemnity.
(2) Easements for drawing water and for watering
animals carry with them the obligation of the
owners of the servient estates to allow passage
to persons and animals to the place where
such easements are to be used, and the
indemnity shall include this service.
(3) The width of the easement must not exceed 10
meters.
AQUEDUCT
(1) Any person who may wish to use upon his own
estate any water of which he can dispose shall
have the right to make it flow through the
intervening estates, with the obligation to
indemnify their owners, as well as the owners
of the lower estates upon which the waters
may filter or descend.
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CIVIL LAW
(2) Person desiring to make use of this right is

obliged to:
(a) To prove that he can dispose of the water
and that it is sufficient for the use for which
it is intended;
(b) To show that the proposed right of way is
the most convenient and the least onerous
to third persons; and
(c) To indemnify the owner of the servient
estate in the manner determined by the
laws and regulations
(3) Easement of aqueduct for private interest
cannot be imposed on buildings, courtyards,
annexes, or outhouses, or on orchards or
gardens already existing.
(4) This easement does not prevent the owner of
the servient estate from closing or fencing it, or
from building over the aqueduct in such
manner as not to cause the latter any damage,
or render necessary repairs and cleanings
impossible.
(5) This easement is considered as continuous and
apparent, even though the flow of the water
may not be continuous, or its use depends
upon the needs of the dominant estate, or
upon a schedule of alternate days or hours.
(2) There must absolutely be no access to a public

road or highway;
(a) Even if there is access, it is difficult or
dangerous to use, or grossly insufficient;
(b) Mere inconvenience in the use of an outlet
does not render the easement a necessity;
(c) An adequate outlet is one that is sufficient
for the purpose and needs of the dominant
owner, and can be established at a reasonable
expense;
(d) Does not necessarily have to be by land
an outlet through a navigable river if suitable
to the needs of the tenement is sufficient;
(3) The isolation of the immovable is NOT due to
the dominant owners own acts e.g. if he
constructs building to others obstructing the
old way; and
(4) There is payment of indemnity;
(a) If right of way is permanent and continuous
for the needs of the dominant estate = value
of the land + amount of damage caused to
the servient estate;
(b) If right of way is limited to necessary
passage for cultivation of the estate and for
gathering crops, without permanent way =
damage caused by encumbrance.
SLUICE GATE
RULES FOR ESTABLISHING RIGHT OF WAY

(1) Must be established at the point LEAST
prejudicial to the servient estate. [NCC 650]
(2) Insofar as consistent with the first rule, where
the distance from the dominant estate to a
public highway is shortest.
(a) The criterion of least prejudice to the
servient estate must prevail over the
criterion of shortest distance although this is
a matter of judicial appreciation. While
shortest distance may ordinarily imply least
prejudice, it is not always so as when there
are permanent structures obstructing the
shortest distance; while on the other hand,
the longest distance may be free of
obstructions and the easiest or most
convenient to pass through. [Quimen v. CA
(1996)]
(b) The fact that LGV had other means of
egress to the public highway cannot
extinguish the said easement, being
voluntary and not compulsory. The free
ingress and egress along Mangyan Road
created by the voluntary agreement
between the parties is thus legally
(1) The construction of a stop lock or sluice gate in

the bed of the stream from which the water is
to be taken, for the purpose of improving an
estate.
(2) Such person may demand that the owners of
the banks permit its construction, after
payment of damages, including those caused
by the new easement to such owners and to
the other irrigators.
RIGHT OF WAY
WHO MAY DEMAND
(1) The owner of the dominant estate; or
(2) Any person with the real right to cultivate or
use the dominant estate e.g. a usufructuary.
Note: a lessee cannot demand such easement,
because the lessor is the one bound to
maintain him in the enjoyment of the property.
REQUISITES
(1) The dominant estate is surrounded by other
immovables owned by other persons;
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demandable with the corresponding duty

on the servient estate not to obstruct the
same. [La Vista Association v. CA]
(3) The width of the easement of right of way shall
be that which is sufficient for the needs of the
dominant estate, and may accordingly be
changed from time to time. [NCC 651]
OBLIGATIONS
IN
PERMANENT
AND
TEMPORARY EASEMENTS OF RIGHT OF WAY
Permanent right of way Temporary right of way
Indemnity
Consists of the
damages and the
value of the land.
Consists of the
damages only.
Necessary repairs
Dominant owner
spend on such.
to Servient owner to
spend on such.
Share in taxes
The dominant owner
shall reimburse a
proportionate share of
taxes to the proprietor
of the servient estate.
Servient owner
spend on such.
to
Rules on indemnity for estates enclosed through a

sale, exchange, partition or donation.
Sale, exchange or
Donation
partition
Buyer, grantee or donee as dominant owners
The buyer or grantee
shall grant the right of
way without indemnity.
The donee shall pay

the donor indemnity.
Seller, grantor or donor as dominant owners

The seller or grantor
shall pay indemnity.
The donee shall grant

the right of way
without indemnity.
EXTINGUISHMENT
(1) The owner has joined the dominant estate to
another abutting the public road.
(2) A new road is opened giving access to the
isolated estate.
CIVIL LAW
Notes on extinguishment:
(1) Extinguishment is NOT automatic. The owner
of the servient estate must ask for such
extinguishment.
(2) Indemnity paid to the servient owner must be
returned:
(a) If easement is permanent: value of the land
must be returned
(b) If easement is temporary: nothing is to be
returned
SPECIAL RIGHTS OF WAY
(1) Right of way to carry materials for the
construction, repair, improvement, alteration or
beautification of a building through the estate
of another.
(2) Right of way to raise on anothers land
scaffolding or other objects necessary for the
work.
(a) If it be indispensable for the construction,
repair,
improvement,
alteration
or
beautification of a building, to carry
materials through the estate of another, or
to raise therein scaffolding or other objects
necessary for the work, the owner of such
estate shall be obliged to permit the act,
after receiving payment of the proper
indemnity for the damage caused him. [NCC
656]
(3) Right of way for the passage of livestock
known as animal path, animal trail, watering
places, resting places, animal folds. [NCC 657]
(a) Easements of the right of way for the
passage of livestock known as animal path,
animal trail or any other, and those for
watering places, resting places and animal
folds, shall be governed by the ordinances
and regulations relating thereto, and, in the
absence thereof, by the usages and customs
of the place.
(b) Without prejudice to rights legally acquired,
the animal path shall not exceed in any case
the width of 75 meters, and the animal trail
that of 37 meters and 50 centimeters.
(c) Whenever it is necessary to establish a
compulsory easement of the right of way or
for a watering place for animals, the
provisions of this Section and those of
Articles 640 and 641 shall be observed. In
this case the width shall not exceed 10
meters
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PARTY WALL
Refers to all those mass of rights and obligations
emanating from the existence and common
enjoyment of wall, fence, enclosures or hedges, by
the owners of adjacent buildings and estates
separated by such objects.
NATURE
(1) A common wall which separates two estates,
built by common agreement at the dividing
line such that it occupies a portion of both
estates on equal parts.
(2) A party wall is a special form of co-ownership
(a kind of compulsory co-ownership).
(a) Each owner owns part of the wall but it
cannot be separated from the other
portions belonging to the others. A party
wall has a special characteristic that makes
it more of an easement as it is called by law.
(b) An owner may use a party wall to the extent
of the portion on his property.
Co-Ownership
Party Wall
Before
division
of
shares, a co-owner
cannot point to any
definite portion of the
property as belonging to
him.
Shares of the coowners cannot be

physically segregated
but they can be
physically identified.
None of the co-owners There is no such

may use the community limitation
property
for
his
exclusive
benefit
because he would be
invading the rights of
the others.
In a co-ownership, Any owner may free
partial renunciation is himself from
allowed.
contributing to the cost
of repairs and
construction of a party
wall by renouncing all
his rights thereto.
WHEN EXISTENCE OF EASEMENT OF PARTY
WALL IS PRESUMED
(1) In dividing walls of adjoining buildings up to
the point of common elevation.
(2) In dividing walls of gardens or yards situated in
cities, or towns, or in rural communities.
CIVIL LAW
(3) In fences, walls and live hedges dividing rural

lands.
Note: A title or an exterior sign, or any other
proof showing that the entire wall in
controversy belongs exclusively to one of the
adjoining property-owners may rebut these
presumptions.
WHEN EXISTENCE OF AN EXTERIOR SIGN IS
PRESUMED [NCC 660]
(1) Whenever in the dividing wall of buildings there
is a window or opening.
(2) Whenever one side is straight and plumb on all
its facement, and on the other, it has similar
conditions on the upper part, but the lower
part slants or projects outward.
(3) Whenever the entire wall is built within the
boundaries of one of the estates.
(4) Whenever the dividing wall bears the burden
of the binding beams, floors and roof frame of
one of the buildings, but not those of the
others.
(5) Whenever the dividing wall between
courtyards, gardens, and tenements is
constructed in such a way that the coping
sheds the water upon only one of the estates.
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at certain
intervals project from the surface on one side
only, but not on the other.
(7) Whenever lands enclosed by fences or live
hedges adjoin others that are not enclosed.
Note: The deposit of earth or debris on one side
alone is an exterior sign that the owner of that
side is the owner of the ditch or drain. The
presumption is an addition to those
enumerated in NCC 660.
RIGHT OF OWNERS OF A PARTY WALL
Generally, part-owners may use the wall in
proportion to their respective interests, provided
that:
(i) The right to use by the other party is not
interfered with;
(ii) The consent by the other owner is needed if
a party wants to open a window; and
(iii) The condition of the building is determined
by experts.
(1) To increase the height of the wall.
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He does this at his expense, including the

thickening of the wall on his land.
He shall indemnify the other party for any
damages.
(2) To acquire a half-interest in any increase in
height or thickness of the wall, paying a
proportionate share in the cost of the work and
the value of the land covered.
Note that the value of the land must be
appraised at the time of acquisition.
(3) To renounce his part ownership of a party wall
if he desires to demolish his building supported by
the wall.
He shall bear all the expenses of repairs and
work necessary to prevent any damage which
the demolition may cause to the party wall.
OBLIGATIONS OF OWNERS OF A PARTY WALL
(1) To contribute proportionately to the repair and
maintenance of the party wall unless he
renounces his part-ownership.
(a) This includes the renunciation of the share
in the wall + the land
(b) He cannot renounce his part if his building
is being supported by the party wall
(2) If he raises the height of the wall, he must:
(a) Bear the cost of maintenance of the
additions;
(b) Bear the cost of construction, if the wall
cannot support the additional height;
(c) Give additional land, if necessary to thicken
the wall;
(d) Pay for damages, if necessary, even if
temporary; and
(e) Bear the increased expenses for
preservation
EASEMENT OF LIGHT AND VIEW

DEFINITION
(1) Easement of light (jus luminum) is the right to
admit light from the neighboring estate by
virtue of the opening of a window or the
making of certain openings.
(2) Easement of view (jus prospectus) is the right to
make openings or windows, to enjoy the view
through the estate of another and the power to
prevent all constructions or works which would
obstruct such view or make the same difficult.
(a) Necessarily includes the easement of light.
CIVIL LAW
(b) It is possible to have light only without a

view.
NATURE
(1) Positive: Opening a window through a party
wall
(a) When a part owner of a party wall opens a
window therein, such act implies the
exercise of the right of ownership by the use
of the entire thickness of the wall.
(b) The easement is created only after the
lapse of the prescriptive period.
(2) Negative: Formal prohibition upon the owner
of the adjoining land or tenement.
(a) When a person opens a window on his own
building, he is exercising his right of
ownership on his property, which does not
establish an easement.
(b) Coexistent is the right of the owner of the
adjacent property to build on his own land,
even if such structures cover the window.
(c) If the adjacent owner does not build
structures to obstruct the window, such is
considered mere tolerance and NOT a
waiver of the right to build.
(d) An easement is created only when the
owner opens up a window and subsequently
prohibits or restrains the adjacent owner
from doing anything that may tend to cut
off or interrupt the light and the prescriptive
period has lapsed.
RULES AND RESTRICTIONS ON OPENINGS
AND STRUCTURES
Openings for light:
(1) When the wall is 2 meters or more away from
anothers tenement:
(a) An owner may build any kind of opening
without restriction.
(2) When the wall is contiguous (less than 2
meters) to anothers tenement:
(a) Openings are made at the height of the
ceiling joists (horizontal beams) or
immediately under the ceiling;
(b) Size: 30 cm square;
(c) With iron grating imbedded in the wall;
(d) With a wire screen.
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Openings for view:

(1) The following structures cannot be built
without following the prescribed distances:
(a) Window, apertures, balconies and other
projections with a direct view upon or
towards an adjoining land must have a
distance of 2 METERS between the wall and
the contiguous property.
(b) For structures with a side or oblique view (at
an angle from the boundary line), there
should be a distance of 60 centimeters.
(c) Measured from:
(i) The outer line of the wall if the openings
do not project.
(ii) The outer line of the openings if they
project.
(iii)The dividing line between the two
properties in cases of oblique views.
Effect if distances are not complied with
(1) Windows are considered unlawful openings
and may be ordered by the Court to be closed.
(2) Even if the adjoining owner does not object to
the construction of such structures at first, he
cannot be held to be in estoppel, unless the 10year period of acquisitive prescription has
passed.
Note:
(1) In buildings separated by a public way or alley,
not less than 3 meters wide, the distances
required (2 m, 60 cm) do not apply.
(2) If an easement is acquired to have direct views,
balconies or belvederes, the owner of the
servient estate must not build at less than 3
meters from the boundary line of the two
tenements.
(a) The distances may be stipulated by the
parties, but should not be less than what is
prescribed by the law (2 meters and 60 cm).
Notes on the acquisition of the easement
(1) Period of acquisitive prescription will only start
to run from the time the owner asserting the
servitude has forbidden the owner of the
adjoining tenement from doing something he
could lawfully do.
(2) THUS, although the action to compel the
closure might have prescribed, the owner of
the adjoining estate may still build on his own
land a structure that might obstruct the view.
CIVIL LAW
INTERMEDIATE DISTANCES [NCC 677]

NCC 677, in effect, establishes an easement in
favor of the State. The general prohibition is
dictated by the demands of national security.
The following must comply with the regulations or
customs of the place:
(1) Construction of aqueduct, well, sewer, etc. (678)
Constructions, which by reason of their nature
or products are dangerous or noxious.
(2) Planting of trees (NCC 679)
(a) No trees shall be planted near a tenement
or piece of land belonging to another except
at the distance authorized by the
ordinances or customs of the place.
(b) In the absence of regulations:
(i) At least 2 meters from the dividing line of
the estates if tall trees are planted.
(ii) At least 50 centimeters if shrubs or small
trees are planted.
(c) In case of violation, a landowner shall have
the right to demand the uprooting of the
plant even if it has grown spontaneously.
BRANCHES, ROOTS AND FRUITS
(1) If the branches of any tree should extend over a

neighboring estate, tenement, garden or yard,
the owner of the latter shall have the right to
demand that they be cut-off.
(2) If it be the roots of a neighboring tree, which
should penetrate into the land of another, the
latter may cut them off himself within his
property.
(3) Fruits naturally falling upon adjacent land
belong to the owner of said land.
LATERAL AND SUBJACENT SUPPORT
(1) The proprietor is prohibited from making

dangerous excavations upon his land as to
deprive any adjacent land or building of
sufficient lateral or subjacent support.
(2) Easement of lateral and subjacent support is
deemed essential to the stability of buildings.
(3) Support is lateral when a vertical plane divides
the supported and supporting lands.
(4) Support is subjacent when the supported land
is above the supporting land.
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MODES OF ACQUIRING
EASEMENT
CIVIL LAW
MERGER
BY TITLE
A juridical act which gives rise to the servitude

(e.g. law, donations, contracts or wills)
(1) If the easement has been acquired but no proof
of existence of easement available, and the
easement is one that cannot be acquired by
prescription, the defect may be cured by:
(a) Deed of recognition by owner of servient
estate: By an affidavit or a formal deed
acknowledging the servitude; or
(b) By final judgment: Owner of the dominant
estate must file a case in Court to have the
easement declared by proving its existence
through other evidence.
(2) The existence of an apparent sign is
considered as title.
Illustration: The presence of 4 windows was
considered an apparent sign that created a
negative easement of light and view (altius non
tollendi) i.e. not to build a structure that will
cover the windows. [Amor v. Florentino (1943)].
BY PRESCRIPTION
Requisites
(1) The easement must be continuous and
apparent;
(2) The easement must have existed for 10 years;
and
(3) There is NO NEED for good faith or just title.
Must be absolute, perfect and definite, and not

merely temporary.
(1) Absolute: Ownership of the property must be
absolute, thus not applicable to lease,
usufruct, etc.
(2) Perfect: Merger must not be subject to a
condition.
(3) If the merger is temporary, there is at most a
suspension of the easement, but no
extinguishment.
BY A NON-USER FOR 10 YEARS
(1) Owner of dominant estate does not exercise

right over easement.
(2) This is inaction, and not outright renunciation.
(3) This is due to the voluntary abstention by the
dominant owner, and not due to a fortuitous
event.
(4) Computation of the period:
(a) Discontinuous easements: counted from the
day they ceased to be used.
(b) Continuous easements: counted from the
day an act adverse to the exercise of the
easement took place.
(i) E.g. in an easement of light and view, the
erection of works obstructing the
servitude would commence the period of
prescription.
(3) The use by a co-owner of the dominant estate
bars prescription with respect to the others.
(4) Non-user cannot extinguish servitudes not yet
exercised.
EXTINGUISHMENT BY IMPOSSIBILITY
OF USE
EXTINGUISHMENT OF
EASEMENTS
(1) By merger in the same person of the ownership
of the dominant and servient estates;
(2) By nonuser for ten years;
(3) When either or both of the estates fall into
such condition that the easement cannot be
used;
(4) By the expiration of the term or the fulfillment
of the condition, if the easement is temporary
or conditional;
(5) By the renunciation of the owner of the
dominant estate; or
(6) By the redemption agreed upon between the
owners of the dominant and servient estates.
(1) Impossibility referred to must render the entire

easement unusable for all time.
(2) Impossibility of using the easement due to the
condition of the tenements (e.g. flooding) only
suspends the servitude until it can be used
again.
(3) Except: If the suspension exceeds 10 years, the
easement is deemed extinguished by non-user.
EXPIRATION OF THE TERM OR

FULFILLMENT
OF
RESOLUTORY
CONDITION
Applicable only to voluntary easements.
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(a) Requisite: the public highway must

substantially meet the needs of the
dominant estate in order that the easement
may be extinguished
(b) Owner of the servient estate may demand
that the easement be extinguished.
(c) Owner of the servient estate must return
indemnity he received (value of the land)
RENUNCIATION OF THE OWNER OF

THE DOMINANT ESTATE
Must be specific, clear, express (distinguished

from non-user).
OTHER CAUSES NOT MENTION IN NCC

631
(1) Annulment and rescission of the title

constituting the voluntary easement;
(2) Termination of the right of grantor of the
voluntary easement;
(3) Abandonment of the servient estate;
(a) Owner of the servient estate gives up
ownership of the easement (e.g. the strip of
land where the right of way is constituted) in
favor of the dominant estate.
(b) The easement is extinguished because
ownership is transferred to the dominant
owner, who now owns both properties.
(4) Eminent domain; or
(a) The governments power to expropriate
property for public use, subject to the
payment of just compensation.
(5) Special cause for extinction of legal rights of
way; if right of way no longer necessary.
(a) NCC 655
(i) If the right of way granted to a
surrounded estate ceases to be
necessary because its owner has joined it
to another abutting on a public road, the
owner of the servient estate may
demand that the easement be
extinguished, returning what he may
have received by way of indemnity. The
interest on the indemnity shall be
deemed to be in payment of rent for the
use of the easement.
(ii) The same rule shall be applied in case a
new road is opened giving access to the
isolated estate.
(iii) In both cases, the public highway must
substantially meet the needs of the
dominant estate in order that the
easement may be extinguished.
(6) Right of way ceases to be necessary:
(i) Owner of the of the dominant estate has
joined to another abutting on a public
road.
(ii) A new road is opened giving access to
the isolated estate.
CIVIL LAW
Nuisance
A nuisance is any act, omission, establishment,

business, condition of property, or anything else
which:
(1) Injures or endangers the health or safety of
others;
(2) Annoys or offends the senses;
(3) Shocks, defies or disregards decency or
morality;
(4) Obstructs or interferes with the free passage of
any public highway or street, or any body of
water; or
(5) Hinders or impairs the use of property.
Note: To constitute a nuisance there must be an
arbitrary or abusive use of property or disregard of
commonly accepted standards set by society.
A municipal body has the power to declare and
abate nuisances. BUT it has no power to find as
fact that a particular thing is a nuisance. The
determination of whether or not a nuisance exists
is a judicial function, because to declare
something a nuisance is to deprive its use. [Iloilo
Cold Storage v Mun. Council of Iloilo (1913)]
NUISANCE V. TRESPASS
Nuisance
Trespass
Use of ones own Direct infringement of

property in such a anothers
right
of
manner as to cause property.
injury to the property or
right or interest of
another, and generally
results
from
the
commission of an act
beyond the limits of the
property affected.
Injury is consequential.
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Injury is immediate.
UP LAW BOC
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NUISANCE V. NEGLIGENCE
ACCORDING TO SCOPE OF INJURIOUS

EFFECTS
Nuisance
Negligence
Whether
it
was
unreasonable for the
defendant to act as he
did in view of the
threatened danger or
harm
to
one
in
plaintiffs position.
Whether
the
defendants use of his
property
was
unreasonable as to
plaintiff, without regard
to foreseeability of
injury.
Liability
for
the Liability is based on a
resulting
injury
to want of proper care
others regardless of the
degree of care or skill
exercised to avoid such
injury.
Principles
ordinarily
apply where the cause
of
action
is
for
continuing harm caused
by
continuing
or
recurrent acts which
cause discomfort or
annoyance to plaintiff in
the use of his property.
Principles
ordinarily
apply where the cause
of action is for harm
resulting from one act
which
created
an
unreasonable risk of
injury.
CLASSES
ACCORDING TO NATURE
(1) Nuisance per se or at law

An act, occupation or structure which is a
nuisance at all times and under any
circumstances, regardless of location or
surroundings.
(2) Nuisance per accidens or in fact
(a) One that becomes a nuisance by reason of
circumstances and surroundings.
(b) It is not a nuisance by its nature but it may
become so by reason of the locality,
surrounding, or the manner in which it is
conducted, managed, etc.
Per se
The
wrong
established by proof
the mere act.
becomes a nuisance
a matter of law.
CIVIL LAW
Per accidens
is Proof of the act and its
of consequences
are
It necessary.
as
Test: not the number of persons annoyed but the

possibility of annoyance to the public by the
invasion of its rights the fact that it is in a public
place and annoying to all who come within its
sphere.
(1) Public
The doing of or the failure to do something
that injuriously affects the safety, health or
morals of the public.
It causes hurt, inconvenience or injury to the
public, generally, or to such part of the public
as necessarily comes in contact with it.
(2) Private
One which violates only private rights and
produces damages to but one or a few
specific persons.
(3) Mixed
DOCTRINE
NUISANCE
OF
ATTRACTIVE
One who maintains on his premises dangerous

instrumentalities or appliances of a character
likely to attract children in play, and who fails to
exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable to
a child of tender years who is injured thereby, even
if the child is technically a trespasser in the
premises. [Jarco Marketing Corp. v. CA (1999)]
Basis of liability The attractiveness is an
invitation to children. Safeguards to prevent
danger must therefore be set up.
Note: A swimming pool or water tank is not an
attractive nuisance, for while it is attractive, it
cannot be a nuisance, being merely an imitation
of the work of nature. [Hidalgo Enterprises v.
Balandan (1952)]
LIABILITY IN CASE OF NUISANCE

WHO ARE LIABLE
Every successive owner or possessor of property

who fails or refuses to abate a nuisance in that
property started by a former owner or possessor is
liable therefor in the same manner as the one who
created it. (NCC. 696)
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LIABILITY OF CREATOR OF NUISANCE

He who creates a nuisance is liable for the
resulting damages and his liability continues as
long as the nuisance continues.
(1) There must be a breach of some duty on the
part of the person sought to be held liable for
damages resulting from a nuisance before an
action will lie against him.
(2) No one is to be held liable for a nuisance which
he cannot himself physically abate without
legal action against another for that purpose.
(3) Where several persons, acting independently,
cause damage by acts which constitute a
nuisance, each is liable for the damage which
he has caused or for his proportionate share of
the entire damage.
LIABILITY OF TRANSFEREES
The grantee of land upon which there exists a

nuisance created by his predecessors in title is
NOT responsible therefore merely because he
becomes the owner of the premises, or merely
because he permits it to remain.
He shall be liable if he knowingly continues the
nuisance. Generally, he is not liable for continuing
it in its original form, unless he has been notified
of its existence and requested to remove it, or has
actual knowledge that it is a nuisance and
injurious to the rights of others.
If the transferee cannot physically abate the
nuisance without legal action against another
person, then he shall not be liable for such
nuisance.
NATURE OF LIABILITY
All persons who participate in the creation or

maintenance of a nuisance are jointly and severally
liable for the injury done.
If 2 or more persons who create or maintain the
nuisance act entirely independent of one another,
and without any community of interest, concert of
action, or common design, each is liable only so
far as his acts contribute to the injury.
For solidary liability, there must be some joint or
concurrent act or community of action or duty, or
the several wrongful acts done at several times
CIVIL LAW
must have concurred in their effects as one single

act to produce the injury complained of.
RIGHT TO RECOVER DAMAGES
The abatement of a nuisance does not preclude

the right of any person injured to recover damages
for its past existence. [NCC 697]
Abatement
remedies.
and
damages
are
cumulative
NO PRESCRIPTION
The action to abate a public or private nuisance is

NOT extinguished by prescription. [NCC. 1143(2)]
REGULATION OF NUISANCES
PUBLIC NUISANCE
Remedies
The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any
local ordinance:
(2) A civil action; or
(3) Extrajudicial abatement.
(a) It must be reasonably and efficiently
exercised
(b) Means employed must not be unduly
oppressive on individuals, and
(c) No more injury must be done to the
property or rights of individuals than is
necessary to accomplish the abatement.
(d) No right to compensation if property taken
or destroyed is a nuisance.
Action for Abatement
(1) The district health officer shall take care that
one or all of the remedies against a public
nuisance are availed of.
(2) If a civil action is brought by reason of the
maintenance of a public nuisance, such action
shall be commenced by the city or municipal
mayor.
(3) The district health officer shall determine
whether or not abatement, without judicial
proceedings, is the best remedy against a
public nuisance.
(4) A private person may file an action on account
of a public nuisance if it is especially injurious
to him.
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General rule: An individual has no right of action

against a public nuisance. The abatement
proceedings must be instituted in the name of the
State or its representatives.
Exception: An individual who has suffered some
special damage different from that sustained by
the general public may maintain a suit in equity
for an injunction to abate it, or an action for
damages which he has sustained.
The action becomes a tort if an individual has
suffered particular harm, in which case the
nuisance is treated as a private nuisance with
respect to such person.
Requisites of the right of a private individual to
abate a public nuisance
(1) That demand be first made upon the owner or
possessor of the property to abate the
nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district
health officer and executed with the assistance
of the local police; and
(4) That the value of the destruction does not
exceed P3000.
Rules:
(1) The right must be exercised only in cases of
urgent or extreme necessity. The thing alleged
to be a nuisance must be existing at the time
that it was alleged to be a nuisance.
(2) A summary abatement must be resorted to
within a reasonable time after knowledge of
the nuisance is acquired or should have been
acquired by the person entitled to abate.
(3) The person who has the right to abate must
give reasonable notice of his intention to do so,
and allow thereafter a reasonable time to
enable the other to abate the nuisance himself.
(4) The means employed must be reasonable and
for any unnecessary damage or force, the actor
will be liable. The right to abate is not greater
than the necessity of the case and is limited to
the removal of only so much of the
objectionable thing as actually causes the
nuisance.
(5) The property must not be destroyed unless it is
absolutely necessary to do so.
CIVIL LAW
PRIVATE NUISANCE
Remedies
The remedies against a private nuisance are:
(2) Extrajudicial abatement.
(a) The procedure for extrajudicial abatement
of a public nuisance by a private person will
also be followed.
(b) The person extrajudicially abating a
nuisance liable for damages if:
(i) If he causes unnecessary injury; or
(ii) If an alleged nuisance is later declared
by the courts to be not a real nuisance.
Remedies of the property owner
A person whose property is seized or destroyed as
a nuisance may resort to the courts to determine
whether or not it was in fact a nuisance.
(1) An action for replevin;
(2) To enjoin the sale or destruction of the
property;
(3) An action for the proceeds of its sale and
damages if it has been sold; or
(4) To enjoin private parties from proceeding to
abate a supposed nuisance.
Modes of Acqiring
Ownership
(1) Occupation
(2) By operation of Law
(3) Donation
(4) Tradition
(5) Intellectual Property
(6) Prescription
(7) Succession
Mode is a specific cause which produces dominion
and other real rights as a result of the coexistence of special status of things, capacity and
intention of persons and fulfillment of the
requisites of law.
Title is every juridical right which gives a means to
the acquisition of real rights but in itself is
insufficient to produce them.
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

of ownership, while delivery is the mode of
accomplishing the same.
Mode
Title
Directly
and Serves merely to give
immediately produces a the occasion for its
real right.
acquisition or existence.
Cause
Means
Proximate cause
Remote cause
Essence of the right, Means whereby

which is to be created or essence
transmitted.
transmitted.
that
is
OCCUPATION
Note: Ownership of land cannot be acquired by
occupation.
REQUISITES
(a) The property must be a corporeal personal

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

mayor for two consecutive weeks in the way he
deems best.
If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be sold at
a public auction eight days after the publication.
Six months from the publication having elapsed
without the owner having appeared, the thing
found, or its value, shall be awarded to the finder.
The finder and the owner shall be obliged, as the
case may be, to reimburse the expenses.
If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, onetenth of the sum or of the price of the thing found.
DONATION
Donation is an act of liberality whereby a person
disposes gratuitously of a thing or right in favor of
another, who accepts it.
OTHER INSTANCES CONSIDERED AS

DONATION
(1) When a person gives to another a thing or right

on account of the latter's merits or of the
services rendered by him to the donor,
provided they do not constitute a demandable
debt.
(2) When the gift imposes upon the donee a
burden that is less than the value of the thing
given.
NATURE
(1) BILATERAL contract creating UNILATERAL

obligations on the donors part.
(2) Requires CONSENT of BOTH donor and donee
though it produces obligations only on the side
of the DONOR, unless it is an onerous
donation.
CIVIL LAW
WHAT MAY BE DONATED

All present property or part thereof of the
donor
(1) Provided he reserves, in full ownership or
usufruct, sufficient means for support of
himself and all relatives entitled to be
supported by donor at the time of acceptance.
(2) Provided that no person may give or receive by
way of donation, more than he may give or
receive by will (NCC 752); also, reserves
property sufficient to pay donors debts
contracted before donation, otherwise,
donation is in fraud of creditors (NCC 759,
1387).
(3) If donation exceeds the disposable or free
portion of his estate, the donation is inofficious.
(4) EXCEPTIONS:
(a) Donations provided for in marriage
settlements between future spouses
must be not more than 1/5 of present
property.
(b) Donation propter nuptias by an ascendant
consisting of jewelry, furniture or clothing
not to exceed 1/10 of disposable portion.
WHAT MAY NOT BE DONATED
Future property
(1) Donations cannot comprehend future property.
(2) Future property is understood anything
which the donor cannot dispose of at the time
of the donation.
KINDS OF DONATIONS
AS TO ITS TAKING EFFECT
(1) Donation Inter Vivos [NCC 729]
Donation which shall take effect during the
lifetime of the donor, though the property shall
not be delivered till after the donor's death.
REQUISITES
(1) CONSENT and CAPACITY of the parties;

(2) ANIMUS DONANDI (intent to donate);
(3) DELIVERY of thing donated;
(4) FORM as prescribed by law; and
(5) IMPOVERISHMENT of donors patrimony and
ENRICHMENT on part of donee.
PAGE 146
Irrevocable EXCEPT for the ff grounds:

(a) Subsequent birth of the donors children;
(b) Donors failure to comply with imposed
conditions;
(c) Donees ingratitude; or
(d) Reduction of donation by reason of
inofficiousness.
UP LAW BOC
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CIVIL LAW
(2) Donation by Reason of Marriage/ Donation

Propter Nuptias [FC 86]
Requisites
(a) Must be made BEFORE the celebration of
marriage;
(b) Made in CONSIDERATION of the marriage;
and
(c) Made in FAVOR of ONE or BOTH of the
future spouses.
Donation between spouses

General Rule:
Every donation or grant of
gratuitous advantage, direct or indirect, between
the spouses during the marriage shall be VOID.
The prohibition applies to persons living together
as husband and wife without a valid marriage.
Ordinary Donations v. Donations Propter

Nuptias
(3) Donation Mortis Causa [NCC 728]

(a) It only becomes effective upon the death of
the donor.
(b) The donors death ahead of the donee is a
suspensive condition for the existence of
the donation.
Ordinary
Propter Nuptias
Express acceptance
Necessary
Not required
As to minors
Cant be made by
minors
May be made by minors

(FC 78)
As to future property
Cannot include future
property
May include future

property (same rule as
wills)
Limit as to donation of present property

No limit to donation of
present property
provided legitimes are
not impaired.
If present property is
donated and property
regime is ACP, limited
to 1/5.
Grounds for revocation

Law on donations
See below (FC 86)
Exception: Moderate gifts which the spouses may

give each other on the occasion of any family
rejoicing.
Characteristics:
(a) The transferor retains ownership and control of
the property while alive;
(b) The transfer is revocable at will before his
death; and
(c)The transfer will be VOID if the transferor
should survive the transferee.
Inter Vivos v. Mortis Causa
Inter vivos
Mortis causa
As to formalities
Executed and accepted Must be in the form of
with
formalities a will, with all the
prescribed by CC.
formalities for the
validity of wills.
As to effectivity
Causes for revocation of donation propter

nuptias:
(1) If the marriage is not celebrated or judicially
declared void ab initio, except donations made
in the marriage settlements;
(2) When the marriage takes place without the
consent of the parents or guardian, as required
by law;
(3) When the marriage is annulled, and the donee
acted in bad faith;
(4) Upon legal separation, the 147one being the
guilty spouse;
(5) If it is with a resolutory condition and the
condition is complied with; or
(6) When the donee has committed an act of
ingratitude as specified by the provisions of the
Civil Code on donations in general.
Effective during the Effective after the

lifetime of the donor.
death of the donor.
As to acceptance
Acceptance must be
made during the
lifetime of the donor.
PAGE 147
Acceptance must be
made after the death
of the donor, the
donation being
effective only after the
death of donor.
Acceptance during the
donors lifetime is
premature and
ineffective because
there can be no
contract regarding
future inheritance.
UP LAW BOC
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Inter vivos
Mortis causa
As to transfer of ownership for right of disposition

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

Who May Give Donations
All persons who may contract and dispose of their
property may make a donation. [NCC 735]
Note:
(1) Donors capacity shall be determined as of the
time of the making of the donation. [NCC 737]
(2) Capacity to donate is required for donations
inter vivos and NOT in donations mortis causa.
(3) Donors capacity is determined as of the time
of the donation. Subsequent incapacity is
immaterial.
Who May Receive Donations
(1) All who are not specially disqualified by law.
(NCC 738)
(2)Minors and others who cannot enter into a
contract: acceptance may be made through
their parents or legal representatives. [NCC
741]
(3) Donations made to conceived and unborn
children: those who would legally represent
them if they were already born may accept the
donations. [NCC 737]
Who May Not Give or Receive Donations
By reason of public policy (NCC 739)
(1) Those made between persons guilty of adultery
or concubinage at the time of the donation;
(2) Those made between persons guilty of the
same criminal offense if the donation is made
in consideration thereof; or
(3) Those made to a public officer, his spouse,
descendants, and/or ascendants by reason of
the office.
By reason of the donees unworthiness [NCC 1032
and 1027 except (4)]
NCC 1032:
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an
attempt against the life of the testator, his or
her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a
crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge of
the violent death of the testator, should fail to
CIVIL LAW
report it to an officer of the law within a month,

unless the authorities have already taken
action; this prohibition shall not apply to cases
wherein, according to law, there is no
obligation to make an accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should cause
the testator to make a will or to change one
already made;
(7) Any person who by the same means prevents
another from making a will, or from revoking
one already made, or who supplants, conceals,
or alters the latters will;
(8) Any person who falsifies or forges a supposed
will of the decedent.
NCC 1027:
(1) The priest who heard the confession of the
testator during his last illness, or the minister
of the gospel who extended spiritual aid to him
during the same period;
(2) The relatives of such priest or minister of the
gospel within the fourth degree, the church,
order, chapter, community, organization, or
institution to which such priest or minister may
belong;
(3) A guardian with respect to testamentary
dispositions given by a ward in his favor before
the final accounts of the guardianship have
been approved, even if the testator should die
after the approval thereof; nevertheless, any
provision made by the ward in favor of the
guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be
valid;
(4) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during
his last illness; or
(5) Individuals, associations and corporations not
permitted by law to inherit.
By reason of prejudice to creditors or heirs
(voidable)
EFFECTS OF DONATION /
LIMITATIONS
IN GENERAL
(1) The donee may demand actual delivery of thing
donated;
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(2) The donee is SUBROGATED to the rights of

the donor in the property donated;
(3) The donor is NOT obliged to warrant the things
donated EXCEPT in onerous donations where
the donor is liable for eviction up to the extent
of the burden; [NCC 754]
(4) The donor is liable for EVICTION or HIDDEN
DEFECTS in case of bad faith on his part; [NCC
754]
(5) In donation propter nuptias, the donor must
RELEASE the property donated from
mortgages and other encumbrances UNLESS
the contrary has been stipulated; and
(6) Donations to several donees jointly: NO right
of accretion EXCEPT:
(a) When the donor provides otherwise; or
(b) When the donation to husband and wife is
joint with the right of accretion UNLESS
the donor provides otherwise.
SPECIAL PROVISIONS
Reservation by donor of power to dispose (in whole
or in part) or to encumber property donated [NCC
755]
(1) The donor may reserve the right to dispose of
some things donated, or of some amount,
which shall be a charge thereon.
(2) But if he should die without having made use
of this right, the property or amount reserved
shall belong to the donee.
Donation of naked ownership to one donee and
usufruct to another [NCC 756]
The naked ownership and the usufruct may be
donated separately, provided that all the donees
are living at the time of the donation.
Conventional reversion in favor of donor or other
person [NCC 757]
(1) If made in favor of the donor: Reversion may be
for any case and circumstance.
(2) If made in favor of other persons: Such persons
must be living at the time of the donation.
(3) If the rule is violated, the stipulation on
reversion is void but the donation is still valid.
Payment of donors debt [NCC 758]
(1) If expressly stipulated: the donee must pay only
the debts contracted before the donation
unless specified otherwise. But in no case shall
the donee be responsible for debts exceeding
CIVIL LAW
the value of the property donated unless

clearly intended.
(2) If theres no stipulation the donee will be
answerable only for the donors debt only in
case the donation is in fraud of creditors.
Illegal or impossible conditions [NCC 1183]
(1) Impossible conditions: those contrary to good
customs or public policy and those prohibited
by law shall annul the obligation, which
depends upon them.
(2) If the obligation is divisible, that part thereof
which is not affected by the impossible or
unlawful condition shall be valid.
(3) The condition not to do an impossible thing
shall be considered as not having been agreed
upon.
Double donations
Rule: Priority in time, priority in right.
(1) If movable: one who first took possession in
good faith.
(2) If immovable: one who recorded in registry of
property in good faith
(a) If there is no inscription, the one who first
took possession in good faith.
(b) If there is no possession, one who can
present the oldest title.
Excessive/Inofficious Donations
A type of donation in which a person gives or
receives more than what he may give or receive by
will. [NCC 752]
Donation inter vivos, made by a person having no
children or descendants, legitimate or legitimated
by subsequent marriage, or illegitimate, may be
revoked or reduced by the happening of any of
these events:
(a) If the donor, after the donation, should have
legitimate or legitimated or illegitimate
children, even though they be posthumous;
(b) If the child of the donor, whom the latter
believed to be dead when he made the
donation, should turn out to be living; or
(c) If the donor subsequently adopt a minor child.
The donation shall be revoked or reduced insofar
as it exceeds the portion that may be freely
disposed of by will, taking into account the whole
estate of the donor at the time of the birth,
appearance or adoption of a child.
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Inofficious Donations
(1) The donation shall be reduced with regard to
the excess.
(2) But this reduction shall not prevent the
donations from taking effect during the life of
the donor, nor shall it bar the donee from
appropriating the fruits.
(3) Only those who, at the time of the donor's
death, have a right to the legitime and their
heirs and successors-in-interest may ask for
the reduction or inofficious donations.
(4) If, there being two or more donations, the
disposable portion is not sufficient to cover all
of them, those of the more recent date shall be
suppressed or reduced with regard to the
excess.
Scope of amount [NCC 750-752]
(1) The donations may comprehend all the present
property of the donor, or part thereof.
Provided he reserves, in full ownership or in
usufruct, sufficient means for the support of
himself, and of all relatives who, at the time of
the acceptance of the donation, are by law
entitled to be supported by the donor
(2)
Donations
property.
cannot
comprehend
future
Future property is understood anything which

the donor cannot dispose of at the time of the
donation.
In fraud of creditors [NCC 759]
(1) Donation is always presumed to be in fraud of
creditors, when at the time thereof the donor
did not reserve sufficient property to pay his
debts prior to the donation.
(2) The donee shall be responsible therefor only
when the donation has been made in fraud of
creditors.
VOID DONATIONS [NCC 739-740, 1027]
(1) Those made between persons who were guilty
of adultery or concubinage at the time of the
donation;
NOTE: The spouse of the donor or donee may
bring the action for declaration of nullity and
the guilt of the donor and donee may be
CIVIL LAW
proved by preponderance of evidence in the

same action.
(2) Those made between persons found guilty of
the same criminal offense, in consideration
thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office; and
(4) Those made to persons incapacitated to
succeed by will. [NCC. 1027]
REVOCATION V. REDUCTION
Revocation
Reduction
Total withdrawal of
Amount is only insofar
amount, whether the
as the legitime is
legitime is impaired or
prejudiced
not
Benefits the donor
Benefits the donors

heirs (except when
made on the ground of
the appearance of a
child)
Grounds for Reduction

(1) Inofficiousness
A donation where a person gives or receives
more than what he may give or receive by will
is inofficious. [NCC 752]
(2) Subsequent birth, reappearance of child or
adoption of minor by donor
Effects of subsequent birth, reappearance or
adoption:
(1) A donation is VALID if it does not exceed the
free part computed as of the birth, adoption or
reappearance of the child.
(2) The donee must return the property or its
value at the time of the donation.
(3) The fruits must be returned from the filing of
the action.
(4) Mortgages by the donee are valid but may be
discharged subject to reimbursement from the
donee.
Extent of revocation: only to the extent of the
presumptive legitime of the child.
(1) Insufficient means of support
(2) In fraud of creditors
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(3) Prescription 4 years from either:

(i) Birth of first legitimate child;
(ii) Legitimation, adoption, recognition of first
child;
(iii) Judicial declaration of filiation; or
(iv) Knowledge of information on the existence
of a child believed to be dead.
REVOCATION
(1) Failure to comply with any of the conditions
imposed by the donor upon the donee
(2) For additional legitime for subsequent birth,
reappearance or adoption
(3) Ingratitude
The following cases are forms of ingratitude:
(1) If the donee should commit some offense
against the person, the honor or the
property of the donor, or of his wife or
children under his parental authority;
(2) If the donee imputes to the donor any
criminal offense, or any act involving moral
turpitude, even though he should prove it,
unless the crime or the act has been
committed against the donee himself, his
wife or children under his authority; or
(3) If he unduly refuses him support when the
donee is legally or morally bound to give
support to the donor.
Applies to all donations EXCEPT:
(1) Mortis causa
(2) Propter nuptias
(3) Onerous donations
CIVIL LAW
Notes:
(1) Founded on moral duty: one who received a
donation must be grateful to his benefactor.
(2) Conviction is NOT necessary.
(3) Time to file action for revocation within 1yr
from knowledge of the offense.
Who may file
Donor must bring action
transmissible to his heirs.
himself;
not
Effect of revocation on alienations and

encumbrances [NCC 766]
(1) Alienations and mortgages effected before the
notation of the complaint for revocation in the
Registry of Property shall subsist.
(2) Later ones shall be void.
Effect as to fruits [NCC 768]
When the donation is revoked for any of the
causes stated in NCC 760, or by reason of
ingratitude, or when it is reduced because it is
inofficious, donee shall not return the fruits except
from the filing of the complaint.
If the revocation is based upon noncompliance
with any of the conditions imposed in the
donation, the donee shall return not only the
property but also the fruits thereof which he
may have received after having failed to fulfill
the condition.
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CIVIL LAW
What may be donated

All present property of the donor or part thereof
Limitation:
(1) He reserves in full ownership or in usufruct,
sufficient means for his support and for all
relatives who are at the time of the acceptance
of the donation are, by law, entitled to be
supported
Effect of non-reservation: reduction of the
donation
(2) He reserves sufficient property at the time of the
donation for the full settlement of his debts
Effect of non-reservation: considered to be a
donation in fraud of creditors, and donee may
be liable for damages
What may not be donated

(1) Future property; those which the donor cannot
dispose of at the time of the donation [NCC 751]
(2) More than what he may give or receive by will
[NCC 752]
If exceeds: inofficious
Donations made to several persons jointly
No accretion one donee does not get the share 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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CIVIL LAW
Acceptance of the donation

Who may accept [NCC 745]
(1) Donee personally
(2) Authorized person with a special power for the
purpose or with a general sufficient power
When to accept: during the lifetime of the donor or

donee [NCC 746]
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
to
(1) Donor or his estate; or
(2) Another person
Limitation to (2): the third person would be living at

the time of the donation
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
compliance
donors heirs and may be
exercised
against
donees heirs
Property
returned, Fruits received after
alienations
and having failed to fulfill
mortgages void subject condition returned
to rights of third persons
in good faith
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Time of Action
PROPERTY
Transmissibility
CIVIL LAW
Effect
Liability (Fruits)
Ingratitude
Within 1 year after Generally
not
knowledge of the fact transmitted to heirs of
and it was possible for donor/ donee
him to bring the action
Property returned, but Fruits received from the

alienations
and filing of the complaint
mortgages
effected returned
before the notation of
the
complaint
for
revocation in the registry
of property subsist
Failure to reserve sufficient means for support

At any time, by the donor
or relatives entitled to Not transmissible
support
Reduced to the extent Donee entitled

necessary to provide
support
Inofficiousness for being in excess of what the donor can give by will
Within 5 years from the Transmitted to donors Donation takes effect on Donee entitled
death of the donor
heirs
the lifetime of donor.
Reduction only upon his
death with regard to the
excess
Fraud against creditors
Rescission within 4 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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CIVIL LAW
sense when the owner alienates a

thing but remains in possession in
another concept as lesee or depositary.
(3) Quasi tradition: delivery of incorporeal things
or rights by the use by the grantee of his
rights with the grantors consent.
(4) Tradicion by operation of law: delivery which
is not included in the foregoing modes of
delivery and where the delivery is effected
solely by virtue of an express provision of
law.
TRADITION
CONCEPT
It is a derivative mode of acquiring ownership

and other real rights by virtue of which, there
being intention and capacity on the part of the
grantor and grantee and the pre-existence of
said rights in the estate of the grantor, they are
transmitted to the grantee through a just title.
REQUISITES
(1) Pre-existence in the estate of the grantor of

the right to be transmitted;
(2) Just cause or title for the transmission;
Intention on the part of the grantor to grant and
on the part of the grantees to acquire;
(3) Capacity to transmit and to acquire; and
(4) An act that gives it outward form, physically,
symbolically, or legally.
Prescription
DEFINITION
By prescription, one acquires ownership and
other real rights through the lapse of time in the
manner and under the conditions laid down by
law.
PURPOSE
(1) Ownership is transferred, among other

means, by tradition.
(2) The delivery of a thing constitutes a
necessary and indispensable requisite for the
purpose of acquiring the ownership of the same
by virtue of a contract.
In the same way, rights and conditions are lost

by prescription.
KINDS
RATIONALE
It is a means of acquiring ownership and other

real rights or losing rights or actions to enforce
such rights through the lapse of time.
(1) Real Tradition: physical delivery

(2) Constructive Tradition: when the delivery of
the thing is not real or material but consists
merely in certain facts indicative of the same
(a) Symbolical Tradition: done through the
delivery of signs or things which
represent that which is being
transmitted. (e.g. keys or title itself)
(b) Tradition by public instrument: consists in
the substitution of real delivery of
possession by a public writing with the
delivery of a document which evidences
the transaction.
(c) Tradicio longa manu: made by the grantor
pointing out to the grantee the thing to
be delivered.
(d) Tradicio brevi manu: takes place when the
grantee is already in possession of the
thing. (e.g. when the lessee buys the
thing leased to him)
(e) Tradicion constitutum possessorium:
similar to brevi manu but in the opposite
It is purely statutory in origin. It is founded on

grounds of public policy which requires for the
peace of society, that juridical relations
susceptible of doubt and which may give rise to
disputes, be fixed and established after the
lapse of a determinate time so that ownership
and other rights may be certain for those who
have claim in them.
KINDS OF PRESCRIPTION
(1) Acquisitive prescription
(2) Extinctive prescription
ACQUISITIVE PRESCRIPTION
(1) The acquisition of ownership and other real

rights through possession of a thing in the
manner and condition provided by law.
(2) May be ordinary or extraordinary:
(a) Ordinary: requires possession of things in
good faith and with just title for the time
fixed by law.
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(b) Extraordinary: acquisition of ownership

and other real rights without need of title
or of good faith or any other condition.
Prescription where possession in good faith
converted into possession in bad faith:
Ordinary
(1) Movable properties - 4 years
(2) Immovable properties - 10 years
Extraordinary:
(1) Movable properties - 8 years
(2) Immovable properties - 30 years
CIVIL LAW
Acquisitive Prescription
Extinctive Prescription
Requires
positive
action of the possessor
(a claimant) who is not
the
Owner
Requires inaction of
the owner out of
possession or neglect
of one with a right to
bring his action
Applicable to
ownership and other
real rights
Applicable to all kinds

of rights, whether real
or personal
Vests the property and Vests the property and

raise a new title in the raise a new title in the
occupant
occupant
As a mode of acquisition, prescription

requires existence of following:
(1) Capacity of the claimant to acquire by
prescription;
(2) A thing capable of acquisition by
prescription;
(3) Adverse possession of the thing under
certain conditions; and
(4) Lapse of time provided by law.
The following are only required in ordinary
prescriptions:
(1) Good faith of the possessor; and
(2) Proof of just title
Results
in
the
acquisition
of
ownership or other real
rights in a person as
well as the loss of said
ownership or real rights
in another
Merely results in the

loss of a real or
personal right, or bars
the cause of action to
enforce said right
Can be proven under

the
general
issue
without
its
being
affirmatively pleaded
Should be affirmatively
pleaded and proved to
bar the action or claim
of the adverse party
NO PRESCRIPTION APPLICABLE
Note:
For extraordinary prescription, only first 4 are
required
Possession has to be in the concept of an
owner, public, peaceful, and uninterrupted.
BY OFFENDER
EXTINCTIVE PRESCRIPTION
PD 1529 (AMENDING AND CODIFYING THE LAWS

RELATIVE TO REGISTRATION OF PROPERTY AND FOR
OTHER PURPOSES)
The offender can never acquire, through

prescription, movable properties possessed
through a crime.
REGISTERED LANDS
The loss or extinguishment of property rights or

actions through the possession by another of a
thing for the period provided by law or through
failure to bring the necessary action to enforce
ones right within the period fixed by law.
No title to registered land in derogation of the

title of the registered owner shall be acquired by
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

IS IN POSSESSION
Prescription
Based on a fixed time
(1) The action or defense for the declaration of

the inexistence of a contract does not
prescribe. [NCC 1410]
(2) The title is susceptible to direct as well as to
collateral attack. [Ferrer v. Bautista, 1994]
TO RECOVER MOVABLE PROPERTIES
(1) The action rescribes in 8 years from the time

the possession thereof is lost. [NCC 1140]
(2) However, the action shall not prosper if it is
brought after 4 years when the possessor has
already acquired title by ordinary acquisitive
prescription. [NCC 1132]
(3) If the possessor acquired the movable in
good faith at a public sale, the owner cannot
obtain its return without reimbursing the
price paid.
ACTION TO DEMAND PARTITION
No prescription shall run in favor of a co-owner

or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes the
co-ownership. [NCC 494]
PROPERTY OF PUBLIC DOMINION
TO RECOVER IMMOVABLES
Prescription, both acquisitive and extinctive,

does not run against the State in the exercise of
its sovereign function to protect its interest
EXCEPT with respect to its patrimonial property
which may be the object of prescription. (NCC
1113)
Concerned with
fact of delay
(1) Real actions prescribe after 30 years [NCC

1141]
(2) UNLESS the possessor has acquired
ownership of the immovable by ordinary
acquisitive prescription through possession
of 10 years. [NCC 1134]
(3) Action for reconveyance
(a) Based on fraud: Prescribes 4 years from
the discovery of fraud.
(b) Based on implied or constructive trust: 10
years from the alleged fraudulent
registration or date of issuance of
certificate of title over the property.
DISTINGUISHED
Laches
the Concerned with
effect of delay
the
A question or a matter Principally a question

of time
of
inequity
of
permitting a claim to
be
enforced,
this
inequity being founded
on some subsequent
change in the condition
or the relation of the
parties
Statutory
NOT statutory
Applies at law
Applies at equity
NOT based on a fixed

time
PRESCRIPTION OR LIMITATION
OF ACTIONS
VOID CONTRACTS
Prescription
Laches
unless it is especially equity, need not be

pleaded
as
an specifically pleaded
affirmative allegation
(1) When plaintiff is in possession of the

property: the action to quiet title does not
prescribe.
(2) The reason is that the owner of the property
or right may wait until his possession is
disturbed or his title is assailed before
taking steps to vindicate his right.
PRESCRIPTION
FROM LACHES
CIVIL LAW
OTHER ACTIONS
(1) Action to foreclose mortgage: prescribes after

10 years from the time the obligation secured
by the mortgage becomes due and
demandable
(2) Actions that Prescribe in 10 Years [NCC 1144]
(a) Upon a written contract
(b) Upon an obligation created by law
(c) Upon a judgment
The computation of the period of
prescription of any cause or right of action,
Cannot be availed of Being a defense of
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which is the same as saying prescription of

the action, should start from the date the
cause of action accrues or from the day the
right of the plaintiff is violated. [Nabus v. CA,
1991]
CIVIL LAW
(c)
When
there
is
any
written
acknowledgment of the debt by the
debtor
Civil actions are deemed commenced from

the date of the filing and docketing of the
complaint with the Clerk of Court. [Cabrera
v. Riano (1963)]

(a) Upon an oral contract
(b) Upon a quasi-contract
A written extrajudicial demand wipes out the

period that has already elapsed and starts
anew the prescriptive period [The Overseas
Bank of Manila v. Geraldez, (1979)]

(a) Upon an injury to the rights of the plaintiff
(b) Upon a quasi-delict
BUT when the action arises from any act of
any public officer involving the exercise of
powers arising from Martial Law including
the arrest, detention and/or trial of the
plaintiff, the same must be brought within 1
year.
Not all acts of acknowledgement of a debt

interrupt prescription. To produce such
effect, the acknowledgment must be
written, so that the payment, if not coupled
with the communication signed by the payor
would interrupt the running of the period of
prescription [PNB v. Osete (1968)
(5) Actions that Prescribe in One Year or Less

[NCC 1147]
(a) For forcible entry or unlawful detainer
(b) For defamation
(6) Other Actions that Prescribe in 1 Year under
the Civil Code
(a) To recover possession de facto [NCC 554
(4)]
(b) To revoke a donation on the ground of
ingratitude [NCC 769]
(c) To rescind or recover damages if
immovable is sold with non-apparent
burden or servitude [NCC 1560 (3,4)]
(d) To enforce warranty of solvency in
assignment credits [NCC 629]
(7) Where Periods of Other Actions Not Fixed in
the Civil Code and in Other Laws
All other actions whose periods are not fixed
in the Civil Code or in other laws must be
brought within 5 years from the time the
right of action accrues. [NCC 1149]
(8) Interruption [NCC 1155]
The prescription of actions is interrupted
when:
(a) They are filed before the court
(b) When there is a written extrajudicial
demand by the creditors
PAGE 159
UP LAW BOC
OBLIGATIONS AND CONTRACTS
PAGE 160
CIVIL LAW
UP LAW BOC
Obligations
CIVIL LAW
AS TO THE AFFIRMATIVENESS OR
NEGATIVENESS OF THE OBLIGATION
(1) Positive/Affirmative obligation to give or to
do
(2) Negative obligation not to give or not to do
IN GENERAL
DEFINITION
AS TO PERSONS OBLIGED
(1) Unilateral only one of the parties is bound
(2) Bilateral both parties are bound
(a) Reciprocal performance by one is
dependent on the performance by the
other
(b) Non-reciprocal performance by one is
independent of the other [Paras]
Art. 1156. An obligation is a juridical necessity to

give, to do or not to do.
ELEMENTS OF AN OBLIGATION (DE

LEON)
(1) Active Subject (Obligee/Creditor) The

person who has the right or power to
demand the prestation.
(2) Passive Subject (Obligor/Debtor) The
person bound to perform the prestation.
(3) Prestation (Object) The conduct required to
be observed by the debtor/obligor (to give, to
do, or not to do).
(4) Vinculum Juris (Juridical Or Legal Tie;
Efficient Cause) That which binds or
connects the parties to the obligation.
SOURCES OF OBLIGATIONS
Art. 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts.
A SINGLE ACT OR OMISSION MAY GIVE RISE
TO DIFFERENT CAUSES OF ACTION
A concurrence of scope in regard to negligent
acts does not destroy the distinction between
the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa extracontractual. The same negligent act causing
damages may produce civil liability arising from
a crime... or create an action for cuasi-delito or
culpa extra-contractual. [Barredo vs. Garcia
(1942)]
DIFFERENT KINDS OF PRESTATIONS
(1) To Give real obligation; to deliver either

a specific or determinate thing, or
a generic or indeterminate thing.
(2) To Do positive personal obligation;
includes all kinds of work or service.
(3) Not To Do negative personal obligation; to
abstain from doing an act; includes the
obligation not to give.
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
PAGE 161
UP LAW BOC
NATURE AND
OBLIGATIONS
EFFECT
Duties of the Debtor

Rights of the Creditor
To Give a Generic Thing
(1)
To take care of (1)
To ask that the
the thing [Art. 1163]
obligation
be
(2)
To deliver a complied with [Art.
thing of the quality 1165]
intended
by
the (2)
To ask that the
parties taking into obligation
be
consideration
the complied with by a
purpose
of
the third person at the
obligation and other expense of the debtor
circumstances
[Art. (3)
To
recover
1246]
damages in case of
(3)
Creditor
breach [Art. 1165]
cannot demand a (4)
Not to be
thing
of
superior compelled to receive a
quality; neither can different
one,
the debtor deliver a although of the same
thing
of
inferior value as, or more
quality.
valuable than that
(4)
To
pay which is due [Art. 1244]
damages in case of
breach [Art. 1170]
OF
OBLIGATION TO GIVE
Limited
Generic Thing
Particularly
Object
is When
the
designated or designated
generic
physically
only by its objects
are
segregated
class/ genus/ confined to a
from
all species.
particular
others of the
class.
same
class
[Art. 1460];
Identified by
individuality.
Cannot
be Can
be
substituted
substituted by
any of the
same
class
and
same
kind.
Specific Thing
CIVIL LAW
Generic Thing
OBLIGATION TO DO OR NOT TO DO
RIGHTS AND DUTIES OF PARTIES
RIGHTS AND DUTIES OF PARTIES


To Do
(1) To do it [Art. 1167]
(1) To
compel
(2) To shoulder the
performance
cost of execution (2) To
recover
should he fail to do
damages in case of
it [Art. 1167]
breach [Art. 1170]
(3) To undo what has
been poorly done
[Art. 1167]
(4) To pay damages in
case of breach [Art.
1170]
Not To Do
(1) Not to do what (1) To ask to undo
should not be done
what should not be
(2) To shoulder cost of
done
undoing
what (2) To
recover
should not have
damages, where it
been done [Art.
would be physically
1168]
or
legally
impossible to undo
what should not
1170]
have been done,
because of :

To Give a Specific Thing
(1) To preserve or take (1) To compel delivery
care of the thing
[Art. 1165]
due [Art. 1163]
(2) To
recover
(2) To deliver the thing
damages in case of
itself [Art. 1165]
breach, exclusive or
(3) To deliver the fruits
in
addition
to
of the thing [Art.
specific
1164]
performance [Art.
(4) To
deliver
its
1165; 1170]
accessions
and (3) Entitlement
to
accessories
[Art.
fruits from the time
1166]
the obligation to
deliver arises [Art.
1164]
1170]
(4) Not
to
be
compelled
to
receive a different
one, although of
the same value as,
or more valuable
than that which is
due [Art. 1244]
PAGE 162
UP LAW BOC

Not To Do (Continued)
(a) the very nature of
the act itself;
(b) rights acquired by
third persons who
acted in good faith;
(c) when the effects of
the acts prohibited
are definite in
character and will
not cease even if
the
thing
prohibited
be
undone.
Unilateral Obligations Reciprocal Obligations

Those obliged to No delay if neither
deliver or to do performs.
something incur in
delay from the time
the obligee judicially
or
extrajudicially
demands from them
the fulfillment of their
obligation. [Art. 1169
par 1]
Demand may be judicial or extrajudicial.
When demand is necessary in order that
delay may exist [Art. 1169 par 2]
(1) When the obligation or the law expressly so
declare
(2) When from the nature and the circumstances
of the obligation it appears that the
designation of the time when the thing is to
be delivered or the service is to be rendered
was a controlling motive for the
establishment of the contract; OR
(3) When demand would be useless, as when
the obligor has rendered it beyond his power
to perform.
BREACH
Art. 1170. Those who in the performance of their
obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene
the tenor thereof, are liable for damages.
COMPLETE FAILURE TO PERFORM
Substantial Breach
(1)
Total breach
(2)
Amounts to
non-performance,
basis for rescission
(resolution) under Art.
1191 and payment of
damages
CIVIL LAW
Slight or Casual Breach

(1)
Partial breach
(2)
There
is
partial/
substantial
performance in good
faith
(3)
Gives rise to
liability for damages
only [Art. 1234]
Kinds of delay; requisites and effects

(1) Mora Solvendi
(2) Mora Accipiendi
(3) Compensatio Morae
Mora solvendi Delay on the part of the debtor
to fulfil his obligation either to give (ex re) or to
do (ex persona).
DEFAULT, DELAY, OR MORA

Failure to perform an obligation on time which
constitutes breach of the obligation. [De Leon]
Requisites:
(1) Obligation must be liquidated, due and
demandable.
(2) Non-performance by the debtor within the
period agreed upon.
(3) Demand, judicial or extra-judicial, by the
creditor.
Rules on default, delay, or mora

Unilateral Obligations Reciprocal Obligations
General Rule:
Neither party incurs in
No
demand,
no delay if the other does
delay.
not comply or is not
ready to comply in a
The mere expiration of proper manner with
the period fixed by the what is incumbent
parties is not enough upon him. From the
in order that the moment one of the
debtor may incur in parties fulfills his
delay.
obligation, delay by
the other begins. [Art.
1169 par 3]
There is no mora solvendi in:

(1) Negative obligations because
impossible [De Leon]
(2) Natural obligations [Tolentino]
PAGE 163
delay is
UP LAW BOC
CIVIL LAW
Effects:
(1) The debtor is liable for damages.
(2) The debtor is liable even if the loss is due to
fortuitous events.
(3) For determinate objects, the debtor shall
bear the risk of loss.
FRAUD (DOLO) IN THE PERFORMANCE OF

THE OBLIGATION
Mora accipiendi Delay on the part of the

creditor to accept the performance of the
obligation.
Fraud (dolo) is the deliberate or intentional

evasion of the normal fulfilment of an
obligation. [De Leon]
Requisites:
(1) Debtor offers performance.
(2) Offer must be in compliance with the
prestation.
(3) Creditor refuses performance without just
cause.
A waiver of future fraud is void but a past fraud

may be subject of a valid waiver by the
aggrieved party. [De Leon]
Art. 1171. Responsibility arising from fraud is

demandable in all obligations. Any waiver of an
action for future fraud is void.
Distinguished from Casual Fraud

Fraud in the
Casual Fraud
Performance
(dolo causante)
(dolo incidente)
[Arts. 1338, 1344]
[Art. 1170]
Present during the Present during the
performance of a pre- time of birth or
existing obligation
perfection
of
the
obligation
Purpose is to evade Purpose is to secure
normal fulfilment of consent of another to
obligation
enter the contract
Results in breach
Results in vitiation of
consent
Obligee may recover Innocent party may
damages [Art. 1344]
annul the contract
Valid obligation
Voidable obligation
Effects:
(1) The responsibility of the debtor is reduced to
fraud and gross negligence.
(2) The debtor is exempted from risk of loss of
the thing which is borne by the creditor.
(3) The expenses incurred by the debtor for the
preservation of the thing after the mora shall
be chargeable to the creditor.
(4) If the obligation bears interest, the debtor
does not have to pay from the time of delay.
(5) The creditor is liable for damages.
(6) The debtor may relieve himself of the
obligation by consigning the thing.
Compensatio morae Delay of both parties in
reciprocal obligations.
In order that fraud may vitiate consent, it must

be the dolo causante and not merely the dolo
incidente, inducement to the making of the
contract. The false representation was used by
plaintiff to get from defendant a bigger share of
net profits. This is just incidental to the matter
in agreement. Because despite plaintiffs deceit,
respondent would have still entered into the
contract. [Woodhouse vs. Halili (1953)]
Effects:
(1) Delay of the obligor cancels delay of obligee
(and vice versa) hence it is as if there is no
default.
(2) The liability of the first infractor shall be
equitably tempered by the courts. If it cannot
be determined which of the parties first
violated the contract, the same shall be
deemed extinguished, and each shall bear
his own damages. [Art. 1192]
PAGE 164
UP LAW BOC
NEGLIGENCE
(CULPA)
IN
PERFORMANCE OF THE OBLIGATION
THE
CIVIL LAW
Hotel and Inn-keepers

Art. 1998. The deposit of effects made by
travellers in hotels or inns shall also be
regarded as necessary. The keepers of hotels or
inns shall be responsible for them as
depositaries, provided that notice was given to
them, or to their employees, of the effects
brought by the guests and that, on the part of
the latter, they take the precautions which said
hotel-keepers or their substitutes advised
relative to the care and vigilance of their effects.
Art. 1172. Responsibility arising from negligence

in the performance of every kind of obligation is
also demandable, but such liability may be
regulated by the courts, according to the
circumstances.
The fault or negligence of the obligor consists in
the omission of that diligence which is required
by the nature of the obligation and corresponds
with the circumstances of the persons, of the
time and of the place. [Art. 1173]
Art. 1999. The hotel-keeper is liable for the

vehicles, animals and articles which have been
introduced or placed in the annexes of the
hotel.
Diligence Required [De Leon]

(1) By stipulation of the parties
(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]
(3) Future negligence may be waived except in
cases where the nature of the obligation or
the public requires another standard of care
(i.e. common carriers)
Art. 2000. The responsibility referred to in the

two preceding articles shall include the loss of,
or injury to the personal property of the guests
caused by the servants or employees of the
keepers of hotels or inns as well as strangers;
but not that which may proceed from any force
majeure. The fact that travellers are constrained
to rely on the vigilance of the keeper of the
hotels or inns shall be considered in
determining the degree of care required of him.
Exceptions:
Common Carriers
Art. 1733. Common carriers, from the nature of
their business and for reasons of public policy,
are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety
of the passengers transported by them,
according to all the circumstances of each case.
Art. 2001. The act of a thief or robber, who has

entered the hotel is not deemed force majeure,
unless it is done with the use of arms or through
an irresistible force.
Art. 2002. The hotel-keeper is not liable for
compensation if the loss is due to the acts of the
guest, his family, servants or visitors, or if the
loss arises from the character of the things
brought into the hotel.
Such extraordinary diligence in the vigilance

over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety of the
passengers is further set forth in articles 1755
and 1756.
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)]
PAGE 165
UP LAW BOC
Kinds of Civil Negligence

Culpa Contractual
Negligence is merely
incidental
in
the
performance of an
obligation.
There is always a preexisting contractual
relation.
The
source
of
obligation
of
defendant to pay
damages is the breach
or non-fulfillment of
the contract.
Proof of the existence
of the contract and of
its breach or nonfulfillment is sufficient
prima facie to warrant
recovery.
Proof of diligence in
the selection and
supervision of the
employees is NOT
available as defense.
In any manner contravenes the tenor means

any illicit act, which impairs the strict and
faithful fulfillment of the obligation, or every
kind of defective performance. [Tolentino]
Culpa Aquiliana
Negligence
substantive
independent.
is
and
LEGAL EXCUSE FOR

FORTUITOUS EVENT
There may or may not

be a pre-existing
contractual obligation.
The
source
of
obligation
is
the
defendants
negligence itself.
BREACH:
Art. 1174. Except in cases expressly specified by

the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall
be responsible for those events which could not
be foreseen, or which, though foreseen, were
inevitable.
The negligence of the

defendant must be
proved.
A happening independent of the will of the

debtor and which makes the normal fulfillment
of the obligation impossible. [De Leon]
(1) Act of God: An accident, due directly or
exclusively to natural causes without human
intervention, which by no amount of
foresight, pains or care, reasonably to have
been expected, could have been prevented.
(2) Act of Man: Force majeure is a superior or
irresistible force, which is essentially an act of
man; includes unavoidable accidents, even if
there has been an intervention of human
element, provided that no fault or negligence
can be imputed to the debtor.
Proof of diligence in
the selection and
supervision of the
employee is a defense.
Extent of Damages to be Awarded [Art. 2201]

Good Faith
Obligor is liable for
those that are the
natural and probable
consequences of the
breach
of
the
obligation, and which
the
parties
have
foreseen or could have
reasonably foreseen at
the time the obligation
was constituted.
CIVIL LAW
Bad Faith
Obligor
shall
be
responsible for all
damages which may
be
reasonably
attributed to the nonperformance of the
obligation.
LIABILITY IN CASE OF FORTUITOUS EVENT

No person shall be responsible for fortuitous
events, UNLESS:
(1) expressly specified by law [Arts. 552 par. 2,
1942, 2147, 2148, 2159]
(2) liability specified by stipulation
(3) the nature of the obligations requires
assumption of risk [Art. 1174]
(4) debtor is guilty of concurrent or contributory
negligence
(5) debtor has promised to deliver the same
thing to two or more persons who do not
have the same interest [Art. 1165 par. 3]
(6) the thing is lost due to the obligors fraud,
negligence, delay or contravention of the
tenor of the obligation [Art. 1170]
(7) the obligation to deliver a specific thing
arises from a crime [Art. 1268]
Any
waiver
or
renunciation made in
the anticipation of
such liability is null
and void.
CONTRAVENTION OF THE TENOR OF THE

OBLIGATION
This refers to a violation of the terms and
conditions stipulated in the obligation, which
must not be due to a fortuitous event or force
majeure. [De Leon]
PAGE 166
UP LAW BOC
CIVIL LAW
(8) the object is a generic thing, i.e. the genus

never perishes
DISTINGUISHED FROM RESCISSION UNDER

ART. 1380
REQUISITES OF EXEMPTION BASED ON

FORCE MAJEURE
(1) The event must be independent of the
debtors will (fraud or negligence).
(2) The event must be unforeseeable or
inevitable.
(3) The event renders it impossible for debtor to
fulfill his obligation in a normal manner.
(4) The debtor must be free from any
participation in the aggravation of the injury
to the creditor [Tolentino (1987); De Leon
(2003)]
(5) It must be the only and sole cause, not
merely a proximate cause.
Rescission / Resolution
[Art. 1191]
Based
on
nonperformance or nonfulfillment of obligation.
Action is instituted only
by the injured party.
Rescission [Art. 1380]

Based on lesion or
fraud upon creditors.
Action is instituted by
either party or by a
third person.
In some cases, court Court cannot grant a
may grant a term.
period or term within
which
one
must
comply.
Non-performance by the Non-performance by
other party is important. the other party is
immaterial.
REMEDIES AVAILABLE IN CASE OF

BREACH
DAMAGES, IN ANY EVENT
SPECIFIC PERFORMANCE
The creditor has a right to compel the debtor to
perform the prestation.
Art. 1170. Those who in the performance of their

obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene
the tenor thereof, are liable for damages.
SUBSTITUTED PERFORMANCE
A third person may perform anothers obligation
to deliver a generic thing or an obligation to do,
unless it is a purely personal act, at the expense
of the debtor.
SUBSIDIARY REMEDIES OF CREDITORS

Accion Subrogatoria Right of the creditor to
exercise all of the rights and bring all the
actions which his debtor may have against third
persons.
RESCISSION (RESOLUTION IN RECIPROCAL

OBLIGATIONS)
Art. 1191. The power to rescind obligations is
implied in reciprocal ones, in case one of the
obligors should not comply with what is
incumbent upon him.
The creditors, after having pursued the property

in possession of the debtor to satisfy their
claims, may exercise all the rights and bring all
the actions of the latter for the same purpose,
save those which are inherent in his person.
[Art.1177]
The injured party may choose between the

fulfilment and the rescission of the obligation,
with the payment of damages in either case. He
may also seek rescission, even after he has
chosen fulfilment, if the latter should become
impossible.
The court shall decree the rescission claimed,
unless there be just cause authorizing the fixing
of a period.
Requisites:
(1) The person to whom the right of action
pertains must be indebted to the creditor
(2) The debt is due and demandable
(3) The creditor must be prejudiced by the
failure of the debtor to collect his debts due
him from third persons, either through
malice or negligence
(4) The debtors assets are insufficient (debtor is
insolvent)
This is understood to be without prejudice to the

rights of third persons who have acquired the
thing, in accordance with articles 1385 and 1388
and the Mortgage Law.
PAGE 167
UP LAW BOC
(5) The right of action is not purely personal to

the debtor
Payments of rent in advance by the sublessee

shall be deemed not to have been made, so far
as the lessor's claim is concerned, unless said
payments were effected in virtue of the custom
of the place.
Accion Pauliana Rescission, which involves the

right of the creditor to attack or impugn by
means of rescissory action any act of the debtor
which is in fraud and to the prejudice of his
rights as creditor.
Vendor has right of action against possessor

whose right is derived from the vendee
Creditors may also impugn the acts which the

debtor may have done to defraud them. [Art.
1177]
Art. 1608. The vendor may bring his action

against every possessor whose right is derived
from the vendee, even if in the second contract
no mention should have been made of the right
to repurchase, without prejudice to the
provisions of the Mortgage Law and the Land
Registration Law with respect to third persons.
Requisites:
(1) There is a credit in favour of the plaintiff prior
to the alienation by the debtor
(2) The debtor has performed a subsequent
contract conveying patrimonial benefit to
third person/s.
(3) The debtors acts are fraudulent to the
prejudice of the creditor.
(4) The creditor has no other legal remedy to
satisfy his claim.
(5) The third person who received the property is
an accomplice to the fraud.
Accion Subrogatoria
Accion Pauliana
Not necessary that

creditors claim is prior
to the acquisition of
the right by the debtor
No need for fraudulent
intent
Credit must exist

before the fraudulent
act
No
period
prescription
CIVIL LAW
Laborer/ materialsman has right of action

against owner of piece of work up to the amount
owed by the latter to the contractor
Art. 1729. Those who put their labor upon or
furnish materials for a piece of work undertaken
by the contractor have an action against the
owner up to the amount owing from the latter
to the contractor at the time the claim is made.
However, the following shall not prejudice the
laborers, employees and furnishers of materials:
(1) Payments made by the owner to the
contractor before they are due;
(2) Renunciation by the contractor of any
amount due him from the owner.
Fraudulent intent is
required if the contract
rescinded is onerous
for Prescribes in 4 years
from the discovery of
the fraud
This article is subject to the provisions of special

laws. (1597a) Article 1730. If it is agreed that the
work shall be accomplished to the satisfaction
of the proprietor, it is understood that in case of
disagreement the question shall be subject to
expert judgment.
Accion Directa
Subsidiary liability of sublessee to the lessor for
rent due from the lessee
If the work is subject to the approval of a third

person, his decision shall be final, except in case
of fraud or manifest error.
Art. 1652. The sublessee is subsidiarily liable to

the lessor for any rent due from the lessee.
However, the sublessee shall not be responsible
beyond the amount of rent due from him, in
accordance with the terms of the sublease, at
the time of the extra-judicial demand by the
lessor.
PAGE 168
UP LAW BOC
Principal has right of action against substitute of

agent in cases when the agent is liable for acts of
appointed substitute
CIVIL LAW
(3) Potestative (casual or mixed)

Suspensive Obligation shall only be effective
upon the fulfilment of the condition [Art. 1181].
The obligee acquires a mere hope or
expectancy, protected by law, upon the
constitution of the obligation.
Art. 1893. In the cases mentioned in Nos. 1 and 2

of the preceding article, the principal may
furthermore bring an action against the
substitute with respect to the obligations which
the latter has contracted under the substitution.
Before Fulfillment
After Fulfillment
Petitioner cannot invoke the credit of a different

creditor to justify the rescission of the subject
deed of donation, because the only creditor who
may benefit from the rescission is the creditor
who brought the action; those who are
strangers to the action cannot benefit from its
effects. [Siguan vs. Lim (1999)]
The demandability and

acquisition or effectivity
of the rights arising from
the
obligation
is
suspended.
Anything
paid by mistake during
such time may be
recovered.
The obligation arises or

becomes effective.
The obligor can be
compelled to comply
with what is incumbent
upon him.
DIFFERENT KINDS OF CIVIL

OBLIGATIONS
Doctrine of Constructive
Suspensive Conditions
Fulfillment
of
Art. 1186. The condition shall be deemed

fulfilled when the obligor voluntarily prevents its
fulfillment.
PURE OBLIGATIONS
Art. 1179. Every obligation whose performance
does not depend upon a future or uncertain
event, or upon a past event unknown to the
parties, is demandable at once.
The condition shall be deemed fulfilled when

the obligor actually prevented the obligee from
complying with the condition, and that such
prevention must have been voluntary or willful
in character.
Every obligation which contains a resolutory

condition shall also be demandable, without
prejudice to the effects of the happening of the
event.
Its effectivity or extinguishment does not
depend upon the fulfillment or non-fulfillment
of a condition or upon the expiration of a term
or period and characterized by the quality of its
being immediately demandable.
Applicable to suspensive conditions but not to

resolutory conditions.
The article can have no application to an
external contingency which is lawfully within the
control of the obligor.
The mere intention of the debtor to prevent,
without actually preventing fulfillment is not
sufficient. Constructive fulfillment will not hold
when the debtor acts pursuant to a right. There
is constructive fulfillment when:
(1) Intent of the obligor is to prevent fulfillment;
and
(2) There is actual prevention of compliance.
CONDITIONAL OBLIGATIONS
Art. 1181. In conditional obligations, the
acquisition of rights, as well as the
extinguishment or loss of those already
acquired, shall depend upon the happening of
the event which constitutes the condition.
A condition is a future and uncertain event.
KINDS OF CONDITIONS; EFFECTS
(1) Suspensive
(2) Resolutory
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Principle of
Conditions
Retroactivity
in
Suspensive
Resolutory The obligation is demandable at

once, without prejudice to the effects of the
happening of the event [Art. 1179 par 2]. The
rights are immediately vested to the creditor but
always subject to the threat or danger of
extinction by the happening of the resolutory
condition [Tolentino].
Art. 1187, par 1. The effects of a conditional

obligation to give, once the condition has been
fulfilled, shall retroact to the day of the
constitution of the obligation. Nevertheless,
when the obligation imposes reciprocal
prestations upon the parties, the fruits and
interests during the pendency of the condition
shall be deemed to have been mutually
compensated. If the obligation is unilateral, the
debtor shall appropriate the fruits and interests
received, unless from the nature and
circumstances of the obligation it should be
inferred that the intention of the person
constituting the same was different.
Before Fulfillment
After Fulfillment
Preservation
of
creditors rights [Art.
1187 par. 1] also applies
to obligations with a
resolutory condition.
Whatever may have

been paid or delivered
by one or both of the
parties
upon
the
constitution of the
obligation shall have
to be returned upon
the fulfillment of the
condition [Art. 1190
par. 1]. There is no
return to the status
quo. However, when
the condition is not
fulfilled, rights are
consolidated and they
become absolute in
character.
The condition which is imposed is only

accidental, not an essential element of the
obligation.
This is applies to consensual contracts only.
There is no application to real contracts which
can only be perfected by delivery.
Effects of the Happening of Suspensive
Conditions
To Give
To Do/Not To Do
If reciprocal, the fruits

and interests shall be
deemed to have been
mutually compensated
as a matter of justice
and convenience
[Art. 1187, par. 1]
If
unilateral,
the
debtor
shall
appropriate the fruits
and interests received,
unless from the nature
and circumstance it
should be inferred that
the intention of the
persons constituting
the
same
was
different. [Art. 1187 par.
1]
In obligations to do or
not to do, the court
shall determine the
retroactive effect of
the condition that has
been complied with
[Art. 1187, par. 2]
The power of the court
includes
the
determination
of
whether or not there
will be any retroactive
effect. This rule shall
likewise
apply
in
obligations with a
resolutory condition
[Art. 1190 par. 3]
CIVIL LAW
Potestative (casual or mixed)

(1) Casual The fulfilment of the condition
depends upon chance or upon the will of a
third person. [Art. 1182]
(2) Mixed The fulfilment of the condition
depends partly upon the will of a party to the
contract and partly upon chance and/or will
of a third person.
Exclusively
upon the
Creditors Will
Condition and obligation are

valid.

void because to allow such
Exclusively
condition would be equivalent
upon
the
to sanctioning obligations
Debtors Will in
which are illusory. It also
case of a
constitutes
a
direct
Suspensive
contravention of the principle
Condition
of mutuality of contracts.
[Art. 1182]
There is nothing to demand
until the debtor wishes to.
PAGE 170
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Exclusively
upon
the
Debtors Will in
case of a
Resolutory
Condition
[Art. 1179 par.
2]

valid because in such situation,
the position of the debtor is
exactly the same as the
position of the creditor when
the condition is suspensive. It
does not render the obligation
illusory.
CIVIL LAW
(4) If it deteriorates through the fault of the

debtor, the creditor may choose between the
rescission of the obligation and its
fulfillment, with indemnity for damages in
either case;
(5) If the thing is improved by its nature, or by
time, the improvement shall inure to the
benefit of the creditor;
(6) If it is improved at the expense of the debtor,
he shall have no other right than that
granted to the usufructuary.Rule 8.02. A
lawyer shall not directly or indirectly,
encroach upon the professional employment
of another lawyer; however it is the right of
any lawyer without fear or favor to give
proper advice and assistance to those
seeking relief against unfaithful or neglectful
counsel.
Defendant executed an endorsement saying

that shell pay her debt if the house in which she
lives is sold. Such condition depended upon her
exclusive will; thus, it is void. [Osmea vs. Rama
(1909)]
The condition that payment should be made by
Hermosa as soon as he receives funds from the
sale of his property in Spain is a mixed
condition. The condition implies that the obligor
already decided to sell the house and all that
was needed to make the obligation
demandable is that the sale be consummated
and the price thereof remitted to the islands.
There were still other conditions that had to
concur to effect the sale, mainly that of the
presence of a buyer, ready, able and willing to
purchase the property under the conditions set
by the intestate. [Hermosa vs. Longara (1953)]
Art. 1190, par 3. As for the obligations to do and

not to do, the provisions of the second
paragraph of article 1187 shall be observed as
regards the effect of the extinguishment of the
obligation.
Without Debtors
Fault/Act
With Debtors Fault/Act
Loss
is Obligation is converted
into one of indemnity
for damages.
Deterioration
Impairment to be Creditor may choose
borne by the creditor. between bringing an
action for rescission of
the obligation OR
bringing an action for
specific performance,
with damages in either
case.
Improvement
Improvement at the Improvement by the
debtors expense, the things nature or by
debtor shall ONLY time shall inure to the
have
usufructuary benefit of the creditor.
rights.
Loss, Deterioration, or Improvement of a Specific

Thing Before Fulfillment of Suspensive Condition
[Art. 1189] or of Resolutory Condition in
Obligations to Do or Not to Do [Art. 1190 par 3]
Obligation
extinguished.
Art. 1189. When the conditions have been

imposed with the intention of suspending the
efficacy of an obligation to give, the following
rules shall be observed in case of the
improvement, loss or deterioration of the thing
during the pendency of the condition:
(1) If the thing is lost without the fault of the
debtor, the obligation shall be extinguished;
(2) If the thing is lost through the fault of the
debtor, he shall be obliged to pay damages;
it is understood that the thing is lost when it
perishes, or goes out of commerce, or
disappears in such a way that its existence is
unknown or it cannot be recovered;
(3) When the thing deteriorates without the fault
of the debtor, the impairment is to be borne
by the creditor;
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IMPOSSIBLE CONDITIONS
CIVIL LAW
If the uncertainty consists in whether the day

will come or not, the obligation is conditional,
and it shall be regulated by the rules of the
preceding Section.
Art. 1183. Impossible conditions, those contrary

to good customs or public policy and those
prohibited by law shall annul the obligation
which depends upon them. If the obligation is
divisible, that part thereof which is not affected
by the impossible or unlawful condition shall be
valid.
Art. 1180. When the debtor binds himself to pay

when his means permit him to do so, the
obligation shall be deemed to be one with a
period, subject to the provisions of Article 1197.
The condition not to do an impossible thing

shall be considered as not having been agreed
upon.
Period or Term: Interval of time, which either

suspends
demandability
or
produces
extinguishment.
POSITIVE AND NEGATIVE CONDITIONS
The period must be: future, certain, and

possible. [Tolentino]
Positive [Art. 1184]

The condition that
some event happen at
a determinate time
shall extinguish the
obligation
(a) as soon as the
time expires or
(b) if it has become
indubitable that
the event will not
take place.
Negative [Art. 1185]

The condition that
some event will not
happen
at
a
determinate time shall
render the obligation
effective from the
moment
(a) the time indicated
has elapsed, or
(b) if it has become
evident that the
event
cannot
occur.
A fortuitous event does not interrupt the

running of the period. It only relieves the
contracting parties from the fulfillment of their
respective obligations during the period.
TERM/PERIOD
DISTINGUISHED
The intention of the parties, taking into

consideration the nature of the obligation shall
govern if no time has been fixed for the
fulfilment of the condition.
OBLIGATIONS WITH A PERIOD OR

TERM
Art. 1193. Obligations for whose fulfillment a day
certain has been fixed, shall be demandable
only when that day comes.
Obligations with a resolutory period take effect
at once, but terminate upon arrival of the day
certain.
A day certain is understood to be that which
must necessarily come, although it may not be
known when.
PAGE 172
AND
CONDITION
Term/Period
Condition
Interval of time which

is future and certain
Must necessarily come,
although it may not be
known when
Exerts an influence
upon the time of
demandability
or
extinguishment of an
obligation
No retroactive effect
unless there is an
agreement to the
contrary
When
it
is
left
exclusively to the will
of the debtor, the
existence
of
the
obligation
is
not
affected
Fact or event which is

future and uncertain
May or may not
happen
Exerts an influence
upon
the
very
existence
of
the
obligation itself
Has retroactive effect
When it is left
exclusively to the will
of the debtor, the very
existence
of
the
obligation is affected
UP LAW BOC
KINDS OF PERIOD [Art 1193]

(1) Ex die period with a suspensive effect.
Obligation becomes demandable after the
lapse of the period.
(2) In diem period with a resolutory effect.
Obligation becomes demandable at once but
is extinguished after the lapse of the period.
EFFECT OF
DELIVERY
ADVANCE
PAYMENT
CIVIL LAW
If the period is for the benefit of the debtor

alone, he shall lose every right to make use
of it
(1) When after the obligation has been
contracted, he becomes insolvent, unless he
gives a guaranty or security for the debt
(2) When he does not furnish to the creditor the
guaranties or securities which he has
promised
(3) When by his own acts he has impaired said
guaranties or securities after their
establishment, and when through a
fortuitous event they disappear, unless he
immediately gives new ones equally
satisfactory
(4) When the debtor violates any undertaking, in
consideration of which the creditor agreed to
the period;
When the debtor attempts to abscond [Art.
1198]
(5) When required by law or stipulation;
(6) If parties stipulated an acceleration clause
[Tolentino]
OR
Art. 1195. Anything paid or delivered before the

arrival of the period, the obligor being unaware
of the period or believing that the obligation has
become due and demandable, may be
recovered, with the fruits and interests.
LOSS, DETERIORATION, OR IMPROVEMENT
OF THE THING BEFORE PERIOD EXPIRES
Art. 1194. In case of loss, deterioration or
improvement of the thing before the arrival of
the day certain, the rules in Article 1189 shall be
observed.
BENEFIT OF THE PERIOD
The obligation immediately becomes due and

demandable even if the period has not yet
expired. The obligation becomes a pure one.
[Tolentino]
Art. 1196. Whenever in an obligation a period is

designated, it is presumed to have been
established for the benefit of both the creditor
and the debtor, unless from the tenor of the
same or other circumstances it should appear
that the period has been established in favor of
one or of the other.
When Courts May Fix Period

Art. 1197. If the obligation does not fix a period,
but from its nature and the circumstances it can
be inferred that a period was intended, the
courts may fix the duration thereof.
Period for the benefit of either creditor or

debtor
Creditor
Debtor
Creditor may demand Debtor may oppose
the fulfillment or any
premature
performance of the demand on the part of
obligation at any time the obligee for the
but
the
obligor performance of the
cannot compel him to obligation, or if he so
accept
payment desires,
he
may
before the expiration renounce the benefit of
of the period.
the
period
by
performing
his
obligation in advance.
The courts shall also fix the duration of the

period when it depends upon the will of the
debtor.
In every case, the courts shall determine such
period as may under the circumstances have
been probably contemplated by the parties.
Once fixed by the courts, the period cannot be
changed by them.
General rule: The court is not authorized to fix a
period for the parties [De Leon]
Two-Step Rule in Determining Period By The
Court
(1) The Court shall determine:
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(a) If the obligation does not fix a period, but

from its nature and circumstances, it can
be inferred that a period was intended.
(b) If the period is void, such as when it
depends upon the will of the debtor.
(c) If the debtor binds himself when his
means permit him to do so.
(2) The Court must decide what period was
probably contemplated by the parties.
[Araneta v. Phil. Sugar Estates]
Alternative Obligations
CIVIL LAW
Facultative Obligations
Art. 1197 does not apply to contract of services

and to pure obligations.
The loss/impossibility
of one of the things
does not extinguish
the obligation.
Culpable loss of any of
the
objects
alternatively
due
before the choice is
made may give rise to
liability on the part of
the debtor.
The court, however, to prevent unreasonable

interpretations of the immediate demandability
of pure obligations, may fix a reasonable time in
which the debtor may pay [Tolentino]
Alternative obligations: Several prestations are

due but the performance of one is sufficient. [De
Leon]
RIGHT OF CHOICE [ART. 1200]
Belongs to the debtor, UNLESS
(1) it is expressly granted to the creditor
(2) it is expressly granted to a third person
The only action that can be maintained by the

creditor under Art. 1197 is the action to ask the
courts to fix the term within which the debtor
must comply with his obligation. The fulfillment
of the obligation itself cannot be demanded
until after the court has fixed the period for
compliance therewith, and such period has
arrived.
ALTERNATIVE
OBLIGATIONS
OR
LIMITATIONS TO THE RIGHT OF CHOICE

(1) impossible prestations
(2) unlawful prestations
(3) those which could not have been the object
of the obligation
FACULTATIVE
Alternative Obligations
Facultative Obligations
Several objects are

due.
May be complied with
by delivery of one of
the objects or by
performance of one of
the prestations which
are alternatively due.
Only one object is due.
WHEN CHOICE SHALL PRODUCE EFFECT

Choice shall produce no effect except from the
time it has been communicated. [Art. 1201]
The effect of the notice is to limit the obligation
to the object or prestation selected. Notice of
selection or choice may be in any form provided
it is sufficient to make the other party know that
the selection has been made. It can be:
(a) oral
(b) in writing
(c) tacit
(d) any other equivocal means
May be complied with

by the delivery of
another object or by
the performance of
another prestation in
substitution of that
which is due.
Choice may pertain to Choice pertains only to
debtor, creditor, or the debtor.
third person.
Loss/impossibility of
all object/prestation
due to fortuitous event
shall extinguish the
obligation.
Culpable loss of the

object
which
the
debtor may deliver in
substitution before the
substitution is effected
does not give rise to
any liability on the part
of the debtor.
Choice of the debtor when communicated to the

creditor does not require the latters
concurrence.
Loss/impossibility of
the object/prestation
due to fortuitous event
is
sufficient
to
extinguish
the
obligation.
If through the creditor's acts the debtor cannot

make a choice according to the terms of the
obligation, the latter may rescind the contract
with damages. [Art 1203]
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INSTANCES
WHEN
OBLIGATION
IS
CONVERTED INTO A SIMPLE OBLIGATION
(1) The person with the right of choice has
communicated his choice [Arts. 1201, 1205
par 1]
(2) Only one prestation is practicable [Art. 1202]
CIVIL LAW
Fortuitous Event
Debtors Fault
One Remains
Creditor may claim the Creditor may claim the
remaining
thing remaining
thing
without a right to without a right to
damages OR the damages OR the
price/value of the price/value of the
thing lost with right to thing lost with right to
damages.
damages.
LOSS
OF
SPECIFIC
THINGS
OR
IMPOSSIBILITY OF PERFORMANCE OF
ALTERNATIVE
Facultative obligations: Only one prestation is

agreed upon, but the obligor may render
another in substitution. [Art. 1206]
Art. 1204: Debtors Choice

Fortuitous Event
Debtors Fault
All Lost
Debtor is released Creditor shall have a
from the obligation.
right to indemnity for
damages based on the
value of the last thing
which disappeared or
service which become
impossible.
Some
Debtor to deliver that Debtor to deliver that
which he shall choose which the creditor
from
among
the shall choose from
remainder.
among the remainder
without damages.
One Remains
Debtor to deliver that Debtor to deliver that
which remains.
which remains.
Loss of Substitute in Facultative Obligations

[Art. 1206]
Before Substitution is
After Substitution is
Made
Made
If due to bad faith or The
loss
or
fraud of obligor: obligor deterioration of the
is liable.
substitute on account
of the obligors delay,
negligence, or fraud,
renders the obligor
liable because once
If due to the negligence the substitution is
of the obligor: obligor is made, the obligation
not liable.
is converted into a
simple one with the
substituted thing as
the object of the
obligation.
Art. 1205: Creditors Choice

Fortuitous Event
Debtors Fault
All Lost
Debtor is released Creditor may claim the
from the obligation.
price/value of any of
them with indemnity
for damages.
Some
Debtor to deliver that Creditor may claim
which he shall choose any of those subsisting
from
among
the without a right to
remainder.
damages
OR
price/value of the
thing lost with right to
damages.
JOINT OBLIGATIONS
The whole obligation, whether capable of

division into equal parts or not, is to be paid or
performed by several debtors and/or demanded
by several creditors.
PRESUMPTION OF JOINT OBLIGATION
An obligation is presumed joint if there is a
concurrence of several creditors, or of several
debtors, or of several creditors and debtors in
one and the same obligation [Art. 1207]
Exceptions:
(1) When the obligation expressly states that
there is solidarity
(2) When the law requires solidarity, i.e. quasidelicts
(3) When the nature of the obligation requires
solidarity
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UP LAW BOC
(4) When a charge or condition imposed upon

heirs or legatees, and the testament
expressly makes the charge or condition in
solidum
(5) When the solidary responsibility is imputed
by a final judgment upon several defendants
CIVIL LAW
Joint Indivisible Obligations

Art. 1209. If the division is impossible, the right
of the creditors may be prejudiced only by their
collective acts, and the debt can be enforced
only by proceeding against all the debtors. If
one of the latter should be insolvent, the others
shall not be liable for his share.
PRESUMPTION OF DIVISIBILITY IN JOINT

OBLIGATIONS
(JOINT
DIVISIBLE
OBLIGATIONS)
Credit or debt shall be presumed to be divided
into as many equal shares as there are creditors
or debtors, the credits or debts being considered
distinct from one another. [Art.1208]
One where a concurrence of several creditors, or
of several debtors, or of several creditors and
debtors, by virtue of which, each of the creditors
has a right to demand, and each of the debtors
is bound to render compliance with his
proportionate part of the prestation which
constitute the object of the obligation
(obligacion mancomunada).
WHEN INDIVISIBLE [ART. 1225]

(1) Obligations to give definite things
(2) Obligations not susceptible of partial
performance
(3) Indivisibility is provided by law or intended by
the parties, even though object or service
may be physically divisible
(4) In obligations not to do, when character of
prestation requires indivisibility
Plurality of CreditorsIf one or some of the
creditors demands the prestation, the debtor
may legally refuse to deliver to them, he can
insist that all the creditors together receive the
thing, and if any of them refuses to join the
others, the debtor may deposit the thing in
court by way of consignation [Tolentino]
Joint creditor cannot act in representation of the

others, neither can a joint debtor be compelled
to answer for the liability of others.
Plurality of DebtorsIf there are two or more

debtors, the fulfillment of or compliance with
the obligation requires the concurrence of all
the debtors, although each for his own share
and for the enforcement of the obligation.
PRINCIPAL EFFECTS OF JOINT LIABILITY

(1) Demand by one creditor upon the debtor,
produces the effects of default only with
respect to the creditor who demanded and
the debtor on whom the demand was made,
but not with respect to others.
(2) Interruption of prescription by the judicial
demand of one creditor upon a debtor does
not benefit the other creditors nor interrupt
the prescription as to other debtors.
(3) Vices of each obligation arising from the
personal defect of a particular debtor or
creditor do not affect the obligation or right
of the others.
(4) Insolvency of a debtor does not increase the
responsibility of his co-debtors, nor does it
authorize a creditor to demand anything
from his co-debtors.
(5) Defense of res judicata is not extended from
one debtor to another.
Failure of one debtor to perform in a joint

indivisible obligation gives rise to indemnity for
damages
Art. 1224. A joint indivisible obligation gives rise
to indemnity for damages from the time anyone
of the debtors does not comply with his
undertaking. The debtors who may have been
ready to fulfill their promises shall not
contribute to the indemnity beyond the
corresponding portion of the price of the thing
or of the value of the service in which the
obligation consists.
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Joint Divisible
Obligations
In case of breach of
obligation by one of
the debtors, damages
due must be borne by
him alone.
Solidarity
Each creditor may
demand the entire
prestation and each
debtor is bound to pay
the entire prestation
Effect
of
breach:
Solidarity remains
Joint Indivisible
Obligations
In case of breach
where one of the joint
debtors fails to comply
with his undertaking,
the obligation can no
longer be fulfilled or
performed. Thus, the
action
must
be
converted into one for
indemnity
for
damages.
All debtors are liable

for breach committed
by a co-debtor
All
debtors
are
proportionately liable
for insolvency of one
debtor
Joint Indivisible Obligations and Prescription

The act of a joint creditor which would ordinarily
interrupt the period of prescription would not
have no effect on prescription because the
indivisible character of the obligation requires
collective action of the creditors.
Indivisibility
Each creditor cannot
demand more than his
share and each debtor
is not bound to pay
more than his share
Effect
of
breach:
Obligation
is
converted
to
indemnity
for
damages
Only the debtors guilty
of breach of obligation
is liable for damages
Other debtors are not
liable if one debtor is
insolvent
KINDS OF SOLIDARY OBLIGATIONS

As to Source
(1) Legal imposed by law
(2) Conventional agreed upon by parties
(3) Real imposed by the nature of the
obligation
Solidary Obligations
An obligation where there is concurrence of

several creditors, or of several debtors, or of
several creditors and several debtors, by virtue
of which, each of the creditors has the right to
demand, and each of the debtors is bound to
render, entire compliance with the prestation
which constitutes the object of the obligation
(obligacion solidaria).
As to Parties Bound
(1) Active (solidarity among creditors) Each
creditor has the authority to claim and
enforce the rights of all, with the resulting
obligation of paying everyone of what
belongs to him.
(2) Passive (solidarity among debtors) Each
debtor can be made to answer for the others,
with the right on the part of the debtor-payor
to recover from the others their respective
shares.
(3) Mixed (solidarity among creditors and
debtors) Solidarity is not destroyed by the
fact that the obligation of each debtor is
subject to different conditions or periods. The
creditor can commence an action against
anyone of the debtors for the compliance
with the entire obligation minus the portion
or share which corresponds to the debtor
affected by the condition or period.
Solidarity may exist although the creditors and

the debtors may not be bound in the same
manner and by the same periods and
conditions. [Art. 1211]
DISTINGUISHED FROM INDIVISIBILITY
Art. 1210. The indivisibility of an obligation does
not necessarily give rise to solidarity. Nor does
solidarity of itself imply indivisibility.
Solidarity
Refers to the legal tie
(vinculum juris), and
consequently to the
subjects or parties of
the obligation
More than one creditor
or more than debtor
(plurality of subjects)
CIVIL LAW
Indivisibility
Refers
to
the
prestation that is not
capable of partial
performance
As to Uniformity
(1) Uniform Parties are bound by the same
stipulation
(2) Non-uniform Parties are bound by different
conditions or terms
Exists even if there is

only one creditor
and/or one debtor
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ACTIVE SOLIDARY OBLIGATION
CIVIL LAW
Art. 1222. A solidary debtor may, in actions filed

by the creditor, avail himself of all defenses
which are derived from the nature of the
obligation and of those which are personal to
him, or pertain to his own share. With respect to
those which personally belong to the others, he
may avail himself thereof only as regards that
part of the debt for which the latter are
responsible.
Art. 1214. The debtor may pay any one of the

solidary creditors; but if any demand, judicial or
extrajudicial, has been made by one of them,
payment should be made to him.
A relationship of mutual agency is created
among co-creditors.
The creditor who may have executed any
novation, compensation, confusion, or remission
of the debt, as well as he who collects the debt,
shall be liable to the others for the share in the
obligation corresponding to them. [Art. 1215, par
2]
A relationship of mutual guaranty is created

among co-debtors.
The interruption of prescription as to one debtor
affects all the others; but the renunciation by
one debtor of prescription already had does not
prejudice the others.
A solidary creditor cannot assign his rights

without the consent of the others. [Art. 1213]
Defenses Available to a Solidary Debtor [Art.

1222]
(1) Those derived from the nature of the
obligation
(2) Those personal to him
(3) Those pertaining to his own share
(4) Those personally belonging to other codebtors but only as regards that part of the
debt for which the latter are responsible.
PASSIVE SOLIDARY OBLIGATION

Art. 1216. The creditor may proceed against any
one of the solidary debtors or some or all of
them simultaneously. The demand made
against one of them shall not be an obstacle to
those which may subsequently be directed
against the others, so long as the debt has not
been fully collected.
Demand Upon a
Solidary Debtor
The demand made
against one of them
shall not be an
obstacle to those
which
may
subsequently
be
directed against the
others so long as the
debt has not been
fully collected [Art.
1216].
The creditor may
proceed against any
one of the solidary
debtors
or
all
simultaneously [Art.
1216].
Art. 1217. Payment made by one of the solidary

debtors extinguishes the obligation. If two or
more solidary debtors offer to pay, the creditor
may choose which offer to accept.
He who made the payment may claim from his
co-debtors only the share which corresponds to
each, with the interest for the payment already
made. If the payment is made before the debt is
due, no interest for the intervening period may
be demanded.
When one of the solidary debtors cannot,
because of his insolvency, reimburse his share to
the debtor paying the obligation, such share
shall be borne by all his co-debtors, in
proportion to the debt of each.
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Payment by a Debtor
Full payment made by
one of the solidary
debtors extinguishes
the obligation [Art.
1217].
If two or more solidary

debtors offer to pay,
the
creditor
may
choose which offer to
accept [Art. 1217].
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Demand Upon a
Solidary Debtor
A creditors right to
proceed against the
surety
exists
independently of his
right
to
proceed
against the principal
debtors, shall extinguish the obligation, without

prejudice to the provisions of article 1219.
Payment by a Debtor
The solidary debtor
who
made
the
payment shall have
the right to claim from
his co-debtors the
share
which
corresponds to them
with interest, UNLESS
barred by prescription
or illegality [Art. 1218].
The creditor who may have executed any of

these acts, as well as he who collects the debt,
shall be liable to the others for the share in the
obligation corresponding to them.
Art. 1219. The remission made by the creditor of
the share which affects one of the solidary
debtors does not release the latter from his
responsibility towards the co-debtors, in case
the debt had been totally paid by anyone of
them before the remission was effected.
Debtors obligated themselves solidarily, so

creditor can bring its action against any of them.
Remission of any part of the debt, made by the
creditor in favor of one of the solidary debtors,
inures to the benefit of the rest of them.
[Inchausti vs. Yulo (1914)]
Art. 1220. The remission of the whole obligation,

obtained by one of the solidary debtors, does
not entitle him to reimbursement from his codebtors.
Loss of the thing or impossibility of performance

of the passive/mixed solidary obligation [Art.
1221]
Without
fault of the
debtors
With fault
of any of
the debtors
Through a
fortuitous
event after
one
incurred in
delay
The
obligation
extinguished.
shall
CIVIL LAW
Each one of the solidary creditors may do

whatever may be useful or beneficial to the
others, but not anything which may be
prejudicial to the latter.
be
As far as the debtors are concerned, a

prejudicial act performed by a solidary creditor
is binding.
As between the solidary creditors, the creditor
who performed such act shall incur the
obligation of indemnifying the others for
damages.
All debtors shall be responsible to

the creditor, for the price and the
payment of damages and interest,
without prejudice to their action
against the guilty or negligent
debtor.
All debtors shall be responsible to
the creditor, for the price and the
payment of damages and interest,
without prejudice to their action
against the guilty or negligent
debtor.
DIVISIBLE AND INDIVISIBLE

OBLIGATIONS
DIVISIBLE OBLIGATIONS
Ones which are susceptible to partial
performance, that is, the debtor can legally
perform the obligation by parts and the creditor
cannot demand a single performance of the
entire obligation [Tolentino]
EFFECTS OF PREJUDICIAL AND BENEFICIAL

ACTS
Art. 1212. Each one of the solidary creditors may
do whatever may be useful to the others, but
not anything which may be prejudicial to the
latter.
INDIVISIBLE OBLIGATIONS
Ones which cannot be validly performed in parts
[Tolentino]
Rules
(1) Divisibility/indivisibility refers to the
performance of the prestation and not to
Art. 1215. Novation, compensation, confusion or

remission of the debt, made by any of the
solidary creditors or with any of the solidary
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(2)
(3)
(4)
(5)
(6)
the thing which is the object thereof. The

thing may be divisible, yet the obligation
may be indivisible.
When the obligation has for its object the
execution of a certain number of days of
work, the accomplishment of work by
metrical units, or analogous things which by
their nature are susceptible of partial
performance, it shall be divisible [Art.1225,
par. 2].
Even though the object or service may be
physically divisible, an obligation is
indivisible if so provided by law or intended
by the parties.
In obligations not to do, divisibility or
indivisibility shall be determined by the
character of the prestation in each
particular case.
When there is plurality of debtors and
creditors,
the
effect
of
divisibility/indivisibility of the obligation
depend upon whether the obligation is joint
or solidary.
A joint indivisible obligation gives rise to
indemnity for damages from the time any
one of the debtors does not comply with his
undertaking [Art. 1224].
If the principal obligation is void, the penal

clause shall also be void. However, the nullity of
the penal clause does not carry with it the
nullity of the principal obligation [Art.1230].
PURPOSES OF PENALTY
(1) Funcion coercitiva de garantia - to insure the
performance of the obligation.
(2) Funcion liquidatoria - to liquidate the
amount of damages to be awarded to the
injured party in case of breach of the
principal obligation (compensatory).
(3) Funcion estrictamente penal - to punish the
obligor in case of breach of the principal
obligation (punitive).
CHARACTERISTICS OF PENALTY
(1) The penalty shall substitute the indemnity
for damages and payment of interest in
case of non-compliance [Art. 1226],
UNLESS:
(a) There is a stipulation to the contrary
(b) The obligor refuses to pay the penalty
(c) The obligor is guilty of fraud
(2) Debtor cannot exempt himself from the
performance of the principal obligation by
paying the stipulated penalty unless this
right has been expressly reserved for him
[Art. 1227].
(3) Creditor cannot demand the fulfillment of
the principal obligation and demanding the
satisfaction of the penalty at the same time
unless the right has been clearly granted to
him [Art. 1227]. Tacit or implied grant is
admissible.
(a) If the creditor has chosen fulfillment of
the principal obligation and the
performance
thereof
becomes
impossible without his fault, he may still
demand the satisfaction of the penalty.
(b) If there was fault on the part of the
debtor, creditor may demand not only
the satisfaction of the penalty but also
the payment of damages.
(c) If the creditor chooses to demand the
satisfaction of the penalty, he cannot
afterwards demand the fulfillment of
the obligation.
Effect
Creditor cannot be compelled to receive
partially the prestation in which the obligation
consists; neither may the debtor be required to
make the partial payment [Art. 1248], UNLESS:
(1) The obligation expressly stipulates the
contrary.
(2) The different prestations constituting the
objects of the obligation are subject to
different terms and conditions.
(3) The obligation is in part liquidated and in
part unliquidated.
OBLIGATIONS
CLAUSE
WITH
CIVIL LAW
PENAL
Penal Clause: An accessory undertaking to

assume greater liability in case of breach. It is
attached to an obligation in order to ensure
performance. The enforcement of the penalty
can be demanded by the creditor only when the
non-performance is due to the fault or fraud of
the debtor.
PROOF OF ACTUAL DAMAGE

Art. 1228: That proof of actual damages is not
necessary is applicable only to the general rule
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stated in Art. 1226, but not to the exceptions.

The penalty is exactly identical with what is
known as liquidated damages in Art. 2226.
CIVIL LAW
Art. 1425. When without the knowledge or

against the will of the debtor, a third person
pays a debt which the obligor is not legally
bound to pay because the action thereon has
prescribed, but the debtor later voluntarily
reimburses the third person, the obligor cannot
recover what he has paid.
WHEN PENALTY MAY BE REDUCED [ART.

1229]:
(1) If the principal obligation has been partly
complied with.
(2) If the principal obligation has been
irregularly complied with.
(3) If
the
penalty
is iniquitous
or
unconscionable even if there has been no
performance.
(1) There is a debt

(2) Action upon the debt has prescribed
(3) A third person, without the knowledge or
against the will of the debtor, pays the debt
(4) Debtor voluntarily reimburses the third
person
NATURAL OBLIGATIONS
Consequence: Obligor cannot recover what he

has paid.
Art. 1423. Obligations are civil or natural. Civil

obligations give a right of action to compel their
performance. Natural obligations, not being
based on positive law but on equity and natural
law, do not grant a right of action to enforce
their performance, but after voluntary
fulfillment by the obligor, they authorize the
retention of what has been delivered or
rendered by reason thereof. Some natural
obligations are set forth in the following articles.
Art. 1426. When a minor between eighteen and

twenty-one years of age who has entered into a
contract without the consent of the parent or
guardian, after the annulment of the contract
voluntarily returns the whole thing or price
received, notwithstanding the fact that he has
not been benefited thereby, there is no right to
demand the thing or price thus returned.
EXAMPLES OF NATURAL OBLIGATIONS
Art. 1427. When a minor between eighteen and

twenty-one years of age, who has entered into a
contract without the consent of the parent or
guardian, voluntarily pays a sum of money or
delivers a fungible thing in fulfillment of the
obligation, there shall be no right to recover the
same from the obligee who has spent or
consumed it in good faith.
Art. 1424. When a right to sue upon a civil

obligation has lapsed by extinctive prescription,
the obligor who voluntarily performs the
contract cannot recover what he has delivered
or the value of the service he has rendered.
(1) There is a civil obligation
(2) The right to sue upon it has already lapsed
by extinctive prescription
(3) Obligor performs contract voluntarily
Art. 1428. When, after an action to enforce a civil

obligation has failed the defendant voluntarily
performs the obligation, he cannot demand the
return of what he has delivered or the payment
of the value of the service he has rendered.
Consequence: Obligor cannot recover what he

has delivered or value of the service he
rendered.
(1) There is a civil obligation

(2) An action to enforce such has failed
(3) Defendant voluntarily performs
obligation
the
Consequence: Defendant cannot demand return

of what he has delivered or the payment of the
value of the service.
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PAYMENT OR PERFORMANCE
Art. 1429. When a testate or intestate heir

voluntarily pays a debt of the decedent
exceeding the value of the property which he
received by will or by the law of intestacy from
the estate of the deceased, the payment is valid
and cannot be rescinded by the payer.
(1) The delivery of money OR

(2) The performance of an obligation [Art.1232]
PRINCIPLE OF INTEGRITY OF PAYMENT
Art. 1233. A debt shall not be understood to
have been paid unless the thing or service in
which the obligation consists has been
completely delivered or rendered, as the case
may be.
(1) Decedent incurred in debt during his lifetime

(2) Heir voluntarily pays debt
(3) Value of debt exceeds value of heirs
inheritance
Consequence: Payment is valid and heir cannot
rescind it.
Art. 1248. Unless there is an express stipulation

to that effect, the creditor cannot be compelled
partially to receive the prestations in which the
obligation consists. Neither may the debtor be
required to make partial payments.
Art. 1430. When a will is declared void because it

has not been executed in accordance with the
formalities required by law, but one of the
intestate heirs, after the settlement of the debts
of the deceased, pays a legacy in compliance
with a clause in the defective will, the payment
is effective and irrevocable.
However, when the debt is in part liquidated

and in part unliquidated, the creditor may
demand and the debtor may effect the payment
of the former without waiting for the liquidation
of the latter.
(1) There is a will providing for a legacy

(2) The will is declared void because it was not
executed in accordance with the formalities
required by law
(3) Heir pays legacy
Consequence:
irrevocable.
Payment
is
effective
CIVIL LAW
Art. 1235. When the obligee accepts the

performance, knowing its incompleteness or
irregularity, and without expressing any protest
or objection, the obligation is deemed fully
complied with.
and
BY WHOM
Payor must have free disposal of the thing due
and capacity to alienate it. [Art. 1239]
EXTINGUISHMENT OF
OBLIGATIONS
Payment by a third person
Art. 1231. Obligations are extinguished:

(1) By payment or performance;
(2) By the loss of the thing due;
(3) By the condonation or remission of the
debt;
(4) By the confusion or merger of the rights of
creditor and debtor;
(5) By compensation;
(6) By novation.
Art. 1236. The creditor is not bound to accept

payment or performance by a third person who
has no interest in the fulfillment of the
obligation, unless there is a stipulation to the
contrary.
Whoever pays for another may demand from
the debtor what he has paid, except that if he
paid without the knowledge or against the will
of the debtor, he can recover only insofar as the
payment has been beneficial to the debtor.
Other causes of extinguishment of

obligations, such as annulment, rescission,
fulfillment of a resolutory condition, and
prescription, are governed elsewhere in this
Code.
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CIVIL LAW
PLACE OF PAYMENT
(1) In the place designated in the obligation.
(2) In the absence of stipulation
(a) If obligation is to deliver a determinate
thing: wherever the thing might be at
the moment the obligation was
constituted.
(b) In any other case: Domicile of debtor
[Art. 1251]
Art. 1237. Whoever pays on behalf of the debtor

without the knowledge or against the will of the
latter, cannot compel the creditor to subrogate
him in his rights, such as those arising from a
mortgage, guaranty, or penalty.
Art. 1238. Payment made by a third person who
does not intend to be reimbursed by the debtor
is deemed to be a donation, which requires the
debtor's consent. But the payment is in any case
valid as to the creditor who has accepted it.
Form of Payment
Art. 1249. The payment of debts in money shall
be made in the currency stipulated, and if it is
not possible to deliver such currency, then in the
currency which is legal tender in the Philippines.
TO WHOM
(1) The person in whose favor the obligation has
been constituted; or
(2) His successor in interest; or
(3) Any person authorized to receive it [Art. 1240]
The delivery of promissory notes payable to

order, or bills of exchange or other mercantile
documents shall produce the effect of payment
only when they have been cashed, or when
through the fault of the creditor they have been
impaired.
Payment to a person who is incapacitated to

administer his property shall be valid if he has
kept the thing delivered, or insofar as the
payment has been beneficial to him. [Art. 1241
par 1]
In the meantime, the action derived from the

original obligation shall be held in the
abeyance.
Payment made in good faith to any person in

possession of the credit shall release the debtor.
[Art. 1242]
Extraordinary Inflation or Deflation
Payment made to the creditor by the debtor

after the latter has been judicially ordered to
retain the debt shall not be valid. [Art. 1243]
Art. 1250. In case an extraordinary inflation or

deflation of the currency stipulated should
supervene, the value of the currency at
the time of the establishment of the obligation
shall be the basis of payment, unless there is an
agreement to the contrary.
Payment to a third person [Art. 1241 par 2]

Payment made to a third person shall also be
valid insofar as it has redounded to the benefit
of the creditor.
APPLICATION OF PAYMENTS
Designation of the debt to which should be
applied a payment made by a debtor who owes
several debts to the same creditor.
General rule: That payment has redounded to

the benefit of the credit must be proved,
Exception:
(1) If after the payment, the third person
acquires the creditor's rights;
(2) If the creditor ratifies the payment to the
third person;
(3) If by the creditor's conduct, the debtor has
been led to believe that the third person
had authority to receive the payment.
Requisites:
(1) There is a plurality of debts
(2) Debts are of the same kind
(3) Debts are owed to the same creditor and by
the same debtor
(4) All debts must be due, UNLESS parties so
stipulate, or when application is made by
the party for whose benefit the term has
been constituted
(5) Payment made is not sufficient to cover all
debts [Art. 1252]
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CIVIL LAW
Rules on Application
(1) Preferential right of debtor - debtor has the
right to select which of his debts he is
paying.
(2) The debtor makes the designation at the
time he makes the payment.
(3) If not, the creditor makes the application, by
so stating in the receipt that he issues,
unless there is cause for invalidating the
contract.
(4) If neither the creditor nor debtor exercises
the right to apply, or if the application is not
valid, the application is made by operation
of law.
(5) If debt produces interest, the payment is not
to be applied to the principal unless the
interests are covered.
(6) When no application can be inferred from
the circumstances of payment, it is applied:
(a) to the most onerous debt of the debtor;
or (b) if debts due are of the same nature
and burden, to all the debts in proportion
(7) Rules of application of payment may not be
invoked by a surety or solidary guarantor.
Requisites:
(1) There is a plurality of debts
(2) Partial or relative insolvency of debtor
(3) Acceptance of the cession by the creditors
[Art. 1255]
Rules on application of payment cannot be

made applicable to a person whose obligation
as a mere surety is both contingent and
singular. There must be full and faithful
compliance with the terms of the contract.
[Reparations Commission vs. Universal Deep Sea
Fishing Corp (1978)]
Involves all properties

of debtor
Creditor does not
become owner of the
ceded property
Debtor is released only for the net proceeds

unless there is a stipulation to the contrary.
Cession and Dacion en pago Distinguished
Cession
Plurality of creditors
Debtor
must
be
partially or relatively
insolvent
Universality
of
property is ceded
Merely releases debtor
for the net proceeds of
things
ceded
or
assigned, unless there
is contrary intention
Dacion en pago
One creditor
Debtor not necessarily
in state of financial
difficulty
Thing delivered is
equivalent
of
performance
Extinguishes
obligation
to the
extent of the value of
the thing delivered, as
agreed upon, proved
or implied from the
conduct of the creditor
Does not involve all
properties of debtor
Creditor
becomes
owner
TENDER OF PAYMENT AND CONSIGNATION

Tender of payment: Manifestation made by the
debtor to the creditor of his desire to comply
with his obligation, with offer of immediate
performance.
(1)
Preparatory act to consignation
(2)
Extrajudicial in character
DATION IN PAYMENT
Delivery and transmission of ownership of a
thing by the debtor to the creditor as an
accepted equivalent of the performance of the
obligation (dacion en pago).
Requisites:
(1) Existence of a money obligation
(2) Alienation to the creditor of a property by
the debtor with the creditors consent
(3) Satisfaction of the money obligation
Consignation: Deposit of the object of obligation

in a competent court in accordance with the
rules prescribed by law whenever the creditor
unjustly refuses payment or because of some
circumstances which render direct payment to
the creditor impossible or inadvisable.
(1) Principal act which constitutes a form of
payment
(2) Judicial in character
PAYMENT BY CESSION
Special form of payment where the debtor
assigns/abandons ALL his property for the
benefit of his creditors in order that from the
proceeds thereof, the latter may obtain
payment of their credits.
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Requisites of Consignation
(1) There is a debt due
(2) Consignation is made because of some
legal cause
(a) There was tender of payment and creditor
refuses without just cause to accept it
(b) Instances when consignation alone would
suffice as provided under Art. 1256
(3) Previous notice of consignation was given to
those persons interested in the performance
of the obligation
(4) Amount or thing due was placed at the
disposal of the court
(5) After the consignation has been made, the
persons interested were notified thereof
CIVIL LAW
Who Bears the Expenses

The expenses of consignation, when properly
made, shall be charged against the creditor.
[Art. 1259]
Effects of Consignation
If accepted by the creditor or declared properly
made by the Court:
(1) Debtor is released in same manner as if he
had performed the obligation at the time of
consignation
(2) Accrual of interest is suspended from the
moment of consignation.
(3) Deterioration or loss of the thing or amount
consigned, occurring without the fault of
debtor, must be borne by creditor from the
moment of deposit
When Tender and Refusal Not Required [Art.

1256]
(1) Creditor is absent or unknown, or does not
appear at the place of payment.
(2) Creditor is incapacitated to receive the thing
due at the time of payment.
(3) Without just cause, creditor refuses to give
receipt.
(4) Two or more persons claim the same right
to collect.
(5) Title of the obligation has been lost.
Any increment or increase in the value of the

thing after consignation inures to the benefit of
the creditor
Effects of Withdrawal by Debtor [Arts. 1260- 1261]
Before approval of the court - Obligation
remains in force.
After approval of the court or acceptance by the
creditor, with the consent of the latter Obligation remains in force, but guarantors and
co-debtors are liberated. Preference of the
creditor over the thing is lost.
What Constitutes Valid Consignation

In order that the consignation of the thing due
may release the obligor, it must first be
announced to the persons interested in the
fulfilment of the obligation.
After approval of the court or acceptance by the

creditor, and without creditors consent Obligation subsists, without change in the
liability of guarantors and co-debtors, or the
creditors right of preference.
The consignation shall be ineffectual if it is not

made strictly in consonance with the provisions
which regulate payment. [Art. 1257]
LOSS OF THE THING DUE OR

IMPOSSIBILITY OR DIFFICULTY OF
PERFORMANCE
How Consignation is Made

Consignation shall be made by depositing the
things due at the disposal of judicial authority,
before whom the tender of payment shall be
proved, in a proper case, and the announcement
of the consignation in other cases.
Loss - A thing is lost when it perishes, goes out

of commerce or disappears in such a way that
its existence is unknown or it cannot be
recovered [Art. 1189 no. 2]
The consignation having been made, the

interested parties shall also be notified thereof.
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EFFECTS OF LOSS [ARTS. 1262-1263]

Obligation to Deliver a
Specific Thing
Extinguishment of the
obligation if the thing
was destroyed without
fault of the debtor and
before he has incurred
delay.
CIVIL LAW
Partial loss
Art. 1264: Partial loss due to a fortuitous event
does not extinguish the obligation; thing due
shall be delivered in its present condition,
without any liability on the part of the debtor,
UNLESS the obligation is extinguished when
the part lost was of such extent as to make the
thing useless.
Obligation to Deliver a
Generic Thing
Loss of a generic thing
does not extinguish an
obligation, EXCEPT in
case of delimited
generic things, where
the kind or class is
limited itself, and the
whole class perishes.
IMPOSSIBILITY OF PERFORMANCE [ARTS.

1266-1267]
When prestation becomes legally or physically
impossible (by fortuitous event or force
majeure), the debtor is released. Impossibility
must have occurred without fault of debtor, and
after the obligation has been constituted.
Action against third persons - creditor shall

have all the rights of action the debtor may have
against third persons by reason of the loss. [Art.
1269]
Subjective Impossibility
Where there is no physical or legal loss, but the
thing belongs to another, the performance by
the debtor becomes impossible. The debtor
must indemnify the creditor for damages.
OTHER CASES WHERE LOSS IS

ATTRIBUTED TO DEBTOR
(1) Law provides that the debtor shall be liable
even if the loss is due to fortuitous events
[Arts. 1942, 1979, 2147, 2159].
(2) Obligor is made liable by express stipulation.
(3) Nature of the obligation requires an
assumption of risk.
(4) Fault or negligence concurs with the
fortuitous event.
(5) Loss occurs after delay.
(6) Debtor has promised to deliver the same
thing to two or more different parties.
(7) Obligation arises from a criminal act.
(8) Borrower in commodatum: saves his own
things and not the thing of the creditor
during a fortuitous event.
Partial Impossibility
Courts shall determine whether it is so
important as to extinguish the obligation.
(1) If debtor has performed part of the
obligation when impossibility occurred,
creditor must pay the part done as long as
he benefits from it.
(2) If debtor received full payment from
creditor, he must return excess amount
corresponding to part which was impossible
to perform.
Doctrine of Unforeseen Events
When the service has become so difficult as to
be manifestly beyond the contemplation of all
the parties, the obligor may be released in
whole or in part. [De Leon]
Loss of the thing when in possession of the

debtor
Loss was due to the debtors fault. Burden of
explaining the loss of the thing falls upon him,
UNLESS due to a natural calamity: earthquake,
flood, storm, etc
Requisites:
(1) Event could not have been foreseen at the
time of the constitution of the contract.
(2) Event makes performance extremely
difficult but not impossible.
(3) Event is not due to any act of the parties.
(4) Contract is for future prestation.
In Reciprocal Obligations
Extinguishment of the obligation due to loss of
the thing or impossibility of performance affects
both the creditor and debtor; the entire juridical
relation is extinguished.
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CIVIL LAW
CONDONATION OR REMISSION OF
THE DEBT
debtor in the obligation/ in the part

affected.
REQUISITES
(1) Debt must be existing and demandable.
(2) Renunciation must be gratuitous; without
any consideration.
(3) Debtor must accept the remission. [Art.
1270]
EFFECTS [ARTS. 1275- 1277]

(1) The obligation is extinguished from the time
the characters of the debtor and creditor are
merged in the same person.
(2) In joint obligations, confusion does not
extinguish the obligation except as regards
the corresponding share of the creditor or
debtor in whom the two characters concur.
(3) In solidary obligations, confusion in one of
the solidary debtors extinguishes the entire
obligation.
An act of liberality, by virtue of which, without

receiving any equivalent, creditor renounces the
enforcement of the obligation. The obligation is
extinguished either in whole or in such part of
the same to which remission refers.
Obligation is not extinguished when confusion

takes place in the person of subsidiary debtor
(e.g. guarantor), but merger in the person of the
principal debtor shall benefit the former.
EFFECT
Renunciation of the principal debt shall
extinguish the accessory obligations, but
remission of the latter leaves the principal
obligation in force. [Art. 1273]
COMPENSATION
Compensation: Offsetting of two obligations

which are reciprocally extinguished if they are of
the same value, or extinguished to the
concurrent amount if of different values.
EXPRESS CONDONATION
Made formally; in accordance with forms of
ordinary donations. [Art. 1270]
REQUISITES [ART. 1279]

(1) Each obligor is bound principally, and at the
same time a principal creditor of the other
(2) Both debts must consist in a sum of money,
or if the things due are FUNGIBLE, of the
same kind & quality
(3) Both debts are due
(4) Debts are liquidated and demandable
(5) There must be no retention or controversy
over either of the debts, commenced by
third persons and communicated in due
time to the debtor
(6) Compensation is not prohibited by law
IMPLIED CONDONATION
(1) Whenever the private document in which
the debt is found is in the possession of the
debtor, it shall be presumed that the
creditor delivered it voluntarily, unless the
contrary is proved. [Art. 1272]
(2) Delivery of a private document evidencing
credit made voluntarily by the creditor to
the debtor implies the renunciation of the
action of creditor against the latter. [Art.
1272]
(3) Accessory obligation of pledge has been
remitted when thing after its delivery is
found in the possession of the debtor or
third person. [Art. 1274]
EFFECTS
(1) Both debts are extinguished to the
concurrent amount, even though the
creditors and debtors are not aware of the
compensation.
(2) Accessory obligations are also extinguished.
CONFUSION OR MERGER OF RIGHTS

Confusion: The meeting in one person of the
qualities of creditor and debtor of the same
obligation.
Effects rise from the moment all the requisites

concur.
REQUISITES
(1) It should take place between principal
debtor and creditor.
(2) It must be complete and definite Parties
must meet all the qualities of creditor and
Debtor claiming its benefits must prove

compensation; once proven, effects retroact
from the moment when the requisites
concurred.
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Compensation and Confusion Distinguished

Compensation
There are two persons

who are mutually
debtors and creditors
of each other in two
separate obligations,
each arising from the
same cause.
Art. 1283. If one of the parties to a suit over an

obligation has a claim for damages against the
other, the former may set it off by proving his
right to said damages and the amount thereof.
Confusion
There must always be Involves only

two obligations.
obligation.
CIVIL LAW
one
(4) Facultative Compensation - When it can be

claimed by one of the parties who, however,
has the right to object to it.
There is only one

person whom the
characters
of
the
creditor and debtor
meet.
Compensation which can only be set up at the

option of a creditor, when legal compensation
cannot take place because some legal requisites
in favor of the creditor are lacking. Creditor may
renounce his right to compensation, and he
himself may set it up. As opposed to
conventional
compensation,
facultative
compensation is unilateral and does not depend
upon the agreement of the parties.
KINDS OF COMPENSATION
As to extent
(1) Total when two debts are of the same
amount [Art. 1281]
(2) Partial
Obligations which cannot be compensated

[Arts. 1287-1288]
(1) Contracts of depositum
(2) Contracts of commodatum
(3) Future support due by gratuitous title
(4) Civil liability arising from a penal offense
(5) Obligations due to the government
(6) Damage caused to the partnership by a
partner
As to cause
(1) Legal
(2) Voluntary
(3) Judicial
(4) Facultative
KINDS:
(1) Legal Compensation takes place by
operation of law from the moment all
requisites are present.
Right of a Guarantor
A guarantor may set up compensation as
regards what the creditor may owe the principal
debtor. (Art. 1280)
Art. 1290. When all the requisites mentioned in

article 1279 are present, compensation takes
effect by operation of law, and extinguishes
both debts to the concurrent amount, even
though the creditors and debtors are not aware
of the compensation.
Effect of Assignment of Rights by the Creditor to

a Third Person [Art. 1285]
Debtor cannot set up against
assignee compensation pertaining
to him against assignor UNLESS
he reserved such right at the time
he gave his consent
With
Debtor may set up compensation
debtors
of debts previous to the
knowledge assignment but not of subsequent
but without ones
consent
Debtor may set up compensation
Without
of all credits prior and also later to
debtors
the assignment until he had
knowledge
knowledge of the assignment
With
debtors
consent
(2) Voluntary Compensation takes place when

parties who are mutually creditors and
debtors of each other agree to compensate
their respective obligations even though one
of the requisites of compensation may be
lacking
Art. 1282. The parties may agree upon the
compensation of debts which are not yet due.
(3) Judicial Compensation takes place by
judicial decree
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the novation OR those who may be affected,

upon agreement between the parties.
NOVATION
Extinguishment of an obligation by the
substitution or change of the obligation by a
subsequent one which extinguishes or modifies
the first either by changing the object or
principal conditions, or by substituting the
person of the debtor, or by subrogating a third
person in the rights of the creditor. A juridical
act of dual functionit extinguishes an
obligation, and at the same time, it creates a
new one in lieu of the old.
ORIGINAL OR NEW OBLIGATION WITH

SUSPENSIVE OR RESOLUTORY CONDITION
If original obligation was subject to a suspensive
or resolutory condition, the new obligation shall
be under the same condition, unless it is
otherwise stipulated. [Art. 1299]
Compatible Conditions
(a) Fulfillment of both
conditions:
new
obligation
becomes
demandable
(b) Fulfillment
of
condition concerning
the original obligation:
old
obligation
is
revived; new obligation
loses force
(c) Fulfillment
of
condition concerning
the new obligation: no
novation; requisite of a
previous valid and
effective
obligation
lacking
REQUISITES
(1) A previous valid obligation
(2) Agreement of all the parties to the new
obligation
(3) Animus novandi or intent to novate
(4) Substantial difference between old and new
obligations
and,
consequently,
extinguishment of the old obligation
(5) Validity of the new obligation
EFFECT
In General
If Original
Obligation
is Void
If New
Obligation
is Void
CIVIL LAW
Old obligation is extinguished and

replaced by the new one
stipulated.
Novation is void if the original
obligation was void, except when
annulment may be claimed only
by the debtor, or when ratification
validates acts that are voidable
[Art. 1298]
(1) Original obligation is void: No
novation
(2) Original obligation voidable:
Effective if contract is ratified
before novation.
New obligation is void, the old
obligation subsists, unless the
parties intended that the former
relations shall be extinguished in
any event [Art. 1297]
(1) New obligation void: No
novation
(2) New obligation voidable:
Novation is effective
Incompatible
Conditions
(a) Original
obligation
is
extinguished,
while
new
obligation
exists
(b) Demandability
shall be subject
to fulfillment/
nonfulfillment
of the condition
affecting it
KINDS OF NOVATION
As to form
(1) Express declared in an unequivocal terms
(2) Implied the old and new obligations are on
every point incompatible with each other
Novation is not presumed
In the absence of an unequivocal declaration of
extinguishment of the pre-existing obligation,
only proof of incompatibility between the old
and new obligation would warrant a novation by
implication. [California Bus Line vs. State
Investment (2003)]
Test of Incompatibility
Whether or not the old and new obligation can
stand together, each one having an
independent existence. No incompatibility exists
when they can stand together. Hence, there is
no novation. Incompatibility exists when they
cannot stand together. Hence, there is novation.
Accessory obligations are also extinguished, but

may subsist only insofar as they may benefit
third persons who did not give their consent to
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As to effect
(1) Total
(2) Partial
Total
(1) Transfers to the
person subrogated
the credit with all
the rights thereto
appertaining, either
against the debtor
or third persons.
(2) Obligation is not
extinguished, even
if the intention is to
pay it.
(3) Defenses against
the old creditor are
retained,
unless
waived by the
debtor.
CIVIL LAW
Expromision
Delegacion
Requisites
(1) Consent of the Consent of old debtor,
creditor and the new new
debtor,
and
debtor
creditor
(2) Knowledge
or
consent of the old
debtor
is
not
required
Effects
(1) Old
debtor
is (1) Insolvency of the
released
new debtor revives
(2) Insolvency of the
the obligation of
new debtor does
the old debtor if it
not revive the old
was anterior and
obligation in case
public, and known
the old debtor did
to the old debtor.
not
agree
to (2) New debtor can
expromision
demand
(3) If with knowledge
reimbursement of
and consent of old
the entire amount
debtor, new debtor
he has paid from
can
demand
the original debtor.
reimbursement of
He may compel
the entire amount
creditor
to
paid and with
subrogate him to
subrogation
of
all of his rights.
creditors rights.
(4) If
without
knowledge of the
old debtor, new
debtor can demand
reimbursement
only up to the
extent that the
latter has been
benefited without
subrogation
of
creditors rights.
Partial
A creditor, to whom
partial payment has
been
made, may
exercise his right for
the remainder, and
shall be preferred to
the person subrogated
in his place in virtue of
the partial payment.
As to Essence
(1) Objective/ Real
(2) Subjective/ Personal
(a) Substitution of debtors
(i) Expromision
(ii) Delegacion
(b) Subrogation of a third person to the
rights of the creditor
(i) Conventional
(ii) Legal
OBJECTIVE NOVATION
(1) Change of the subject matter
(2) Change of cause or consideration
(3) Change of the principal conditions or terms
SUBJECTIVE NOVATION
Substitution of Debtors
Expromision
Delegacion
Initiative for change Debtor
(delegante)
does not emanate from offers or initiates the
the debtor, and may change,
and
the
even be made without creditor (delegatorio)
his knowledge.
accepts a third person
(delegado)
as
consenting
to
the
substitution.
Subrogation
Transfers to the person subrogated the credit
with all the rights thereto appertaining, either
against the debtor or against third persons, be
they guarantors or possessors of mortgages,
subject to stipulation in a conventional
subrogation. [Art. 1303]
Conventional Subrogation takes place by
agreement of parties
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Conventional
subrogation
Debtors consent is
necessary.
Extinguishes
an
obligation and gives
rise to a new one.
CIVIL LAW
Contracts
Assignment of credit
Debtors consent is not

required.
Refers to the same
right which passes
from one person to
another,
without
modifying
or
extinguishing
the
obligation.
Defects/vices in the Defects/vices in the
old obligation are old obligation are not
cured.
cured.
A contract is a meeting of the minds between

two persons whereby one binds himself, with
respect to the other, to give something or to
render some service. [Art. 1305]
Legal Subrogation takes place by operation of

law
Mutuality
Autonomy
Art. 1306. The contracting parties may establish
such stipulations, clauses, terms and conditions
as they may deem convenient, provided they are
not contrary to law, morals, good customs,
public order, or public policy.
Art. 1308. The contract must bind both

contracting parties; its validity or compliance
cannot be left to the will of one of them.
Legal subrogation is not presumed, except in

the following circumstances:
(1) When creditor pays another creditor who is
preferred, even without the debtors
knowledge
(2) When a third person not interested in the
obligation pays with the express or tacit
approval of the debtor
(3) When, even without the knowledge of the
debtor, a person interested in the fulfillment
of the obligation pays, without prejudice to
the effects of confusion as to the latters
share [Art. 1302]
Relativity
Art. 1311, par 1. Contracts take effect only
between the parties, their assigns and heirs,
except in case where the rights and obligations
arising from the contract are not transmissible
by their nature, or by stipulation or by provision
of law. The heir is not liable beyond the value of
the property he received from the decedent.
ESTOPPEL
Estoppel is effective only as between the parties

thereto or their successors in interest. [Art. 1439]
There is no contract unless the following

requisites concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of
the contract;
(3) Cause of the obligation which is
established.
ELEMENTS OF ESTOPPEL
CONSENT
An admission or representation is rendered

conclusive upon the person making it, and
cannot be denied or disproved as against the
person relying thereon. [Art. 1431]
The meeting of the minds of the parties on the

subject matter and cause of the contract.
(1)
A person makes an admission or

representation to another
(2) There is reliance by the other on such
admission or representation
(3) The other person acts upon such admission
or representation
Requisites:
(1) It must be manifested by the concurrence of
the offer and acceptance [Arts. 1319-1326].
(2) The contracting parties must possess the
necessary legal capacity [Arts. 1327-1329].
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(3) It must be intelligent, free, spontaneous,

and real (not vitiated) [Arts. 1330-1346]
CIVIL LAW
ACCEPTANCE
Requisites of acceptance:
(1) Unqualified and unconditional, i.e. it must
conform with all the terms of the offer,
otherwise it is a counter-offer [Art. 1319]
(2) Communicated to the offeror and learned by
him [Arts. 1319, 1322]. If made through an
agent, the offer is accepted from the time
the acceptance is communicated to such
agent.
(3) Express/implied, but is not presumed.
OFFER
A unilateral proposition which one party makes
to the other for the celebration of the contract
[Tolentino]
Requisites of an offer:
(1) Definite
(2) Intentional
(3) Complete
General rule: Contracts are perfected by mere

consent and from that moment the parties are
bound not only to the fulfillment of what has
been expressly stipulated but also to all the
consequences which, according to their nature,
may be in keeping with good faith, usage and
law. [Art. 1315]
Invitation to make offers (advertisements)

(1) Business advertisements of things for sale
are NOT definite offers, just invitations to
make an offer, UNLESS the contrary
appears. [Art. 1325]
(2) Advertisements for bidders are invitations to
make proposals, the advertiser is NOT
bound to accept the lowest or highest bid;
UNLESS the contrary appears. The bidder is
the offeror. [Art. 1326]
(3) Statements of intention: no contract results
even if accepted.
Exceptions:
(1) Real contracts, such as deposit, pledge and
commodatum, are not perfected until the
delivery of the object of the obligation [Art.
1316]
(2) Formal contracts, where the law requires
that a contract be in some form or be
proved in a certain way [Art. 1356]
In a letter informing another that the sender

was in a position and is willing to entertain the
purchase of a yacht under some terms, the word
entertain applied to an act does not mean the
resolution to perform said act, but simply a
position to deliberate for deciding to perform or
not to perform said act. It was merely a position
to deliberate whether or not he would purchase
the yacht and invitation to a proposal being
made to him, which might be accepted by him
or not. [Rosentstock vs. Burke (1924)]
OPTION CONTRACT
A preparatory contract in which one party
grants to the other, for a fixed period, the option
to decide whether or not to enter into a principal
contract [Art. 1324]
With consideration
Without consideration
Offeror
cannot Offeror may withdraw
unilaterally withdraw by
communicating
his offer.
withdrawal
to the
offeree
before
acceptance.
Offer terminates upon

(1) Rejection by the offeree
(2) Incapacity (death, civil interdiction, insanity,
or insolvency) of the offeror or offeree before
acceptance is conveyed
(3) Counter-offer
(4) Lapse of the time stated in the offer without
acceptance being conveyed
(5) Revocation of the offer before learning of
acceptance
(6) Supervening illegality before acceptance
[J.B.L. Reyes]
CAPACITY TO CONTRACT
Persons incapacitated to give consent (Art. 1327)
(1) Minors, except
(a) For necessaries [Art.1427]
(b) Estoppel where the minor actively
misrepresents his age
Minors held in estoppel through active
misrepresentation. [Mercado v. Espiritu (1917)]
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There is no estoppel if the minority was known

by the other party. [Bambalan v. Maramba
(1928)]
(2) Insane or demented persons, UNLESS they
contract during a lucid interval. [Art. 1328]
(3) Deaf-mutes who do not know how to read
AND write.
Persons disqualified to contract
(1) Those under civil interdiction for
transactions inter vivos [Art. 34, RPC].
(2) Undischarged insolvents [Insolvency Law,
Sec. 24].
(3) Husband and wife cannot donate to each
other [Art. 123, FC], nor sell if the marriage is
under ACP [Art.1490].
(4) The ff. cannot purchase [Art. 1491]:
(a) The guardian: his wards property
(b) The agent: the principals property
(c) Executors and administrators: property
under administration
(d) Public officers-state: property under
their administration
(e) Justices, judges, prosecutors, clerks of
court, lawyers: property attached in
litigation.
CIVIL LAW
Mistake of Fact
Mistake of Law
When one or
both
contracting
parties believe
that a fact
exists when in
reality it does
not, or vice
versa.
When one or
both parties
arrive at an
erroneous
conclusion on
the
interpretation
of a question
of law or its
legal effects.
Mutual
Mistake
(1) Must be as
to
the
legal
effect of
an
agreement
(2) Must be
mutual
(3) Real
purpose of
the parties
must have
been
frustrated
Intimidation When one of the contracting

parties is compelled by a reasonable and wellgrounded fear of an imminent and grave evil
upon his person or property, or upon the person
or property of his spouse, descendants or
ascendants, to give his consent.
To determine the degree of intimidation, the
age, sex and condition of the person shall be
borne in mind. [Art. 1335]
VICES OF CONSENT
A contract where consent is given through
(1) Mistake
(2) Violence
(3) Intimidation
(4) Undue influence
(5) Fraud is voidable. [Art. 1330]
The conveyance of several properties by the wife

to her husbands creditors, though reluctant, is
still consent. She assented to the requirements
of the defendants in order that the civil and
criminal actions against them would be
dropped. A contract is valid even though one of
the parties entered into it against his wishes and
desires, or even against his better judgment.
[Martinez v. HSBC]
Mistake - Inadvertent and excusable disregard

of a circumstance material to the contract [J.B.L.
Reyes]
Violence Serious or irresistible force used to

extort consent [Art. 1335]
In order that mistake may invalidate consent, it

should refer to the substance of the thing which
is the object of the contract, or to those
conditions which have principally moved one or
both parties to enter into the contract. [Art. 1331]
Undue Influence When a person takes

improper advantage of his power over the will of
another, depriving the latter of a reasonable
freedom of choice.
Mistake which vitiates consent is an error of fact,

and not an error of law. Ignorance of the law
excuses no one from compliance therewith [Art.
3]; but the modern tendency is to allow an
excusable mistake of law to be invoked as
vitiating consent. [Tolentino]
Circumstances to consider:
(1) Relationship of the parties (family, spiritual,
confidential etc.)
(2) That the person unduly influenced was
suffering from infirmity (mental weakness,
ignorance etc.) [Art.1337]
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Fraud When, through insidious words or

machinations of one of the contracting parties,
the other is induced to enter into a contract
which, without them, he would not have agreed
to. [Art. 1338]
Stipulations must not be contrary to Mandatory

And Prohibitive Laws.
(1) Pactum commissorium [Arts. 2088, 2130,
1390]
A stipulation in a contract of mortgage or
pledge which provides that the mortgagee
will automatically own the property
mortgaged in case the mortgagor fails to
pay the loan is void [Art. 2088]
In order that fraud may make a contract

voidable, it should be serious and should not
have been employed by both contracting
parties. [Art. 1344]
(2) Pactum de non alienando [Art. 2130]

A stipulation forbidding the owner from
alienating the immovable mortgaged shall
be void [Art.2130].
Art. 1339. Failure to disclose facts, when there is

a duty to reveal them, as when the parties are
bound by confidential relations, constitutes
fraud.
(3) Pactum leonina [Art. 1799]

A stipulation which excludes one or more
partners from any share in the profits or
losses is void [Art.1799]
Art. 1340. The usual exaggerations in trade,

when the other party had an opportunity to
know the facts, are not in themselves
fraudulent.
OBJECT OF CONTRACTS
The subject matter; the thing, right or service

which is the subject matter of the obligation
arising from the contract. [Tolentino]
Art. 1341. A mere expression of an opinion does

not signify fraud, unless made by an expert and
the other party has relied on the former's special
knowledge.
Requisites:
(1) Must be within the commerce of men [Art.
1347]
(2) Must not be impossible, legally or physically
[Art.1348]
(3) For things as object of contract, must be in
existence or capable of coming into
existence [See Arts. 1461, 1493, 1495]
(4) Must be determinate or determinable,
without the need of a new contract between
the parties [Arts. 1349, 1460, par.2]
Art. 1342. Misrepresentation by a third person

does not vitiate consent, unless such
misrepresentation has created substantial
mistake and the same is mutual.
Art. 1343. Misrepresentation made in good faith
is not fraudulent but may constitute error.
Simulation of Contracts
Takes place when the parties do not really want
the contract they have executed to produce the
legal effects expressed by its wordings. It may
be absolute or relative [Arts. 1345-1346]
Absolute Simulation
Relative Simulation
No real transaction
is intended.
Fictitious contract.
Void.
Real
transaction
is
hidden.
Disguised contract.
Bound as to hidden
agreement, so long as it
does not prejudice a
third person and is not
contrary to law, morals,
good customs, public
order or public policy.
CIVIL LAW
General rule: All things or services may be the

object of contracts.
Exceptions:
(1) Things which are outside the commerce of
men
(2) Intransmissible rights
(3) Future inheritance except in cases
authorized by law
(4) Impossible things or services
(5) Objects which are indeterminable as to their
kind, the genus should be expressed
In order that a thing, right, or service, may be
the object of a contract, it should be in existence
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at the moment of the celebration of the

contract, or at least, it can exist subsequently or
in the future.
Moral Obligation as a Cause

In Villaroel v. Estrada (1940), where a moral
obligation is based upon a previous civil
obligation, which has already been barred by
the statute of limitations at the time the
contract is entered into, it constitutes a
sufficient cause or consideration to support a
contract (natural obligation).
A future thing may be the object of a contract,

such contract may be interpreted as a:
(1) Conditional contract, where its efficacy
should depend upon the future existence of
the thing.
(2) Aleatory contract, where one of the
contracting parties assumes the risk that
the thing will never come into existence, e.g.
insurance.
In Fisher v. Robb (1939), if the moral obligation

arises wholly from ethical consideration, it
cannot constitute a sufficient cause to support
an onerous contract, as when the promise is
made on the erroneous belief that one was
morally responsible for the failure of an
enterprise (moral obligation).
CAUSE OF CONTRACTS
The essential and impelling reason why a party
assumes an obligation [Manresa]. Motive, on the
other hand, is the particular reason for a
contracting party which does not affect the
other.
Effect of Lack of Cause, Unlawful Cause, False

Cause and Lesion [Arts. 1352 1355]
Cause
Effect
Lack of Cause If there is no cause
absence or total whatsoever, contract is VOID;
lack of cause
a fictitious sale is VOID.
NOTE: Cause must exist at
the time of the perfection of
the contract; it need not exist
later.
Contrary to law, If
cause
is
unlawful,
morals,
good transaction is VOID.
customs, public
policy
and If parts of a contract are
public
order illegal but the rest are
(unlawful
supported by lawful cause,
cause)
claimant of such has the
burden of showing proof;
otherwise, the whole contract
is VOID.
REQUISITES
(1) Must exist at the time of the contract is
entered into [Arts. 1352, 1409, par. 3]
(2) Must be lawful (ibid).
(3) Must be true or real [Art.1353]
Distinguished from Motive
Cause
Proximate reason for
contract
Objective or juridical
reason
Always the same for
each contracting party
Illegality
affects
existence or validity of
the contract
Motive
Remote reason for the
contract
Psychological
and
purely personal reason
Differs
for
each
contracting party
Illegality does not
affect existence or
validity of contract
Contract with illegal cause

may still produce effect in
certain cases where parties
are not of equal guilt: (1)
innocent party cant be
compelled to perform his
obligation and he may
recover what has already
been given; (2) if both parties
are guilty, neither can sue
the other, the law leaving
them as they are (in pari
delicto).
Cause in contracts [Art. 1350]

Onerous
Remuneratory
Contracts
Contracts
The
The service or
undertaking
benefit which is
or
the remunerated
promise
of
the thing or
service by the
other party
CIVIL LAW
Pure
Beneficence
Mere
liberality of
the
benefactor
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Cause
Effect
Falsity of cause Contract with a false cause is
cause
is merely revocable/voidable.
stated but is
untrue
Parties are given a chance to
show that a cause really
exists, and that said cause is
true and lawful.
Lesion
or
inadequacy of
cause cause is
not
proportionate to
object
CIVIL LAW
(2) Partnerships where real property is

contributed [Art. 1771]
(3) Acts and contracts which have for their
object the creation, transmission,
modification or extinguishment of real
rights over immovable property;
(4) The cession, repudiation or renunciation of
hereditary rights or of those of the conjugal
partnership of gains;
(5) The power to administer property, or any
other power which has for its object an act
appearing or which should appear in a
public document, or should prejudice a third
person;
(6) The cession of actions or rights proceeding
from an act appearing in a public
document.
(7) All other contracts where the amount
involved exceeds five hundred pesos [Art.
1358]
Inadequacy of cause shall

not invalidate the contract
except when: (1) there is
fraud,
mistake,
undue
influence (2) when parties
intended a donation
FORM OF CONTRACTS
General rule: Contracts shall be obligatory, in
whatever form they may have been entered into,
provided all the essential requisites for their
validity are present.
Article 1358, which requires the embodiment of

certain contracts in a public instrument, is only
for convenience, and registration of the
instrument only adversely affects third parties.
[Fule vs. CA (1998)]
Exception: When the law requires that a

contract be in some form in order that it may be
valid or enforceable, or that a contract be
proved in a certain way [Art. 1356]
When Form is Important
(1) For Validity e.g. for formal or solemn
contracts
(2) For Enforceability e.g. for agreements
enumerated under the Statute of Frauds
[Art.1403]
(3) For Convenience e.g. for contracts
enumerated in Art. 1385
Art. 1357. If the law requires a document or

other special form, as in the acts and contracts
enumerated in the following article, the
contracting parties may compel each other to
observe that form, once the contract has been
perfected. This right may be exercised
simultaneously with the action upon the
contract.
Contracts Which Must Appear In Writing

(1) Donation of personal property where value
exceeds P5,000 [Art. 748]
(2) Authority of agent to sell a piece of land or
any interest therein [Art. 1874]
(3) Agreement to pay interest in a contract of
loan [Art. 1956]
(4) Antichresis [Art. 2134]
(5) Stipulation limiting common carriers
liability [Art. 1744]
This article applies only when form is needed for

convenience, not for validity or enforceability.
Thus, before the contracting parties may be
compelled to execute the needed form, it is
essential that the contract be:
(1) perfected or valid [Art.1357]
(2) enforceable under the Statute of Frauds
[Art.1356]
KINDS OF CONTRACTS
Consensual Contracts which are perfected by
mere consent of the parties regarding the
subject matter and the cause of the contract
[Art.1315]
Contracts Which Must Appear In a Public

Instrument
(1) Donations of immovable property [Art. 749]
PAGE 196
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Real Contracts which are perfected not merely

by consent but by delivery, actual or
constructive, of the object of the obligation
[Art.1316]. Example: contract of pledge,
commodatum, mutuum.
REFORMATION OF
INSTRUMENTS
Remedy by means of which a written instrument

is made or construed so as to express or
conform to the true intention of the parties
when some mistake, fraud or error has been
committed.
Formal or Solemn Contracts for which a

special form is necessary for its perfection [Art.
1356]
Formal/Solemn
Contract
(1) Donations of real
property
(2) Donations
of
personal property
(3) Partnerships
where
real
property
contributed
(4) Contracts
antichresis
of
(5) Agency to sell real

property or any
interest therein
(6) Stipulation to pay
interest on loans,
interest for the use
of money
(7) Stipulation
limiting common
carriers duty of
extraordinary
diligence
to
ordinary diligence
CIVIL LAW
REQUISITES
(1) Meeting of the minds of the parties
(2) There is a written instrument which,
however, does not express their true
intention
(3) By reason of mistake, fraud, inequitable
conduct or accident [Art. 1359]
Special Form Required by

Law
Must be in a public
instrument [Art.749]
Must be in a written
contract if the donation
exceeds P500 [Art. 748]
Must be in public
instrument; otherwise
the
contract
of
partnership
is
void
[Art.1771, 1773]
The principal loan and
the interest, if any, must
be specified in writing;
otherwise, the contract
of antichresis is void [Art.
2134]
Authority of the agent
must be in writing;
otherwise, the sale is
null and void [Art.1874]
Must be expressly made
in writing [Art.1956]
WHEN REFORMATION IS PROPER

(1) Mutual mistake of parties caused the failure
of the instrument to disclose their real
agreement [Art.1361]
(2) If one party is mistaken and the other acted
fraudulently or inequitably [Art. 1362]
(3) When one party was mistaken and the other
knew but concealed the fact from the
former [Art. 1363]
(4) When the failure to express the real
agreement was due to the ignorance, lack of
skill, negligence or bad faith of the person
drafting the instrument or of the clerk or
typist [Art. 1364]
(5) When a mortgage or pledge of real property
was agreed upon but the instrument only
states a sale [Art. 1365]
WHEN REFORMATION IS NOT PROPER
(1) Simple donations inter vivos wherein no
condition is imposed
(2) Wills
(3) When the real agreement is void
(4) When one of the parties has brought an
action to enforce the instrument, he cannot
subsequently ask for its reformation
Must be (1) in writing,

signed by the shipper or
owner; (2) supported by
a
valuable
consideration; and (3)
reasonable, just and not
contrary to public policy.
(8) Chattel mortgage Must be recorded in the
Chattel
Mortgage
Register [Art. 2140]
(9) Transfer of large Requires transfer of the
cattle
certificate of registration
[Rev. Adm. Code, Sec.
523]
RESCISSIBLE CONTRACTS
Contracts which are valid until rescinded. All
essential requisites of a contract exist but there
is injury or damage to one of the parties or to
third persons external or extrinsic defect
consisting of an economic damage or lesion.
[Paras]
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CIVIL LAW
Distinguished from Rescission/Resolution under

Art. 1191 [Congregation of the Religious Virgin
Mary vs. Orola (2008)]
Rescission or
Rescission by reason of
Resolution [Art. 1191]
lesion[Art. 1381]
Applies
only
to Does not apply to
reciprocal
reciprocal obligation,
obligations, such that and therefore, action is
a partys breach not based on a breach
thereof partakes of a of an obligation.
tacit
resolutory
condition
which
entitles the injured
party to rescission.
Predicated on breach Predicated on injury to
of faith.
economic interests of
the
party
plaintiff/lesion.
Principal action that Subsidiary action.
is
retaliatory
in
character.
The reparation of The cause of action is
damages for the subordinated to the
breach is purely existence
of
an
secondary.
economic
prejudice.
Hence,
where
the
defendant makes good
the damages caused,
the action cannot be
maintained
or
continued.
Art. 1381. The following contracts are rescissible:

(1)
Those which are entered into by
guardians whenever the wards whom they
represent suffer lesion by more than one-fourth
of the value of the things which are the object
thereof;
(2)
Those agreed upon in representation of
absentees, if the latter suffer the lesion stated in
the preceding number;
(3)
Those undertaken in fraud of creditors
when the latter cannot in any other manner
collect the claims due them;
(4)
Those which refer to things under
litigation if they have been entered into by the
defendant without the knowledge and approval
of the litigants or of competent judicial
authority;
(5)
All other contracts specially declared by
law to be subject to rescission.
Art. 1382. Payments made in a state of
insolvency for obligations to whose fulfillment
the debtor could not be compelled at the time
they were effected, are also rescissible.
Rescission Process designated to render
inefficacious a contract validly entered into and
normally binding, by reason of external
conditions, causing an economic prejudice to a
party or to his creditors [Scaevola].
Remedy granted by law to the contracting
parties and to third persons in order to secure
reparation for damages caused them by a
contract, even if the contract is valid, by means
of the restoration of things to their condition
prior to the celebration of said contract
[Manresa]
Effects of Rescission
It creates an obligation to return the things
which were the object of the contract, together
with their fruits, and the price with its interests.
However, if the object of the contract is in the
possession of third persons in good faith,
rescission cannot take place and indemnity for
damages may be demanded from the person
causing the loss [Art. 1385]
Relief to protect one of the parties or a third

person from all injury and damages which the
contract may cause, to protect some
preferential right [Aquino v. Taedo (1919)]
Prescription of the Action to Claim Rescission

The action to claim rescission must be
commenced within four years.
For persons under guardianship and for
absentees, the period of four years shall not
begin until the termination of the former's
incapacity, or until the domicile of the latter is
known. [Art. 1389]
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CIVIL LAW
Effect of Ratification
It cleanses the contract from all its defects from
the moment it was constituted [Art. 1396]
VOIDABLE CONTRACTS
Contracts which are valid until annulled, unless
ratified. Defect is more or less intrinsic, as in the
case of vitiated consent [Paras]
Effects of Annulment
The contracting parties shall restore to each
other the things which have been the subject
matter of the contract, with their fruits, and the
price with its interest, except in cases provided
by law. [Art. 1398]
Art. 1390. The following contracts are voidable

or annullable, even though there may have been
no damage to the contracting parties:
(1) Those where one of the parties is incapable
of giving consent to a contract;
(2) Those where the consent is vitiated by
mistake, violence, intimidation, undue
influence or fraud.
When the defect of the contract consists in the

incapacity of one of the parties, the
incapacitated person is not obliged to make any
restitution except insofar as he has been
benefited by the thing or price received by him
[Art. 1399]
These contracts are binding, unless they are

annulled by a proper action in court. They are
susceptible of ratification.
UNENFORCEABLE CONTRACTS
THREE
WAYS
OR
MODES
OF
CONVALIDATING A VOIDABLE CONTRACT
[JURADO]
(1) By prescription of the action for annulment
[Art.1391]
(2) By ratification or confirmation [Art. 13921396]
(3) By loss of the thing which is the object of
the contract through the fraud or fault of
the person who is entitled to institute the
action for the annulment [Art.1401]
Contracts which cannot be sued upon or

enforced, unless ratified. Intermediate ground
between voidable and void contracts [Paras]
Those that cannot be enforced in court or sued
upon by reason of certain defects provided by
law until and unless they are ratified according
to law [De Leon]
Art. 1403. The following contracts are
unenforceable, unless they are ratified:
(1) Those entered into in the name of another
person by one who has been given no
authority or legal representation, or who has
acted beyond his powers;
(2) Those that do not comply with the Statute of
Frauds as set forth in this number. In the
following cases an agreement hereafter
made shall be unenforceable by action,
unless the same, or some note or
memorandum, thereof, be in writing, and
subscribed by the party charged, or by his
agent; evidence, therefore, of the agreement
cannot be received without the writing, or a
secondary evidence of its contents:
(a) An agreement that by its terms is not to
be performed within a year from the
making thereof;
(b) A special promise to answer for the debt,
default, or miscarriage of another;
(c) An agreement made in consideration of
marriage, other than a mutual promise to
marry;
PRESCRIPTION OF THE ACTION FOR

ANNULMENT
The action for annulment shall be brought
within four years
(1) From the time the defect of the content
ceases, in cases of intimidation, violence or
undue influence
(2) From the time of discovery of the fraud or
mistake
(3) From the time guardianship ceases, in
actions referring to contracts entered into by
minors or incapacitated persons
RATIFICATION
(1) Express or
(2) Tacit When the person who has the right to
invoke it, with the knowledge of the reason
which renders the contract voidable and such
reason having ceased, executes an act
implying an intention to waive his right [Art.
1393]
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(d) An agreement for the sale of goods,

chattels or things in action, at a price not
less than five hundred pesos, unless the
buyer accept and receive part of such
goods and chattels, or the evidences, or
some of them, of such things in action or
pay at the time some part of the purchase
money; but when a sale is made by
auction and entry is made by the
auctioneer in his sales book, at the time of
the sale, of the amount and kind of
property sold, terms of sale, price, names
of the purchasers and person on whose
account the sale is made, it is a sufficient
memorandum;
(e) An agreement for the leasing for a longer
period than one year, or for the sale of
real property or of an interest therein;
(f) A representation as to the credit of a third
person.
(3) Those where both parties are incapable of
giving consent to a contract.
KINDS OF UNENFORCEABLE
CONTRACTS
(1) Unauthorized contracts those entered into

by one who has no authority or legal
representation or who has acted beyond his
powers [Art.1403, par.1]
(2) Those which did not comply with the Statute
of Frauds [Art.1403, par.2]
(3) Those where both parties are incapable of
giving consent to a contract [Art.1403, par.3]
GENERAL RULES OF APPLICATION

OF STATUTE OF FRAUDS
(1) The Statute of Frauds is a Rule of Exclusion,

i.e. oral evidence might be relevant to the
agreements enumerated therein and might
therefore be admissible were it not for the
fact that the law excludes said oral
evidence.
(2) The defense of the Statute of Frauds may be
waived [Art.1405]
(3) Applies only to executory contracts, not
partially
or
completely
executed
(consummated) contracts.
(4) The Statute of Frauds cannot apply if the
action is neither for damages because of the
violation of an agreement nor for the
PAGE 200
CIVIL LAW
specific performance of said agreement

[Lim vs. Lim, 10 Phil 635]
(5) The Statute of Frauds is exclusive, that is, it
applies only to the agreements or contracts
enumerated therein [See Quintos v. Morata
(1930)]
(6) The Statute of Frauds is a personal
defense, that is, a contract infringing it
cannot be assailed by third persons
[Art.1408]
(7) Contracts infringing the Statute of Frauds
are not void, they are merely unenforceable
[Art.1403]
(8) The Statute of Frauds does not determine
the credibility or weight of evidence. It
merely
concerns
itself
with
the
admissibility thereof.
(9) The Statute of Frauds does not apply if it is
claimed that the contract does not express
the true agreement of the parties. As long
as the true or real agreement is not
covered by the Statute of Frauds, it is
provable by oral evidence [Cayuga v.
Santos]
VOID OR INEXISTENT
CONTRACTS
Contracts which have no effect at all and cannot

be ratified or validated [Paras]
Those which, because of certain defects,
generally produce no effect at all. They are
considered as inexistent from its inception or
from the very beginning [De Leon]
Art. 1409. The following contracts are inexistent
and void from the beginning:
(1) Those whose cause, object or purpose is
contrary to law, morals, good customs,
public order or public policy;
(2) Those which are absolutely simulated or
fictitious;
(3) Those whose cause or object did not exist at
the time of the transaction;
(4) Those whose object is outside the commerce
of men;
(5) Those which contemplate an impossible
service;
(6) Those where the intention of the parties
relative to the principal object of the contract
cannot be ascertained;
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(7) Those expressly prohibited or declared void

by law.
These contracts cannot be ratified. Neither can
the right to set up the defense of illegality be
waived.
SPECIAL
CLASSIFICATION
OF
VOID
CONTRACTS [PARAS]
(1) Inexistent Contracts: like those where
essential formalities are not complied with.
This produces no effect whatsoever.
Example: A donation of land in a private
instrument
(2) Illegal Or Illicit Contracts: In some way, the
donation produces some effect in that that
he who gave the donation cannot get back
what he has given.
Example: A donation made because of an
immoral condition, such as illicit sexual
intercourse
Non-Existing Cause or Object [Paras] Paragraph
3 speaks of contracts whose object or cause did
not exist at the time of the transaction. This is
not exactly correct because there can be valid
contracts involving future property; example,
sale of future or after-acquired property. Thus,
Mr. Justice J. B. L. Reyes notes: Did not exist at
the time of the transaction should be Could
not come into existence because the object may
legally be a future thing.
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CIVIL LAW
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Rescissible
Damage to a party or to a
third person.
Valid until rescinded.

Arts. 1381 1382
(1) Those
which
are
entered
into
by
guardians
whenever
the wards whom they
represent suffer lesion
by more than onefourth of the value of
the things which are
the object thereof;
(2) Those agreed upon in
representation
of
absentees, if the latter
suffer the lesion stated
in
the
preceding
number;
(3) Those undertaken in
fraud of creditors when
the latter cannot in any
other manner collect
the claims due them;
(4) Those which refer to
things under litigation
if they have been
entered into by the
defendant without the
knowledge
and
approval
of
the
litigants
or
of
competent
judicial
authority;
(5) All other contracts
specially declared by
law to be subject to
rescission.
(6) Payments made in a
state of insolvency for
obligations to whose
fulfillment the debtor
could
not
be
compelled at the time
they were effected, are
also rescissible.
Voidable
Unenforceable
Defect
Vitiation of consent
Without or in excess of
authority,
or
doesnt
comply with Statute of
Fraud, or both parties are
incapacitated.
Effect
Valid until annulled.
Cannot be enforced by
court action.
Grounds
Art. 1390
Art. 1403
(1) Those where one of the (1) Those entered into in
parties is incapable of
the name of another
giving consent to a
person by one who has
contract;
been given no authority
or legal representation,
(2)Those
where
the
or who has acted
consent is vitiated by
beyond his powers;
mistake,
violence,
intimidation,
undue (2) Those that do not
influence or fraud.
comply
with
the
Statute of Frauds as set
forth in this number. In
the following cases an
agreement hereafter
made
shall
be
unenforceable
by
action, unless the
same, or some note or
memorandum, thereof,
be in writing, and
subscribed by the party
charged, or by his
agent;
evidence,
therefore,
of
the
agreement cannot be
received without the
writing, or a secondary
evidence
of
its
contents:
(a) An agreement that by
its terms is not to be
performed within a
year from the making
thereof;
(b) A special promise to
answer for the debt,
default, or miscarriage
of another;
(c) An agreement made in
consideration
of
marriage, other than a
mutual promise to
marry;
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CIVIL LAW
Void
Absolute lack of essential
requisite in fact or in law.
Does not produce any

effect.
Art. 1409
(1) Those whose cause,
object or purpose is
contrary
to
law,
morals, good customs,
public order or public
policy;
(2) Those
which
are
absolutely simulated
or fictitious;
(3) Those whose cause or
object did not exist at
the time of the
transaction;
(4) Those whose object is
outside the commerce
of men;
(5) Those
which
contemplate
an
impossible service;
(6) Those
where
the
intention of the parties
relative to the principal
object of the contract
cannot be ascertained;
(7) Those
expressly
prohibited or declared
void by law.
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Rescissible
Voidable
Unenforceable
(d) An agreement for the
sale of goods, chattels
or things in action, at
a price not less than
five hundred pesos,
unless the buyer
accept and receive
part of such goods
and chattels, or the
evidences, or some of
them, of such things
in action or pay at the
time some part of the
purchase money; but
when a sale is made
by auction and entry is
made
by
the
auctioneer in his sales
book, at the time of
the sale, of the
amount and kind of
property sold, terms
of sale, price, names
of the purchasers and
person on whose
account the sale is
made, it is a sufficient
memorandum;
CIVIL LAW
Void
(e) An agreement for the

leasing for a longer
period than one year,
or for the sale of real
property or of an
interest therein;
(f) A representation as to
the credit of a third
person.
Necessary.
Cant be ratified.
Prescriptible.
Assailable by a party or by a third
party who is damaged.
(3) Those where both

parties are incapable
of giving consent to a
contract.
Necessity of Damage
Not necessary.
Ratification
May be ratified.
Cant be ratified.
Prescription
Imprescriptible.
Assailability by third persons
Assailable only by a party.
Assailable by a party or by a third
party who is damaged.
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EFFECT OF CONTRACTS
CIVIL LAW
1404 regarding unauthorized contracts shall

govern. In the second case, the rules on
agency in Title X of this Book shall be
applicable.
General rule: Contracts are generally effective

only between the parties, their assigns and their
heirs (principle of relativity) [Art. 1311]
Exceptions:
(1) Obligations arising from the contract are
not transmissible by nature, stipulation or
law [Art.1311]
(2) Where there is a stipulation pour autrui.
Stipulation Pour Autrui - stipulation in favor
of a third person conferring clear and
deliberate favor which is merely art of the
contract entered into by parties, neither of
whom acted as agent of third person.
(3) Third person induces another to violate his
contract [Art. 1314].
(4) Where third persons may be adversely
affected by a contract where they did not
participate [See Arts. 1312, 2150, 2151].
(5) Where law authorizes creditor to sue on a
contract entered into by his debtor (Accion
Directa) [Art. 1313]
Quasi-Contracts
Art. 2142. Certain lawful, voluntary and
unilateral acts give rise to the juridical relation
of quasi-contract to the end that no one shall be
unjustly enriched or benefited at the expense of
another.
NEGOSTIORUM GESTIO
Art. 2144. Whoever voluntarily takes charge of
the agency or management of the business or
property of another, without any power from the
latter, is obliged to continue the same until the
termination of the affair and its incidents, or to
require the person concerned to substitute him,
if the owner is in a position to do so. This
juridical relation does not arise in either of these
instances:
(1) When the property or business is not
(2) If in fact the manager has been tacitly
authorized by the owner. In the first case, the
provisions of articles 1317, 1403, No. 1, and
PAGE 204
Requisites:
(1) The property or business is abandoned by its
owner
(2) One voluntarily takes charge of the agency or
management of the business or property
(3) Such taking charge was without any
authorization from the owner, whether
express or tacit.
LIABILITIES
MANAGER
OF
THE
OFFICIOUS
(1) To pay damages which through his fault or

negligence may be suffered by the owner
[Art. 2145]
(2) For the acts of the person to whom he
delegated his duties [Art. 2146]
(3) For any fortuitous event
(a) If he undertakes risky operations which
the owner was not accustomed to
embark upon
(b) If he has preferred his own interest to
that of the owner
(c) If he fails to return the property or
business after demand by the owner
(d) If he assumed the management in bad
faith
(e) If he is manifestly unfit to carry on the
management, except when the
management was assumed to save
property or business from imminent
danger
(f) If by his intervention he prevented a
more competent person from taking up
the management, except when the
management was assumed to save
property or business from imminent
danger [Arts. 2147- 2148]
(4) For contracts he has entered into with third
persons, except:
(a) If the owner has expressly or tacitly
ratified the management, or
(b) When the contract refers to things
pertaining to the owner of the business
[Art. 2152]
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LIABILITIES OF THE OWNER

(1) As principal upon the ratification of the
management [Art. 2149]
(2) To reimburse the officious manager the
necessary and useful expenses and
damages suffered in the performance of the
latters duties
(a) If the owner enjoys the advantages of
the property or business [Art. 2150]
(b) When the management had for its
purpose the prevention of an imminent
and manifest loss, although no benefit
may have been derived [Art. 2150]
(c) When the officious manager has acted
in good faith, and the property or
business is intact, ready to be returned
to the owner [Art. 2151]
CIVIL LAW
Art. 2165. When funeral expenses are borne by a

third person, without the knowledge of those
relatives who were obliged to give support to
the deceased, said relatives shall reimburse the
third person, should the latter claim
reimbursement.
Art. 2166. When the person obliged to support
an orphan, or an insane or other indigent person
unjustly refuses to give support to the latter, any
third person may furnish support to the needy
individual, with right of reimbursement from the
person obliged to give support. The provisions
of this article apply when the father or mother of
a child under eighteen years of age unjustly
refuses to support him.
Art. 2167. When through an accident or other
cause a person is injured or becomes seriously
ill, and he is treated or helped while he is not in
a condition to give consent to a contract, he
shall be liable to pay for the services of the
physician or other person aiding him, unless the
service has been rendered out of pure
generosity.
EXTINGUISHMENT [ART. 2153]

THE MANAGEMENT IS EXTINGUISHED:
(1) When the owner repudiates it or puts an
end thereto
(2) When the officious manager withdraws
from the management, subject to the
provisions of Article 2144
(3) By the death, civil interdiction, insanity or
insolvency of the owner or the officious
manager.
Art. 2168. When during a fire, flood, storm, or

other calamity, property is saved from
destruction by another person without the
knowledge of the owner, the latter is bound to
pay the former just compensation.
SOLUTIO INDEBITI
Art. 2154. If something is received when there is
no right to demand it, and it was unduly
delivered through mistake, the obligation to
return it arises.
Art. 2155. Payment by reason of a mistake in the
construction or application of a doubtful or
difficult question of law may come within the
scope of the preceding article.
Art. 2169. When the government, upon the

failure of any person to comply with health or
safety regulations concerning property,
undertakes to do the necessary work, even over
his objection, he shall be liable to pay the
expenses.
Art. 2170. When by accident or other fortuitous
event, movables separately pertaining to two or
more persons are commingled or confused, the
rules on co-ownership shall be applicable.
OTHER QUASI-CONTRACTS
Art. 2171. The rights and obligations of the finder

of lost personal property shall be governed by
articles 719 and 720.
Art. 2164. When, without the knowledge of the

person obliged to give support, it is given by a
stranger, the latter shall have a right to claim
the same from the former, unless it appears
that he gave it out of piety and without
intention of being repaid.
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Art. 2172. The right of every possessor in good

faith to reimbursement for necessary and useful
expenses is governed by article 546.
Art. 2173. When a third person, without the
knowledge of the debtor, pays the debt, the
rights of the former are governed by articles
1236 and 1237.
Art. 2174. When in a small community a majority
of the inhabitants of age decide upon a measure
for protection against lawlessness, fire, flood,
storm or other calamity, anyone who objects to
the plan and refuses to contribute to the
expenses but is benefited by the project as
executed shall be liable to pay his share of said
expenses.
Art. 2175. Any person who is constrained to pay
the taxes of another shall be entitled to
reimbursement from the latter.
PAGE 206
CIVIL LAW
PAGE 207
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SALES
CIVIL LAW
Definition and Essential

Requisites
(3) Determinate subject matter
DEFINITION OF SALES
Price certain in money or its equivalent

(cause/consideration)
Must be determinate or capable of being

determinate
Art. 1458, CC. By the contract of sale one of the

contracting parties obligates himself to transfer
the ownership and to deliver a determinate
thing, and the other to pay therefor a price
certain in money or its equivalent.
Absence of Price vs Non-Payment of Price:

In the absence of price, the sale is non-existent.
Meanwhile, in non-payment, there is a valid sale
where one is only given the remedy of rescission
or specific performance.
A contract of sale may be absolute or

conditional.
Bad faith and inadequacy of monetary

consideration do not render a conveyance
inexistent, for the assignor's liberality may be
sufficient cause for a valid contract, whereas
fraud or bad faith may render either rescissible
or voidable, although valid until annulled, a
contract concerning an object certain entered
into with a cause and with the consent of the
contracting parties. [Ong v. Ong (1985)]
The essence of a contract of sale is the

transfer of ownership.
ESSENTIAL REQUISITES OF A
CONTRACT OF SALE
ESSENTIAL ELEMENTS OF A VALID
CONTRACT OF SALE
NON-ESSENTIAL ELEMENTS OF A
CONTRACT OF SALE
[Coronel v. Court of Appeals (1996); De Leon

(2010)]:
(1) Natural those deemed to exist in certain
(1) Consent or meeting of the minds to transfer

ownership in exchange for the price
contracts in the absence of any contrary

stipulations.
(2) Accidental those which may be present or
absent depending on the stipulations of the
parties.
(2) Being a consensual contract, the contract of

sale is perfected at the moment there is a
meeting of the minds upon the thing which
is the object of the contract and upon the
price. [Art. 1475]
STAGES OF CONTRACT OF SALE
REQUISITES:
(1) Capacity
(2) Offer and acceptance
(3) No vitiation of consent
PHASES OF A SALE CONTRACT[Villanueva]:

(1) Preparation, conception, negotiation, or
generation stage period of negotiation
and bargaining, ending at the moment of
agreement of the parties.
(2) Perfection or birth of the contract
moment when the parties come to agree on
the terms of the contract; and
(3) Consummation or death of the contract
process of fulfillment or performance of the
terms agreed upon in the contract.
Exceptions to consent being a requisite:

(1) Expropriation
(2) Ordinary execution sale
(3) Judicial foreclosure sale
(4) Extra-judicial foreclosure sale
Special Case: If sale involves the conjugal
property of spouses, consent must be given by
both.
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CIVIL LAW
which gives greater reciprocity of interests.

[Art. 1378]
(5) Commutative because a thing for value is
exchanged for equal value, as contrasted
from an aleatory contract.
Test: As long as the party believes in all
honesty that he is receiving equal for what he
gave up for, then commutative character is
complied with.
(6) Nominate given a particular name by law
OBLIGATIONS CREATED
Art. 1165, CC. When what is to be delivered is a
determinate thing, the creditor, in addition to
the right granted him by Article 1170, may
compel the debtor to make the delivery.
If the thing is indeterminate or generic, he may
ask that the obligation be complied with at the
expense of the debtor.
SALE IS TITLE AND NOT MODE

Delivery or Tradition is the mode to transfer
ownership and possession to the buyer.
If the obligor delays, or has promised to deliver

the same thing to two or more persons who do
not have the same interest, he shall be
responsible for any fortuitous event until he has
effected the delivery.
When a contract of sale is perfected, the seller is

merely obligated to transfer ownership and to
deliver the property. Transfer of ownership is
effected only upon delivery.
Specific or Determinate Thing capable of

particular designation, e.g. this car, the car with
plate no. XNY 200
Sale is merely title that creates the obligation

on the part of the seller to transfer ownership
and deliver possession, but on its own, sale is
not a mode that transfers ownership. [Equatorial
Realty Dev. v. Mayfair Theater (2001)]
Generic or Indeterminate Thing refers only to a

class, to a genus, and cannot be pointed out
with particularity, e.g. a car (genus
nunquamperit)
SALE DISTINGUISHED FROM OTHER

CONTRACTS
NATURE OF OBLIGATIONS CREATED PER

DEFINITION IN ART. 1458[Villanueva]
(1) For the SELLER:
(a)To transfer ownership and
(b)To deliver possession of the subject
matter
(2) For the BUYER: To pay the price
DONATION
Sale
Onerous
Perfected
consent
CHARACTERISTICS OF A CONTRACT
OF SALE
(1) Consensual perfected by mere consent and

without any further acts.
(2)Bilateral and Reciprocal imposes
obligations on both parties to the
relationship. Consequently, power to rescind
is implied.
(3) Principal can stand on its own and does
not depend on another contract for validity,
as contrasted from an accessory contract.
(4) Onerous imposes valuable consideration
as prestation, as distinguished from a
gratuitous contract.
Consequence: all doubts in construing an
onerous contract shall be resolved in that
PAGE 209
by
Donation
Gratuitous
mere Must comply with the
formalities required
by law. [Art 745, CC]
When the price of the contract of sale is

simulated, the sale may be void but the act may
be shown to have been in reality a donation or
some other contract. [Art.1471, CC]
BARTER
Sale
Barter
Consideration is price Consideration
in money or its another thing
equivalent
is
Barter is a contract where one of the parties binds

himself to give one thing in consideration of the
others promise to give another thing [Art.1638,
CC]
UP LAW BOC
SALES
CIVIL LAW
DACION EN PAGO
Sale
No pre-existing debt
Creates an obligation
If consideration consists partly in money and

partly in another thing, the intention of the parties
determines whether the contract is one of sale or
barter.
Dacion en pago
Pre-existing debt
Extinguishes
the
obligation (mode of
payment)
Price is more freely Price is value of the
agreed upon, fixed by thing given
the parties
Buyer has to pay the Payment is received
price
by the debtor before
contract is perfected
If manifest intention is not clear: Barter when the

value of thing is more than the amount of
money or its equivalent; otherwise, sale.
[Art.1468]
If the local currency is exchanged with other
denominations of local currency also, there is
barter.
There is a novation of the contract of loan into a

contract of sale when the creditor agrees to
accept a thing in payment of the debt. Hence, if
the thing given in payment turns out to belong
to another, the creditors remedy should be
governed by the law on sales, not loan. [Baviera]
CONTRACT FOR A PIECE OF WORK

Contract for a Piece of
Sale
Work
Goods
are Goods
are
manufactured
or manufactured
for
procured
in
the customer upon his
ordinary course of special order
business
For the general market, For
a
specific
whether on hand or not customer
Governed by Statute of Not within Statute of
Frauds
Frauds
Bilateral promise to buy and sell [Asked in 80,

91]
A promise to buy and sell a determinate thing
for a price certain is reciprocally demandable.
[Art 479, CC]
Like a sale, the thing must be determinate and
the price, certain.
The fact that the object were made by the seller

only when customers placed their orders, does
not alter the nature of the contract of sale, for it
only accepted such orders as called for the
employment of such materials as it ordinarily
manufactured or was in a position habitually to
manufacture such. [Celestino Co & Co vs.
Collector (1956)]
CONTRACT OF SALE/CONTRACT TO SELL

Contract of Sale
Contract to sell
Ownership
is Ownership is only
transferred
upon transferred upon full
delivery
payment of price
Non-payment is a Full payment is a
positive
suspensive
condition, hence nonpayment would not
give rise to the
obligation to transfer
ownership
When each product or system executed is

always UNIQUE and could not mass-produce
the product because of its very nature, such is a
contract for a piece of work. [Commissioner vs.
Engineering Equipment and Supply Co. (1975)]
Conditional Contract of
Sale
Sale
is
already
perfected
A subsequent buyer is
presumed to be a
buyer in bad faith
PAGE 210
Contract to sell
No perfected sale yet
A subsequent buyer is
presumed to be a
buyer in good faith
UP LAW BOC
Sale
SALES
ABSOLUTE INCAPACITY
(MIND-CI) [Art. 1327, CC]
(1) Minors
(2) Insane or Demented
(3) Deaf-mutes who do not know how to write
(4)Civil Interdiction
(5) Judicially-declared Incompetents (Art. 39)
(a) Prodigals
(b) Imbeciles
(c) Absence & presumption of death
(d) Persons not of unsound mind but by
reason of age, disease, weak mind, and other
similar causes, cannot take care of
themselves and manage their property
without outside aid (Easy prey for deceit and
exploitation)
Agency to sell
Buyer receives
goods as owner
the Agent receives good

as goods of the
principal
Agent delivers the
Buyer pays the price
price which he got
from his principal
Buyer cannot return Agent cant return the
the object sold as a goods
general rule
Seller warrants the Agent makes no
thing sold
warranty
Not
unilaterally Essentially revocable
revocable
Sale
RELATIVE INCAPACITY: MARRIED PERSONS

(1) Husband and Wife[Art. 1490, CC]
General Rule: Cannot sell property to each
other
Lease
Ownership transferred No
transfer
by delivery
ownership
Permanent
Temporary
CIVIL LAW
of
Exceptions:
(1) Separation of property in marriage
settlement, OR
(2) Judicial separation of property.
Seller must be owner Lessor neet not be

at time of delivery
owner
Although certain transfers from husband to wife

or vice versa are prohibited, such prohibition can
be taken advantage of only to persons who bear
such relation to parties making transfer with
their rights or interest. Unless such a
relationship appears, the transfer cannot be
attacked. [Cook v. McMicking (1914)]
KINDS OF CONTRACT OF SALE

(1) Absolute when sale is not subject to any
condition and the title immediately passes to
the purchaser upon delivery
(2) Conditional ownership of the object
remains with the vendor until fulfillment of the
condition/s
Sale by husband in favor of a concubine after he

had abandoned his family and left conjugal
home where his wife and children lived and
from whence they derived their support, is void.
[Ching v. Goyanko, Jr. (2006)]
Parties to a Contract of
Sale
Similarly, donations are prohibited. This is so

because if such transfers areallowed during
marriage, then the same would destroy the
system of conjugal partnership, a basic policy in
civil law.
CAPACITY OF PARTIES
Art. 1489, CC. All persons who have capacity to
enter into obligations may enter into a contract
of sale.
(2) Alienage [Art. 39,CC]

GeneralRule: Aliens are disqualified from
purchasing or acquiring real property.
Exception: If acquisition is through hereditary
succession
KINDS OF INCAPACITY
(1) Absolute incapacity when persons cannot

bind themselves at all
(2)Relative incapacityonly with regards to
certain persons and certain class of property
(3) Specific incapacity/Special disqualifications
(3) Trusteeship[Art. 39, CC]
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SPECIAL DISQUALIFICATIONS
CIVIL LAW
Includes judges and government experts

who, in any manner whatsoever take part in
the sale.
SPECIFICINCAPACITY/ SPECIAL DISQUALIFICATIONS

(AGE-PLJ) [Art. 1491, CC]
(5) Lawyers
Cannot acquire or purchase property or
rights in litigation in which they take part by
virtue of their profession
The sale entered into by agents, guardians, and

executors and adminsitrators shall be voidable
because it affects only private interests.
The sale entered into by public officers, lawyers,
justices and judges, and others specially
disqualified by lawshallbe void because it
affects the public interest.
(1) Agents
Cannot purchase or acquire property whose
administration or sale was entrusted to them
Rationale: Lawyers may have undue

influence over client; greed may get the
better of the sentiments of loyalty and
disinterestedness. [Valencia v Cabanting,
1991]
Prohibition is definite and permanent and
cannot be cured by ratification. [Rubias v
Batiller, 1973]
Exception: Principal gives consent.

(2) Guardian
Cannot purchase property of person under
his guardianship
Exceptions:An assignment to a lawyer by his

client of an interest in the property does not
violate Art 1491, where:
(1) A judgment has been rendered and has
become final; and
(2) In case of contingency fee arrangements:
the interest of the lawyer may be
annotated as an adverse claim on the
property awarded to his client [Director of
Lands v Ababa, 1979]
Rationale: Guardianship is a trust of the

highest order, and the trustee cannot be
allowed to have any inducement or neglect
his wards interest. [Phil Trust Co v Roldan,
1956]
Art. 1491(2) in relation to Art. 1409 does not
apply where the sale was under a special power
attached to the real estate mortgage, pursuant
law. Under Act No. 3135, a mortgagee-creditor
is allowed, as an exception, to participate in the
bidding under the same condition as any other
bidder. [Fiestan v. CA (1990)]
Contract stipulating a contingent fee is not

prohibited because payment of such fee is not
made during pendency of litigation but only
after judgment. A lawyer may have lien over
funds and property of client and may apply as
may be necessary to satisfy his lawful fees and
disbursements. As long as the lawyer does not
exert undue influence, and that no fraud is
committed, or no imposition applied, or that
compensation is clearly not excessive as to
amount to extortion, a contract for contingent
fee is valid and enforceable.Also, a reading of
contract is 40% of the value of properties.
[Fabillo v. IAC (1991)]
(3) Executors and Administrators

Cannot acquire or purchase property of
estate under their administration
The prohibition on executors and administrators
does not apply if the principal consents to the
sale. [Distajo v. CA (2000)]
(4) Public Officers and Employees
Cannot acquire or purchase property of
State/any of its subdivisions, GOCC or
administration, the administration of which
was entrusted to them.
(6) Justices, Judges, prosecuting attorneys, clerks

and other officers and employees connected with
the administration of justice
Cannot acquire or purchase property or
rights in litigation or levied upon on
execution before the court within whose
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jurisdiction or territory they exercise their

respective functions.
CIVIL LAW
(2) To avoid undue advantage of the

dominant spouse over the weaker spouse.
(3) To avoid circumvention of the prohibition
against donations between spouses.
[Medina v CIR, 1961]
Rationale: to prevent fraud and to surround

their profession with prestige.
Prohibition applies only on sales or
assignment during the pendency of litigation
involving the property. [Macariola v Asuncion,
1963]
Such prohibition shall likewise apply to

common law spouses. [Calimlim-Canulas v
Fortun, 1984] BUT if already sold to a third
person who relied on the title of his
immediate seller, reconveyance to the seller
spouse is no longer available [Cruz v CA,
1997]
(7) Others specially disqualified by law

(a) Aliens
GeneralRule: Aliens are disqualified from
purchasing or acquiring real property.
(3) Specific Incapacity/ Special Disqualifications

Contracts expressly prohibited by law are
void and cannot be ratified. Neither can the
right to set-up the defense of illegality be
waived. [Art. 1409 (7), CC]
Exception: If acquisition is through hereditary

succession
(b) Unpaid sellers with goods in transit from
buying the goods
Sales
entered
into
by
guardians,
administrators, and
agents
(specific
incapacities) in violation of Art. 1491 may be
ratified by means of and in the form of a new
contract when the cause of nullity has ceased
to exist. Ratification is valid only from date of
execution of the new contract and does not
retroact.
(c) Officer conducting the execution sale of

deputies
Art 1492: The prohibitions in the two preceding
articles (Arts. 1490, 1491) are applicable to sales
in legal redemption, compromises and
renunciations.
Those
entered
into
by
public
officers/employees, justices and judges, and
lawyers in violation of Art. 1491 are inexistent
and void from the beginning. [Rubias v
Batiller, 1973].
EFFECTS OF INCAPACITY
(1) Absolute Incapacity

(a)If both parties are incapacitated:
UNENFORCABLE [Art. 1403 (3)]
(b) If only 1 party is incapacitated: VOIDABLE
(c)If necessaries are sold and delivered to an
incapacitated person: pay a reasonable
price therefor. [Art 1489, CC]
Necessaries
those
which
are
indispensable for sustenance, dwelling,
clothing, medical attendance, education and
transportation. [Art 194, Family Code]
Subject Matter
REQUISITES OF
SUBJECT MATTER
FOR RIGHTS:
(1) Transmisible or personal

(2) Licit
(2) Relative Incapacity

Sale between spouses is VOID.
FOR THINGS:
Rationale:
(1) To protect 3rd persons who may have
contracted with the spouse
(1) Licit
(2) Existing, Future, Contingent
(3) Determinate or determinable
PAGE 213
VALID
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MUST BE LICIT[Art. 1459]

The thing is licit when
(1) Within the commerce of man [Art 1347, CC]
Example of properties that are not within the
commerce of man:
(a) Those belonging to the State or its
political subdivisions intended for public use
or public service. [Art 420, CC].
(b) Church
(c)Narcotics or dangerous drugs except upon
prescription [RA 6425, The Dangerous Drugs
Act of 1972]
(2)When right is not intransmissible [Art 1347, CC]
(3) It does not contemplate a future inheritance,
unless expressly authorized by law
CIVIL LAW
(4) Sale of land in violation of Cosntitutional

prohibition against the transfer of lands to
aliens. [Art XII of Constitution]
When the subject matter is illicit, the contract of
sale is void [Art. 1409 (7)]
EXISTING, FUTURE, CONTINGENT
The goods which form the subject of a
contract of sale may either be
(1) EXISTING goods owned or possessed by the
seller;
(2)Goods to be manufactured, raised, OR
acquired by the seller FUTURE GOODS;
[Art 1462, CC]
It is valid only as an executory contract to be
fulfilled by acquisition and delivery of goods
specified.
(3) Things having POTENTIAL existence may be
the object of a contract of sale. [Art 1461, CC]
The thing sold must be specific and
identified, and owned by the vendor at that
time.
Kinds of illicit things:

(1) Per Se of its nature
(2) Per Accidens due to provision of law.
Art 1347, paragraph 2,characterizes a contract
entered into upon future inheritance as void.
Art. 1347 applies when the following requisities
concur:
Sale of MERE hope or

Sale of VAIN hope or
expectancy
expectancy
Valid BUT subject to Void
condition that the thing
will come into existence Example: Sale of a
falsified raffle ticket
Example: Next catch which will never win.
of a fisherman.
(1) Succession has not yet been opened;

(2) The object of the contract forms part of
the inheritance; and
The promissor has, with respect to the object, an
expectancy of a right which is purely hereditary
in nature. [Vda.de Cabatu v. Spouses Tabu
(2012)]
EmptioReiSperatei
EmptioSpei
Valid
Void
Sale of a thing not yet in Sale of the hope itself
existence but will exist
that a thing will come
into existence
Upon the failure of the Where it is agreed that
condition, the contract buyer will pay the price
becomes ineffective
even if the thing does
not
come
into
exsitence
Future thing is certsin as Not certain that the
to itself, but incertain as thing itself will exist
to quantity and quality
Deals with a future thing Thing which exists or is
present the hope or
expectancy
In case of doubt, the presumption is in favor of
emptioreisperatae since it is more in keeping with
the commutative character of the contract.
Examples of Illicit Sale

(1) Sale of future inheritance is void. [Art. 1347,
CC]
The rights to succession are transmitted
from the moment of the death of the
decedent [Art. 777, CC]. Thus, one cannot
sell or promise to sell what he expects to
inherit from a living person. [Rivero v.
Serrano, 1950]
(2) Sale of animals suffering from contagious
diseases [Art 1575]
(3) Sale of animals if the use or service for which
they are acquired has been stated in the
contract, and they are found to be unfit
therefor [Art 1575]
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(4) Sale of SPECIFIC THINGS

(a)Sale of things in litigation [Art 1381(4)]
CIVIL LAW
If the obligation to deliver is a determinate

thing, the creditor has the right t compel
specific performance and to recover damages
for breach of the obligation. [Art. 1165, CC;
Jurado]
Sale of things under litigation entered

into by defendant, without the approval of
the litigants or the court is rescissible. [Art
1381 (4)]
Failure to state the exact location of the land

does not make the subject matter
indeterminate, so long as it can be located.
[Camacho v CA (2007)]
NO RESCISSION where the thing is

legally in the possession of 3rd persons
who did not act in bad faith [Art 1385 (2)]
The fact that the exact area of the land specified

in the contract of sale is subject to the result of
a survey does not render the subject matter
indeterminate. [Heirs of Juan San Andres v.
Rodriguez (2000)]
(b) Sale of an undivided interest in a thing

[Art 1463]
(c)Sale of undivided share of a specific mass
[Art 1464]
The sale of an undivided share in a
specific mass of fungible goods makes the
buyer a co-owner of the entire mass in
proportion to the amount he bought.
Obligations of the Seller

to Transfer Ownership
If later on it was discovered that the mass

of fungible goods contain less than what
was agreed upon, the buyer becomes
owner of whole mass and seller must
make up for the difference. [De Leon]
OBLIGATIONS OF THE VENDOR

IN GENERAL
(1) To transfer ownership of the determinate

thing [Art 1495]
(2) To deliver the thing with its accessions and
accessories [Arts 1164, 1166]
(3) To warrant against eviction and against
hidden defects [Arts 1545-1581]
(4) To take care of the thing, pending delivery,
with proper diligence [Art 1163]
(5) To pay for expenses of the deed of the sale
[Art 1487]
A Co-owner cannot sell more than his

share [Yturralde v CA, 1972]
(d)Sale of things subject to reolutory
condition [Art 1465]
Examples:
Things acquired under legal or
conventional right of redemption;
orsubject to reservatroncal; pacto de retro
sale
SALE BY A PERSON NOT THE

OWNER AT TIME OF DELIVERY
General Rule: Ownership by a vendor at time of
perfection of the contract is not essential.
Ownership is transferred upon delivery. [Art.
1495]
DETERMINATE OR DETERMINABLE
A thing is DETERMINATE when it is particularly
designated or physically segregated from all
others of the same class. [Art 1460, CC]
Ownership is not acquired by the buyer. One

cannot give what one does not have. Nemodat
quod non habet [Art 1505, CC]
A thing is DETERMINABLE when it is capable of

being made determinate at the time the
contract was entered into without the necessity
of a new or further agreement between the
parties. [Art 1460, CC]
Transfer of ownership is effected even if the

purchase has been made on credit.
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CIVIL LAW
SALE BY A PERSON HAVING A

VOIDABLE TITLE
Payment of the purchase price is not essential

to the transfer of ownership as long as the
property sold was delivered.
(1) True owner may recover the thing when the

ff. requisites concur:
(a) Subject matter is movable
(b) Owner has either lost the thing or has
been unlawfully deprived. [Art 559, CC]
In all forms of delivery, it is necessary that the

act of delivery, whether actual or constructive,
should be coupled with the intention of
delivering the thing sold. [De Leon]
(2) Reimbursement is necessary before owner

can recover when:
(a) Buyer acted in good faith
(b) Acquired at a public auction [Art 559]
Exceptions: (RE-ROM)
(1) Seller has a Right to transfer ownership
(a) Seller need not be the owner of the
thing at the time of perfection of the
contract. It is sufficient that seller has
a right to transfer ownership thereof
at the time it is delivered. [Art. 1459]
(b) One who sells something he does not
own yet is bound by the sale when he
acquires
the
thing
later
[BuctonvsGabar, 1974]
(3) Recovery no longer possible when:

(a) Buyer in good faith
(b) Acquired it at a merchants store, fair or
market. [Art 1506, CC]
Price
(2) Estoppel: Owner is, by his conduct,

precluded from denying the sellers authority to
sell. [Art. 1434]
MEANING OF PRICE
Price signifies the sum stipulated as the

equivalent of the thing sold and also every
incident taken into consideration for the fixing
of the price put to the debit of the buyer and
agreed to by him [Inchausti v. Cromwell (1911)]
(3) Registered land bought in good faith

General rule: Buyer need not go beyond the
Torrens title
Exception: When he has actual knowledge of
facts and circumstances that would impel a
reasonably cautious man to make further
inquiry
REQUISITES FOR A VALID PRICE
(Ce-MoRe)
(1) Certain or ascertainable at the time of
perfection
(2) In Money or its equivalent
(a)Example of equivalent: Letters of credit
(b) If price is partly in money and partly in
another thing: Determine manifest
intention of the parties to see whether it
was barter or sale. [Art 1468,CC]
(c)If intention does not clearly appear, it shall
be considered a barter if the value of the
thing exceed the amount of money or its
equivalent. [Art 1468,CC]
(3) Real
When buyer has an intention to pay and the
seller has an expectation to receive the price
(a) If simulated: Sale is VOID; BUT act may
be shown to have been a donation or
some other act or contract. [Art 1471, CC]
(b) An admission of non-payment of any
centavo in exchange of a property in a
(4) Order of courts; Statutory Sale

In execution sale, the buyer merely steps into
the shoes of the judgment debtor [Rule 39, sec.
33, ROC]
(5) When goods are purchased in Merchants
store, Fair, or Market [Art 1505, CC]
The policy of the law has always been that
where the rights and interest of the vendor clash
with that of an innocent buyer for value, the
latter must be protected. [Sun Brothers and Co.
vs. Velasco, 1958]
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contract of sale renders the sale VOID.

[Labagala vs. Santiago, 2001]
(c) If Price is false when the real
consideration is not the price stated in
the contract:
i. Sale is void
ii. UNLESSproved to be founded on
another true and lawful price [Art 1353,
CC]
CIVIL LAW
Exceptions:
(1) In Voluntary sales
(a) Where low price indicates a vice of
consent, sale may be annulled.
(b) Where price is so low to be shocking to
the conscience, then sale may be set aside.
(c) Where price is simulated such as when
the real intention was a donation or some
other contract.
(d) Where the parties did not intend to be
bound at all, sale is void.
HOW PRICE IS DETERMINED
(1) Fixed by agreement of the parties

(a) Fixing of price cannot be left to the
discretion of one of the parties
(b) BUT if such is accepted by the other, sale is
perfected. [Art 1473, CC]
(2) Determination is left to the judgment of a
specified person
(a) If unable or unwilling: Sale is inefficacious
UNLESS parties subsequently agree about
the price.
(b) If in bad faith/by mistake: Courts may fix
price
(c) If 3rd person is prevented from fixing price
by fault of seller or buyer: Innocent party may
avail of remedies.
(3) The price is made in reference to another
thing, or when the price fixed is the price of
the commodity on a definite day, or in a
particular exchange or market, OR when the
amount fixed is above or below the price on
such day, exchange or market. [Art 1472, CC]
(2) In Involunatry sales

(a) Where price is so low to be shocking to
the conscience, then judicial sale will be set
aside.
(b) If in event of a resale, a better price can
be obtained.
(3) Rescissible contracts of sale
Inadequacy of price is a ground for
rescission of conventional sale under Art
1381 (a-b)
WHEN NO PRICE AGREED
When the price is not certain, the contract is

without effect and no obligation arises from it.
Exception: When the thing is already delivered,
the buyer must apy a reasonable price therefor.
This exception only arises when the means
contemplated by the parties for fixing the price
have become ineffectual.
(1) Sale is inefficacious [Art. 1474, CC]

(2) But if the thing or part thereof has been
delivered and appropriated by the buyer, he
must pay a reasonable price therefor.
(a) What is a reasonable price is a question of
fact dependent on the circumstances of
each particular case. [Art 1474, CC]
(b) The reasonableness of a price may be
determined on the basis of a companys
balance sheet showing the book value or
fair market value of its shares. [Philippine
Free Press vs. CA, 2005]
Generally, the reasonable price is the market
price at the time and place fixed by the contract
or by law for delivery of goods.
INADEQUACY OF PRICE
FALSE PRICE vs SIMULATED PRICE
(1)False Price there is a true price but it was

not written down in the contract.
(2) Simulated Price there was no price at all.
Parties merely said that there was a price and
created their own price.
General Rule: Does not affect a contract of

sales validity. [Art. 1470, CC]
The stipulation in a contract of sale which states
that the consideration is P1 and other valuable
considerations does not make the contract
void. Gross inadequacy of price does not affect
the contract of sale except that it may indicate a
defect in consent. [Bagnas v. C.A., 1989]
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Formation of Contract of
Sale
MANNER OF PAYMENT MUST BE

AGREED UPON
Disagreement on the manner of payment is

tantamount to a failure to agree on the price.
[Toyota Shaw vs. CA, 1995]] See Spouses
Buenaventura v. CA (2003)
EARNEST
MONEY
MONEY
PREPARATORY
(1) OFFER
VS.OPTION
IN GENERAL:
(a) The contract of sale is perfected at the
moment there is meeting of the minds
upon the thing which is the object of the
contract and upon the price. [Art. 1475,
par.1, CC]
(b) From that moment, the parties may
reciprocally
demand
performance,
subject to the provisions of law
governing the form of contracts. [Art.
1475, par. 2, CC]
(c) A private instrument signed by the
defendant reciting that he bought from
the plaintiff a property at a specific
address for a specific price to be paid as
soon as a bill of sale is signed is not a
mere draft but a perfected agreement
and hence, obligatory, even if there was
no statement as to area or price per
meter. [Goyena v. Tambunting, 1902]
Earnest Money Definition: paid in advance of the

purchase price agreed upon by the parties in a
contract of sale, given by the buyer to the seller,
to bind the latter to the bargain. [Asked in 93,
02]
Option Money vs. Earnest Money [Limson vs. CA,
2001]
Option Money
Separate and distinct
consideration from the
purchase price
Given when sale is not
yet perfected
When given, the wouldbe-buyer is not required
to buy, but may even
forfeit it depending on
the terms of the option
Grantee of option is still
undecided whether or
not to buy or sell the
property [Baviera]
CIVIL LAW
Earnest Money
Part of purchase price
[Art 1482, CC]
Given only when there
is already a sale
When given, the buyer
is bound to pay the
balance
General Rule: Offer may be withdrawn at any

time without even communicating such
withdrawal to the interested buyer.
Buyer manifests his

earnest desire to buy
the property
Exception: When the offerer has allowed the

offeree a certain period to accept, the offer may
be withdrawn at any time before acceptance by
communicating such withdrawal. [Art 1324, CC]
False Price
Non-payment of Price
Real price is not Failure of buyer to pay
declared
the price
Contract is void if it Contract is not void but
should not be proved gives rise to a right to
that it was founded demand fulfillment or
upon another casue cancellation of the
which is true and lawful obligation
[Art 1353, CC]
Exception to the exception: Cannot be

withdrawn within a certain period if offer is
founded upon a consideration. [Art 1324 and
1479, CC]
FORM AND TYPE
(a) Offer must be certain as to the object and
price [Art. 1319, CC]
There can be sale even when no price is agreed

upon. When the price cannot be determined in
accordance with Arts 1469-1473, the contract is
inefficious. Exception: when the thing or part
thereof has been delivered to and appropriated
by the buyer, in which case the buyer has to pay
a reasonable price therefor.
(b) Business advertisements of things for sale

are not offers but mere invitations to make
an offer
Exception: If otherwise provided [Art. 1325,
CC]
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CIVIL LAW
evidenced by some acts or conduct

communicated to the offeror, it may be made
either in a formal or an informal manner, and
may be shown by acts, conduct, or words of
accepting party that clearly manifest a present
intention to accept offer to buy or sell. [Heirs of
Ignacio v. Home Bankers Savings and Trust
Company (2013)]
(c)Advertisements for bidders are simply

invitations to make proposals (Asked in 80)
Advertiser is not bound to accept the highest
or lowest bid.
Exception: Unless the contrary appears [Art.
1326, CC]
Fixing terms of offer: The person making the
offer may fix time, place, and manner of
acceptance [Art 1321]
An acceptance may contain a request for certain

changes in the terms of the offer and yet still be
a binding acceptance (but the requests should
be mere suggestions only, not counter-offers),
so long as clear that meaning of acceptance is
positively and unequivocally to accept offer,
whether such request is granted or not, a
contract is formed.[Villonco Realty Company v.
Bormaheco, Inc. (1975)]
When ineffective:Offer becomes ineffective upon

death, civil interdiction, insanity, or insolvency of
either party before acceptance is conveyed [Art
1323]
(2) ACCEPTANCE
(a) The acceptance must be absolute.

(b)The acceptance must be plain and
unconditional.
(c)To bind the offeror, the offeree must
comply with the conditions of the offer.
Where the acceptance was not in
accordance with the terms and
conditions of the offer, the offer lapsed
even though the offeree later on was
willing to accept the terms and
conditions of the offer.
(3) OPTION CONTRACT
(a) Definition
i. An accepted unilateral promise to buy
or sell supported by a consideration
distinct from the price (Art 1479, CC)
ii. An option contract is a privilege
existing in one person, for which he had
paid a consideration, which gives him
the right to buy, for example, certain
merchandise or certain specified
property, if he chooses, at any time
within the agreed period, at a fixed
price. [De la Cavada vs. Diaz, 1918]
iii. An option is not of itself a purchase,
but merely secures the privilege to buy.
iv. A consideration for an optional
contract is just as important as the
consideration for any other kind of
contract. If there was no consideration
for the option, then it cannot be
enforced any more than any other
contract where no consideration exists.
[Baviera]
The acceptance referred to which determines

consent is the acceptance of the offer, and not
of the goods delivered. [National Grains
Authority v. IAC (1989)]
For price, fixing cannot be left to only one party,
but price fixed by one and accepted, leads to a
perfected sale. For consent, offer without
acceptance means there is no contract. The
decision to accept proposal must be
communicated to the bidder. But a binding
contract may exist between parties whose
minds are set, although there are no signatures
anywhere, as acceptance may be expressed ir
implied, recognizing existence of contract of
sale.[Robern Development Corporation v.
Peoples Landless Association (2013)]
(b) Elements of an Option Contract

i. Consent
ii. Subject matter: an option right or
accepted unilateral offer to buy, or an
option right or accepted unilateral
offer to sell a determinate object for a
price certain, including the mannerof
payment thereof
Receipt of installment payments is not proof of

acceptance. Except where formal acceptance is
so required, although the acceptance must be
affirmatively and clearly made and must be
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iii. Prestation: a consideration separate

and distinct from the purchase price
for the optiongiven
Difference from Sale

Sale
Right of 1st Refusal
Bilateral
Unilateral
Price and other terms Price and other terms
of payment are certain are yet to be agreed
upon
The thing to be sold must be determinate
(c)Difference from Sale

Sale
Bilateral
Sale of property
CIVIL LAW
Option Contract
Unilateral: gives a right
to buy or to sell, but
imposes no obligation
on the part of the
option-holder,
aside
from the consideration
for the offer
Sale of right to
purchase
Distinction from Option Contract

Option Contract
Right of 1st Refusal
Separate consideration No need for a
is necessary
separate
consideration
Grantee has the right No right to buy or sell,
to buy or sell
only a right to match
the 1st offer to buy
should the grantor
decide to sell
(4) RIGHT OF FIRST REFUSAL

As to enforceability
If the right to the first offer is embodied in the
contract, it should be executed according to the
terms stipulated. The right should be enforced
according to the law on contracts and not on
the panoramic and indefinite rule on human
relations. This juridical relation is not
amorphous nor is it merely preparatory.
[Equatorial Realty Development vs. Mayfair, 1996]
(5) MUTUAL PROMISE TO BUY AND SELL

A promise to buy and sell a determinate thing
for a price certain is reciprocally demandable.
[Art 1479]
The promise made by one party is the
consideration for the promise made by the
other. [Baviera]
When the grantee fails to exercise the right

Only after the grantee fails to exercise its right
of 1st priority under the same terms and
conditions within the period agreed upon, could
the grantor validly offer to sell the property to a
3rd person under the same terms as offered to
the grantee. [Paranaque Kings vs. CA, 1997]
PERFECTION
WHEN PERFECTED
(1) Contract of sale is a consensual contract,
hence perfected at the moment of the
meeting of the minds of the parties as to the
object of the contract and the price. [Art
1475,CC]
(2) It is the proof of all the essential elements of
the contract of sale, and not the mere giving
of earnest money, which establishes the
existence of a perfected sale. [Platinum
Plans Phils. vs. Cucueco, 2006]
As to the effects of the violation of the right

(a) A sale made in violation of a right of first
refusal is valid but rescissible, and may be
the subject ofan action for specific
performance. [RosencorDevt. Corp. Vs.
Inquing, 2001]
(b) However, before the sale to the 3rd
person may be rescinded, he must have
been actually or constructively aware of
the right of 1st refusal at the time he
bought it.
(c) The sanction for the enforcement of the
right of first refusal against third persons
is based on Art. 19 of NCC, as no real
right was created on the property.
EFFECT OF PERFECTION
From the moment of the perfection of the
contract of sale, the parties may reciprocally
demand performance, subject to the provisions
of the Statute of Frauds. [Art 1475, CC]
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PERFECTION OF SALE BY AUCTION [Art 1476]

(1) Contract is perfected when the auctioneer
accepts the bid by the fall of the hammer or
gavel or in any other customary manner.
(2) If auction is announced to be without
reserve, goods cannot be withdrawn from
the sale after the bid is made.
(3) By taking part in the auction and offering
bidding, the buyer voluntarily submitted to
the terms and conditions of the auction sale
announced in the notice.
(4) Puffing/by-bidding is illegal means
employed by owner to increase the price of
the bids; illegal.
CIVIL LAW
(e) Ratified when defense fails to object to

the introduction of parol evidence, or ask
questions on cross-examination
The acceptance of a definite agreement on the
manner of payment of the price is essential
determining consent. [Limketkai Sons Milling,
Inc. v. CA (1996)]
Sale is consensual, and thus binding when there
is meeting of minds as to price. Such sale is
valid despite manner of payment, or even
breach as to such manner of payment. If real
price is not stated in the contract, then the
remedy would be reformation of the contract.
Payment has no effect on the validity of the sale,
for payment merely goes into the performance
of the contract. Failure to pay consideration is
not lack thereof. [Spouses Buenaventura v. CA
(2003)]
CONSUMMATION
When parties fulfill their obligations.
FORMALITIES OF THE CONTRACT
General rule: No form required as to validity

provided all the essengtial requisites are
present.
Continued possession of the object of an oral

contract has been held to constitute partial
performance, where accompanied by other acts
which characterize the continued possession
and refer to the contract of sale. A tender of
payment, declined by the vendor, has been said
to be equivalent to actual payment, for
purposes of determining if there has been
partial performance. [Ortega v. Leonardo (1958)]
The sale may be [Art.1483, CC]:

(1) Written
(2) Oral
(3) Partly written and partly oral
(4) Inferred from the conduct of the parties
Exceptions:
(1) For enforceability: Statute of Frauds [Art,1403
(2),CC]
(a) Contract or some memorandum thereof
must be in writing and subscribed by the
party or his agent, otherwise contract is
unenforceable; unless ratified by failure
to object to oral evidence or acceptance
of benefits under the contract
(b) Statute of Frauds covers:
i. Sale of personal property at price
not less than 500 pesos
ii. Sale not to be performed within 1
year
iii. Sale of real property or an interest
therein [Art 1358, CC]
(c) Applies only to executory contracts, not to
contracts either totally or partially
performed. [Iigo v. Estate of Maloto, 1967]
(d) Purpose: to prevent fraud or perjury in the
enforcement of obligations
(2) Sale of realty by an agent

Agents authority must be in writing, otherwise
the sale is void [Art.1874, CC]
(3) Sale of large cattle
To be valid, transfer of large cattle must be
registered with the municipal treasurer [Sec.
529, Revised Administrative Code]
(4) For public convenience: In a public document
to compel third parties [Art 1358]
(a) Acts and contracts which have for their
object the creation, transmission,
modification or extinguishment of real
rights over immovable property; sales of
real property or of an interest therein a
governed by Articles 1403, No. 2, and
1405;
(b) The cession, repudiation or renunciation
of hereditary rights or of those of the
conjugal partnership of gains;
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(c)The power to administer property, or any

other power which has for its object an
act appearing or which should appear in
a public document, or should prejudice a
third person;
(d)The cession of actions or rights proceeding
from an act appearing in a public
document.
(e) All other contracts where the amount
involved exceeds five hundred pesos
must appear in writing, even a private
one. But sales of goods, chattels or
things in action are governed by Articles,
1403, No. 2 and 1405
CIVIL LAW
GENERAL CONCEPTS
Transfer of ownership is effected even if the
purchase has been made on credit.
Payment of the purchase price is not essential
to transfer of ownership as long as the property
sold was delivered.
Intention to transfer ownership
(1) All forms of delivery shall be coupled with
intention of delivering the thing sold.
(2) Seller must be owner or authorized by owner
of the thing sold
When right to transfer ownership must exist: At
the time of delivery and not at the time of
perfection of contract of sale.
Transfer of Ownership
Delivery comprises 2 obligations in Art. 1495:

(1) Actual duty to deliver
(2)Transfer of ownership can only be
accomplished via delivery
OBLIGATIONS OF THE VENDOR:

(a) To transfer ownership of the thing
(b) To deliver the thing, with its accessions and
accessories, if any
(c) To warrant against eviction and against
hidden defects
(d) To take care of the thing, pending delivery,
with proper diligence
(e) To pay for the expenses of the deed of sale
CONCEPT OF DELIVERY
REQUISITES
(1) Identity must be delivered
(2)Integrity in a consition suitable for
enjoyment
(3) Intentional
MANNER OF TRANSFER
General Rule: ownership of the thing sold shall

be transferred to the vendee upon actual or
constructive delivery thereof [Art 1477]
WHAT TO DELIVER
(1) Thing sold [Art. 1495]
(2) Fruits [Art. 1164 & 1537]
(3) Accessions and accessories [Art. 1166 & 1537]
(a) Improvements by seller at his expense
grants him a usufructuary right.
(b) No indemnification
(c) But he may remove it to the extent that
there is no damage [Art. 1538]
Obligation to transfer ownership and to deliver

is implied in every contract of sale [Arts. 14581459]
Transfer of ownership requires delivery [Art.
1495]
Exceptions (elaborated later)
(1) Contrary stipulation
(2) Contract to sell
(3) Contract of insurance
(4)Sale on acceptance/Trial
(5) When seller is not the owner or has voidable
title
WHERE TO DELIVER
(1) A hierarchy is followed:(STOR)
(a) Stipulation
(b) Usage of trade
(c) Sellers place of business (office)
(d) Sellers residence
(2) In case of specific goods, which the parties
knew to be at some other place when the
contract was perfected, that place is the place
of delivery
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(3) If goods are at the time of sale possessed by

a third person, then there is no delivery until he
acknowledges to the buyer that he holds the
goods for the buyer.
CIVIL LAW
Difference between Sale on Approval and Sale

on Return
Sale on Approval
Sale on Return
Ownership does not Ownership
passes
pass upon delivery
upon delivery, but
buyer may revest
ownership in the
seller by returning or
tendering the goods
within the time fixed
in the contract
Depends
on
the Depends on the will
character or quality of of the buyer
goods
Subject to a suspensive Subject
to
a
condition
Risk of loss remains Risk of loss remains
with the seller
with the buyer
WHEN TO DELIVER
Absent a stipulation as to time, delivery must be
made within a reasonable time; demand or
tender of delivery shall be made at a reasonable
hour.
Hour of delivery: usually during business hours
WHEN DELIVERY DOES NOT TRANSFER
TITLE
(1) Sale on Approval or Trial
General Rule: Title remains with the seller.
Buyer has option to purchase goods if proven
satisfactory, the approval of the buyer being a
condition precedent. (Same exceptions with sale
on return)
Express Reservation
If it was stipulated that ownership in the thing
shall not pass to the purchaser until he has fully
paid the price [Art 1478, CC]
The relationship between seller and buyer, if no

absolute sale yet, is that of a bailor and bailee
If there is no time for approval specified but with
periof for trial, then approval shall be made
wuthin a reasonable period after the trial period
expires.
Implied Reservation
The following are instances when there is an
implied reservation of ownership:
(a) Goods are shipped, but by the bill of
lading goods are deliverable to the seller
or his agent, or to the order of the seller or
his agent
(b) Bill of lading is retained by the seller or
his agent.
(c) When the seller of the goods draws on the
buyer for the price and transmits the bill
of exchange and bill of lading to the
buyer, and the latter does not honor the
bill of exchange by returning the bill of
lading to the seller.
(2) Sale on Return or Satisfaction

General Rule: Title remains with the seller for
parties agree that buyer shall temporarily take
the goods into his possession to see if they are
satisfactory to him (return if unsatisfactory)
Exceptions:
(a) Buyer signifies his approval or acceptance
to the seller
(b) Buyer does any other act adopting the
transaction (i.e. sale to a third person)
(c) Retains the goods without giving notice of
rejection after the time fixed has expired;
if no time has been fixed, after the
expiration of a reasonable time [Art 1502,
CC]
(3) When sale is not valid

eg. When the thing sold is a public property
(4) When seller is not the owner
General Rule: Ownership is not acquired by
the buyer. One cannot give what one does
not have. [Art 1505, CC]
Loss or destruction of the property prior to retun

falls upon the buyer and makes him responsible
for the purchase price.
Exceptions: (REROM)
(a) Seller has a Right to transfer ownership
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i. Seller need not be the owner of the

thing at the time of perfection of the
contract. It is sufficient that seller has a
right to transfer ownership thereof at
the time it is delivered. [Art. 1459]
ii. One who sells something he does not
own yet is bound by the sale when he
acquires
the
thing
later
[Buctonvs.Gabar, 1974]
CIVIL LAW
KINDS OF DELIVERY
(1) Actual delivery
(a) When deemed made: when the thing sold
is placed in the control and possession of
the vendee [Art. 1497]
(b) Not always essential to passing of title
[Art. 1475]
(c) Parties may agree when and on what
conditions the ownership shall pass to the
buyer [E.g.: Art 1478 where ownership will
only pass after full payment of the price]
(b) Estoppel: Owner is, by his conduct,

precluded from denying the sellers authority to
sell. [Art. 1434]
(2) Constructive delivery

(a) Execution of public instrument [Art 1498,
par. 1]
(c) Registered land bought in good faith

General rule: Buyer need not go beyond
the Torrens title
Exception: When he has actual
knowledge of facts and circumstances
that would impel a reasonably cautious
man to make further inquiry
General rule: produces the same legal effects of

actual delivery.
Exceptions:
(i) The intention of the parties is otherwise.
(ii) At the time of execution, the subject matter
was not subject to the control of the seller
which must subsist for a reasonable length
oftime after execution. [Pasagui v Villablanca,
1975]
(d) Order of courts; Statutory Sale

In execution sale, the buyer merely steps
into the shoes of the judgment debtor
[Rule 39, sec. 33, ROC]
(e)When goods are purchased in Merchants
store, Fair, or Market [Art 1505, CC]
The policy of the law has always been that
where the rights and interest of the
vendor clash with that of an innocent
buyer for value, the latter must be
protected. [Sun Brothers and Co. vs.
Velasco, 1958]
Control over thing sold must be such that

seller is capable of physically transferring it to
buyer.
Although parties may stipulate that the
execution of a public instrument is equivalent to
delivery, this legal fiction holds true only when
there is no impediment that may prevent the
passing of the property from the vendor to the
vendee. [Vda.de Sarmiento v. Lesaca (1960)]
(5) Sale by person having a voidable title

(a) True owner may recover the thing when
the ff. requisites concur:
i. Subject matter is movable
ii. Owner has either lost the thing or has
been unlawfully deprived. [Art 559, CC]
(b) Reimbursement is necessary before
owner can recover when:
i. Buyer acted in good faith
ii. Acquired at a public auction [Art 559]
(c) Recovery no longer possible when:
i. Buyer in good faith
ii. Acquired it at a merchants store, fair
or market. [Art 1506, CC]
If, notwithstanding execution of the instrument,

the buyer cannot enjoy material tenancy and
make use of the object himself or through
another in his name, there is no delivery. [Power
Commercial v. CA (1997)]
Execution of a public instrument gives rise only
to a prima facie presumption of delivery,
negated by failure of the buyer to take actual
possession of land sold. A person who does not
have actual possession cannot transfer
constructive possession by execution and
delivery of public instrument. [Spouses Santiago
v. Villamor (2012)]
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There is symbolic delivery, unless from the

express terms of the instrument, or by clear
inference therefrom, that the same was not the
intention of the parties, e.g. where the vendor
has no control over the thing sold at the
moment of the sale, and, therefore, its material
delivery could not have been made. [Villamor v.
Mangaoil (2012)]
CIVIL LAW
Exceptions
(i) Seller reserved title by the form of the
bill of lading, with intent to remain the
owner, not merely for the purpose of
securing payment, OR
(ii) Contrary intention appears in the
contract (i.e. seller is required to
deliver goods to buyer at the point of
destination)
(iii) F.O.B. (Free on Board or Freight on
Board):When seller bears the expenses
of transportation up to the F.O.B.
point.
(iv) C.I.F. (Cost, Insurance, Freight):Price
quoted includes the costs of the goods,
insurance, and freight charges on the
goods up to the point of destination.
(v) F.A.S. (Free Alongside):Seller bears the
expenses of transportation until he
delivers the goods alongside a vessel
at a named port.
(b) Symbolic Delivery

(i) Delivery of keys of the place or
depositary where the movable is stored
or kept. [Art 1498, CC]
(ii) Unless otherwise agreed, when
symbolic delivery has been made, the
seller is not obliged to remove tenants to
place the buyer in actual possession of
the property as he has already complied
with his obligation to transfer ownership
of and deliver the thing sold. [Power
Commercial and Industrial Corp. v. CA,
1997; Sabio v. The International Corporate
Bank, Inc., 2001]
DOUBLE SALES
General Rule: Prior tempore, potior jure (he who
is first in time is preferred in right) applies.
(c) Tradition Longa Manu (Long Hand)

(i) Delivery of thing by mere agreement.
Example: Seller points to the property
without actually transferring physical
possession thereof.
(ii) When an employer assigned all its
rights and title to all surplus property
salvaged by the contractor, tradition
longa manu takes place. Delivery is
upon the moment a thing is salvaged.
[Board of Liquidators v. Floro, 1960]
Requisites [Cheng v Genato, 1998]:

(1) 2 or more valid sales;
(2) Same subject matter;
(3) 2 or more buyers with conflicting interests at
odds over the rightful ownership of the
thing sold;
(4) Same seller
RULES
GOVERNING
SALE
OF
MOVABLES,
IMMOVABLES
AND
UNREGISTERED LANDS
(d) Tradition Brevi Manu (Short Hand)

MOVABLE is delivered when the buyer
had the thing already in his possession
before the sale took place, not as owner
but as lessee, borrower, or depositary.
(1) Sale of Movables

Ownership shall be transferred to the person
who may have first taken possession in good
faith.
(e) Tradition ConstitutumPossessorium

Seller continues to be in possession of the
property sold, by virtue of a lease contract
agreement with the vendee.
(2) Immovables
(a) Ownership belongs to the person who:
(i) In good faith first recorded it in the
Registry of Property; OR
(ii) If there is no inscription, ownership
passes to the person who in good
faith was first in possession; OR
(f) Delivery to a Common Carrier

General Rule: Delivery to the courier or
carrier is tantamount to delivery to buyer,
whether carrier is named by buyer or not.
The buyer assumes the risk of loss.
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UP LAW BOC
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(iii) In the absence thereof, to the person

who presents the oldest title,
PROVIDED there is good faith.
prejudice to a 3rd party with a better

right. [PD 1528 Sec 113]
(b) Art. 1544 applies to unregistered land
subject to a conventional sale (because of
Art. 1358) but NOT to unregistered land
subject to judicial sale.
(c) Unregistered by both buyers, the first
buyer is preferred.
(d) If first buyer did not register but second
buyer registerd property, second buyer is
preferred.
Oldest Title any public document

showing acquisition of the land in good
faith. To constitute title, the
transmission of ownership must appear in
a public document [Art. 1358 (1)]
Examples: Deed of Sale, Deed
Donation, Deed of Trust
CIVIL LAW
of
PROPERTY REGISTRATION DECREE
(b) Registration includes any entry made in

the Primary Entry Book of the registry,
including both registration in its
ordinary and strict sense and
cancellation, annotation, and even
marginal notes. [Cheng v. Genato, 1998]
i. Pencilled entries on the title are
not considered registration
[AFPMBAI v. Court of Appeals,
1999].
(1) REQUISITES FOR REGISTRATION OF

DEED OF SALE IN GOOD FAITH
Purchaser in good faith
(a) General Characteristics
i. One who buys the property of another,
without notice that some other person
has a right to or interest in such
property, and who pays a full and fair
price for the sale, at the time of the
purchase or before he has notice of the
claim/interest of some other person in
the property. [Agricultural and Home
Extension Development Group v CA,
1992]
(3) Sale by Virtue of Execution and Attachment

Art. 1544 does NOT apply to the sale of
unregistered land at an execution sale
because a buyer of unregistered land at an
execution sale only steps into the shoes of
the judgment debtor, and merely acquires
the latter's interest in the property sold as of
the time the property was levied upon.
[Carumba v. CA, 1970]
(a) Unregistered by both buyers: the first sale
is preferred
(b) Registered by both buyers: the second
sale is preferred
(c) If the first buyer did not register but the
second buyer registered property, then
the first buyer is preferred.
(b) Presumption
General Rule: As a rule, he who asserts
the status of a purchaser in good faith
and for value has the burden of proving
such assertion. This onus probandi cannot
be discharged by mere invocation of the
legal presumption of good faith, i.e., that
everyone is presumed to act in good faith
[Mathay v CA, 1998]
When buyer is presumed to be in bad faith:
(i) Annotation of adverse claim: Places any
subsequent buyer of the registered land
in bad faith. [Balatbat v CA, 1996]
(ii) Annotation of Lis Pendens: Buyer
cannot be considered an innocent
purchaser for value where it ignored the
lispendens on the title.
(iii) A purchaser of a parcel of land cannot
close his eyes to facts which should put
a reasonable man upon his guard, such
as when the property subject of the
purchase is in the possession of persons
(4) Sale of Unregistered Land

(a) Instrument or deeds establishing,
transmitting, acknowledging, modifying
or extinguishing rights with respect to
lands not registered under the Land
Registration Act or the Spanish
Mortgage Law, are required to be
registered in the Registry of Property to
prejudice 3rd persons, although such
registration is understood to be w/o
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Risk of Loss
other than the seller. A buyer who could

not have failed to know or discover that
the land sold to him was in the adverse
possession of another is a buyer in bad
faith. (Heirs of Ramon Durano v Uy,
2010)
LisPendens
May be cancelled even

before the action is
finally terminated for
causes which may not
be attributable to the
claimant
CIVIL LAW
GENERAL RULE
Res perit domino: Owner bears risk of loss
BASIS: Ownership is not transferred until
delivery.
Annotation of Adverse
Claim
May be cancelled only
in one instance, i.e.,
after the claim is
adjudged invalid or
unmeritorious by the
Court
WHEN LOSS OCCURRED

BEFORE PERFECTION
Such loss is borne by seller
WHEN LOSS OCCURRED AT

TIME OF PERFECTION
Loss must have occurred before the contract

was entered into, without the knowledge of both
parties
Both are intended to protect the interest of a

claimant by notifying and cautioning other
persons that said property is subject to a claim.
Partial Loss (Or loss

which results in
Total Loss
substantial change in
character)
Contract is ineffective.
Buyer may withdraw
from the contract
Because there can OR
be no contract without Buy the remainder at
an object
a proportionate price
The two are not contradictory or repugnant to

one another; nor does the existence of one
automatically nullify the other, and if any of the
registrations should be considered unnecessary
or superfluous, it would be the notice
of lispendens
[A.
Doronila
Resources
Development Inc v CA, 1988]
(2) ACCOMPANIED BY VENDORS DUPLICATE
CERTIFICATE OF TITLE, PAYMENT OF
CAPITAL
GAINS
TAX,
AND
DOCUMENTARY TAX REGISTRATION
FEES
Must be accompanied by:
(a) Vendors duplicate certificate of title
(b) Payment of capital gains tax 6% of the
selling price or zonal value, whichever is
higher
(c) Documentary tax registration fees 1.5%
of the selling price or zonal value,
whichever is higher
WHEN LOSS OCCURRED AFTER

PERFECTION
BUT
BEFORE
DELIVERY
Seller bears risk of loss

Buyer does not bear risk of loss until goods are
delivered to him
AFTER DELIVERY
Buyer bears risk of loss
WHEN OWNERSHIP IS
TRANSFERRED
WHEN OWNERSHIP IS TRANSFERRED TO THE
BUYER, THE GOODS ARE AT THE BUYERS
RISK
(1) Where delivery of the goods has been made
to the buyer or to a bailee for the buyer, in
pursuance of the contract and the ownership
in the goods has been retained by the seller
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UP LAW BOC
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CIVIL LAW
merely to secure performance by the buyer of

his obligations under the contract, the goods
are at the buyers risk from the time of such
delivery
(2) Where actual delivery has been delayed
through the fault of either the buyer or seller
the goods are at the risk of the party in fault.
[Art 1504, CC]
NEGOTIABLEDOCUMENTS
TITLE
DETERIORATION
Goods are deliverable By delivery of the

to bearer
document to another
OF
Definition: A document of title which states that

the goods referred to therein will be delivered to
the bearer, or to the order of any person named
in such document [Art. 1508, CC]
Terms of the Document
Impairment is borne by the buyer if the thing

deteriorates without the fault of the seller [Art
1189 (3)]
How negotiated
Endorsed in blank by
the person to whose
order the goods were
supposed
to
be
delivered
Goods are deliverable By indorsement of
to the order of a such person [Art.
specified person
1509, CC]
If it deteriorates through the fault of the debtor,

the creditor may choose between rescission of
obligation and fulfillment, either case with
indemnity for damages.
Documents of Title
WHO MAY NEGOTIATE IT? [ART.1512, CC]

(1) Owner
(2) Person to whom the possession or custody of
the document has beenentrusted by the
owner
(a) If bailee undertakes to deliver the goods
to such person
(b) If document is in such form that it may be
negotiated by delivery
DEFINITION
A document used in the ordinary course of
business in the sale or transfer of goods, as
proof of the possession or control of the goods,
or authorizing or purporting to authorize the
possessor of the document to transfer or
receive, either by endorsement or by delivery,
goods represented by such document. [Art.
1636]
A PERSON TO WHOM A DOCUMENT HAS BEEN

NEGOTIATED ACQUIRES
(1) Title of person negotiating the document,
over goods coverd by document
(2) Title of depositor/owner over such goods
(3) Direct obligation of bailee/carrier to hold
possession of goods for him
Examples: bill of lading, quedan, warehouse

receipts, trust receipts, dock warrant
PURPOSE OF DOCUMENTS OF
TITLE
(1) As evidence of possession or control of goods
described therein
(2)As a medium of transferring title and
possession over the goods described therein
without having to effect actual delivery
thereof [Villanueva]
NON-NEGOTIABLE
DOCUMENTS OF TITLE
Goods described in a non-negotiable document

of title are deliverable only to a specified person.
The custody of a negotiable warehouse receipts

issued to the order of the owner, or to bearer, is
a representation of title upon which bona fide
purchasers for value are entitled to rely, despite
breaches of trust or violations of agreement on
the part of the apparent owner. [Siy Cong Bieng
vs. HSBC, 56 Phil 598]
Carrier will not deliver the goods to any holder

of the document or to whom such document
may have been endorsed by the consignee.
Must present the deed of sale or donation in his
favor.
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HE DOES NOT WARRANT THAT

(1) Common carrier will fulfill its obligation to
deliver the goods
(2) Previous indorsers will fulfill their obligation
[Art. 1516-1517, CC]
A PERSON TO WHOM A DOCUMENT HAS BEEN

NEGOTIATED ACQUIRES
(1) Title to goods as against the transferor
(2) Right to notify the bailee of the transfer
thereof
(3) Right, thereafter, to acquire the obligation of
the to hold goods for him
GOODS IN THE HANDS OF THE CARRIER

COVERED BY A NEGOTIABLE DOCUMENT
CANNOT BE ATTACHED OR LEVIED UPON,
UNLESS
(1) Document is first surrendered to the carrier;
or
(2) Impounded by the court; or
(3)Its negotiation is enjoined. [Art. 1519-1520,CC]
Negotiation [negotiable document of title] VS.

Transfer [non-negotiable document of title]:
NegotiationArt. 1508)
Transfer
Delivery of a negotiable
document of title to
another if by the terms
thereof, the goods are
deliverable to bearer, or
when the document was
endorsed in blank by the
person to whose order the
goods are deliverable.
The assignment of
rights
of
the
consignee of a
non-negotiable
document of title
to another; or
CIVIL LAW
RULES ON
LEVY/GARNISHMENT OF
GOODS
Document of title
was ordered sold
or
assigned,
In a negotiable document without
of title, the buyer may indorsement.
acquire a better title than
his transferor.
Transferee does
not acquire a
better title than
his transferor
Goods in the hands of the carrier covered by a

negotiable document cannot be attached or
levied upon, UNLESS
(1) Document is first surrendered to the carrier;
or
(2) Impounded by the court; or
(3)Its negotiation is enjoined. [Art. 1519-1520,CC]
The levy of an attachment of execution upon the
goods by a creditor of the transferor may defeat
the title of the transferee and the right to
acquire the obligation of such bailee when:
(1) It was done prior to the notification to such
bailee by the transferor of a non-negotiable
document of title or
(2) By a notification to such bailee by the
transferor or a subsequent purchaser from
the transferor of a subsequent sale of the
goods by the transferor. [Art 1514 (3rd par)]
WARRANTIES OF SELLER OF
DOCUMENTS OF TITLE
A PERSON WHO NEGOTIATES A DOCUMENT
OF TITLE WARRANTS
(1) Genuineness of document
(2) Legal right to negotiate or transfer
(3) No knowledge of fact which would impair the
validity or worth of the document
(4) Right to transfer the title to the goods and
merchantability or fitness for a particular
purpose, whenever such warranties would
have been implied
A creditor whose debtor is the owner of a

negotiable document of title shall be entitled to
such aid from courts in regard to property which
cannot be readily attached or levied by ordinary
legal process [Art 1520]
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Remedies of an Unpaid
Seller
CIVIL LAW
Buyer can set up the defense that seller at

any time before judgment could not or did
not intend to deliver the goods.
Unless the contrary appears, payment and
delivery are presumed to be concurrent acts,
and the obligation of each party to perform
the contract is dependent upon the
simultaneous performance by the other party
DEFINITION OF UNPAID SELLER
A seller is considered to be an unpaid seller if

the whole price has not been paid or tendered,
or when check received as a conditional
payment was dishonored by non-payment or
insolvency of the buyer [Baviera]
If ownership has not yet passed to the buyer,

the seller cannot maintain an action for the
price, unless it involves (b) or (c).
An seller is unpaid within such definition

whether or not title has been passed. Partial
payment of the price does not extinguish the
unpaid sellers lien. [De Leon]
Title to goods passes from the moment the

goods are placed at the buyers disposal
when refusal to accept is without just cause.
Term also includes:

(1) The agent of the seller to whom the bill of
lading was endorsed,
(2) The consignor or agent who had paid the
price or is responsible for the price
(3) Any other person who is in the position of a
seller (i.e. buyer who paid the price and had
a right to return the goods). [Baviera]
(2) Action for damages for non-acceptance, if

buyer wrongfully neglects or refuses to
accept and pay for the goods (Art. 1596)
Measure of damages: Estimated loss directly
and naturally resulting in the ordinary course
of events from the buyers breach. Not only
actual damages, but also unrealized profits.
It is the difference between the contract price
and the market or current price. [De Leon]
REMEDIES OF UNPAID SELLER

JUDICIAL REMEDIES OF AN UNPAID SELLER
(1) Action for the price or specific performance
[Art. 1595]
Instances:
(a) The goods has passed to the buyer and
the buyer wrongfully neglects or refuses
to pay the price
(b) Price is payable on a certain day and the
buyer wrongfully neglects or refuses to
pay the price, irrespective of delivery of
the goods or transfer of title, or
(c) When the goods cannot readily be resold
for a reasonable price, and the buyer
wrongfully refuses to accept the goods
even before ownership passed, if
NCC1596, paragraph 4 is inapplicable.
(d) Seller was notified by the buyer of his
repudiation of the contract after the seller
has completed the manufacture of the
goods or had procured the goods to be
delivered and the goods could not readily
be resold for a reasonable price
(a) Where there is available market for goods:

Difference between the contract price and
the market price at the time the goods
ought to have been accepted or if no time
was fixed, at the time of refusal to accept
(b) If the resale was made with diligence:
resale price is evidence of market value,
taking into account whether or not the
goods could be readily sold
(c) Where labor/expense was necessary for
seller to fulfill his obligation: Labor
performed and expenses made by seller
before receiving notice of buyers
repudiation or countermand
(d) Profit that the seller would have made if
sale had been fully performed
(3) Rescission by giving the buyer notice of the
election to rescind [Art. 1597]
Under this rule, rescission would bar an
action on the contract because it means
PAGE 230
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cancellation of the contractual obligations

between the parties. [Baviera]
CIVIL LAW
balance, and any stipulation to the

contrary shall be void
(ii) What Art 1484 (3) prohibits is further
action against the purchaser to recover any
unpaid balance of the price; and although
this Court has construed the word action
to mean any judicial or extrajudicial
proceeding by virtue of which the vendor
may lawfully be enabled to exact recovery
of the supposed unsatisfied balance of the
purchase price from the purchaser or his
privy, there is no occasion at this stage to
apply the restrictive provision of the said
article because there has not yet been a
foreclosure sale resulting in a deficiency.
The payment of the sum of P1,250 of
Sapinoso was a voluntary act on his part
and did not result from a further action
instituted by Northern Motors. [Motors vs.
Sapinoso, 1970]
(iii) The purpose of the law is to remedy the
abuses committed in foreclosure of chattel
mortgages. It prevents mortgagees from
seizing the mortgaged property, buying it
at foreclosure sale for a low price and then
bringing the suit against the mortgagor for
a deficiency judgment. The almost
invariable result of this procedure was that
the mortgagor found himself minus the
property and still owing practically the full
amount of his original indebtedness.
[Bachrach Motor Co., Inc. v. Millan, 1935]
(iv) Remedies are ALTERNATIVE, not
cumulative, i.e. exercise of one bars
exercise of the others. [Nonato vs. IAC,
1985]
The unpaid sellers right to rescind for nonperformance is not absolute. Exceptions:
(a) 3rd persons possessing the objects of
the contract to whom no bad faith is
imputable
(b) Casual breach
The seller cannot unilaterally and extrajudicially
rescind a contract absent express stipulation to
do so, except as provided in Art. 1597.
(4) Special rule for sale of movables by
installments Recto Law [Arts. 1484, 1485]
Applies in cases of:
(a) Sale of movables in installment
(i) The rule is intended to apply to sales of
movables, the price of which is payable
in two or more installments, but not to
straight-term sales where the price is
payable in full, after making a down
payment because the law aims to
protect improvident buyers who may be
tempted to buy beyond their means.
[Levy Hermanos vs. Gervacio, 1939]
(b) Lease of personal property with option to
buy
(i) When lessor has deprived the lessee of
the possession or enjoyment of the
thing (Ex.: When lessor files a complaint
for replevin against lessee)
(ii) Also applies when seller assigns his
credit to someone else
Where the mortgagor unjustifiably refused to

surrender the chattel subject of the mortgage
upon failure of two or more installments, or if he
concealed the chattel to place it beyond the
reach of the mortgagee, that thereby
constrained the latter to seek court relief, the
expenses incurred for the prosecution of the
case, such as attorney's fees, could rightly be
awarded. [Borbon II v. Servicewide (1996)]
ALTERNATIVE REMEDIES OF THE UNPAID

SELLER UNDER RECTO LAW
(a) Specific Performance
(b) Cancellation of sale: If vendee fails to pay 2
or more installments
(i) When the seller cancels the sale by
repossessing the property sold, he is
barred from exacting payment for its price.
(c)Foreclosure of Chattel Mortgage: If vendee
fails to pay 2 or more installments
(i) If seller chooses this remedy, he shall have
no further action to recover any unpaid
PAGE 231
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Performance of Contract
CIVIL LAW
(i) Seller bound to deliver entire land, i.e.,

the entire area stated in the contract
(ii) If the area is less than that stated,
buyer may rescind or demand a
proportionate reduction in price
(iii) If a part of the land is not of the
quality stated in the contract, buyer
may
rescind
or
demand
a
proportionate reduction in price
(iv) Buyer may only avail of rescission if
the area deficiency is 10% or more of
total area or if the inferior value of the
part of the land exceeds 10% of the
price agreed upon. [Art. 1539]
(v) If the area turns out to be greater than
that stated, buyer may accept area
included and reject the excess or
accept all and pay a proportionate
increase in price [Art. 1540]
(b) Sale for a lump sum
(i) Follows the same rule as the sale of a
specific mass which is explained above
(ii) There is no change in price even if area
or number turns out to be greater or
lesser than that stated [Art. 1542]
DELIVERY OF THING SOLD

(1) SALE OF MOVABLES [Arts. 1522, 1537, 1480]
(a) When Quantity less than expected
(i) Buyer may reject all
(ii) Buyer accepts with knowledge of
sellers inability to deliver the rest
buyer pays at contract price
(iii) Buyer has used or disposed prior to
knowing sellers inability to deliver the
rest buyer pays fair value
(b) Quantity more than expected
(i) If divisible, buyer may reject excess
(ii) If indivisible, buyer may reject all
If the buyer accepts all goods delivered, he
makes himself liable for the price of all of them.
(c) Quality different or different goods
(i) If divisible, buyer may accept the goods
compliant with contract and reject
those that are not
(ii) If indivisible, buyer may reject all [Art.
1522]
(d) Sale of specific mass of goods
(i) In the sale of fungibles where the
measure or weight has not been
agreed upon nor is there a fixed rate
based upon a measurement, the
subject matter of the sale is a
determinate object the specific mass;
seller is merely required to deliver such
mass even if actual quantity falls short
of parties estimate [Art. 1480]
(e) Delivery by installments
(i) By default, buyer is not bound to accept
delivery of goods by installments
(ii) In a contract of delivery by installment
to be paid by installment as well, delay
or breach may not necessarily mean
breach of the entire contract;
depending on the circumstances, breach
may be severable and the aggrieved
party is entitled to damages and not
rescission. [Art. 1583]
Exception: when the excess or deficiency is

no longer reasonable [Asian v Jalandoni,
1923: 644 m2 was unreasonable]
Exception to the exception: when buyer
expressly assumes risk on actual area of
the land. [Garcia v Veloso, 1941]
(iii) If the price per unit or measure is not
provided for in the contract, then the
rules of lump sum sale should prevail.
[Sta. Ana v Hernandez, 1966]
If sale for lump sum, the cause of the contract is
the
thing
sold,
independent
of
number/measure. The law presumes that the
purchaser had in mind a determinate price for
real estate and the ascertained area and quality.
The purchaser intended to buy thing in entirety,
not just any unit of measure or number. [De
Leon]
When there is conflict between the area
stipulated in the contract, the area included
within the stipulated boundaries prevails,
provided such boundaries are certain, and no
alteration thereof has been proven.
(2) SALE OF IMMOVABLES [Arts. 1539, 1543]

(a) Sale at a fixed rate per unit of measure
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(3) INSPECTIONS AND ACCEPTANCE
CIVIL LAW
PAYMENT OF PRICE
Inspections
Right of Inspection: The buyer has
reasonable opportunity to examine the
goods upon delivery. If there is a stipulation
that delivery is preconditioned on payment,
then buyer has no right of inspection until he
has paid. [Art.1584]
PAY THE PRICE OF THE THING SOLD

(ART. 1582)
PAYMENT OF INTEREST:
Buyer is liable for interest when: (SFD)

(1) Interest is Stipulated;
(2) Thing sold produces Fruits or income;
(3) Buyer is in Default - interest accrues from the
time of judicial or extrajudicial demand for
payment
Exception: in case such right of inspection is

permitted by agreement or usage of trade.
Acceptance
Accept Delivery
(1) Form
(a) Express: buyer intimates acceptance
(b) Implied:
(i) Goods are delivered to the buyer
and he does any act in relation to the
goods delivered that is inconsistent
with the ownership of the seller.
(ii) After the lapse of a reasonable
time, the buyer retains the goods
without intimating to the seller that
he has rejected them. [Art.1585]
SUSPENSION OF PAYMENTS:
Buyer may suspend payment when:
(1) His ownership or possession of the thing is
disturbed; OR
(2) He has reasonable grounds to fear such
disturbance by a vindicatory action or a
foreclosure of mortgage
Exceptions: buyer cannot suspend payment
when:
(1) Seller gives security for the return of the price
in a proper case
(2) It has been stipulated that, notwithstanding
any such contingency, the buyer shall be
bound to pay [Art. 1590]
(a) Suspension may continue until the seller
has caused the disturbance or danger to
cease
(b) However, a mere act of trespass shall not
authorize the suspension of the
payment. [Art.1590]
(2) Effect of Refusal to accept

(a) If buyer refuses to accept goods,
having the right to do so, he is not
bound to return them to the seller, it
being sufficient that he notifies the
seller of his refusal to accept
(i) If he voluntarily constitutes himself a
depositary of the goods, he shall be
liable as such. [Art.1587]
(ii) Unjust refusal to accept still results
to transfer of ownership. In such
case, title to the goods passes to the
buyer from the moment they are
placed at his disposal, except if
ownership has been reserved by the
seller [Art.1588]
SALE OF REAL PROPERTY
(1) In the sale of immovable property, buyer may

pay even beyond the expiration of the period
agreed upon, as long as no demand for
rescission of the contract has been made
upon him either judicially or by a notarial act,
despite a stipulation providing for ipso jure
rescission [Art.1592]
(2) Mere failure to fulfill the contract does not
ipso facto entitle the offended party to
rescind. A judicial or notarial act is necessary
before rescission can take place, whether or
not automatic rescission has been stipulated.
A letter informing the buyer of automatic
rescission is not demand if such letter is not
notarized. [De Leon]
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Warranties
(3) After demand, court may not grant him a

new term [Heirs of Escanlar, et.al. v. CA, 1997]
(4) R.A. 6552 (Maceda Law) applies to sale or
financing of real estate on installment [Rillo
v. Court of Appeals,1997]
(a) Buyer is awarded a grace period of 1
month per year of installments paid or
60 days, whichever is higher, within
which he may pay without additional
interest
i. May be used once every 5 years of the
life of the contract or any of its
extensions
(b) If contract is to be cancelled, seller must
first:
i. Give a 30-day notice of cancellation,
and
ii. Refund cash surrender value to buyer;
iii. CSV is equivalent to 50% of total
payments made including deposits,
options and down-payments plus 5%
for every year in excess of 5 years of the
life of the contract or any of its
extensions.
A statement or representation made by the

seller contemporaneously and as part of the
contract of sale, having reference to the
character, quality, or title of the goods, and by
which he promises or undertakes to ensure that
certain facts are or shall be as he then
represents.
Not every false representation voids the
contract, only those matters substantially
affecting the buyers interest, not matters of
opinion, judgment, probability, or expectation.
When the buyer undertakes his own
investigation, and the seller does nothing to
prevent it from being as full as the buyer
chooses, the buyer cannot afterwards allege
misrepresentations. [Songco v. Sellner (1917)]
CONDITION V. WARRANTY
Condition
Warranty
Pertains to and affects Goes
into
the
the existence of the
performance of an
obligation
obligation and may, in
itself, be an obligation
Non-happening does
Non-fulfillment
not amount to breach
constitutes breach of
of contract
contract
Must be stipulated
Stipulation
or
operation of law
May attach either to
Always relates to the
the sellers duty to
subject matter or the
deliver thing or some
sellers obligations as
other circumstance
to the subject matter
Cancellation of the contract under Section 4 of

R.A. 6552 as a two-step process. First, the seller
should extend the buyer a grace period of at
least 60 days from the due date of the
installment. Second, at the end of the grace
period, the seller shall furnish the buyer with a
notice of cancellation or demand for rescission
through a notarial act, effective 30 days from
the buyers receipt thereof. [Jestra Development
v. Pacifico (2007)]
If seller has promised that the condition should

happen or be performed, the buyer may treat
the nonperformance of the condition as a
breach of warranty. [Art.1545]
EXPRESS WARRANTIES
For there to be express warranty, the following
requisites must concur: (APIR)
(1) An affirmation of fact or any promise relating
to the thing sold;
(2) The natural tendency of such affirmation or
promise is to induce the buyer to buy;
(3) The buyer buys the thing relying thereon.
[Art. 1546]
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(4) Made before the sale not upon delivery or

any other point
Express Warranty
An express warranty can be made by and also

be binding on the seller even in the sale of a
second hand article. [Moles v. IAC, 1989]
Express Warranty
What is specifically
represented as true in
said document cannot
be considered as mere
dealer's talk. [Moles v.
IAC, 1989]
Dealers or Traders
Talk
(a) Affirmation of the
value of the thing or
statement of the
sellers opinion only is
not a warranty unless:
i. The seller made
it as an expert;
ii. It was relied
upon by the buyer.
[Art.1546]
(b) Ordinarily, what
does not appear on
the face of the written
instrument [Moles v.
IAC, 1989]
False Representation
Reason: buyers duty
to inspect remains
despite
false
representation by the
seller; he has the duty
to
exercise
due
diligence.
IMPLIED WARRANTIES
An implied warranty is derived by law by
implication or inference from the nature of the
transaction
or
relative
situation,
or
circumstances of the parties, irrespective of any
intention of the seller to create it.[De Leon]
(TODS)
(1) Implied Warranty of Title
(2)Implied Warranty against Encumbrance/
Non-Apparent Servitudes
(3) Implied Warranty against Hidden Defects
[Art. 1547]
(a) Implied warranty as to Merchantable
Quality and Fitness of Goods
(b) Implied warranty against Redhibitory
Defect in the Sale of Animals [Art. 1572]
(c) Quality and Fitness of Goods in Sale by
Sample or Description
(4) Other Warranties
EXPRESS WARRANTY DISTINGUISHED FROM FALSE

REPRESENTATION
Express Warranty
Concealment of facts
does not necessarily
amount
to
false
representation
CIVIL LAW
False Representation
When concealment of
facts comes with an
active misstatement of
fact or a partial
statement of fact such
that withholding of
that unsaid portion
makes that which is
stated absolutely false
IMPLIED WARRANTY OF TITLE

(1) Implied warranty arises by operation of law
and need not be stipulated in the contract of
sale.
(2) Warranty of Sellers Right to Sell: Seller
warrants his right to sell at the time the
ownership is to pass.
(a) Inapplicable to a sheriff, auctioneer,
mortgagee, pledgee, or other person
professing to sell by virtue of authority
in fact or law. [Art. 1547]
(3) Warranty against Eviction: seller warrants
that buyer, from the time ownership passes,
shall have and enjoy legal and peaceful
possession of the thing. Its requisites are:
(a) Buyer is deprived of the whole or a part of
the thing sold;
(b) Eviction is by final judgment
(c) Final judgment based on a right prior to
the sale or an act imputable to the vendor
However, buyer who

fails
to
inspect
condition of property
despite
ample
opportunity to do so
when there is no
opposition on the part
of seller to inspect
cannot later on allege
false
representation.
[Phil Mftg Co. v Go
Jucco, 1926]
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(d) Seller is summoned and made codefendant in the suit for eviction at the
instance of the buyer. [Power Commercial
and Industrial Corp. v. CA, 1997]
CIVIL LAW
IMPLIED WARRANTY AS TO MERCHANTABLE

QUALITY AND FITNESS OF GOODS
Warranty of merchantability is warranty that
goods are reasonably fit for the general purpose
for which the same are sold. Warranty of fitness
is warranty that goods are suitable for the
special purpose of the buyer which will not be
satisfied by mere fitness for general purposes.
IMPLIED WARRANTY AGAINST

ENCUMBRANCE/ NON-APPARENT
SERVITUDES
Requisites for breach:
(1) Thing sold is an immovable
(2) Burden or servitude encumbering the thing
sold is:
(a) Non-apparent to the naked eye
(b) Not mentioned in the agreement
(c) Of such nature that it must be presumed
that the buyer would not have bought it
had he been aware of it
(d) Not recorded in the Registry of Property
unless there is an express warranty that
the thing is free from all burdens and
encumbrances [Art.1560]
MERCHANTABLE QUALITY:
(1) Where the goods are brought by description
from a seller who deals in goods of that
description [Art.1562]
(2) In a sale by sample, if the seller is a dealer in
goods of that kind and the defect is not
apparent on reasonable examination of the
sample [Art.1566]
In a sale by sample, there is implied warranty
that goods are free from defects not apparent
on reasonable examination of sample and
which render goods unmerchantable. [Mendoza
v. David (2004)]
IMPLIED WARRANTY AGAINST HIDDEN

DEFECTS
Requisites for breach:
(1) The defect renders the thing sold unfit for the
use for which it was intended OR diminishes
its fitness for such use to such an extent that
had the buyer been aware thereof, he would
not have bought it or would have paid a
lower price;
(2) The defect is not patent or visible;
(3) The buyer is not an expert who, by reason of
his trade or profession, should have known
the defect
(4) The seller is aware of the hidden fault or
defect, OR even if he is not aware thereof, if
there is no stipulation to the contrary
[Arts.1561 &1566]
FITNESS FOR A PARTICULAR PURPOSE:

Where the buyer expressly or impliedly makes
known to the seller the particular purpose for
which the goods are acquired AND it appears
that the buyer relied on the sellers skill or
judgment [Art.1562(1)]
IMPLIED WARRANTY AGAINST REDHIBITORY
DEFECT IN THE SALE OF ANIMALS (ART.
1572)
Redhibitory defect- a hidden defect of animals
of such nature that expert knowledge is not
sufficient to discover it, even in a case where a
professional inspection has been made
No warranty in case of [Art. 1574]:
(a) Animals sold at fairs or public auctions
(b) Livestock sold as condemned
The buyer must also give notice of such

redhibitory defect within a reasonable time.
The use contemplated must be that which is
stipulated, and in absence of stipulation, that
which is adopted to the nature of the thing, and
to the business of the buyer.
The following sales are void [Art. 1575]:

(a) Sale of animals suffering from contagious
diseases
(b) Sale of animals unfit for the purpose for
which they are acquired as stated in the
contract
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Veterinarian liable if he fails to discover or

disclose the hidden defect through ignorance or
bad faith [Art 1576]
BUYERS OPTIONS IN CASE OF

BREACH OF WARRANTY
Seller liable if animal dies within 3 days after its

purchase due to a disease that existed at the
time of sale. [Art 1578]
EXPRESS WARRANTY
(1) Prescriptive period: Period specified in express
warranty OR 4 years, if no period is specified
(following the general rule on rescission of
contracts)
(2) Remedies:
(a) Accept goods + demand diminution/
extinction of price
(b) Accept goods + damages
(c) Refuse to accept goods + damages
(d) Rescind (Refuse to accept or return or
offer to return) + recover price paid
(3) Rescission not available when buyer:
(a) Knew of breach of warranty when he
accepted the goods without protest
(b) Fails to notify the seller about election to
rescind within a reasonable period of time
(c) Fails to return or offer to return the goods
to the seller in substantially a good
condition as they were when delivered,
unless deterioration was due to breach of
warranty
(4) Measure of damages: Difference between
value of goods at the time of delivery and
the value they would have had if they had
answered to the warranty
(5) Effects of rescission:
(a) Buyer no longer liable for price
i. Entitled to the return of any part of
price paid, concurrently with or
immediately after an offer to return
the goods
(b) If seller refuses to accept offer to return
goods: buyer deemed as bailee for seller
and has right of lien to secure payment
of part of price paid
EFFECTS OF WARRANTIES
(1) Natural tendency is to induce buyer to

purchase the subject matter
(2) Buyer purchases subject matter relying
thereon
(3) Seller liable for damages in case of breach
EFFECTS OF WAIVERS
Only applicable to waiver of warranty against
eviction; parties may increase or decrease
warranty against eviction but the effect depends
on good/bad faith of the seller:
(1) Seller in bad faith and there is warranty
against eviction null and void
(2) Buyer without knowledge of a particular risk
and made general renunciation of warranty
not waiver but merely limits liability of
seller in case of eviction (pay value of
subject matter at the time of eviction)
(3) Buyer with knowledge of risk of eviction
assumed its consequences and made a
waiver vendor not liable
(4) Waiver to a specific case of eviction wipes
out warranty as to that specific risk but not
as to eviction caused by other reasons
One who purchases real estate with knowledge
of defect or lack of title cannot claim he
acquired title thereto in good faith, as against
true owner of land or of interest therein. [J.M.
Tuason v. CA (1979)]
The same rule must be applied to one who has
knowledge of facts which should have put him
upon such inquiry and investigation as might be
necessary to acquaint him with the defects in
the title of his vendor. A purchaser cannot close
his eyes to facts which should put a reasonable
man upon his guard and then claim that he
acted in good faith under the belief that there
was no defect in the title of the vendor.
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(b) Buyer made waiver without knowledge of

risks of eviction: Seller liable only for the
value of the thing sold at time of eviction
(c) Buyer made waiver with knowledge of risks:
Seller not liable; buyer assumed the
consequences
IMPLIED WARRANTY AGAINST EVICTION [Arts.

1555, 1556]
Total Eviction
Partial Eviction
Enforce liability for Enforce
liability
eviction
(demandVICED)
OR
Demand from seller: Rescind
(VICED)
(a) If he would not
(a) Value of thing
have bought the
sold at time of
thing
sold
eviction
without the part
(b) Income or fruits, if
lost;
he has been (b) BUT he must
ordered to deliver
return the thing
them to the party
without
other
who won the
encumbrances
eviction suit
than those which
(c) Costs of eviction
it had when he
suit and in a
acquired it
proper case, suit
against seller for
warranty
(d) Expenses of the
contract, if buyer
has paid them
(e) Damages and
interests,
and
ornamental
expenses, IF sale
was made in bad
faith
IMPLIED
WARRANTY
AGAINST
ENCUMBRANCES[Art. 1560]
(1) Rescission: Within 1 year from execution of
deed of sale OR
(2) Damages: Within 1 year from execution of
deed of sale or discovery of the burden or
servitude
IMPLIED WARRANTY AGAINST HIDDEN
DEFECTS[Arts. 1567-1571]
(1) If thing is not lost:
(a)Withdraw
from
contract
(accionredhibitoria) + damages
(b) Demand a proportionate reduction of the
price (accionquantiminoris) + damages
(2) If thing is lost:
Due to fortuitous event

or fault of buyer
If seller aware of Demand:
defect, buyer may (a) Price paid minus
demand:
value of thing
(a) Return of price
when it was lost
(b) Refund
of (b) Damages, if seller
expenses
acted in bad faith
(c) Damages
If seller not aware of
defect:
(a) Buyer may demand
price and expenses
BUT NOT damages
Due to hidden fault
(1) Rules:
(a) Buyer need not appeal from decision to
hold seller liable for eviction
(b) When adverse possession commenced
before sale, but prescription period
completed after transfer: seller is not
liable
(c) If property sold for nonpayment of taxes
due and not made known to the buyer
before the sale: seller liable
(d) Judgment debtor also responsible for
eviction in judicial sales, unless it is
otherwise decreed in the judgment
Prescriptive period: 6 months from delivery

Nature of animal feeds makes it necessarily
difficult for private respondent to prove the
defect existing when the feeds were bought
from petitioner. Facts allege that when feeds
were delivered, rat poison was contained
therein, but strange since the animals died only
3 months after. Within such time, the feeds
could have been contaminated by other factors.
[Nutrimix Feeds v. CA (2004)]
(2) If there is waiver of warranty:

(a) Seller acted in bad faith: Waiver is void,
seller liable for eviction
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Breach of Contract
One of the express warranties stipulated was

that the stockholdings are on a clean balance
sheet. An important sense of a deed of sale is
the transfer of ownership over the subject
properties to the buyer. The failure of the seller
to effect a change in ownership of the subject
properties amounts to a hidden defect. [PNB v.
Mega Prime Realty and Holdings (2008)]
GENERAL REMEDIES
The following remedies arise from the bilateral
nature of the contract of sale:
(1) Specific performance
(2) Rescission
General rule: Rescission of a contract will not
be permitted for a slight or casual breach,
but only for such substantial and
fundamental breach as would defeat the very
object of the parties in making the
agreement. [Song Fo& Co. vs. HawaiianPhilippine Co., 1925]
(3) Damages
Neither party incurs in delay if the other does
not comply or is not ready to comply in a
proper manner with what is incumbent upon
him [Art 1169, CC]
IMPLIED WARRANTY AGAINST REDHIBITORY

DEFECTS OF ANIMALS
(1) Remedies
(a) Withdraw from contract + damages
(b) Demand a proportionate reduction of the
price + damages
(2) If sale is rescinded:

(a) Buyer must return animal in the condition
in which it was sold and delivered
(b) Buyer shall be liable for injury due to his
negligence.
Prescriptive periods
(1) 10 years if based on written contract
(2) 6 years if based on oral contract
(3) Prescriptive period: 40 days from delivery
REMEDIES OF THE SELLER

[ARTS. 1636, 1594]
WARRANTY IN SALE OF CONSUMER GOODS

[RA 7394, SEC.68]
If implied warranty accompanies express
warranty, both will be of equal duration.
(1) SALE OF MOVABLES

Extrajudicial or Self-Help Remedies- No need
to resort to the courts as long as possession
of the goods has not yet passed to the buyer
Express Warranty
Implied Warranty
(1) Demand repair (1) Retain the goods
within 30 days
and
recover
(a) Extendible for
damages
causes beyond the
OR
control of the (2) Reject the goods,
warrantor
cancel
contract
(2) Demand refund of
and recover from
price
minus
seller so much of
amount directly
the purchase price
attributable to the
as has been paid +
use
of
the
damages
consumer prior to
the discovery of
the
nonconformity
(a) Possessory lien over the goods

Right to retain possession of goods until
payment or tender of the whole price, or
unless he agrees to sell on credit [Arts.
1526-1529, 1503, 1535]
When available:
(1) Goods are sold without stipulation as
to credit
(2) Goods are sold on credit, but term of
credit has expired
(3) Buyer becomes INSOLVENT
When lost:
(1) Seller delivers goods to carrier or other
bailee for transmission to the buyer
under a straight or non-negotiable bill
of lading
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(2) Buyer/his agent lawfully obtains

possession of goods
(3) Seller waives it
(a) But it is not lost with respect to the
remainder of the goods when only
partial delivery is made (unless such
is symbolic delivery of the whole)
(b) It is not lost by the mere fact that
seller obtained a judgment for the
price
When are goods in transit?

(1) From the time of delivery to the carrier
or other bailee by the seller, for the
purpose of transmission to the buyer,
until the buyer or his agent takes such
delivery from the carrier.
(2) Even when goods have reached their
ultimate destination, if buyer rejects
them and carrier retains possession
(a) To terminate transit by delivery to a
middleman, delivery must be to
keep, not to transport.
Instances where the lien can be revived after

delivery:
(1) If the buyer refuses to receive the goods
after the same are delivered to the
carrier or other bailee on his behalf,
though the seller has parted with both
ownership and possession. Here, the
seller may reclaim the goods and revest
the lien.
(2) If the buyer returns the goods in
wrongful repudiation of the sale, then
the lien is revived.
(b) Right of stoppage in transitu
An extension of the lien for the price;
entitles unpaid seller to resume
possession of the goods while they are in
transit before the goods come in
possession of the vendee [Arts. 1530-1532,
1535, 1636[2]]
Requisites for the exercise of the right of
stoppage in transitu:
(1) The seller is unpaid
(2) The buyer is insolvent
(3) The goods are in transit
(4) The seller either takes actual possession,
or gives notice of claim to the carrier or
other person possessing the goods
(5) The seller must surrender the negotiable
instrument or title, if any, issued by the
carrier/bailee
(6) The seller must bear the expenses of the
delivery of the goods after exercise of
such right.
Available when:
INSOLVENT
Vendee
CIVIL LAW
becomes
PAGE 240
When are goods no longer in transit?

(1) Buyer obtained delivery of the goods
before they have reached their
ultimate destination
(2) Goods have arrived at ultimate
destination, but carrier refuses to
deliver
(3) Carrier enters into a new contract with
the buyer upon arrival of the goods at
their ultimate destination
How exercised?
(1) By obtaining actual possession of the
goods
(2) By giving notice of his claim to the
carrier/other
bailee
who
has
possession of the goods
(a) Carrier must redeliver goods to
seller, or according to his
instructions
(b) Carrier not obliged to redeliver until
the negotiable document of title, if
any, has been surrendered for
cancellation
Sellers right to stoppage in transitu is not
affected even if buyer has sold or disposed
of the goods unless the seller has given
his assent thereto.
(c) Special right of resale
Available to unpaid seller who has a right
of lien or who has stopped the goods in
transitu [Art. 1533]
UP LAW BOC
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Art. 1533 applies only where:

(1) The goods are perishable in nature
(2) The right to resell is expressly reserved in
case the buyer should default, and
(3) The buyer delays in paying the price for
an unreasonable time.
CIVIL LAW
When available:
(1) Seller expressly reserved his right to
rescind in case buyer defaults
(2) Buyer has been in default in payment
for an unreasonable time
Transfer of title shall not be held to have
been rescinded by the unpaid seller until
he manifests by notice to the buyer or
some other overt act an intention to
rescind.
The right to resell the goods is not mandatory,

but permissive.
Purpose: For seller to liquidate his
damages
(1) He must do so within a reasonable
time and in such manner as to obtain
the best price possible.
(2) Resale is deemed to be a fair sale if it
is undertaken in accordance with
established business practices, with
no attempt to take advantage of the
original buyer.
(3) Resale may be in a private or public
sale, but seller cannot buy directly or
indirectly.
(4) For resale to be valid, buyer need not
be notified of an intention to resell or
the time and place of the resale.
Election by seller to rescind may be maintained

by giving notice to the buyer or by some other
overt act showing intention to rescind.
Communication to buyer is not always
necessary. But giving/failure to give notice is
relevant in determining reasonableness of time
given to the buyer to make good his obligation
under contract. [De Leon]
(a) When the whole of the price has not been
paid or tendered;
(b) When a bill of exchange or other
negotiable instrument has been received
as conditional payment and the condition
on which it was received has been broken
by reason of the dishonor of the
instrument, the insolvency of the buyer, or
otherwise.
Effects:
(1) Seller is no longer liable to the
original buyer upon the contract of
sale or for any profit made by the
resale
(2) Buyer at resale acquires good title as
against the original owner
(3) In case resale is at a loss, seller is
entitled to recover the difference
from the original buyer
(4) Seller may recover damages from
original buyer for breach of contract
RECTO LAW: SALE OF MOVABLES ON

INSTALLMENT [ARTS. 1484-1486]
Applies in cases of:
(1) Sale of movables in installment
(a) The rule is intended to apply to sales of
movables, the price of which is payable
in 2 or more installments, but not to
straight-term sales where the price is
payable in full, after making a down
payment because the law aims to protect
improvident buyers who may be tempted
to buy beyond their means. [Levy
Hermanos vs. Gervacio, 1939]
(2) Lease of personal property with option to buy
(a) When lessor has deprived the lessee of
the possession or enjoyment of the thing
(Ex.: When lessor files a complaint for
replevin against lessee)
(d) Special right to rescind:

RETURN of the title over the undelivered
goods to the seller, and right to recover
DAMAGES for breach of contract [Art.
1534]
Available to unpaid seller who has a right
of lien or who has stopped the goods in
transitu
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(b) Also applies when seller assigns his credit

to someone else
exercise of the others. [Nonato vs. IAC,

1985]
ALTERNATIVE REMEDIES OF THE UNPAID

SELLER UNDER RECTO LAW
(1) Specific Performance
(2) Cancellation of sale: If vendee fails to pay 2
or more installments
(a) When the seller cancels the sale by
repossessing the property sold, he is
barred from exacting payment for its
price.
(3) Foreclosure of Chattel Mortgage: If vendee
fails to pay 2 or more installments
(a) If seller chooses this remedy, he shall
have no further action to recover any
unpaid balance, and any stipulation to
the contrary shall be void
(b) What Art 1484 (3) prohibits is further
action against the purchaser to recover
any unpaid balance of the price; and
although this Court has construed the
word action to mean any judicial or
extrajudicial proceeding by virtue of
which the vendor may lawfully be
enabled to exact recovery of the
supposed unsatisfied balance of the
purchase price from the purchaser or his
privy, there is no occasion at this stage
to apply the restrictive provision of the
said article because there has not yet
been a foreclosure sale resulting in a
deficiency. The payment of the sum of
P1,250 of Sapinoso was a voluntary act
on his part and did not result from a
further action instituted by Northern
Motors. [Motors vs. Sapinoso, 1970]
(c) The purpose of the law is to remedy the
abuses committed in foreclosure of
chattel
mortgages.
It
prevents
mortgagees from seizing the mortgaged
property, buying it at foreclosure sale for
a low price and then bringing the suit
against the mortgagor for a deficiency
judgment. The almost invariable result
of this procedure was that the mortgagor
found himself minus the property and
still owing practically the full amount of
his original indebtedness. [Bachrach
Motor Co., Inc. v. Millan, 1935]
(d) Remedies are ALTERNATIVE, not
cumulative, i.e. exercise of one bars
SALE OF IMMOVABLES
(a) PD 957, sec. 23, 24
Non-forfeiture of payments
(1) No installment payment made by the
buyer shall be forfeited in favor of the
owner or developer of the condominium
or subdivision project, after due notice,
when the buyer desists from paying due
to the failure of the developer or owner
to develop the project according to the
approved plans or within the time limit
stated.
(2) Buyers Remedy: At his option, he may
reimburse the total amount paid
including amortization interest with
interest thereon at the legal rate
(3) If the buyer fails to pay the installments
for reasons other than the failure of the
owner or developer to develop the
project, his rights shall be governed by
RA 6552.
(b) Maceda Law: Sale of Immovables on
Installment
RA 6552: An Act To Provide Protection for
Buyers of Real Estate on Installment
Payments
DOES not apply to:
(1) Industrial lots
(2) Commercial buildings
(3) Sale to tenants under Agricultural
Reform Code [RA 3844]
Imposes ADDITIONAL REQUIREMENTS FOR
A VALID RESCISSION:
(1) If buyer has paid at least 2 years of
installments: (GRN)
(a) Grace period: 1 month per year of
installment payments made. BUT
buyer may only avail of it only once in
every 5 years
(b) Refund of Cash Surrender Value (CSV):
50% of total amount paid + 5% for
every year after the 1st 5 years of
installments
(i) BUT not greater than 90% of total
amount paid
PAGE 242
UP LAW BOC
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(c) Notice of cancellation of demand for

rescission by notarial act is effective
30 days from the buyers receipt
thereof and upon full payment of CSV
(2) If buyer has paid less than 2 years: (GN)
(a) Grace period: at least 60 days
(b) Notice of cancellation or demand for
rescission by notarial act, effective 30
days upon receipt thereof
(3) Down payments, deposits, or options on
the contract shall be included in the total
number of installments made
(4) Seller may go to court for judicial
rescission in lieu of a notarial act of
rescission
(5) During the grace period, buyer shall have
the right:
(a) To sell or assign his rights, to be
evidenced in a notarial instrument
(b) To update his account
(c) To pay in advance any installment, or
the full unpaid balance of the price,
without any interest
CIVIL LAW
(b) Court has discretion, for a just cause,

to give the buyer more time to pay
even if the seller chooses rescission
(3) Rescission + Damages [Art. 1191]
(a) If seller chose specific performance,
and such becomes impossible, he
may still avail of rescission
(b) If absolute sale, seller must make a
demand for rescission
(i) Judicially, OR
(ii) By a notarial act
(c) Necessary even if automatic rescission
is stipulated
(d) Effect of lack of demand: Buyer can still
pay
(e) Effect of demand: Court may not grant
buyer a new term
REMEDIES OF THE BUYER

General rule: Courts will refuse to decree
specific performance with respect to chattels,
because damages are a sufficient remedy
Cancellation
pertains
to
extrajudicial
cancellation. Absence of notice does not bar
filing of an action to cancel the contract.
Exception: Buyer is entitled to the specific thing

which to him has special value and which he
cannot readily obtain in the market OR where
damages would not furnish a complete and
adequate remedy [Baviera]
A decision in an ejectment case can operate as

notice of cancellation required by RA6552. But
mere filing of an unlawful detainer suit by the
seller is not such notice. [De Leon]
SALE OF MOVABLE
(1) Remedy for breach of obligation to preserve
If thing is lost
(a) Without fault of seller: No breach;
Obligation is extinguished
(b) Through fault of seller (or through
fortuitous event, if seller is liable):
Damages
In the sale of immovables

(1) Rescission for Anticipatory Breach [Art.
1591]
(a) Available when seller has reasonable
grounds to fear the loss of the
immovable property sold and its price
Example: Buyer destroys the building
sold, there being no security therefor, and
buyer becomes insolvent
(b) Court has no discretion to compel the
seller to wait for the expiration of the
period to pay, or to grant the buyer
more time to pay
(2) Specific Performance + Damages [Art.
1191]
(a) Seller may choose between specific
performance and rescission, with
damages in either case
A thing is lost when it

(a) Perishes
(b) Goes out of commerce
(c) Disappears in such a way that its
existence is unknown or it cannot be
recovered
PAGE 243
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If thing deteriorates
Without fault of seller
Through fault of seller
NO
BREACH. Rescission + damages
Impairment shall be OR
borne by buyer
Specific performance
+ damages
CIVIL LAW
Less (in area or quality)

than what was agreed
upon:
Proportional reduction
of price
OR
Rescission, if:
(a) Lack in area is at
least 1/10 of what
is
stated,
or
inferior value of
thing sold exceeds
1/10 of price
(b) Buyer would not
have bought the
property has he
been aware of the
inferior quality or
smaller area
(2) Remedy for breach of obligation to deliver

Delivery of wrong quantity [Art. 1522]
Goods are less than
More
what was contracted
Reject the goods
Reject the excess (Or
OR
the
whole,
if
Accept and pay
indivisible)
(a) At contract rate if OR
buyer
accepts Accept the whole and
knowing
that pay at contract rate
seller
wont
perform in full
(b) At fair value: If
goods were used
before
knowing
that seller wont
be able to perform
in full
More
Reject the excess

OR
Accept the whole and
pay at contract rate
This rule also applies to judicial sales [Art. 1541]

(b) If for a lump sum:
Everything is within
boundaries, even if less
or more than stated
area
No remedy
Where both the area
and the boundaries of
the immovable are
declared, the area
covered within the
boundaries of the
immovable
prevails
over the stated area.
(Rudolf Lietz, Inc. v.
CA, 2005)
Art. 1464. Civil Code. In the sale of an undivided

share of a specific mass of fungible goods, if the
mass contains less than the number, weight, or
measure bought, the buyer becomes the owner
of the whole mass and the seller is bound to
make good the deficiency from goods of the
same kind and quality, UNLESS a contrary
intent appears.
SALE OF IMMOVABLES
Real Estate [Arts. 1539-1543]
(a) If at the rate of a certain price per unit of
measure or number:
Not everything is within

boundaries
Proportional reduction
in price
OR
Rescission
Prescriptive period: 6 months, counted from date

of delivery
PAGE 244
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Extinguishment of Sale
CIVIL LAW
(4) Co-owners of an immovable, if they sold

their interests to the same person, may only
redeem their respective shares
(a) Vendee cannot be compelled to agree to
a partial redemption
(b) If the co-owners sold their interest to the
same person who previously bought the
share of a co-owner subject to a right of
redemption, then the latter may be
compelled to redeem the whole property
CAUSES
Generally, extinguished by the same causes as
all other obligations [Arts.1600, 1231]
(P-PLAN-C3-R3)
(1) Payment/performance
(2) Prescription
(3) Loss of thing due
(4) Annulment
(5) Novation
(6) Condonation/remission
(7) Confusion/merger
(8) Compensation
(9) Rescission
(10) Resolutory condition fulfilled
(11) Redemption (Conventional or Legal)
CONVENTIONAL REDEMPTION
FROM WHOM TO REDEEM

(1) Vendee a retro
(2) His heirs, assigns or agents
(3) Subsequent purchaser of property, even if
the right to redeem was not mentioned in the
subsequent contract; except if registered
land, where the right to redeem must be
annotated on the title
(4) If several heirs, then the right of redemption
can be exercised against each heir for his
share of the property
DEFINITION
(1) Vendor reserves the right to repurchase the
thing sold, with the obligation to comply with
the provisions of Article 1616 and other
stipulations which may have been agreed
upon. [Art 1601,CC]
(2) Available when the seller reserves the right
to repurchase the thing sold in the same
instrument of sale as one of the stipulations
of the contract [Villarica v CA, 1968]
HOW EXERCISED
(1) By returning the ff. to the buyer: (PEN)
(a) Price of the sale;
(b) Expenses of the contract and other
legitimate payments made by reason of the
sale;
(c) Necessary and useful expenses made on
the thing sold
(2) Complying with any other stipulation agreed
upon, if any.
PERIOD
General Rule: Follow period stipulated in
contract, but should not exceed 10 years.
(1) If no period stipulated, then it shall be four
years from the execution of the contract
(2) But vendor may still exercise the right to
repurchase within thirty days from the time
final judgment was rendered in a civil action
on the basis that the contract was a true sale
with right to repurchase
The general rule in redemption is that it is not

sufficient that a person offering to redeem
manifests his desire to do so. The statement of
intention must be accompanied by an actual
and simultaneous tender of payment for the full
amount of the repurchase price. [BPI Family
Savings Bank, Inc. v. Veloso, 2004]
Tender of payment is enough (i.e., consignation
is not necessary), if made on time, as a basis for
action against the buyer to compel him to resell.
But that tender does not in itself relieve the
buyer from his obligation to pay the price when
redemption is allowed by the court. [Paez v.
Magno, 1949]
BY WHOM EXERCISED
(1) Vendor
(2) His heirs, assigns or agents
(3) Creditor, if he has exhausted the property of
the vendor
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EFFECT OF REDEMPTION
(1) The seller shall receive the thing free from all
charges or mortgages constituted by the
buyer BUT he shall respect leases executed
by the buyer in good faith and in accordance
with local custom.
(2) If there are growing fruits at the time of sale
and at the time of redemption: no
reimbursement or prorating if the buyer did
not pay indemnity at the time of sale
(3) If there were no growing fruits at the time of
sale, but some exist at the time of redemption:
fruits prorated (buyer entitled to part
corresponding to time he possessed the land
in the last year, counted from the anniversary
of the date of sale)
Right to Redeem
The maximum period
for the exercise of the
right to repurchase
cannot exceed 10
years
Requires in addition a
tender of payment of
the amount required
by law, including
consignment thereof if
tender of payment
cannot
be
made
effectively on the
buyer
EFFECT OF NON-REDEMPTION
Ownership is consolidated in the buyer BUT the
consolidation shall not be recorded in the
Registry of property without a judicial order,
after the vendor has been duly heard.
Stipulation that installments paid shall not be
returned is valid insofar as the same may not be
unconscionable under Art. 1486. Since the
defendant admitted using the units, this means
they did not pay the monthly installments, using
units free to prejudice of petitioner. Under the
circumstances, the treatment of the installment
payments as rentals cannot be said to be
unconscionable. [Delta Motor Sales v. Niu Kim
Duan (1992)]
Option to Purchase
The period of the
option contract may
be beyond the 10-year
period
May be exercised by
notice of its exercise to
the offeror
EQUITABLE MORTGAGE
Definition: An equitable mortgage is defined as

one which, although lacking in some formality,
or form or words, or other requisites demanded
by a statute, nevertheless reveals the intention
of the parties to charge real property as security
for a debt, and contains nothing impossible or
contrary to law. [Molina v. CA, 2003]
The Valdehuezas having remained in possession
of the land and the realty taxes having been
paid by them, the contracts which purported to
be pacto de retro transactions are presumed to
be equitable mortgages, whether registered or
not, there being no third parties involved. [Tan v.
Valdehueza, 2003]
A pactum commissorium is a stipulation
enabling the mortgagee to acquire ownership of
the mortgaged properties without need of
foreclosure proceedings which is a nullity being
contrary to the provisions of Article 2088 of the
Civil Code. The inclusion of such stipulation in
the deed shows the intention to mortgage
rather than to sell. [Legaspi v. Spouses Ong,
2005]
RIGHT TO REDEEM VS. OPTION TO PURCHASE

(VILLANUEVA)
Right to Redeem
Not
a
separate
contract but part of a
main contract of sale,
and
cannot
exist
unless reserved at the
time of the perfection
of the main contract of
sale
Does not need its
separate consideration
to be valid and
effective
CIVIL LAW
Option to Purchase
Generally a principal
contract and may be
created independent
of another contract
A pactumcommissoriumis contrary to the nature

of a true pacto de retro sale since ownership of
the property sold is immediately transferred to
the vendee a retro upon execution of the sale,
subject only to the repurchase of a vendor a
retro within the stipulated period.
Must
have
a
consideration separate
and distinct from the
purchase price to be
valid and effective
[Arts. 1324 and 1479]
PAGE 246
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DISTINGUISHED FROM OPTION TO

BUY
CIVIL LAW
REMEDIES OF APPARENT VENDOR

(1) If the instrument does not reflect the true
agreement: remedy is reformation
(2) If decreed to be an equitable mortgage: any
money, fruits or other benefit to be received
by the buyer as rent or otherwise considered
as interest.
(3) If decreed as a true sale with right to purchase:
seller may redeem within 30 days from
finality of judgment, even if the period for
redemption has expired.
PRESUMPTION THAT A CONTRACT IS AN

EQUITABLE MORTGAGE ARISES WHEN (5PR)[ART. 1602]
(1) Price unusually inadequate;
(2) Possession retained by the seller as lessee or
otherwise;
(3) Period of redemption extended (or granted
anew) upon or after the expiration of the
right to repurchase;
(4) Part of the purchase price retained by the
seller;
(5) Payment of taxes on the thing sold borne by
the seller;
(6) Any other case where it may be fairly inferred
that the Real intention of the parties is for
the transaction to secure a debt or other
obligation.
PERIOD OF REDEMPTION
Art. 1606. The right referred to in Article 1601, in
the absence of an express agreement, shall last
four years from the date of the contract.
Should there be an agreement, the period
cannot exceed ten years.
The right of repurchase is not a right granted to

the seller by the buyer in a subsequent
instrument, but one reserved by the seller in the
same instrument as the sale contract. Any right
granted after the execution of the sale
instrument is not a right to repurchase, but
some other right like an option to buy. [Roberts
v. Papio (2007)]
However, the vendor may still exercise the right

to repurchase within thirty days from the time
final judgment was rendered in a civil action on
the basis that the contract was a true sale with
right to repurchase.
Period of Redemption
(1) No stipulation: 4 years from the date of
contract
(2) When there is agreement: Period not to
exceed 10 years
(3) General Rule: Period starts to run from the
date of the execution of the contract
(4) Exception: When the efficacy of the sale is
subject to a suspensive condition, period
should be counted not from the date
appearing on the instrument, but from the
date when the condition is fulfilled,
marking the consummation of the sale
[Tolentino citing Manresa].
FOR THE PRESUMPTION OF AN EQUITABLE

MORTGAGE TO ARISE UNDER ART. 1602, 2
REQUISITES MUST CONCUR (MOLINA V. CA, 2003)
(1) That the parties entered into a contract

denominated as a contract of sale, and
(2) That their intention was to secure an existing
debt by way of a mortgage.
In case of doubt, a contract purporting to be a
sale with right to repurchase shall be construed
as an equitable mortgage [Art. 1603]
RATIONALE BEHIND PROVISION ON EQUITABLE
MORTGAGE
Additional 30 days for Repurchase

The last paragraph of Art. 1606 giving the
vendor the right to repurchase within 30 days
from the time of the rendition of final judgment
applies only where the nature and the character
of the transaction, whether as a pacto de retro
or an equitable mortgage, was put in issue
(1) Circumvention of usury law

(2) Circumvention of prohibition against pactum
commissorium creditor cannot appropriate
the things given by way of pledge or
mortgage since remedy is foreclosure.
PAGE 247
UP LAW BOC
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CIVIL LAW
before the court [Gonzales v. De Leon, 4 SCRA

332].
or make judicial deposit of the repurchase

price [Rosales v. Reyes, 25 Phil 495].
When an unrecorded pacto de retro sale was

construed as an equitable mortgage, the
plaintiff had the right to enforce his lien in a
separate proceeding notwithstanding the fact
that he had failed to obtain judgment declaring
him the sole and absolute owner of the land.
[Heirs of Arches v. Diaz (1973)]
The seller a retro is given no option to require

the buyer a retro to remove the useful
improvements on the land subject of the sale a
retro, unlike that granted the owner of a land
under Arts. 546 and 547.Under Art.1616, the
seller a retro must pay for useful improvements
introduced by the buyer a retro; otherwise, the
latter may retain possession of the land until
reimbursement is made. [Gargollo v. Duero
(1961)]
Where the petition of the buyer in a pacto de

retro sale is for a judicial orders pursuant Art.
1607, so that there may be consolidation of
ownership since there was failure to redeem
during the redemption period, the right of
action to foreclose or to collect the
indebtedness arises from the court judgment
declaring the contract an equitable mortgage.
LEGAL REDEMPTION
DEFINITION
(1) Right to be subrogated:
(a) upon the same terms and conditions
stipulated in the contract,
(b) in the place of one who acquires a thing
by purchase or dation in payment, or by
any other transaction whereby ownership
is transmitted by onerous title [Art 1619,
CC]
(2) Applies to transfers of ownership by onerous
title where subrogation is possible. Hence, it
cannot apply to barter or to transfer by
gratuitous title or hereditary succession.
(3) Applies to sales with pacto de retro [Baviera
citing MANRESA]
EXERCISE OF THE RIGHT TO

REDEEM
The seller can avail himself of the right of

repurchase by returning to the buyer:
(a) the price of the sale
(b) the expenses of the contract and any other
legitimate payments made by reason of
the sale
(c) the necessary and useful expenses made
on the thing sold [Art.1616].
How redemption is exercised
(a) The vendor de retro must complete the
repurchase before the expiration of the
redemption period [Panganiban v. Cuevas,
7 Phil 477].
(b) A sincere or genuine tender of payment is
enough. The deposit of the amount of the
repurchase money with the Clerk of Court
was simply and additional security
[Legazpi v. Court of Appeals, 1986]
(c) When tender of payment cannot be validly
made because the buyer cannot be
located, it becomes imperative for the
seller a retro to file a suit for consignation
with the courts of the redemption price
[Catangcatang v. Legayada, 1978].
(d) If the offer or tender of payment for
repurchase is refused, it is not necessary
for the vendor a retro to consign in court
PAGE 248
MANNER
(1) a formal offer to redeem or
(2) filing of an action in court together with the
consignation of the redemption price within
the reglementary period
PERIOD TO REDEEM
To whom granted
Period
(a) Co-owner
[Art 30 days from notice
1620]
(a) In writing
(b) By the seller
(b) Adjoining owner of (c) Of
the
actual
Rural Land [Art
execution
and
1621]
delivery of the deed
of sale
(c) Adjoining owner of
urban land [Art.
1622]
UP LAW BOC
To whom granted
SALES
Period
Actual knowledge of
the sale is immaterial ,
absent any showing
that the co-owner has
been shown a copy of
the deed of sale
through a written
communication.
[Doromal v. CA, 1975]
The law did not

provide for a particular
mode
of
written
notice,
thus
any
compliance
with
written
notice
should
suffice,
including the giving of
a copy of the deed of
sale. [[Cronejero v. CA,
1966]]
Debtor in case a credit 30 days from the date
or
the assignee demands
incorporeal right in payment from debtor
litigation
is
sold
[Art.1634]
Taxpayer in case of tax 1 year from date of
sale [Sec. 215, NIRC]
forfeiture
Judgment
debtor, 1 year from the date of
successorin- interest, registration of the
or
creditor
with certificate of sale
subsequent lien, in
case of execution sale
[Rule 39, Sec.27, ROC]
Debtor-mortgagor,
1 year from the date of
successors-inthe sale
interest,
judicial/judgment
creditor, any person
having a lien on the
property, in case of
extrajudicial
foreclosure
of
mortgage [Act No.
3135. Sec. 6.]
PAGE 249
CIVIL LAW
To whom granted
Debtor-mortgagor in
case
of
judicial
foreclosure of real
estate mortgage IF the
mortgagee is a bank
or
a
banking
institution. [The
General Banking Law
of 2000]
Agricultural
lessee
w/o knowledge of sale
of
landholding
[Agrarian Land
Reform Code, Sec.12]
Period
90 days from finality
of judgment
2 years from the

registration of the sale
The notice required in Art. 1623 must be given

by the seller, because the seller is in a better
position to identify who his co-owners are. Said
provision is clear. [Francisco v. Boiser (2000)]
INSTANCES OF LEGAL REDEMPTION
(1) Redemption by Co-owners [Art. 1621]

A co-owner of a thing may exercise the right
of redemption in case the shares of all the
co-owners or any of them are sold to a third
person
(a) Third person refers to all persons who
are not heirs of the vendor, by will or
intestate succession
(b) The right is available not only to original
co-owners, but to those who had later
acquired the share of the co-owner
(c) But the right of redemption may be
exercised by a co-owner only when part of
the community property is sold to a
stranger. When the portion is sold to
another co-owner, the right does not arise
because a new participant is not added to
the co-ownership [Fernandez v. Tarun,
2002]
If the price of the alienation is grossly
excessive, the redemptioner shall pay only a
reasonable one.
Should two or more co-owners desire to
exercise the right, they may also do so in
proportion to the share they may respectively
have in the thing owned in common.
UP LAW BOC
SALES
Rationale: Public Policy, since co-ownership

is a hindrance to the development and
administration of the property. [Baviera]
(2) Redemption by Adjoining Land-owners of
rural land [Art. 1621]
The ff. Requisites must concur:
(a) A piece of rural land is alienated
(b) Area does not exceed one hectare
When not applicable:
(a) The grantee does not own any rural land
(b) Adjacent lands are separated by brooks,
drains, roads and other apparent
servitudes for the benefit of other estates
Order of preference if two or more wishes to
exercise the right:
(a) Owner with smaller land area
(b) If same land area, then the one who first
requested the redemption
What constitutes rural or urban is to be
determined from the character of the
community or vicinity in which it is found, and
NOT from the nature of the land itself nor
the purpose to which it is devoted. [Ortega v.
Orcine, 1971]
(3) Redemption by adjoining land-owners of
urban land (applies only to small portions of
urban land) [Art. 1621]
Right of Pre-emption
Owner
of
any
adjoining land has a
right of pre-emption at
a reasonable price
when:
(a) Urban land is so
small
and
so
situated that a
major portion of it
cannot be used for
any
practical
purpose w/in a
reasonable time;
(b) Was bought merely
for speculation;
(c) Was resold
Right of Redemption
If the resale has been
perfected, the owner
of the adjoining land
shall have a right of
redemption, also at a
reasonable price
Priority if 2 or more
adjoining owners want
to redeem: owner
whose intended use of
the land appears to be
best justified
CIVIL LAW
Right of Pre-emption
Right of Redemption
Arises before sale
Arises after sale
No rescission because There
can
be
no sale exists yet
rescission
of
the
original sale
The action is directed Action is directed
against
prospective against buyer
seller
(4) Redemption of Credit
Available when it is sold while in litigation
(From the time the complaint is answered)
NOT available when the assignment is in
favor of:
(a) Co-heir/co-owner of right assigned
(b) Creditor in payment of his credit
(c) Possessor of a tenement or piece of land
which is subject to the right assigned
How exercised: reimburse the assignee for
the:
(a) Price paid
(b) Judicial expenses incurred
(c) Interest on the price from date of payment
(5) Under the Public Land Act
Coverage:
(a) Every conveyance of land acquired under
a free patent or homestead
(b) The ownership of the land must have
been transferred to another. If the
transaction is a mere promise to sell,
there is no right yet to redeem
(c) This refers to conveyances made after the
prohibited 5 years from the issuance of
the patent or grant
Period:
(a) Within 5 years from the date of
conveyance
(b) If pacto de retro sale, the period to
redeem cannot be less than 5 years
Who may redeem:
(a) General Rule: Applicant, widow, or heirs
(b)Exception: land is sold to another member
of the family of the applicant, or his direct
descendant or heir
(c) From whom: Subsequent purchasers
PAGE 250
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The right to redeem can be exercised against

any subsequent purchaser even if the land is
registered under the Torrens System
becausethe fact that it was acquired through a
homestead or free patent can be seen from the
description of the property in the certificate of
title.
CIVIL LAW
i. The landholding must be pre-empted

by the DAR
ii. When two or more lessees, each shall
have preferential right only to the
extent of the area cultivated by him
(c) Period: 180 days from notice in writing
Lessees right of redemption
(a) Sec. 12 RA 3844: In case landholding is
sold to 3rd person without the
knowledge of the lessee, the latter shall
have the right to redeem the same at a
reasonable price and consideration
(b) Period: within 180 days from notice in
writing
(6) Redemption in Foreclosure and Execution

Sales
Who may redeem
In
extra
judicial
foreclosure
(a) Debtor
(b)Successor
in
interest
(c)Judicial or judgment
creditor of said
debtor
(d)Junior
encumbrancer
In execution sales
(a) Judgment debtor
(b)
Successor
in
interest
(c) Creditor having a
lien on the property
sold by attachment,
judgment
or
mortgage on the
property
subsequent to the
judgment
Period to redeem
Extra judicial Execution sale If land is
foreclosure
(a) within 12 mortgaged in
(a) within
1
months
favor of a bank
year from
after the (a) within
1
the date of
sale
year after
the sale
the
sale
(not
available in
case of a
corporate
mortgagor)
Amount of redemption
(a) Amount of the purchase
(b) Interest at 1% per month from the time of
the sale up to the time of redemption
(c) Any assessment or taxes which the
purchaser may have paid
AGE REDEMPTION
Art. 1619. Legal redemption is the right to be
subrogated, upon the same terms and
conditions stipulated in the contract, in the
place of one who acquires a thing by purchase
or dation in payment, or by any other
transaction whereby ownership is transmitted
by onerous title.
The Law on Sale of

Subdivision and
Condominium (PD 957)
DEFINITIONS
DEFINITION OF "SALE" OR "SELL"
(a) include every disposition, or attempt to
dispose, for a valuable consideration, of a
subdivision lot, including the building and
other improvements thereof, if any, in a
subdivision project or a condominium unit in
a condominium project.
(b) also include a contract to sell, a contract of
purchase and sale, an exchange, an attempt
to sell, an option of sale or purchase, a
solicitation of a sale, or an offer to sell,
directly or by an agent, or by a circular, letter,
advertisement or otherwise.
(c) privilege given to a member of a cooperative,
corporation, partnership, or any association
(7) Under the Agrarian Land Reform Code

Lessees right of pre-emption
(a) The agricultural lessee shall have the
preferential right to buy under the same
reasonable terms and conditions, in case
the lessor decides to hold the
landholding
(b) Conditions:
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and/or the issuance of a certificate or receipt

evidencing or giving the right of participation
in, or right to, any land in consideration of
payment of the membership fee or dues,
shall be deemed a sale within the meaning
of this definition.
REGISTRATION OF PROJECTS [SECTION 4,

PD 957]
The registered owner of a parcel of land who

wishes to convert the same into a subdivision
project shall submit his subdivision plan to the
National Housing Authority. The same
procedure shall be followed in the case of a plan
for a condominium project except that NHA also
approves the building thereon in accordance
with the National Building Code.
DEFINITION OF "BUY" OR "PURCHASE"

(a) include any contract to buy, purchase, or
otherwise acquire for a valuable
consideration a subdivision lot, including
the building and other improvements, if any,
in a subdivision project or a condominium
unit in a condominium project.
REGISTRATION OF OWNER [SECTION 4, PD

957]
The owner or the real estate dealer interested in

the sale of lots or units, respectively, in such
subdivision project or condominium project
shall register the project with the Authority by
filing therewith a sworn registration statement.
"Owner" shall refer to the registered owner of

the land subject of a subdivision or a
condominium project.
"Developer" shall mean the person who
develops or improves the subdivision project or
condominium project for and in behalf of the
owner thereof.
PUBLICATION
AND
ISSUANCE
OF
REGISTRATION CERTIFICATE [SECTION 4, PD
957]
A notice of the filing of the registration

statement at the expense of the applicantowner or dealer, in two newspapers general
circulation, one published in English and
another in Pilipino, once a week for two
consecutive weeks. Notice shall state that
subdivision lots or condominium units are open
to inspection during business hours by
interested parties. The project shall be deemed
registered upon completion of the publication
requirement. The fact of registration shall be
evidenced by a registration certificate issued to
the applicant-owner or dealer.
"Dealer" shall mean any person directly

engaged as principal in the business of buying,
selling or exchanging real estate whether on a
full-time or part-time basis.
"Broker" shall mean any person who, for
commission or other compensation, undertakes
to sell or negotiate the sale of a real estate
belonging to another.
"Salesman" shall refer to the person regularly
employed by a broker to perform, for and in his
behalf, any or all functions of a real estate
broker.
REQUIREMENTS
FOR
OWNERS
CIVIL LAW
LICENSE TO SELL [SECTION 5, PD 957]
The registration certificate does NOT authorize

the owner or dealer to sell any unit. They must
first obtain a license to sell within two weeks
from the registration of the project. The license
to sell is issued upon examination of the
registration statement filed by the owner or
dealer showing that:
(1) the owner or dealer is of good repute
(2) that his business is financially stable
(3) that the proposed sale of subdivision lots or
condominium units to the public would not
be fraudulent
AND
DEVELOPERS
(1)Registration
of
projects
(subdivision/condominium) with the NHA
(2) Registration of the owner
(3) License to sell of owner or dealer with
performance bond [PB, exceptions in Section
7]
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CIVIL LAW
(4)
Misrepresentation in any prospectus,

brochure, circular or other literature about
the subdivision project or condominium
project that has been distributed to
prospective buyers
(5) Bad business repute of owner/dealer
(6) Does not conduct his business in accordance
with law or sound business principles
PERFORMANCE BOND [SECTION 6, PD 957]

A license to sell can only be issued by the NHA if
the owner or dealer files a performance bond
guaranteeing
the
construction
and
maintenance of the roads, gutters, drainage,
sewerage, water system, lighting systems, and
full development of the subdivision project or
the condominium project and the compliance
by the owner or dealer with the applicable laws
and rules and regulations. The bond shall be
executed in favor of the Republic of the
Philippines and shall authorize the Authority to
use the proceeds thereof for the purposes of its
undertaking in case of forfeiture as provided in
this Decree.
REQUIREMENT FOR DEALERS, BROKERS,

AND SALESMEN (DBS)
Registration
Dealers, brokers, and salesmen (DBS) must be
registered (Section 11, PD 957)
Requisites of registration:
(1) Good reputation and compliance with NHA
rules
(2) Payment of prescribed fee
(3) Filing of bond or other security (amount fixed
by NHA) conditioned upon his faithful
compliance with provisions of PD 957
WHEN LICENSE TO SELL AND PERFORMANCE

BOND NOT REQUIRED [SECTION 7, PD 957]
A license to sell and performance bond shall not

be required in any of the following transactions:
(a) Sale of a subdivision lot resulting from the
partition of land among co-owners and coheirs.
(b) Sale or transfer of a subdivision lot by the
original purchaser thereof and any
subsequent sale of the same lot.
(c) Sale of a subdivision lot or a condominium
unit by or for the account of a mortgagee in
the ordinary course of business when
necessary to liquidate a bona fide debt.
When registration of DBS terminates

(1) Termination of employment with dealer or
broker
(2) Expiration (31st day of Dec each year)
Registration of DBS may be renewed not less
than 30 nor more than 60 days before Jan 1 and
by payment of fee. If renewal is not within said
period, it shall be treated as an original
application.
GROUNDS FOR SUSPENSION OF LICENSE TO

SELL [SECTION 8, PD 957]
(1)
misleading, incorrect, inadequate, or

incomplete information in registration
statement
(2) fraud upon prospective buyers on the sale or
offering for a sale
Note: suspension is confidential unless orer of
suspension has been violated.
Revocation of registration as DBS [Section 12, PD

957]
Grounds
(1) Has violated any provision of this Decree or
any rule or regulation made hereunder; or
(2) Has made a material false statement in his
application for registration; or
(3) Has been guilty of a fraudulent act in
connection with any sale of a subdivision lot
or condominium unit; or
(4) Has demonstrated his unworthiness to
transact the business of dealer, broker, or
salesman, as the case may be.
The NHA may suspend the DBS' registration
pending hearing of the case. The suspension or
revocation of the registration of a dealer or
GROUNDS
FOR
REVOCATION
OF
REGISTRATION CERTIFICATE AND LICENSE TO
SELL [SECTION 9, PD 957]
(1) Insolvency of owner/dealer
(2) Violation of owner of PD 957 or its IRR or any
undertaking of his/its performance bond
(3) Has been or is engaged or is about to
engage in fraudulent transactions
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broker (DB) shall carry with it all the suspension

or revocation of the registration of all his
salesmen (S).
CIVIL LAW
Advertisements by the owner or developer

[Section 19, PD 957]
(a) Must reflect real facts, must not mislead or
deceive public
(b) Owner or developer shall be liable for any
misrepresentation as to facilities, etc.
(c) Advertisements shall form part of the sales
warranties enforceable against the owner or
developer
(d) Failure to comply with sales warranties is
punishable under PD 957
Characteristics of sale of a condominium or

subdivision unit and similar contracts
(1) Contracts to sell, deeds of sale, and other
similar instruments must be registered with
the Register of Deeds
(2) Mortgages on unit or lot by owner/developer
needs prior written approval by NHA for the
protection of buyers
(3) Advertisements by owner of developer
become part of sales warranties enforceable
against owner or developer
(4) No forfeiture of installments already paid by
buyer if buyer stops paying because of failure
by owner or developer to develop subdivision
or condominium
(5) Failure to pay installments governed by
Maceda Law [RA 6552]
(6) Title is issued to the buyer upon full payment
(7) Realty tax is paid by owner or developer
while not fully paid; but if the buyer occupies
the unit/lot, the owner/developer may
recover the taxes from the buyer
(8) Owner or developer cannot demand any
other charges allegedly for community
benefit (may be done by homeowner's
association)
Non-forfeiture of payments (Section 23, PD 957)

No installment payment made by a buyer in a
subdivision or condominium project for the lot
or unit he contracted to buy shall be forfeited in
favor of the owner or developer when the buyer,
after due notice to the owner or developer,
desists from further payment due to the failure
of the owner or developer to develop the
subdivision or condominium project according
to the approved plans and within the time limit
for complying with the same. Such buyer may,
at his option, be reimbursed the total amount
paid including amortization interests but
excluding delinquency interests, with interest
thereon at the legal rate.
Section 23 does not require that a notice be

given first by the buyer to the seller before a
demand for refund can be made, as the notice
and demand can be made in the same letter or
communication. This is designed to stem the
tide of fraudulent manipulations perpetrated by
unscrupulous subdivision and condominium
sellers and operators.
Registration of sale, etc [Section 17, PD 957]

All contracts to sell, deeds of sale and other
similar instruments relative to the sale or
conveyance of the subdivision lots and
condominium units, whether or not the
purchase price is paid in full, shall be registered
by the seller in the Office of the Register of
Deeds of the province or city where the property
is situated.
Section 23 vests upon the buyer to either

demand reimbursement, or wait for further
development.
Failure to pay installments [Section 24, PD 957]
The rights of the buyer in the event of this
failure to pay the installments due for reasons
other than the failure of the owner or developer
to develop the project shall be governed by
Republic Act No. 6552 [Maceda Law].
Mortgages on unit or lot by owner or

developer [Section 18, PD 957]
(a) Need prior written approval of the NHA
(b) Must show that proceeds of mortgage will
be used for development of the
condominium or subdivision
(c) Value of each lot or unit determined by the
buyer (if there is one) and the buyer shall be
notified before release of loan
(d) Buyer may pay directly to mortgagee
Issuance of title [Section 25, PD 957]

The owner or developer shall deliver the title of
the lot or unit to the buyer upon full payment of
the lot or unit. No fee, except those required for
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the registration of the deed of sale in the

Registry of Deeds, shall be collected for the
issuance of such title. In the event a mortgage
over the lot or unit is outstanding at the time of
the issuance of the title to the buyer, the owner
or developer shall redeem the mortgage or the
corresponding portion thereof within six months
from such issuance in order that the title over
any fully paid lot or unit may be secured and
delivered to the buyer in accordance herewith.
CIVIL LAW
which the holders of separate interest shall

automatically be members or shareholders, to
the exclusion of others, in proportion to the
appurtenant interest of their respective units in
the common areas.
(a) separate interest in a unit in a residential,
industrial or commercial building
(b) undivided interest in the land on which the
building is located and other common areas
i. common areas may not be partitioned
even by judicial decree [Section 7]
(c) title to land and common areas held by
condominium corporation - owners of
separate interest are automatically
members/shareholders, exclusively.
Realty tax [Section 26, PD 957]

Real estate tax and assessment on a lot or unit
shall de paid by the owner or developer without
recourse to the buyer for as long as the title has
not passed the buyer; Provided, however, that if
the buyer has actually taken possession of and
occupied the lot or unit, he shall be liable to the
owner or developer for such tax and assessment
effective the year following such taking of
possession and occupancy.
OTHER DEFINITIONS
Sec. 3. As used in this Act, unless the context

otherwise requires:
(a) "Condominium" means a condominium as
defined in Section 2.
(b) "Unit" means a part of the condominium
project intended for any type of
independent use or ownership, including
one or more rooms or spaces located in one
or more floors (or part or parts of floors) in a
building or buildings and such accessories
as may be appended thereto.
(c) "Project" means the entire parcel of real
property divided or to be divided in
condominiums, including all structures
thereon,
(d) "Common areas" means the entire project
excepting all units separately granted or
held or reserved.
(e) "To divide" real property means to divide the
ownership thereof or other interest therein
by conveying one or more condominiums
therein but less than the whole thereof.
No other charges [Section 27, PD 957]

No owner or developer shall levy upon any lot or
buyer a fee for an alleged community benefit.
Fees to finance services for common comfort,
security and sanitation may be collected only by
a properly organized homeowners association
and only with the consent of a majority of the lot
or unit buyers actually residing in the
subdivision or condominium project.
The Condominium Act

(RA 4726)
DEFINITION OF A CONDOMINIUM
Sec. 2. A condominium is an interest in real

property consisting of separate interest in a unit
in a residential, industrial or commercial
building and an undivided interest in common,
directly or indirectly, in the land on which it is
located and in other common areas of the
building. A condominium may include, in
addition, a separate interest in other portions of
such real property. Title to the common areas,
including the land, or the appurtenant interests
in such areas, may be held by a corporation
specially formed for the purpose (hereinafter
known as the "condominium corporation") in
TRANSFERS OR CONVEYANCES OF A
UNIT OR AN APARTMENT, OFFICE
OR STORE, OR OTHER SPACE
THEREIN [SECTION 5, RA 4726]
Transfer or conveyance of a unit or a space

therein includes the transfer or conveyance of
the
(i) undivided interests in common areas
(ii) membership or shareholding in the
condominium corporation
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Proviso: only Filipino citizens or corporations at

least 60% of the capital stock are owned by
Filipino citizens may be the transferee of
common areas in cases where the common areas
are owned by the owners of separate units as coowners (not by condominium corporation)
CIVIL LAW
project has not been rebuilt or repaired

substantially to its state prior to its damage
or destruction
(2) That damage or destruction to the project
has rendered one-half or more of the units
therein untenantable and that condominium
owners holding in aggregate more than
thirty percent interest in the common areas
are opposed to repair or restoration of the
project
(3) That the project has been in existence in
excess of fifty years, that it is obsolete and
uneconomic, and that condominium owners
holding in aggregate more than fifty percent
interest in the common areas are opposed to
repair or restoration or remodeling or
modernizing of the project
(4) That the project or a material part thereof
has been condemned or expropriated and
that the project is no longer viable, or that
the condominium owners holding in
aggregate more than seventy percent
interest in the common areas are opposed to
continuation of the condominium regime
after expropriation or condemnation of a
material portion thereof
(5) That the conditions for such partition by sale
set forth in the declaration of restrictions,
duly registered in accordance with the terms
of the Condominium Act, have been met
Exception to proviso: hereditary succession.

Shareholdings in a condominium corporation
may be conveyed only in a proper case. Not
every purchaser of a condominium unit is a
shareholder of a condominium corporation. The
Condominium Act leaves to the Master Deed
the determination of when the shareholding will
be transferred the buyer of the unit. But
ownership of a unit is an indispensable requisite
to being a shareholder in the corporation.
[Sunset View Condominium Corporation v.
Campos (1981)]
RIGHTS OF A CONDOMINIUM UNIT

OWNER (ASIDE FROM RIGHTS
ARISING
FROM
OWNERSHIP)
[SECTION 6]
(1) Absolute right to sell or dispose of his

condominium unless the master deed
unless there is a right of first refusal in favor
of condominium owners
(2) Exclusive right to mortgage, pledge or
encumber his condominium and to have the
same appraised independently of the other
condominiums but any obligation incurred
by such condominium owner is personal to
him
DECLARATION OF RESTRICTIONS BY
OWNER OF PROJECT PRECONDITION TO CONVEYANCE
[SECTION 9]
(a) The owner must register with the Register of

Deeds a declaration of restrictions before the
conveyance of any condominium in the
project
(b) The restrictions constitute a lien upon each
condominium in the project and shall insure
to and bind all condominium owners in the
project
(c) The lien may be enforced by any
condominium owner or by the management
body of the project
PARTITION BY SALE [SECTION 8]
This is an action that may be brought by one or

more persons owning condominiums in a
condominium project for the partition of the
project by the sale thereof. The effect is as if the
owners of all the condominiums in such project
were co-owners of the entire project in the same
proportion as their interests as their interests in
the common areas.
A partition by sale can only be done upon
showing any of the following:
(1) That three years after damage or destruction
to the project which renders material part
thereof unfit for its use prior thereto, the
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CIVIL LAW
ASSESSMENT IN ACCORDANCE
WITH DECLARATION OF
RESTRICTIONS [SECTION 20]
INVOLUNTARY DISSOLUTION OF
THE CONDOMINIUM CORPORATION
[SECTION 12]
HOW LIEN ENFORCED AFTER NONPAYMENT OF ASSESSED FEES

[SECTION 20]
POWER OF ATTORNEY HELD BY

CORPORATION
IN
CASE
OF
VOLUNTARY
DISSOLUTION
OF
CONDOMINIUM
CORPORATION
[SECTION 15]
This is the "tax imposition power" of the

condominium corporation. If unpaid, the
management body may cause a notice of
assessment to be registered with the Register of
Deeds, which may be released only upon
payment of the assessed fees. This lien is
superior to all other subsequent liens except
real property taxes liens and other liens
provided for in the declaration of restrictions.
In case of involuntary dissolution, the common

areas held by the corporation shall be
transferred pro-indiviso and in proportion to
their interest to the members/stockholders of
the corporation, subject to the rights of creditors
of the corporation. The common areas remain in
undivided co-ownership.
Judicial or extra-judicial foreclosure of real

property mortgages, where the management
body may bid unless disallowed by the
declaration of restrictions.
The condominium corporation is deemed to

hold a power of attorney from all
members/stockholders to sell and dispose of
their separate interests in the project. To
liquidate, the condominium corporation will sell
the entire project as if it owned the whole
project itself, subject to the corporate and
individual condominium creditors.
CONTENTS OF A DECLARATION OF
RESTRICTIONS [SECTION 9]
(1) Provisions for the management of the project

by any of the ff bodies:
(a) Condominium corporation
(b) Association of condominium owners
(c) Board of governors elected by
condominium owners
(d) Management agent elected by the
owners or by the board named in the
declaration
(2) Provisions for voting majorities quorums,
notices, meeting date, and other rules
governing such body or bodies
(3) Powers of the management body
(4) Maintenance of insurance policies (fire,
casualty, workmen's compensation, etc)
(5) Maintenance, utility, gardening and other
services for the common areas
(6) Amendment of the restrictions
(7) Reasonable
assessment
to meet
expenditures
(8) And many other provisions - the common
thread
is
the
management
and
maintenance of the common areas and the
manner of exercise of the management
body's powers
SALE, EXCHANGE, LEASE, OR

DISPOSITION BY CORPORATION OF
THE COMMON AREAS [SECTION 16]
Generally not allowed unless authorized by

affirmative
vote
of
all
of
the
stockholders/members.
STOCKHOLDER/MEMBER
DEMANDING PAYMENT FOR SHARES
OR INTEREST AKA APPRAISAL
RIGHT [SECTION 17]
By-laws of the condominium corporation shall

provide
that
any
shareholder/member
demanding payment for his share or interest
must also consent to sell his separate interest in
the project to the corporation or any buyer of
the corporation's choice.
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REQUIREMENTS
FOR
REGISTRATION OF CONVEYANCE
WITH THE REGISTER OF DEEDS
[SECTION 18]
Certificate of the management body of the

project that the conveyance is in accordance
with the declaration of restrictions
REALTY TAX ON CONDOMINIUMS

[SECTION 25]
Each condominium separately owned shall be

separately assessed, for purposes of real
property taxation and other tax purposes to the
owners thereof and the tax on each such
condominium shall constitute a lien solely
thereon.
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CIVIL LAW
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General Provisions
Exception: Property acquired after the making of

a will shall not pass to the heirs unless it should
expressly appear in the will that such was the
intention of the testator. [Art. 793, CC]
DEFINITION
Succession a mode of acquisition by virtue of

which the property, rights and obligations to the
extent of the value of the inheritance, of a person
are transmitted through his death to another or
others either by his will or by operation of law.
[Art. 774, CC]
RULES ON THE OPENING OF SUCCESSION

(1) The rights to succession are transmitted from
the moment of the death of the decedent.
[Art. 777, CC]
Implications of this principle:
(a) The law in effect at the time of death of
the decedent governs the succession.
[Art. 2236, CC]
(b) The heir becomes the owner of his share
as well as all fruits which accrue after the
death of the decedent.
(c) Upon death of the decedent, heirs may
immediately possess, administer and
dispose of their shares in the estate (in
the absence of existing debts/claims
against the estate).
(d) The possession of hereditary property is
deemed transmitted to the heir without
interruption and from the moment of
death of the decedent, in case the
inheritance is accepted. [Art. 533, CC]
(e) Estate taxes accrue upon death of the
decedent, even if the heirs come into
possession only later.
KINDS OF SUCCESSION
(1) Testamentary that which results from the

designation of an heir, made in a will
executed in the form prescribed by law. [Art.
779, CC]
(2) Legal or Intestate that which takes place by
operation of law in the absence of a valid
will.
(3) Mixed that which is effected partly by will
and partly by operation of law. [Art. 780, CC]
(4) Compulsory succession to the legitime and
prevails over all other kinds of succession.
(Balane, 2010)
OBJECT OF SUCCESSION
TRANSMISSION
CIVIL LAW
AND
Inheritance includes:
All the property, rights and obligations of a
person which are not extinguished by his
death. [Art. 776, CC]
Not only the property and the transmissible
rights and obligations existing at the time of
his death, but also those which have accrued
thereto since the opening of the succession.
[Art. 781, CC]
What are transmitted?
Rights and obligations which are not strictly
personal (intuit personae).
Money debts of the decedent are not
transmitted to the heirs nor paid by them. The
estate pays them. [Balane, 2010)
RULE ON TRANSMISSION
General rule: All property rights which have
accrued to the hereditary estate since the
opening of succession are transmitted to the
heirs.
(2) A person may be presumed dead for the

purpose of opening his succession. In this
case, succession is only of provisional
character because there is always a chance
that the absentee may still be alive. [Arts.
390-391, CC].
SUBJECTS OF SUCCESSION
Decedent person whose property is transmitted

through succession, whether or not he left a will.
[Art. 775, CC]
Testator a decedent who left a will. [Art. 775,
CC]
KINDS OF SUCCESSORS
Heirs those who are called to the whole or an
aliquot portion of the inheritance either by will or
by operation of law. [Art. 782, CC]
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Devisees persons to whom gifts of real property

are given by virtue of a will
Legatees persons to whom gifts of personal
property are given by virtue of a will
Note: The distinction is significant in case of
preterition.
KINDS OF HEIRS
(1) Compulsory Heirs those who succeed by
force of law to some portion of the
inheritance, in an amount predetermined by
law known as the legitime, of which they
cannot be deprived by the testator, except by
a valid disinheritance. They succeed
regardless of a will.
(2) Voluntary or Testamentary Heirs those who
are instituted by the testator in his will, to
succeed to the portion of the inheritance of
which the testator can freely dispose. They
succeed by reason of a will.
(3) Legal or Intestate Heirs those who succeed
to the estate of the decedent who dies
without a valid will, or to the portion of such
estate not disposed of by will, or when
certain grounds are met.
CHARACTERISTICS OF WILLS
(1) Purely personal will-making is nondelegable
Making of a will cannot be left in whole or
in part of the discretion of a third person, or
accomplished through the instrumentality
of an agent or attorney. [Art. 784, CC]
Testator may not make a testamentary
disposition in such manner that another
person has to determine whether or not it
is to be operative. [Art. 787, CC]
What cannot be
delegated to third
persons
WILLS
Will an act whereby a person is permitted, with
the formalities prescribed by law to control to a
certain degree the disposition of his estate to
take effect after his death. [Art. 783, CC]
KINDS OF WILLS
(1) Notarial an ordinary or attested will, which
must comply with the requirements of the
law. [Arts. 804-808, CC]
(2) Holographic a will entirely written, dated
and signed by the hand of the testator. [Art.
810, CC]
What may be
entrusted to third
persons
(1) Designation
of
person/institutio
n falling under a
class specified by
testator;
(2) Manner
of
distribution
of
property specified
by testator. [Art.
786, CC]
(1) Designation
of
heirs,
devisees
and legatees;
(2) Duration/efficacy
of designation;
(3) Determination of
portions, when
referred to by
name. [Art. 785,
Note: testator must
CC]
first specify the class
and
amount
of
property for proper
delegation.
Testamentary Succession
IN GENERAL
CIVIL LAW
(2) Free and intelligent [Art. 839, CC]

(3) Solemn and formal if the form is defective,
the will is void.
(4) Revocable and ambulatory will can be
revoked at any time before the testators
death. [Art. 828, CC]
(5) Mortis causa takes effect upon the
testators death.
(6) Individual prohibition against joint wills.
[Art. 818, CC]
(7) Executed with animus testandi intent to
dispose of the property.
(8) Executed with testamentary capacity
(9) Unilateral act does not involve an exchange
of values or depend on simultaneous offer
and acceptance.
(10) Dispositive disposes of property.
General rule: Wills contain disposition of the
testators estate mortis causa.
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Exceptions: (non-dispositive wills)

Will recognizing an illegitimate child;
Will disinheriting a compulsory heir.
Kinds of Ambiguities
Patent or Extrinsic
Ambiguity
(11) Statutory grant permitted only by law, not

a constitutional right
As it is a statutory grant, a will must be made
in accordance with the formalities
prescribed. by the law [Art. 783, CC] [Balane
(2004)]
RULES
OF
CONSTRUCTION
INTERPRETATION [Arts. 788-795)
CIVIL LAW
AND
Main rule: All rules are designed to ascertain and

give effect to the intention of the testator.
Rationale: Testamentary succession is preferred
to intestacy.
(1) Different interpretations, in case of doubt,
that which would make the will operative.
[Art. 788, CC]
(2) Words to be taken in their ordinary and
grammatical sense unless there is a clear
intention to use them in another sense. [Art.
790, CC]
(3) Technical words are to be taken in their
technical sense unless there is a contrary
intention or when testator was unacquainted
with such technical sense. [Art. 790, CC]
(4) Words must be of an interpretation to give
effect to every expression. To make it
operative rather than inoperative; that which
will prevent intestacy. [Art. 791, CC]
(5) Invalidity of one of several dispositions does
not result in invalidity of others unless the
testator would not have made such
dispositions if the first invalid disposition had
not been made. [Art. 792, CC]
(6) Every devise and legacy shall convey all the
interest unless it clearly appears the intention
was to convey a less interest. [Art. 794, CC]
(7) Where there are ambiguities (i.e. imperfect
description or no person or property exactly
answers to the description, mistakes,
omissions), intrinsic or extrinsic evidence may
be used to ascertain the intention of the
testator.
Oral declarations of the testator as to his
intention must be excluded. [Art. 789, CC]
Latent or Intrinsic
Ambiguity
One which cannot be
seen from the reading
of the will but which
One which appears
appears only upon
upon the face of the
consideration
of
instrument.
extrinsic
circumstances.
There is no distinction between patent and latent
ambiguities insofar as the admissibility of parol
or extrinsic evidence to aid testamentary
disposition is concerned.
GOVERNING LAWS, IN GENERAL
Aspect of the Will
Formal Validity
Intrinsic Validity
Governing Law
Law in force at the time
the will was executed. [Art.
795, CC]
Law of decedents
nationality at the time of
his death. [Art. 16 and
2263, CC]
Aspects of the Will Governed by the National

Law of the Decedent
(1) Order of succession;
(2) Amount of successional rights;
(3) Intrinsic
validity
of
testamentary
provisions; and
(4) Capacity to succeed.
TESTAMENTARY
INTENT
CAPACITY
AND
Testamentary capacity must exist at the time of

the execution of the will
Supervening incapacity does not invalidate an
effective will nor is the will of an incapable
validated by a supervening of capacity [Art. 801,
CC]
Requisites:
He must not be expressly prohibited by law to
make a will [Art. 796, CC]
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(a) Age Requirement
(2) A will was made in a foreign country by an

alien [Art. 816, CC]
(3) A will was made in the Philippines by an
alien [Art. 817, CC]
The testator must not be under 18 years of

age [Art. 797, CC]
Year shall be understood to be 12 calendar
months [Sec 31, Book 1, Admin Code]
CIVIL LAW
GOVERNING LAW AS
EXECUTION OF WILL
(b) Soundness of Mind of the Testator

Testator
The testator is of sound mind at the time of

execution [Art. 798, CC]
Place of
Execution of
Will
Philippines
Sanity is negatively stated in Art. 799:

Not necessary that the testator be in full
possession of reasoning faculties.
Not necessary that the testators mind be
wholly unbroken, unimpaired, unshattered by
disease, injury or other cause. [Art. 799, CC]
Filipino
To be of sound mind, the testator must know:

The nature of the estate to be disposed of;
The proper objects of his bounty;
The character of the testamentary act. [Art.
799, CC]
Outside of
the
Philippines
Philippines
General rule: Soundness of mind is presumed.

[Art. 800, CC]
Exception: When the testator, one month or less
before the execution of the will, was publicly
known to be insane.
Alien
Outside of
the
Philippines
FORM
IN GENERAL [Art. 804, CC]
(1) The will must be in writing.
(2) It must be in a language or dialect known to
the testator.
APPLICABLE LAWS AS TO FORMAL VALIDITY
Formal validity is governed by the law in force
at the time the will was executed. [Art. 795, CC]
As to the place, forms and solemnities of a will
are governed by the law of the country in which
the will was executed. [Art. 17, CC]
Arts. 815-817 (summarized in the table below)
provide for the various governing laws in these
instances:
(1) A will was made in a foreign country by a
Filipino [Art. 815, CC]
TO
PLACE
OF
Governing Law
Philippine Law [Art.
16, CC]
(1) Law of the
country in which
it is executed
[Art. 17, CC]; or
(2)Philippine Law.
[Art. 815, CC]
(1) Philippine Law;
or
(2) Law of the
country of which
testator is a
citizen
or
subject.
[Art.
817, CC]
where the will is
executed [Art. 17,
CC]; or
(2)Law of the place
where
the
testator resides;
or
(3) Law
of
the
testators
country; or
(4)
Philippine
Law. [Art. 816,
CC]
ATTESTED OR NOTARIAL WILLS

Specific Requirements for Notarial Wills
(1) Subscribed at the end;
(2) Attestation clause;
(3) Marginal signatures;
(4) Page numbers;
(5) Acknowledged by a notary public;
(6) Additional requirements for handicapped
testators;
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(7) Subscribed by 3 or more witnesses in the

presence of the testator and of one another.
(1) SUBSCRIPTION: Subscribed to, at the end of
the will [Art. 805, CC]
(a) By the testator himself; or
(b) By the testators name written by a
representative in his presence and under
his express direction.
(2) ATTESTATION: Attested and subscribed by 3
or more credible witnesses in the presence of the
testator and of one another [Art. 805, CC]
Attestation
Mental act (act of the
senses)
Purpose is to render
available proof during
probate of will, not
only of the authenticity
of the will but also of
its due execution
Subscription
Mechanical (act of the
hand)
Purpose
identification
of
The attestation clause shall state the following:

(1) Number of pages;
(2) The fact that the testator or his
representative under his express direction
signed the will and every page in the
presence of instrumental witnesses;
(3) That the witnesses signed the will and all its
pages in the presence of the testator and of
one another.
Cagro v. Cagro (1953)
The signatures of the witnesses must be at the
bottom of the attestation clause.
Cruz v. Villasor (1973)
The notary public cannot be counted as an
attesting witness.
Test of presence
Jaboneta v. Gustilo (1906)
Not whether they actually saw each other sign,
but whether they might have seen each other
sign had they chosen to do so considering their
mental and physical condition and position with
relation to each other at the moment of
inscription of each signature.
CIVIL LAW
(3) MARGINAL SIGNATURES

General rule: Testator or his representative shall
write his name, and the witnesses shall sign each
and every page except the last page [Art. 805,
CC]
Exceptions:
(1) When the will consists of only one page;
(2) When the will consists of only two pages, the
first of which contains all dispositions and is
signed at the bottom by the testator and the
witnesses, and the second page contains
only the attestation clause duly signed at the
bottom by the witnesses. [Abangan vs.
Abangan (1919)]
Matias v. Salud (1957)
The use of thumbprint was allowed.
Icasiano v. Icasiano (1964)
The inadvertent failure of one witness to affix his
signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of
signing, is not per se sufficient to justify denial of
probate.
(4) PAGE NUMBERINGS: Numbered correlatively
in letters placed on the upper part of each page.
[Art. 805, CC]
i.e., Page One of Five
Mandatory part: pagination by means of a
conventional system.
Directory part: pagination in letters on the
upper part of each page. [Balane (2010)]
(5) ACKNOWLEDGED before a notary public by
the testator and the witnesses. [Art. 806, CC]
Cruz v. Villasor (1973)
Notary public cannot be considered a third
witness. He cannot acknowledge before himself
his having signed the will. To allow such would
have the effect of having only two attesting
witnesses to the will.
Javellana v. Ledesma (1955)
The certification of acknowledgement need not
be signed by the notary in the presence of the
testator and the witnesses.
(6) FOR HANDICAPPED Testators, additional
rules:
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(a) Deaf Mute [Art. 807, CC]

Testator must personally read the will; or
Testator shall personally designate two
persons to read the contents and
communicate it to him in some practicable
manner.
(b) Blind [Art. 808, CC]
The will shall be read to the testator
twiceby one of the subscribing witnesses
and by the notary public acknowledging
the will.
A testator suffering from glaucoma is
considered as legally blind. [Garcia v.
Vasquez (1970)]
Devises or legacies in
favor of a spouse,
parent or child who
also attests to the will
as a witness shall be
void
Omissions which cannot be supplied except by

extrinsic evidence or evidence aliunde are fatal
and would result in the invalidation of the will.
HOLOGRAPHIC WILLS
of
Rules on Interested witness [Art. 823, CC]

General Rule
Examples:
(1) Whether all pages are consecutively
numbered;
(2) Whether the signatures appear in each and
every page;
(3) Whether the subscribing witnesses are
three;
(4) Whether the will was notarized. [Caneda v.
CA (1993)]
Example: Whether the testator signed in the

presence of the witnesses, or the witnesses
signed in the presence of the testator and of
one another.
(7) WITNESSES
Qualifications [Art. 820, CC]
(1) Of sound mind;
(2) Aged 18 years or over;
(3) Not blind, deaf or dumb;
(4) Able to read and write.
Disqualifications [Art. 821, CC]
(1) Person not domiciled in the Philippines;
(2) Those who have been convicted
falsification, perjury, or false testimony.
CIVIL LAW
Exception
If there are three other
competent witnesses,
the device or legacy
shall be valid and the
interested
witness
shall be treated as a
mere surplusage
Requisites:
(1) In writing [Art. 804, CC];
(2) In a language known to the testator [Art.
804, CC];
(3) Entirely written, dated and signed in the
hand of the testator himself. [Art. 810, CC]
Advantages
Disadvantages
No guarantee as to
the capacity of the
testator.
No
protection
against
violence,
intimidation or undue
influence.
May not faithfully
express the will of
the testator due to
faulty expressions.
Can be easily falsified
and concealed.
Creditors are not incompetent to be witnesses.

[Art. 824, CC]
Supervening incompetency shall not prevent
the allowance of the will. [Art. 822, CC]
Simple and easy to

make.
Induces foreigners in
this jurisdiction to
set down their last
wishes.
Guarantees
the
absolute secrecy of
the
testamentary
dispositions.
Substantial Compliance Rule

Substantial compliance rule applies only in
cases when such defects and imperfections can
be supplied by an examination of the will itself.
There must be no bad faith, forgery, fraud, or
undue and improper pressure and influence for
substantial compliance to be allowed. [Art.
809, CC]
Witnesses Required for Probate [Art. 811, CC]

At least one witness who knows the
handwriting and signature of the testator;
explicitly declare that it is the testators;
If contested at least 3 of such witnesses;
In the absence of a competent witness, expert
testimony may be resorted to.
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General rule: The holographic will itself must be

presented for probate. [Gan v. Yap (1958)]
Exception: If there is a photostatic copy or xerox
copy of the holographic will, it may be presented
for probate. [Rodelas v. Aranza (1982)]
Additional Dispositions
In holographic wills, the dispositions of the
testator written below his signature must be
dated and signed by him in order to make them
valid as testamentary dispositions. [Art. 812,
CC]
When a number of dispositions appearing in a
holographic will are signed without being
dated, and the last disposition has a signature
and date, such date validates the dispositions
preceding it, whatever be the time of prior
dispositions. [Art. 813, CC]
Insertion, Cancellation, Erasure or Alteration
[Art. 814, CC]
Testator must authenticate by his FULL
SIGNATURE.
Full signature does not necessarily mean the
testators full name; it rather means his usual
and customary signature. [Balane (2010)]
Effect of insertion written by another person
on the validity of a holographic will
When made
After the execution,
without consent of
testator.
After execution, with
consent.
After
execution,
validated by testators
signature.
Contemporaneous to
the execution of the
will.
Effect
Insertion
considered
not written. Validity
cannot be defeated by
the malice or caprice of
a third person
Will is valid, insertion is
void.
Insertion becomes part
of the will. Entire will
becomes void because
it is not wholly written
by the testator.
Will is void because it is
not written entirely by
the testator.
JOINT WILLS
(1) A single testamentary instrument,
(2) Which contains the wills of two or more
persons,
CIVIL LAW
(3) Jointly executed by them,

(4) Either for their reciprocal benefit or for the
benefit of a third person.
MUTUAL WILLS
(1) Executed pursuant to an agreement between
two or more persons,
(2) Jointly executed by them,
(3) Either for their reciprocal benefit or for the
benefit of a third person.
RECIPROCAL WILLS
(1) Testators name each other as beneficiaries in
their own wills,
(2) Under similar testamentary plans.
Note: A will that is both joint and mutual is one
executed jointly by two or more persons, the
provisions of which are reciprocal and which
shows on its face the devises are made in
consideration of each other. Such is prohibited
under Art. 819, CC. Prohibition is applicable only
to joint wills executed by Filipinos, even if
execution is made in a foreign country which
allows joint wills.
CODICILS
CODICIL
(1) It is a supplement or addition to a will,
(2) Made after the execution of a will,
(3) And annexed to be taken as a part of the will,
(4) By which any disposition made in the original
will is explained, added to, or altered.
(5) In order that it may be effective, it shall be
executed as in the case of a will. [Arts. 825826, CC]
INCORPORATION BY REFERENCE
Requisites [Art. 827, CC]:
(1) The document or paper referred to in the will
must be in existence at the time of the
execution of the will;
(2) The will must clearly describe and identify
the same, stating among other things the
number of pages thereof;
(3) It must be identified by clear and satisfactory
proof as the document or paper referred to
therein; and
(4) It must be signed by the testator and the
witnesses on each and every page, except in
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case of voluminous books of account or

inventories.
REVOCATION
MODES OF REVOCATION [Art. 830, CC]
(1) By implication of law; or
(2) By the execution of a will, codicil or other
writing executed as provided in the case of
wills; or
(3) By burning, tearing, canceling, or obliterating
the will with the intention of revoking it, by
the testator himself, or by some other person
in his presence, and by his express direction.
The act contemplating revocation must be done
at any time before the death of the testator. The
right of revocation cannot be waived or
restricted. [Art. 828, CC]
LAW GOVERNING REVOCATION [Art. 829,
CC]
Place of
Revocation
Testators
Governing Law
Domicile
Philippines, or
Philippine some other Philippine Law
s
country
Philippines
Philippine Law
(1) Law of the
place where
the will was
made; or
(2) Law of the
place in which
the
testator
Outside
Foreign
had
his
the
Country
domicile at the
Philippine
time
of
s
revocation.
DOCTRINE OF DEPENDENT RELATIVE
REVOCATION
Molo v. Molo (1951)
The rule that where the act of destruction is
connected with the making of another will so
as to fairly raise the inference that the testator
meant the revocation of the old to depend
upon the efficacy of the new disposition
intended to be substituted, the revocation will
be conditional and dependent upon the efficacy
CIVIL LAW
of the new disposition; and if for any reason, the

new will intended to be made as a substitute is
inoperative, the revocation fails and the original
will remain in full force.
The failure of the new testamentary disposition
upon whose validity the revocation depends is
equivalent to the non-fulfillment of a
suspensive condition and hence prevents the
revocation of the original will.
REVOCATION VS. NULLITY
Revocation
Nullity
Proceeds from law.
in
the
By the act of the Inherent
testament,
be
it
an
testator.
intrinsic
or
an
Presupposes a valid
extrinsic defect.
act.
Invoked after the
Takes place during
testators death by
the lifetime of the
his heirs.
testator.
Nullity of a will can
Testator
cannot
be disregarded by
renounce the right to
the heirs through
revoke.
voluntary compliance
therewith.
REPUBLICATION AND REVIVAL
The execution of a codicil referring to a

previous will has the effect of republishing the
will as modified by the codicil. [Art. 836, CC]
The testator cannot republish without
reproducing in a subsequent will, the
dispositions contained in a previous one which
is void as to its form. [Art. 835, CC]
Reproduction in the codicil is required only
when the original will is void as to it form; in all
other cases, reference to the original will
suffices to republish it through the codicil.
[Tolentino]
If after making a will, the testator makes a
second will expressly revoking the first, the
revocation of the second will does not revive
the first will, which can be revived only by
another will or codicil. [Art. 837, CC]
Principle of instanter Revoking clause in the
2nd will is not testamentary in character but
operates to revoke the prior will INSTANTER
upon the execution of the will containing it.
The revocation of the 2nd will does not revive
the 1st will which has already become a
NULLITY.
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REPUBLICATION VS. REVIVAL
CIVIL LAW
Pastor v. CA (1983)
Probate court may pass upon the title to a
property, but such determination is provisional
and not conclusive, and is subject to the final
decision in a separate action to resolve title.
Republication
Revival
Takes place by an
Takes place by
act of the testator.
operation of law.
Corrects extrinsic
Restores a revoked
and
intrinsic
will.
defects.
Revocation vs. Disallowance
ALLOWANCE AND DISALLOWANCE

OF WILLS
PROBATE REQUIREMENT
Probate a Special Proceeding required to
establish the validity of a will and in order to pass
real or personal property. [Art. 838, CC]
Matters to be proved in probate
(1) Identity Whether the instrument which is
offered for probate is the last will and
testament of the decedent.
(2) Due Execution Whether the will has been
executed in accordance with the formalities
prescribed by law.
(3) Capacity Whether the testator had
testamentary capacity at the time of
execution of the will.
Scope of probate proceedings [Art. 839, CC]
General rule: The probate court cannot inquire
into the intrinsic validity of testamentary
provisions. Only the extrinsic validity of such wills
may be examined.
Exception: When practical considerations
demand that the intrinsic validity of the will be
resolved.
Acain v. Diongson (1987)
When the will is intrinsically void on its face (e.g.,
when there is clearly a preterition) such that to
rule on its formal validity would be a futile
exercise.
Valera v. Inserto (1987)
Claimants are all heirs and they consent, either
expressly or impliedly, to the submission of the
question of intrinsic validity to the court.
Revocation
Disallowance
Voluntary act of the Given
by
judicial
testator.
decree.
Must always be for a
With or without cause.
legal cause.
Always total, except
when the ground of
fraud or influence for
May be partial or total.
example affects only
certain portions of the
will.
Effect of final decree of probate, res judicata
on formal validity
Mercado v. Santos (1938)
The probate of a will by the probate court having
jurisdiction thereof is usually considered as
conclusive as to its due execution and validity,
and is also conclusive that the testator was of
sound and disposing mind at the time when he
executed the will, and was not acting under
duress, menace, fraud, or undue influence, and
that the will is genuine and not a forgery.
GROUNDS FOR DENYING PROBATE
(1) If the signature of the testator was procured
by fraud;
(2) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or some other person;
(3) If the testator acted by mistake or did not
intend that the instrument he signed should
be his will at the time affixing his signature
thereto;
(4) If the testator was insane or otherwise
mentally incapable of making a will at the
time of its execution;
(5) If the formalities required by law have not
been complied with; or
(6) If it was executed through force or under
duress, or the influence of fear, or threats.
[Art. 839, CC]
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INSTITUTION OF HEIRS
Institution of Heirs an act by virtue of which the
testator designates in his will the person or
persons who are to succeed him in his property
and transmissible rights and obligations. [Art.
840, CC]
A will shall be VALID even though it:
(1) Should not contain an institution of an heir
or
(2) Such institution should not comprise the
entire estate or
(3) The person so instituted should not accept
the inheritance or be incapacitated to
succeed.
In such cases, the testamentary dispositions
made in accordance with law shall be complied
with and the remainder of the estate shall pass
to the legal heirs [Art. 841, CC].
EXTENT OF GRANT [Art. 842, CC]
Freedom of disposition depends upon the

existence, kind and number of compulsory heirs.
No compulsory heirs Testator has full power
of disposition.
One with compulsory heirs cannot disregard
the rights of the latter (i.e. legitime).
EFFECT OF PREDECEASE OF HEIR

[Art. 856, CC]
Any heir who dies before the testator or is

incapacitated to succeed or renounces the
inheritance transmits no rights of the testator to
his own heirs. This is without prejudice to the
rights of representation. [Tolentino]
MANNER OF INSTITUTION
RULES ON IDENTITY OF HEIRS [Arts. 843849, CC]
The heir must be designated with sufficient
clarity.
If an unknown person is instituted, the
disposition is void (UNLESS by some event, the
identity becomes certain).
If a definite class or group of persons is
instituted, institution is valid.
CIVIL LAW
The heir shall be designated by name or

surname.
If there are two or more persons with the same
names, indicate some circumstance by which
the heir may be known.
Even though the name may have been omitted
but there can be no doubt as to who has been
instituted, the institution is valid.
If there is error in the name but identity can still
be identified through other proof, institution is
still valid.
If heir is unidentifiable, none is deemed
instituted.
MANNER OF DISTRIBUTION
Heirs instituted without designation of shares

shall inherit in equal parts. [Art. 846)
If the institution pertains to some heirs
individually and others collectively, the
presumption is that all are individually
instituted. [Art. 847, CC]
If siblings are instituted (whether full or halfblood), the presumption is that the inheritance
is to be distributed equally [Art. 848, CC]. This
is different from the rules of distribution in
intestate succession.
If parents and children are instituted, they are
presumed
to
have
been
instituted
simultaneously and not successively. [Art.
849,CC]
INTENT OF THE TESTATOR

FALSE CAUSE [Art. 850, CC]
The statement of a false cause for the
institution of an heir shall be considered as not
written,
UNLESS it appears from the will that the
testator would not have made such institution
if he had known the falsity of such cause.
Austria v. Reyes (1973)
Falsity of stated cause for institution will set
aside or annul the institution if the following are
present:
(1) The cause for the institution is stated in the
will;
(2) The cause is shown to be false; and
(3) It appears on the face of the will that the
testator would not have made such
PAGE 269
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institution if he had known the falsity of the

cause.
SCOPE OF INSTITUTION [Arts. 852853, CC]
(1) There are more than one instituted heirs;

(2) The testator intended them to get the whole
estate or the whole disposable portion
(3) The testator has designated a definite
portion for each heir
(4) Under Art. 852: the total of all portions is less
than the whole estate (or free portion)
Therefore, a proportionate increase is
necessary
The difference cannot pass by intestacy
because the intention of the testator is
clearto give the instituted heirs the entire
amount
(5) Under Art. 853: The total exceeds the whole
estate (or free portion)
Therefore, a proportionate reduction must
be made on the remaining part of the
estate.
Compulsory Heirs in the Direct Line

A direct line is that constituted by the series of
degrees among ascendants and descendants
(ascending and descending). [Art. 964 par.2, CC]
Dispositions Less Than Legitime But No
Preterition [Balane]
If the heir in question is instituted in the will
but the portion given to him by the will is less
than his legitimethere is no preterition.
[Reyes v. Barretto-Datu (1967)]
If the heir is given a legacy or devisethere is
no preterition. [Aznar v. Duncan (1966)]
If the heir had received a donation inter vivos
from the testatorthe better view is that there
is no preterition. The donation inter vivos is
treated as an advance on the legitime under
Articles 906, 909, 910 and 1062.
o The remedy, if the value of inheritance,
legacy or devise, or donation inter vivos is
only for completion of his legitime under
Articles 906 and 907.
Distinguished from Disinheritance
PRETERITION
The preterition or omission of one, some, or all

of the compulsory heirs in the direct line,
whether living at the time of the execution of
the will or born after the death of the testator,
shall annul the institution of heir; but the
devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die
before the testator, the institution shall be
effectual, without prejudice to the right of
representation. [Art. 854, CC]
CONCEPT [Art. 854, CC]
(1) There must be a total omission of one, some
or all of the heir/s from the inheritance.
[Seangio v Reyes (2006)]
(2) The omission must be that of a compulsory
heir.
(3) The compulsory heir omitted must be of the
direct line.
(4) The omitted compulsory heir must be living
at the time of the testators death or must at
least have been conceived before the
testators death.
CIVIL LAW
PAGE 270
Preterition
Tacit deprivation of
a compulsory heir of
his legitime.
May be voluntary
but the presumption
of law is that it is
involuntary.
Law presumes there
has been merely
oversight or mistake
on the part of the
testator.
Since
preterition
annuls
the
institution of heirs,
the omitted heir
gets not only his
legitime but also his
share in the free
portion not disposed
of by way of legacies
and devises.
Disinheritance
Express deprivation
of a compulsory heir
of his legitime.
Always voluntary.
For some
legal
cause.
If the disinheritance
is
valid,
the
compulsory
heir
disinherited is totally
excluded from the
inheritance. In case
of
invalid
disinheritance, the
compulsory heir is
merely restored to
his legitime.
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Effects of Preterition [Art. 854, CC]

(1) The institution of the heir is annulled.
(2) Devises and legacies shall remain valid as
long as they are not inofficious.
(3) If the omitted compulsory heir should die
before the testator, the institution shall be
effective, without prejudice to the right of
representation.
Neri v. Akutin (1941)
When there are no devises and legacies,
preterition will result in the annulment of the will
and give rise to intestate succession.
SUBSTITUTION OF HEIRS
Substitution the appointment of another heir,
so that he may enter into the inheritance in
default of the heir originally instituted. [Art. 857,
CC]
KINDS
(1)
(2)
(3)
(4)
Brief or Compendious
Reciprocal
Simple or Common
Fideicommissary
CIVIL LAW
before the testator, renounces or turns out to

be incapacitated, then the other two will get
his shares in the same proportion as in the
institution. A will get twice as much as B
(because his share of 1/3 in the institution is
twice the size of Bs share of 1/6)
SIMPLE SUBSTITUTION [Art. 859, CC]
The testator may designate one or more persons
to substitute the heir/s instituted in case the
heirs should:
(1) Die before him (predecease),
(2) Should not wish to accept the inheritance
(repudiation), or
(3) Should be incapacitated to accept the
inheritance (incapacitated).
FIDEICOMMISSARY SUBSTITUTION
The testator institutes an heir with an obligation
to preserve and to deliver to another the property
so inherited. The heir instituted to such condition
is called the First Heir or the Fiduciary Heir; the
one to receive the property is the
Fideicommissary or the Second Heir. [Art. 863,
CC]
Requisites of a Fideicommisary Substitution
BRIEF OR COMPENDIOUS [Art. 860, CC]

Brief Two or more persons were designated by
the testator to substitute for only one heir.
Compendious One person is designated to take
the place of two or more heirs.
RECIPROCAL [Art. 861, CC]
If the heirs instituted in unequal shares should
be reciprocally substituted, the substitute shall
acquire the share of the heir who dies,
renounces, or is incapacitated, unless it clearly
appears that the intention of the testator was
otherwise. If there is more than one substitute,
they shall have the same share in the
substitution as the institution.
Example (only 1 substitute): If two heirs are
reciprocally substituted, then if one of them
dies before the testator dies, renounces, or
turns out to be incapacitated, the other will get
his share, regardless of whether or not their
shares are equal.
Example (more than 1 substitute): A is
instituted to 1/3, B to 1/6, and C to . If C dies
[Arts. 863-865, CC]
(1) A Fiduciary or First Heir instituted is

entrusted with the obligation to preserve and
to transmit to a Fideicommissary Substitute
or Second Heir the whole or part of the
inheritance.
(2) The substitution must not go beyond one
degree from the heir originally instituted.
(3) The Fiduciary Heir and the Fideicommissary
are living at the time of the death of the
testator.
(4) The fideicommissary substitution must be
expressly made.
(5) The fideicommissary substitution is imposed
on the free portion of the estate and never on
the legitime.
Palacios v. Ramirez (1982)
Degree refers to degree of relationship.
PCIB v. Escolin (1974)
In the absence of an obligation on the part of the
first heir to preserve the property for the second
heir, there is no fideicommissary substitution.
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Effects of predecease of the first heir/fiduciary

or the second heir/fideicommisary
Situation 1: If the first heir dies followed by the
second heir, then the testator dies, who will
inherit? The legal heirs. There is no
fideicommissary substitution because first and
second heirs are not living at the time of the
testators death. [Art. 863, CC]
Situation 2: The testator dies first followed by
the second heir. The first heir survived them
but subsequently dies, who will inherit? The SH
and his heirs under Art. 866, CC. This is
because the SH passes his rights to his own
heirs when he dies before FH.
Situation 3: If the first heir dies, followed by the
testator, then the second heir, who will inherit?
No specific provision in law, but SH inherits
because the T intended him to inherit.
TESTAMENTARY DISPOSITIONS
WITH A CONDITION, A TERM,
AND A MODE
3
KINDS
OF
DISPOSITIONS
TESTAMENTARY
(1) Conditional (obliquely defined in Article 1179,

par. 1)
(2) Dispositions with a term (obliquely defined in
Article 1193, pars. 1 and 3)
(3) Dispositions with a mode/modal dispositions
(obliquely defined in Article 882)
CONDITIONAL DISPOSITIONS
Basis of testators right to impose conditions,

terms or modes: Testamentary freedom
PROHIBITED CONDITIONS: (CONSIDERED AS
NOT IMPOSED)
(1) Any charge, condition or substitution
whatsoever upon the legitimes. [Art. 872)
(2) Impossible and illegal conditions. [Art. 873)
(3) Absolute condition not to contract a first
marriage. [Art. 874)
(4) Absolute condition not to contract a
subsequent marriage unless imposed on the
widow or widower by the deceased spouse,
or by the latters ascendants or descendants.
[Art. 874)
(5) Scriptura captatoria or legacy-hunting
dispositions [Art. 875)
Scriptura
Dispositions
CIVIL LAW
Captatoria/
Legacy-hunting
Reasons for prohibition:

(1) The captatoria converts the testamentary
grants into contractual transactions;
(2) It deprives the heirs of testamentary
freedom;
(3) It gives the testator the power to dispose
mortis causa not only of his property but also
of his heirs.
Effect: Entire disposition is void.
POTESTATIVE,
CONDITIONS
CASUAL
AND
MIXED
Potestative conditions
General rule: Must be fulfilled as soon as the heir
learns of the testators death.
Exception: If the condition was already complied
with at the time the heir learns of the testators
death; or if the condition is of such a nature that
it cannot be fulfilled again.
Constructive Compliance: deemed fulfilled.
Casual or mixed
General rule: May be fulfilled at any time (before
or after testators death), unless testator provides
otherwise.
Exception: If already fulfilled at the time of
execution of will:
(1) If testator unaware of the fact of fulfillment
deemed fulfilled
(2) If testator aware:
Can no longer be fulfilled again: deemed
fulfilled.
Can be fulfilled again: must be fulfilled
again.
Constructive Compliance:
If casual not applicable.
If mixed applicable only if dependent partly
on the will of a third party not interested.
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CIVIL LAW
LEGITIME
DISPOSITIONS WITH A TERM

A term may either be suspensive or resolutory.
IF THE TERM IS SUSPENSIVE:
Before the arrival of the term, the property
should be delivered to the legal or intestate
heirs.
A caucin muciana has to be posted by the
heirs.
IF THE TERM IS RESOLUTORY:
Before the arrival of the term, the property
should be delivered to the instituted heir.
No caucin muciana required as the heir has a
right over the property during the period.
MODAL DISPOSITIONS
Dispositions with an obligation imposed upon

the heir, without suspending the effectivity of
the institution, as a condition does.
Must be clearly imposed as an obligation in
order to be considered as one.
Mere
preferences or wishes expressed by the testator
are not modes.
A mode functions similarly to a resolutory
condition.
Rabadilla v. CA (2000)
In modal institutions, the testator states (1) the
object of the institution, (2) the purpose or
application of the property left by the testator, or
(3) the charge imposed by the testator upon the
heir.
CAUCIN MUCIANA
A security to guarantee the return of the value of
property, fruits, and interests, in case of
contravention of condition, term or mode.
Instances when it is needed:
(1) Suspensive term [Art. 885)
(2) Negative potestative condition when the
condition imposed upon the heir is negative,
or consists in not doing or not giving
something. [Art. 879)
(3) Mode [Art. 882, par. 2, CC]
It is that part of the testators property which

he cannot dispose of,
Because the law has reserved it for his
compulsory heirs. [Art. 886, CC]
COMPULSORY HEIRS AND VARIOUS

COMBINATIONS
CLASSES OF COMPULSORY HEIRS [Art. 887,
CC]
Primary those who have precedence over and
exclude other compulsory heirs:
Legitimate
Children
and
Legitimate
Descendants with respect to their Legitimate
Parents and Ascendants.
Secondary those who succeed only in the
absence of the Primary compulsory heirs:
(1) Legitimate
Parents
and
Legitimate
Ascendants, with respect to their Legitimate
Children and Descendants. (They will inherit
only in default of legitimate children and
their descendants)
(2) Illegitimate Parents with respect to their
Illegitimate Children. (They will inherit only in
default of the illegitimate and legitimate
children and their respective descendants).
Note that other illegitimate ascendants are
not included.
Concurring those who succeed together with
the primary or the secondary compulsory heirs:
(1) Widow or Widower / Surviving Spouse
(Legitimate).
(2) Illegitimate Children and Illegitimate
Descendants.
If the testator is a
LEGITIMATE CHILD:
(1) LC
and
descendants;
(2) In default of No. 1,
LP
and
ascendants;
(3) SS;
(4) IC
and
descendants.
PAGE 273
If the testator is an
ILLEGITIMATE CHILD:
(1) LC
and
descendants;
(2) ILC
and
descendants;
(3) In default of Nos.
12, ILP only;
(4) SS.
UP LAW BOC
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SPECIFIC RULES ON LEGITIMES

(1) Direct Descending Line
(a) Rule of Preference between lines [Art.
978 and 985, CC]
Those in the direct descending line shall
exclude those in the direct ascending and
collateral lines; and
Those in the direct ascending line shall, in
turn, exclude those in the collateral line.
Rule of Proximity [Art. 926, CC] The
relative nearest in degree excludes the
farther one.
(b) Right of representation ad infinitum in
case of predecease, incapacity, or
disinheritance [Art. 972 and 992, CC]
For decedents who are Legitimate
Children,
only
the
Legitimate
Descendants are entitled to right of
representation.
For decedents who are Illegitimate
Children, both the Legitimate and the
Illegitimate
Descendants
can
represent, only with respect to the
decedents illegitimate parents.
CIVIL LAW
(c) If all the Legitimate Children repudiate

their legitime, the next generation of
Legitimate Descendants may succeed in
their own right.
(2) Direct Ascending Line
(a) Rule of division between lines
The father and the mother shall inherit
equally if both living. One parent
succeeds to the entire estate of the
child if the other parent is dead. [Art.
986, CC]
In default of the mother and the father,
the ascendants nearest in degree will
inherit. [Art. 987, CC]
If there is more than one relative of the
same degree but of different lines, one
half will go to the paternal ascendants
and the other half to the maternal
ascendants. [Art. 987, CC]
(b) Rule of equal division
The relatives who are in the same
degree shall inherit in equal shares.
[Art. 987, CC]
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CIVIL LAW
SUMMARY OF LEGITIMES OF COMPULSORY HEIRS

Legend:
LC Legitimate Children
SS Surviving Spouse
LP Legitimate Parents
ILP Illegitimate Parents
Surviving Relatives
LC & Descendants
SS
LC alone
1/2 of the estate

in equal portions
1 LC, SS
1/2
LC, SS
LC, ILC
1 LC, SS, ILC
1/2
2 or more LC, SS,

ILC
1/2
in
portions
LP alone
LP, ILC
LP, SS
1/4
10
LP, SS, ILC
1/8
11
12
ILC alone
ILC, SS
13
SS alone
1/2
in
portions
1/2
in
portions
ILC
LP &
Ascendants
ILP
1/4
equal
Same portion as 1
LC
equal
1/2 share of 1 LC (for

each ILC)
each child)
1/4 (preferred)
equal
Same as share of 1
LC
N.B. The share of the

ILC
may
suffer
reduction pro rata
because spouse is
given preference
each child)
1/2
1/4 in equal portions
1/2
1/2
1/4
1/2

1/3
1/2
*SS alone where
marriage
is
in
articulo mortis and
testator dies within
3 months from
marriage 1/3
But if they have
been
living
together
as
husband and wife
for more than 5
years 1/2
14
15
ILP alone
ILP, SS
1/2
1/4
1/4
PAGE 275
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STEPS IN DETERMINING THE LEGITIME OF

COMPULSORY HEIRS
(1) Determine the gross value of the estate at
the time of the death of the testator.
(2) Determine all debts and charges which are
chargeable against the estate.
(3) Determine the net value of the estate by
deducting all the debts and charges from
the gross value of the estate.
(4) Collate or add the value of all donations
inter vivos to the net value of the estate.
(5) Determine the amount of the legitime from
the total thus found.
(6) Impute the value of all donations inter vivos
made to strangers against the disposable
free portion and restore it to the estate if the
donation is inofficious.
(7) Distribute the residue of the estate in
accordance with the will of the testator.
BAR OPERATIONS COMMISSION
(3) 1 adopted child =

4 illegitimate children =
(4) surviving spouse =
6 legitimate children =
(5) 5 legitimate children =
1 illegitimate child =
(6) 2 legitimate children =
4 illegitimate children =
surviving spouse =
RESERVA TRONCAL
Art. 891, CC. The ascendant who inherits from
his descendant any property which the latter
may have acquired by gratuitous title from
another ascendant, or a brother or sister, is
obliged to reserve such property as he may have
acquired by operation of law for the benefit of
relatives who are within the third degree and
who belong to the line from which said property
came.
REMEDY OF A COMPULSORY HEIR IN CASE

OF IMPAIRMENT OF LEGITIME
Extent and Nature of
Remedy
Impairment
Annulment
of
Total omission of a
institution
and
compulsory heir who is
reduction of legacies
a direct descendant or
and devises [Art. 854,
ascendant (preterition)
CC]
Reduction
of
the
Testamentary
disposition insofar as
dispositions impairing
they may be inofficious
or diminishing the
or excessive [Art. 907,
legitime
CC]
Completion of the
Partial impairment
legitime [Art. 906, CC]
Collation reduction
Impairment
by
of donations [Arts. 771
inofficious donations
and 911, CC]
Concept of Reserva Troncal

(1) A descendant (prepositus) inherits or
acquires property from an ascendant or
from a brother or sister (origin or mediate
source) by gratuitous title.
(2) The same property is inherited by another
ascendant (reservista) or is otherwise
acquired by him by operation of law from
the said descendant (prepositus).
(3) The said ascendant (reservista) must reserve
the property for the benefit of the relatives
of the deceased descendant within the third
civil degree and who belong to the line from
which the said property came (reservatarios).
Parties: [Balane]
(1) Origin or Mediate Source either an
ascendant of any degree of ascent or a
brother or sister of the Prepositus;
responsible for the 1st transfer.
(2) Prepositus the first transferee of the
reserved property.
(3) Reservista an ascendant of the Prepositus
other than the Origin or Mediate Source; the
one obligated to reserve the property.
(4) Reservatarios within the 3rd degree of
consanguinity from the Prepositus [Cabardo
Legitimes Quiz: Lets test your knowledge of the

Legitime system. Please answer the items in 3
minutes (without looking at the combinations).
(1) 1 legitimate child =
1 adopted child =
(2) 2 adopted children =
legitimate parents =
PAGE 276
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The right is alienable but subject to the same

suspensive condition.
The right is registrable.
v. Villanueva (1922)] belonging to the line

from which the property came.
Requisites for Reserva Troncal
Chua v. CFI (1977):
(1) That the property was acquired by a
descendant (Prepositus) from an ascendant
or from a brother or sister (Origin or Mediate
Source) by gratuitous title,
(2) That the Prepositus died without
(legitimate*) issue,
(3) That the property is inherited by another
ascendant (Reservista) by operation of law,
and
(4) That there are relatives within the 3rd degree
(Reservatarios) belonging to the line from
which said property came.
Reserva Minima vs. Reserva Maxima
(1) The
prepositus
acquired
property
gratuitously from an ascendant, a brother or
sister.
(2) In his will, he institutes as his heir his
ascendant (who is also a compulsory heir)
such that the ascendant receives half of the
estate by operation of law as legitime and
the other half by testamentary disposition.
Two Views
Reserva Maxima: The entire property will be
considered acquired as legitime and therefore
wholly reservable.
Reserva Minima: One half is reservable, the
other half is not subject to reserva troncal.
[Tolentino, p. 284]
Only legitimate descendants will prevent the

property from being inherited by the legitimate
ascending line by operation of law [Balane]
3 transmissions involved:
1st transfer by gratuitous title, from a
person to his descendant, brother or sister.
2nd transfer by operation of law, from the
transferee in the 1st transfer to another
ascendant. This creates the reserva.
3rd transfer from the transferee in the
second transfer to the relatives. [Balane]
Extinguishment of the Reserva

(1) Loss of the reservable property
(2) Death of the reservista
(3) Death of all the relatives within the third
degree belonging to the line from which the
property came
(4) Renunciation by the reservatarios
(5) Registration of the reservable property
under the Torrens system as free
(6) Prescription, when the reservista holds the
property adversely against the reservatarios,
as free from reservation
Juridical Nature of Rights

Nature of the reservistas right: [Balane citing
Edroso v. Sablan]
The reservistas right over the reserved
property is one of ownership
The right of ownership is subject to a
resolutory condition, i.e. the existence of
reservatarios at the time
The right of ownership is alienable, but
subject to the same resolutory condition.
The reservistas right of ownership is
registrable.
DISINHERITANCE
DEFINITION [Art. 915, CC]
(1) It is the act by which the testator,

(2) For just cause,
(3) Deprives a compulsory heir of his right to
the legitime.
REQUISITES
OF
DISINHERITANCE
Nature of reservatarios right: [Sienes v. Esparcia]

The reservatarios have a right of expectancy
over the property.
The right is subject to a suspensive condition,
i.e. the expectancy ripens into ownership if the
reservatarios survive the reservistas.
VALID
(1) Heir disinherited must be designated by

name or in such a manner as to leave no
room for doubt as to who is intended to be
disinherited.
(2) It must be for a cause designated by law.
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(3) It must be made in a valid will.

(4) It must be made expressly, stating the
cause in the will itself.
(5) The cause must be certain and true, and
must be proved by the interested heir if the
person should deny it.
(6) It must be unconditional.
(7) It must be total.
(3) When the parent or ascendant has accused

the testator of a crime for which the law
prescribes imprisonment for six years or
more, if the accusation has been found to
be false;
(4) When the parent or ascendant has been
convicted of adultery or concubinage with
the spouse of the testator;
(5) When the parent or ascendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;
(6) The loss of parental authority for causes
specified in this Code;
(7) The refusal to support the children or
descendants without justifiable cause;
(8) An attempt by one of the parents against
the life of the other, unless there has been a
reconciliation between them.
DISINHERITANCE OF CHILDREN AND

DESCENDANTS [Art. 919, CC]
(1) When a child or descendant has been found

guilty of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants;
(2) When a child or descendant has been
convicted of adultery or concubinage with
the spouse of the testator;
(3) When a child or descendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
(4) A refusal without justifiable cause to
support the parent or ascendant who
disinherits such child or descendant;
(5) Maltreatment of the testator by word or
deed, by the child or descendant;
(6) When a child or descendant leads a
dishonorable or disgraceful life;
(7) Conviction of a crime which carries with it
the penalty of civil interdiction.
DISINHERITANCE OF A SPOUSE [Art.
921, CC]
(1) When the spouse has been convicted of an

attempt against the life of the testator, his
or her descendants, or ascendants;
(2) When the spouse has accused the testator
of a crime for which the law prescribes
imprisonment of six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence cause the
testator to make a will or to change one
already made;
(4) When the spouse has given cause for legal
separation;
(5) When the spouse has given grounds for the
loss of parental authority;
(6) Unjustifiable refusal to support the children
or the other spouse.
DISINHERITANCE OF PARENTS AND

ASCENDANTS [Art. 920, CC]
(1) When the parents have abandoned their

children or induced their daughters to live a
corrupt or immoral life, or attempted
against their virtue;
(2) When the parent or ascendant has been
convicted of an attempt against the life of
the testator, his or her spouse, descendants,
or ascendants;
PAGE 278
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SUMMARY OF CAUSES OF DISINHERITANCE

Grounds for Disinheritance
1
Guilty or Convicted of Attempt Against the

Life of the Testator, Spouse, Ascendant or
Descendant
Accused Testator or Decedent of Crime

Punishable by Imprisonment of 6 years or
more, and Found Groundless or False
3
4
5
6
7
8
9
10
11
12
13
14
15
Causes testator or decedent to Make a

Will or Change one by Fraud, Violence,
Intimidation, or Undue Influence
Unjustified Refusal to Support Testator
Convicted of Adultery or Concubinage
with Spouse of Testator or Decedent
Maltreatment of testator by Word and
Deed
Leading a Dishonorable or Disgraceful
Life
Conviction of Crime which carries the
penalty of Civil Interdiction
Abandonment of Children or Inducing
Children to Live Corrupt and Immoral Life
or Against Attempted Virtue
Loss of Parental Authority
CC 919
Children &
Descendants
CC 920
Parents &
Ascendants
CC 921
Spouse
CC 1032
Unworthiness
Attempt by One Parent Against the Life of

the Other UNLESS there is Reconciliation
Between Parents
Spouse Has Given Cause for Legal

Separation
Failure to Report Violent Death of
Decedent Within One Month UNLESS
Authorities Have Already Taken Action
Force, Violence, Intimidation, or Undue
Influence to Prevent Another from Making
a Will or Revoking One Already Made or
Who Supplants or Alters the Latters Will
Falsifies or Forges Supposed Will of
Decedent
PAGE 279
UP COLLEGE OF LAW
MODES
OF
REVOCATION
DISINHERITANCE
SUCCESSION
EFFECT OF INEFFECTIVE DISINHERITANCE

If the disinheritance lacks one or other of the
requisites mentioned in this article, the heir in
question gets his legitime. [Balane]
OF
(1) Reconciliation [Art. 922, CC]

(2) Subsequent institution of the disinherited
heir
(3) Nullity of the will which contains the
disinheritance.
Note: The moment that testator uses one of the
acts of unworthiness as a cause for
disinheritance; he thereby submits it to the rules
on disinheritance. Thus, reconciliation renders
the disinheritance ineffective.
RECONCILIATION [Art. 922, CC]
Ineffective
Disinheritance
Person
disinherited
may be any compulsory
heir
Only
annuls
the
institution in so far as it
prejudices the person
disinherited
Preterition
Person omitted must
be a compulsory heir
in the direct line
Annuls the entire
institution of heirs
LEGACIES AND DEVISES
EFFECT OF RECONCILIATION BETWEEN

OFFENDER AND OFFENDED PERSON:
If no disinheritance has been made yet: the
offended person will be deprived of his right
to disinherit.
If disinheritance has been effected: it will be
rendered ineffectual.
PERSONS CHARGED WITH THE DUTY

TO GIVE LEGACIES AND DEVISES IN
A WILL
RIGHTS OF DESCENDANTS OF PERSON

DISINHERITED [Art. 923, CC]
Disinheritance gives rise to the right of
representation in favor of the children and
descendants of the disinherited person with
respect to his legitime.
This is inconsistent with Art. 1033.
In
disinheritance, reconciliation is sufficient. It
need not be in writing. In unworthiness,
however, it needs to be in writing. [Balane]
INEFFECTIVE DISINHERITANCE [Art.
918, CC]
INSTANCES
OF
INEFFECTIVE
DISINHERITANCE:
(1) There is no specification of the cause.
(2) The cause is not proved.
(3) The cause is not among those specified in
the provisions.
PAGE 280
(1) Compulsory heir, provided, their legitimes

are not impaired [Art. 925, CC]
(2) Voluntary heir
(3) Legatee or devisee can be charged with the
duty of giving a sub-legacy or sub-devise
but only to the extent of the value of the
legacy or devise given him [Art. 925, CC]
(4) The estate represented by the executor or
administrator, if no one is charged with this
duty to pay or deliver the legacy or devise in
the will
If there is an administration proceeding, it
constitutes a charge upon the estate.
If there is no administration proceeding, it
is a charge upon the heirs.
UP COLLEGE OF LAW
SUCCESSION
VALIDITY AND EFFECT OF LEGACY

OR DEVISE
Legacy or devise of a thing belonging to another
[Art. 930, CC]
Testator erroneously
believed that the
Void
property belonged to
him
The thing bequeathed
afterwards becomes Effective
his by whatever title
Legacy or devise of thing already belonging to the
legatee or devisee
The thing already
belongs to the legatee
or devisee at the time Ineffective
of the execution of the
will [Art. 932, CC]
The thing is subject to
Valid only as to the
an encumbrance or
interest
or
interest of another
encumbrance
person [Art. 932, CC]
Legatee or devisee
subsequently
Ineffective
alienates the thing
[Art. 933,CC]
After alienating the
thing, the legatee or
devisee subsequently
Ineffective
reacquires
it
gratuitously [Art. 933,
CC]
After alienating the
Legatee or devisee can
thing, the legatee or
demand
devisee acquires it by
reimbursement from
onerous title [Art. 933,
the heir or estate
CC]
PAGE 281
UP COLLEGE OF LAW
SUCCESSION
DIFFERENT OBJECTS OF LEGACIES AND DEVISES [Art. 934-944, CC]

OBJECTS OF LEGACY OR
DEVISE
Thing pledged or mortgaged
to secure a debt
Credit or remission or release
of a debt
EFFECT
Estate is obliged to pay the debt
Other charges pass to the legatee or devisee
Effective only as regards the credit or debt existing at the time of the testators
death
Legacy lapses if the testator later brings action against the debtor
If generic, comprises all credits/debts existing at time of execution of will
Thing pledged by debtor
Only the pledge is extinguished; the debt remains
To a creditor
Shall not be applied to his credit unless the testator so declares

If testator does not really owe the debt, the disposition is void
If the order is to pay more than the debt, the excess is not due
This is without prejudice to the payment of natural obligations
The choice is with the heir, or the executor or administrator
If the heir, legatee or devisee dies, the right passes to their heirs
Once made, the choice is irrevocable
Legacy is valid even if there are no things of the same kind in the estate
Devise of indeterminate real property valid only if there are immovable property
of the same kind in the estate
The choice belongs to the heir, legatee or devisee or the executor or
administrator
Lasts until the legatee is of age or beyond the age of majority in order that he
may finish some professional, vocational or general course provided he pursues
his course diligently
If testator did not fix the amount, it is fixed in accordance with the social
standing and circumstances of the legatee and the value of the estate
Lasts during lifetime of legatee
If the testator used to give the legatee a sum of money for support, give the
same amount unless it is markedly disproportionate to the estate
If testator did not fix the amount, it is fixed in accordance with the social
standing and circumstances of the legatee and the value of the estate
Order of payment of a debt

Alternative
devises
legacies
and
Legacy of generic personal

property or indeterminate
real property
Legacy of education
Legacy of support
ORDER OF PAYMENT IN CASE THE ESTATE IS NOT SUFFICIENT TO COVER ALL THE LEGACIES
AND DEVISES
ART. 911
ART. 950
ORDER OF PREFERENCE
Remuneratory legacy/devise
Preferential legacy/devise
Legitime of compulsory heirs
Legacy for Support
Donations Inter vivos
Legacy for Education
Preferential legacies or devises
Legacy/devise of Specific, determinate thing which forms a part
All Other legacies or devises pro rata
of the estate
All Others pro rata
APPLICATION
When the reduction is necessary to preserve the legitime of
When there are no compulsory heirs and the entire estate is
compulsory heirs from impairment whether there are donations
distributed by the testator as legacies or devises; or
inter vivos or not; or
When there are compulsory heirs but their legitime has already
been provided for by the testator and there are no donations inter
When, although, the legitime has been preserved by the testator
vivos.
himself there are donations inter vivos.
Art. 911, CC governs when there is a conflict between compulsory
heirs and the devisees and legatees.
Art. 950, CC governs when the question of reduction is exclusively

among legatees and devisees themselves.
PAGE 282
UP LAW BOC
SUCCESSION
DELIVERY OF LEGACY/DEVISE [Art.
CIVIL LAW
Legal or Intestate
Succession
951, CC]
(1) The very thing bequeathed shall be

delivered and not its value,
(2) With all its accessions and accessories,
(3) In the condition in which it may be upon the
death of the testator.
(4) Legacies of money must be paid in cash.
GENERAL PROVISIONS
Intestacy that which takes place by operation
of law in default of compulsory and
testamentary succession. Not defined in the
Civil Code.
EFFECT OF INEFFECTIVE LEGACIES

OR DEVISES [Art. 956, CC]
In case of repudiation, revocation or incapacity

of the legatee or devisee, the legacy or devise
shall be merged with the mass of the hereditary
estate, except in cases of substitution or
accretion.
INSTANCES WHEN LEGAL OR

INTESTATE SUCCESSION OPERATES
[Art. 960, CC]
(1) If a person dies without a will, or with a void
will, or one which has subsequently lost its
validity.
(2) When the will does not institute an heir.
(3) Upon the expiration of term, or period of
institution of heir. [Balane, 426]
(4) Upon fulfillment of a resolutory condition
attached to the institution of heir, rendering
the will ineffective. [Balane, 426]
(5) When the will does not dispose of all the
property belonging to the testator. Legal
succession shall take place only with
respect to the property which the testator
has not disposed (mixed succession).
(6) If the suspensive condition attached to the
institution of the heir does not happen or is
not fulfilled.
(7) If the heir dies before the testator.
(8) If the heir repudiates the inheritance, there
being no substitution, and no right of
accretion takes place.
(9) When the heir instituted is incapable of
succeeding, except in cases provided in the
Civil Code.
(10) Preterition Intestacy may be total or
partial depending on whether or not there
are legacies or devises. [Balane, 426]
REVOCATION OF LEGACIES AND

DEVISES [Art. 957, CC]
(1) Testator transforms the thing such that it

does not retain its original form or
denomination.
(2) Testator alienates the thing by any title or
for any cause. Reacquisition of the thing by
the testator does not make the legacy or
devise valid, unless it is effected by right of
repurchase.
(3) Thing is totally lost during the lifetime or
after the death of the testator.
(4) Other causes: nullity of will, noncompliance with suspensive condition, sale
of the thing to pay the debts of the
deceased during the settlement of his
estate.
Note: In all cases where there has been an

institution of heirs, follow the ISRAI order:
(a) If the Institution fails, Substitution occurs.
(b) If there is no substitute, the right of
Representation applies in the direct
descending line to the legitime if the
vacancy is caused by predecease, incapacity,
or disinheritance.
PAGE 283
UP LAW BOC
SUCCESSION
(c) The right of Accretion applies to the free

portion when the requisites in Art. 1016 are
present.
(d) If there is no substitute, and the right of
Representation or Accretion are not proper,
the rules on Intestate succession shall apply.
THE INTESTATE OR LEGAL HEIRS
(1) Relatives
(a) Legitimate ascendants
(b) Illegitimate parents
(c) Legitimate children
(d) Illegitimate children
(e) Surviving Spouse
(f) Brothers, sisters, nephews and nieces
(BSNN)
(g) Other collateral relatives
(2) Surviving spouse
(3) State (through escheat proceedings)
present law is 2:1. [Art. 983, in relation to

Article 895 as amended by Article. 176, FC)
(c) Rule of division by line in the ascending
line. [Art. 987 [2], CC]
(d) Distinction between full-blood and halfblood relationship among brothers and
sisters, as well as nephews and nieces.
[Art. 1006 and 1008, CC]
(e) Right of representation.
RULE OF BARRIER BETWEEN THE
LEGITIMATE
FAMILY
AND
THE
ILLEGITIMATE FAMILY (THE IRON-CURTAIN
RULE)
The illegitimate family cannot inherit by
intestate succession from the legitimate family
and vice-versa. [Art. 992, CC]
RULE OF DOUBLE SHARE FOR FULL BLOOD
COLLATERALS
When full and half-blood brothers or sisters,
nephews or nieces, survive, the full blood shall
take a portion in the inheritance double that of
the half-blood. [Arts. 895 and 983, CC]
Intestate succession is based on the presumed

will of the decedent. That is, to distribute the
estate in accordance with the love and affection
he has for his family, and in default of these
persons, the presumed desire to promote
charitable and humanitarian activities [Balane].
FUNDAMENTAL
PRINCIPLES
INTESTATE SUCCESSION
CIVIL LAW
Note:
If one of the legitimate ascendants,
illegitimate parents, legitimate children or
illegitimate children survives, the brother,
sisters, nephews, and nieces (BSNN) are
excluded.
If one of the legitimate ascendants,
illegitimate parents, legitimate children,
illegitimate children or surviving spouse
survives, the other collateral relatives and the
state are excluded.
If any of the heirs concur in legitimes, then
they also concur in intestacy.
IN
RULE OF PREFERENCE BETWEEN LINES

Those in the direct descending line shall
exclude those in the direct ascending and
collateral lines;
Those in the direct ascending line shall, in
turn, exclude those in the collateral line.
RULE OF PROXIMITY
The relative nearest in degree excludes the
farther one. [Art. 962[1], CC], saving the right
of representation when it properly takes place.
RELATIONSHIP
The number of generations determines the
proximity of the relationship. Each generation
forms one degree. [Art. 963, CC]
RULE OF EQUAL DIVISION

The relatives who are in the same degree shall
inherit in equal shares. [Arts. 962[2], 987 and
1006, CC]
A series of degrees forms a line. This line may

either be direct or collateral. [Art. 964, CC]
A direct line is that constituted by the series of
degrees among ascendants and descendants.
The direct line is either ascending (brings a
person with those from whom he descends)
and descending (connecting the head of the
Exceptions: [Balane, 427-428]

(a) Rule of preference between lines.
(b) Distinction between legitimate and
illegitimate filiation. The ratio under
PAGE 284
UP LAW BOC
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family with those who descend from him).

[Art. 965, CC]
A collateral line is that constituted by the
series of degrees among persons who are not
ascendants or descendants, but who come
from a common ancestor.
CIVIL LAW
inheritance, those of the following degree shall

inherit in their own right.
In case of repudiation by all in the same degree,
the right of succession passes on the heirs in
succeeding degrees: descending line first,
ascending line next, and collateral line next.
[Balane]
Note: It is important to distinguish between

direct and collateral as the direct has preference
over the collateral.
Adoption [Art. 189, FC]

In adoption, the legal filiation is personal and
exists only between the adopter and the
adopted. The adopted is deemed a legitimate
child of the adopter, but still remains as an
intestate heir of his natural parents and other
blood relatives. (Note, however, Section 16 of
the Domestic Adoption Act [RA 8552], which
provides that all legal ties between the
biological parent(s) and the adoptee shall be
severed and the same shall then be vested on
the adopter(s).
In a line, as many degrees are counted as there

are generations. [Art. 966, CC]
In the direct line, ascent is made up to the
common ancestor or progenitor.
In the collateral line, ascent is made to the
common ancestor. Then descent to the
person with whom the computation is to be
made.
Note: Descending line is preferred over
ascending.
RIGHT OF REPRESENTATION
Representation right created by fiction of law,
by virtue of which the representative is raised to
the place and the degree of the person
represented, and acquires the rights which the
latter would have if he were living or if he could
have inherited [Art. 970, CC]
Blood relationship is either full or half-blood.

[Art. 967, CC]
Note: As among brothers and sisters and
nephews and nieces, there is a 2:1 ratio for fullblood and half-blood relatives. Direct relatives
are preferred. But this distinction does not apply
with respect to other collateral relatives.
Effect of Representation
The representative heir acquires the rights
which the person represented would have if he
were living or if he could have inherited.
Incapacity [Art. 968, CC]

General rule: If there are several relatives of the
same degree, and one or some of them are
unwilling or incapacitated to succeed, his
portion shall accrue to the others of the same
degree.
When it occurs
Representation is allowed with respect to
inheritance conferred by law (legitime and
intestate based on Art. 923).
Exception: When the right of representation

should take place.
It occurs only in the following instances: (DIP)

(1) Predecease of an heir
(2) Incapacity or unworthiness
(3) Disinheritance [Art. 923, CC]
Note: This accretion in intestacy takes place in

case of predecease, incapacity, or renunciation
among heirs of the same degree. The relatives
must be in the same relationship because of the
Rule of Preference of Lines.
There is no representation in testamentary

succession. [Art. 856, CC]
There is no representation in repudiation.
Repudiation [Arts. 968-969, CC]

There is no right of representation in repudiation.
If the nearest relative/s repudiates the
A renouncer can represent, but cannot be

represented. Rationale is found in Art. 971 which
PAGE 285
UP LAW BOC
SUCCESSION
states that The representative does not

succeed the person represented but the one
whom the person represented would have
succeeded.
CIVIL LAW
between legitimate
applicable.
Representation in the Direct Descending Line

Representation takes place ad infinitum in the
direct descending line but never in the direct
ascending line. [Art. 972, CC]
General rule: Grandchildren inherit from the
grandparents by right of representation, if
proper.
Exception: Whenever all the children repudiate,
the grandchildren inherit in their own right
because representation is not proper. [Art. 969,
CC]
Representation in Collateral Line
In the collateral line, representation takes place
only in favor of the children of the brothers or
sisters (i.e., nephews and nieces) whether of the
full or half-blood [Art. 972, CC] and only if they
concur with at least one uncle or aunt. In this
case, they share in the inheritance per stirpes.
If the children survive alone, they inherit in their
own right and share in equal proportions or per
capita. [Art. 975, CC]
and
illegitimate,
if
The Double Heirship Test

In determining whether or not representation
is proper, it is necessary that the
representative must be a legal heir of both the
person he is representing and the decedent.
[Art. 973, CC]
BUT the representative need not be qualified
to succeed the person represented. [Art. 971,
CC] In the same manner, the person
represented need not be qualified to succeed
the decedent, as it is his disqualification which
gives rise for representation to apply.
o Legitimate children may not be represented
by their illegitimate descendants (because
of the bar in Art. 992). In contrast,
illegitimate children may be represented by
their
legitimate
and
illegitimate
descendants [Art. 902, CC].
o Illustration: A has legitimate son J and
illegitimate son K. J has an illegitimate son
J-1 while K also has an illegitimate son K-1.
K-1 may inherit from A by representation of
K (under Art. 902), but J-1 may not inherit
from A (because of the barrier under Art.
992).
Representation in Adoption
If the adopting parent should die before the
adopted child, the latter cannot represent the
former in the inheritance of the parents or
ascendants of the adopter. The adopted child is
not related to the deceased in that case,
because filiation created by fiction of law is
exclusively between the adopter and the
adopted. [Tolentino, 448-449]
Right of representation in the collateral line is

only possible in INTESTATE succession. It
cannot take place in testamentary succession.
Per stirpes
Inheritance per stirpes means that the
representative/s shall receive only what the
person represented would have received, if he
were living or could inherit. [Art. 975, CC]
If there are more than one representative in
the same degree, then it shall be divided
equally, without prejudice to the distinction
PAGE 286
UP LAW BOC
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CIVIL LAW
ORDER OF INTESTATE SUCCESSION

Decedent is a Legitimate Child
Legitimate
children
or
descendants (LCD)
Legitimate parents or ascendants
(LPA)
Decedent is an Illegitimate Child

Legitimate
children
or
descendants (LCD)
Illegitimate
children
or
descendants (LPA)
Illegitimate
children
descendants (ICD)
Illegitimate parents (IP)
Surviving spouse (SS)
Decedent is an Adopted Child

Legitimate
children
or
descendants (LCD)
Illegitimate
children
or
descendants (ICD)
Legitimate
or
illegitimate
parents,
or
legitimate
ascendants, adoptive parents
Brothers and sisters,

nephews, nieces (BS/NN)
Illegitimate brothers and sisters,

nephews, nieces (IBS/NN)
Brothers and sisters, nephews,

nieces (BS/NN)
State
State
1
2
6
7
or
Legitimate collateral relatives

th
within the 5 degree (C5)
State
RULES OF EXCLUSION AND CONCURRENCE IN INTESTATE SHARES

INTESTATE HEIRS
Excludes
Ascendants,
Collaterals and
State
ILP,
Collaterals and
State
Collaterals and
State
Collaterals and
State
Excluded By
Concurs With
No one
SS + ILC
No one
SS, LC, LP
LC
ILC + SS
LC and ILC
SS
SS
Collaterals other than

siblings, nephews and nieces,
State
No one
LC, ILC, LP, ILP

Siblings
Nephews
Nieces
Siblings,
Nephews
Nieces
All other collaterals and

State
LC, ILC, LP, ILP
SS
LC, ILC, LP, ILP and

SS
Collaterals in the same

degree
Everyone
No one
LC + LD
ILC + D
LP + LA
ILP
th
Other collaterals within 5

degree
State
Collateral more remote in

degree and
State
No one
PAGE 287
UP LAW BOC
OUTLINE
SHARES
SUCCESSION
OF
INTESTATE
Divide entire estate equally among all

legitimate children [Art. 979, CC]
Legitimate children include an adopted child.
LEGITIMATE
PARENTS
SURVIVING SPOUSE
AND
LEGITIMATE PARENTS, SURVIVING

SPOUSE
AND
ILLEGITIMATE
CHILDREN
AND
Divide entire estate equally between the

legitimate children and the surviving spouse,
the latter deemed as one child. The same rule
holds where there is only one child.
Children as used in Art. 996 is interpreted to
include a situation where there is only one
child.
LEGITIMATE CHILDREN, SURVIVING

SPOUSE,
AND
ILLEGITIMATE
CHILDREN
Legitimate parents get of the estate;

surviving spouse and the illegitimate child
each get each, the latter to share among
themselves if more than one. [Art. 1000, CC]
ILLEGITIMATE CHILDREN ONLY
Divide the entire estate equally. [Art. 988, CC]
ILLEGITIMATE
CHILDREN
SURVIVING SPOUSE
AND
Illegitimate children get of the estate; the

surviving spouse gets the other . [Art. 998,
CC]
SURVIVING SPOUSE ONLY
Divide the entire estate such that the surviving

spouse is deemed one legitimate child and
each illegitimate child getting of what the
legitimate child gets. [Art. 996, CC and Art.
176, FC]
Ensure that the legitime of the legitimate
children and the spouse are first satisfied.
Entire estate goes to the surviving spouse.

[Art. 994/995, CC]
SURVIVING
SPOUSE
ILLEGITIMATE PARENTS
AND
Illegitimate parents get and the spouse

gets the other . (by analogy with Art. 997,
CC)
LEGITIMATE PARENTS ONLY
Divide the entire estate equally. [Art. 985, CC]
LEGITIMATE ASCENDANTS
(EXCLUDING PARENTS)
AND
Legitimate parents get of the estate; The

surviving spouse gets the other . [Art.
997,CC]
AND
Divide entire estate such that each

illegitimate child gets of what a legitimate
child gets [Art. 983, CC and Art. 176, FC]
Ensure that the legitime of the legitimate
children are first satisfied.
LEGITIMATE
CHILDREN
SURVIVING SPOUSE
LEGITIMATE
PARENTS
Legitimate parents get of the estate,

illegitimate children get the other . [Art. 991,
CC]
LEGITIMATE CHILDREN ONLY
LEGITIMATE
CHILDREN
CIVIL LAW
SURVIVING
SPOUSE
AND
LEGITIMATE
BROTHERS
AND
SISTERS, NEPHEWS AND NIECES
ONLY
Surviving spouse gets of the estate, while

the rest gets the other with the nephews
and nieces inheriting by representation if
proper. [Art. 1001, CC]
Divide the entire estate equally but with the

observance of the rule of division by line. [Art.
987, CC]
PAGE 288
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Note: the nearer relative excludes the more

remote relatives.
SURVIVING
SPOUSE
AND
ILLEGITIMATE
BROTHERS
AND
STATE
Surviving spouse gets of the estate while

the rest gets the other with the nephews
and nieces inheriting by representation, if
proper; Note that all the other relatives
should be illegitimate because of the ironcurtain rule. [Art. 994, CC]
If there are no other intestate heirs, the State

inherits the entire estate through escheat
proceedings. [Art. 1011, CC]
Provisions Common to
Testate and Intestate
Succession
ILLEGITIMATE PARENTS ONLY
Entire estate goes to the illegitimate parents.

[Art. 993, CC]
ILLEGITIMATE
PARENTS
AND
CHILDREN OF ANY KIND (WHETHER
LEGITIMATE
OR
ILLEGITIMATE
CHILD)
RIGHT OF ACCRETION
DEFINITION OF ACCRETION [Art.
1015, CC]
Illegitimate parents are excluded and do not

inherit; For the rule on the respective shares of
the children, see numbers 1, 2 or 10, whichever
is applicable.
LEGITIMATE
SISTERS ONLY
BROTHERS
CIVIL LAW
It is a right by virtue of which, when two or more

persons are called to the same inheritance,
devise or legacy, the part assigned to one who
renounces or cannot receive his share or who
died before the testator is added or
incorporated to that of his co-heirs, co-devisees,
or co-legatees.
AND
Divide the entire estate such that full-blood

brothers/sisters gets a share double the
amount of a half-blood brother or sister. [Art.
1004 and 1006, CC]
REQUISITES (TOLENTINO P. 497499):
LEGITIMATE
BROTHERS
AND
Divide the entire estate observing the 2 is to 1

ratio for full and half-blood relationships with
respect to the brothers and sisters, with the
nephews
and
nieces
inheriting
by
representation, if proper. [Art. 1005 & 1008,
CC]
NEPHEWS AND NIECES ONLY
(1) Unity of object and plurality of subjects (two

or more persons are called to the same
inheritance or same portion thereof).
(2) Vacancy of share (one of the heirs dies
before the testator, or renounces the
inheritance, or is incapacitated).
WHEN ACCRETION OCCURS
Divide the entire estate per capita, observing

the 2 is to 1 ratio. [Arts. 975 and 1008, CC]
OTHER COLLATERALS [Arts. 1009

AND 1010)
Divide entire estate per capita. Collateral

relatives must be with the 5th degree of
consanguinity.
PAGE 289
Accretion happens when there is

repudiation, incapacity, or predecease of an
heir.
It is the mechanism where the share of an
heir is increased by vacant shares vacated
by heirs who cannot inherit for various
reasons. (RATIONALE: the decedent
intended to give the property to nobody but
the co-heirs.)
There can only be accretion if there is an
institution of heirs with respect to specific
properties. [Art. 1016, CC]
UP LAW BOC
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CAPACITY TO SUCCEED BY WILL

OR INTESTACY
Among compulsory heirs, there can only be

accretion with respect to the free portion.
There can be no accretion with respect to
the legitimes. [Arts. 1021 and 1018, CC]
The heirs to whom the portion goes by the
right of accretion take it in the same
proportion that they inherit. [Art. 1019, CC]
REQUISITES FOR CAPACITY TO

SUCCEED BY WILL OR BY INTESTACY
[Art. 1024 1025, CC]
(1) The heir, legatee or devisee must be living

or in existence at the moment the
succession opens; [Art. 1025, CC] and
(2) He must not be incapacitated or disqualified
by law to succeed. [Art. 1024, par.1, CC]
EXCEPTIONS [Balane]
(1) In testamentary succession, if the testator
provides otherwise.
(2) If the obligation is purely personal, and
hence intransmissible.
PERSONS
INCAPABLE
OF
SUCCEEDING [Arts. 1027, 739, 1032]
The heirs to whom the inheritance accrues shall

succeed to all the rights and obligations which
the heir who renounced or could not receive it
would have had. [Art. 1020, CC]
In testamentary succession, when the right of
accretion does not take place, the vacant
portion of the instituted heirs, if no substitute
has been designated, shall pass to the legal
heirs of the testator, who shall receive it with the
same charges and obligations. [Art. 1022, CC]
Accretion shall also take place among devisees,
legatees and usufructuaries under the same
conditions established for heirs. [Art. 1023, CC]
EFFECT OF PREDECEASE, INCAPACITY,
DISINHERITANCE OR REPUDIATION
CAUSE OF
VACANCY
Predecease
Incapacity
TESTAMENTARY
SUCCESSION
FREE
LEGITIME
PORTION
Representati
Accretion
on
Intestate
Intestate
Succession
Succession
Representati
on
Accretion
Intestate
Intestate
Succession Succession
Representati
on
Disinheritance
Intestate
Succession
Intestate
Repudiation
Accretion
Succession
CIVIL LAW
INTESTATE
SUCCESSION
Representatio
n
Intestate
Succession
Representatio
n
Intestate
Succession
-
BASED ON UNDUE INFLUENCE OR

INTEREST [Art. 1027, CC]
(1) Priest who heard the last confession of the
testator during his last illness, or the
minister of the gospel who extended
spiritual aid to him during the same period;
(2) Individuals, associations and corporations
not permitted by law to inherit;
(3) Guardian with respect to testamentary
dispositions given by a ward in his favor
before the final accounts of the
guardianship have been approved, even if
the testator should die after the approval
thereof; except if the guardian is his
ascendant, descendant, brother, sister, or
spouse;
(4) Relatives of the priest or minister of the
gospel within the fourth degree, the church,
order, chapter, community, organization, or
institution to which such priest or minister
may belong;
(5) Attesting witness to the execution of a will,
the spouse, parents, or children, or any one
claiming under such witness, spouse,
parents, or children;
(6) Physician, surgeon, nurse, health officer or
druggist who took care of the testator
during his last illness.
BASED ON MORALITY OR PUBLIC POLICY
[Arts. 739 AND 1028, CC]
(1) Those made in favor of a person with whom

the testator was guilty of adultery or
concubinage at the time of the making of
the will.
Accretion
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(2) Those made in consideration of a crime of

which both the testator and the beneficiary
have been found guilty.
(3) Those made in favor of a public officer or his
spouse, descendants and ascendants, by
reason of his public office.
CIVIL LAW
UNWORTHINESS VS. DISINHERITANCE

Unworthiness
Unworthiness renders
a person incapable of
succeeding to the
succession, whether
testate or intestate
BASED ON ACTS OF UNWORTHINESS [Art.
1032, CC]
(1) Parents who have abandoned their children

or induced their daughters to lead a corrupt
or immoral life, or attempted against their
virtue;
(2) Any person who has been convicted of an
attempt against the life of the testator, his
or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of
a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge
of the violent death of the testator, should
fail to report it to an officer of the law within
a month, unless the authorities have already
taken action; this prohibition shall not apply
to cases wherein, according to law, there is
no obligation to make an accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to
(7) Any person who by the same means
prevents another from making a will, or
from revoking one already made, or who
supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a
supposed will of the decedent.
DETERMINATION
Disinheritance
Disinheritance is the
act by which a
testator, for just cause,
deprives a compulsory
heir of his right to the
legitime [Art. 815, CC]
[TOLENTINO, p. 539]
OF
CAPACITY
General rule: At the death of the decedent [Art.

1034, CC]
Exceptions:
(1) Those falling under 2, 3, and 5 of Art. 1032
when the final judgment is rendered.
(2) Those falling under 4 of Art. 1032 when
the month allowed for the report expired.
(3) If the institution is conditional when the
condition is complied with.
ACCEPTANCE AND
REPUDIATION OF THE
INHERITANCE
CHARACTERISTICS
1042, 1056, CC]
[Arts.
1041
(1) Acceptance and repudiation must be

voluntary and free [Art. 1041, CC];
(2) They are irrevocable except if there is
vitiation of consent or an unknown will
appears [Art. 1056, CC];
(3) They have a retroactive effect [Art. 1042,
CC].
REQUISITES [Art. 1043, CC]
(1) Certainty of death of the decedent.

(2) Certainty of the right to the inheritance.
PARDON OF ACTS OF UNWORTHINESS

Express
Implied
Effected when the
Made by the execution
testator makes a will
of a document or any
instituting
the
writing in which the
unworthy heir with
decedent
condones
knowledge of the
the cause of incapacity
cause of incapacity
Revoked when the
Cannot be revoked
testator revokes the
will or the institution
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CIVIL LAW
(c) If the heir renounces it for a price in

favor of all his co-heirs indiscriminately;
Acceptance
Repudiation
Renders
the
transmission
of
successional rights
ineffective
Involves
the Equivalent to an
confirmation
of
act of disposition or
transmission
of
alienation
successional rights Publicity
requirement
is
necessary for the
protection of other
heirs and creditors
This is actually an onerous disposition.

The heir must first accept the
inheritance before he can dispose of it.
Note: But if the renunciation should be
gratuitous, and in favor of all the co-heirs (to
whom the portion renounced should devolve by
accretion), the inheritance shall not be deemed
as accepted. [Art. 1050, CC] This is a true case
of renunciation.
FORMS OF REPUDIATION [Art. 1051,
FORMS OF ACCEPTANCE [Arts. 1049
CC]
1050, CC]
(1) Express Acceptance one made in a public

or private document. [Art. 1049 par. 1)
(2) Tacit Acceptance one resulting from acts
by which the intention to accept is
necessarily implied or from acts which one
would have no right to do except in the
capacity of an heir.
(3) Implied Acceptance Within thirty days
after the court has issued an order for the
distribution of the estate in accordance with
the Rules of Court, the heirs, devisees and
legatees shall signify to the court having
jurisdiction whether they accept or
repudiate the inheritance; if they do not do
so within that time, they are deemed to
have accepted the inheritance. [Art. 1057,
CC]
An inheritance is deemed accepted:
(a) If the heir sells, donates, or assigns his
right to a stranger, or to his co-heirs, or
to any of them;
(1) In a public instrument acknowledged before

a notary public; or
(2) In an authentic document equivalent of an
indubitable writing or a writing whose
authenticity is admitted or proved; or
(3) By petition presented to the court having
jurisdiction over the testamentary or
intestate proceeding.
HEIRS IN TWO CAPACITIES [Art.
1055, CC]
(1) If a person is called to the same inheritance

as an heir by will and by law and he
repudiates the inheritance in his capacity as
a testamentary heir, he will be considered to
have also repudiated the inheritance as a
legal heir.
(2) If he repudiates it as a legal heir, without
knowledge of his being a testamentary heir,
he may still accept it in the latter capacity.
COLLATION
The heir must first accept the

inheritance before he can dispose of it.
CONCEPT OF COLLATION
To collate is to bring back or to return to the

hereditary mass in fact or by fiction property
which came from the estate of the decedent,
during his lifetime by donation or other
gratuitous title but which the law considers as
an advance from the inheritance. [Art. 1061,
CC]
It is the act by virtue of which, the compulsory
heir who concurs with other compulsory heirs
in the inheritance brings back to the common
hereditary mass the property which they may
(b) If the heir renounces the same, even

though gratuitously, for the benefit of
one or more of his co-heirs;
This is actually a donation. The heir
must first accept the inheritance before
he can donate it.
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UP LAW BOC
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have received from the testator so that a

division may be effected according to law and
the will of the testator.
In reducing inofficious donations, the last to
be donated should be the first to be reduced.
RATIONALE FOR COLLATION: If donations
inter vivos will not be collated, then the rule on
legitimes shall be circumvented or
disregarded.
OPERATIONS
COLLATION
RELATED
CIVIL LAW
WHAT TO COLLATE
(1) Any property or right received by gratuitous
title during the testators lifetime. [Art. 1061,
CC]
(2) All that they may have received from the
decedent during his lifetime. [Art. 1061, CC]
(3) Expenses incurred by the parents in giving
their children a professional, vocational or
other career shall not be brought to
collation unless the parents so provide, or
unless they impair the legitime; but when
their collation is required, the sum which
the child would have spent if he had lived in
the house and company of his parents shall
be deducted therefrom. [Art. 1068, CC]
(4) Any sums paid by a parent in satisfaction of
the debts of his children, election expenses,
fines, and similar expenses shall be brought
to collation. [Art. 1069, CC]
TO
(1) Collation adding to the mass of the

hereditary estate the value of the donation
or gratuitous disposition.
(2) Imputing or Charging crediting the
donation as an advance on the legitime (if
the donee is a compulsory heir) or on the
free portion (if the donee is a stranger, i.e.,
not a compulsory heir). [Balane, p522]
(3) Reduction determining to what extent the
donation will remain and to what extent it is
excessive or inofficious.
(4) Restitution returning or the act of
payment of the excess to the mass of
hereditary estate.
Note: Only the value of the thing donated shall

be brought to collation.
PROPERTIES
COLLATION
NOT
SUBJECT
TO
ABSOLUTELY NO COLLATION
Expenses for support, education (only
elementary
and
secondary),
medical
attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or
customary gifts. [Art. 1067, CC]
PERSONS OBLIGED TO COLLATE

General rule: Compulsory heirs
Exceptions:
(1) When the testator should have so expressly
provided [Art. 1062, CC];
(2) When the compulsory heir should have
repudiated his inheritance. [Art. 1062, CC]
GENERALLY
NOT
IMPUTABLE
TO
LEGITIME/
CANNOT
BE
COLLATED,
SUBJECT TO EXCEPTIONS
(1) Expenses incurred by parents in giving their
children professional, vocational or other
career unless the parents so provide, or
unless they impair the legitime. [Art. 1067,
CC]
(2) Wedding gifts by parents and ascendants,
consisting jewelry, clothing and outfit,
except when they exceed 1/10 of the sum
disposable by will. [Art. 1070, CC]
(3) Neither shall donations to the spouse of the
child be brought to collation; but if they
have been given by the parent to the
spouses jointly, the child shall be obliged to
bring to collation one-half of the thing
donated. [Art. 1066, CC]
Grandchildren who survive with their uncles,

aunts, or first cousins and inherit by right of
representation [Art. 1064, CC]
Note: Grandchildren may inherit from their
grandparents in their own right, i.e., as heirs
next in degree, and not by right of
representation if their parent repudiates the
inheritance of the grandparent, as no living
person can be represented except in cases of
disinheritance and incapacity. In this case, the
grandchildren are not obliged to bring to
collation what their parent has received
gratuitously from their grandparent.
Surviving spouse is NOT obliged to collate.
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Note: Parents are not obliged to bring to

collation in the inheritance of their ascendants
any property which may have been donated by
the latter to their children. [Art. 1065, CC]
CIVIL LAW
WHO MAY EFFECT PARTITION

(1) The Decedent, during his lifetime by an act
inter vivos or by will [Art.1080, CC];
(2) The decedents heirs [Art.1083, CC];
(3) A competent court [Art. 1083, CC];
(4) A third person not an heir designated by the
decedent. [Art. 1081, CC]
PARTITION AND DISTRIBUTION

OF ESTATE
WHO CAN DEMAND PARTITION

(1) Compulsory heir;
(2) Voluntary heir upon fulfillment of condition
if any [Art. 1084, CC];
(3) Legatee or devisee;
(4) Any person who has acquired interest in the
estate.
IN GENERAL
Separate, Divide, Assign. Partition is the

separation, division and assignment of a thing
held in common among those to whom it may
belong. The thing itself or its value may be
divided. [Art. 1079, CC]
Owned in common. Before partition, the whole
estate of the decedent is owned in common
by the heirs. [Art. 1078, CC]
Thing or value may be divided. [Art. 1079)
Acts deemed partition. Every act which is
intended to put an end to indivision among
heirs and legatees or devisees is deemed a
parition, although it should purport to be a
sale, an exchange, a compromise, or any other
transaction. [Art. 1082, CC]
WHEN PARTITION CANNOT BE DEMANDED

(1) When expressly prohibited by the testator
for a period not exceeding 20 years. [Art.
1083, CC]
(2) When the co-heirs agreed that the estate
shall not be divided for a period not
exceeding 10 years, renewable for another
10 years.
(3) When prohibited by law.
(4) When to partition the estate would render it
unserviceable for the use for which it is
intended.
A VOID PARTITION MAY BE VALID IF:

(1) The will was in fact a partition;
(2) The beneficiaries of the void will were legal
heirs.
PROHIBITION TO PARTITION
The prohibition to partition for a period not
exceeding 20 years can be imposed even on
the legitime.
If the prohibition to the partition is for more
than 20 years, the excess is void.
Even if a prohibition is imposed, the heirs by
mutual agreement can still make the
partition.
The titles of acquisition or ownership of each

property shall be delivered to the co-heir to
whom said property has been adjudicated. [Art.
1089 CC]
JUDICIAL VS. EXTRAJUDICIAL PARTITION
Judicial Partition done by Court pursuant to an
Order of Distribution which may or may not be
based on a project of partition.
EFFECTS OF INCLUSION OF INTRUDER IN

PARTITION [Art. 1108, CC]
(1) Between a true heir and several mistaken
heirs partition is void.
(2) Between several true heirs and a mistaken
heir transmission to mistaken heir is void.
(3) Through error or mistake, share of true heir
is allotted to mistaken heir partition shall
not be rescinded unless there is bad faith or
fraud on the part of the other persons
interested, but the latter shall be
proportionately obliged to pay the true heir
Extra-judicial partition made by the decedent

himself by an act inter vivos or by will or by a
third person entrusted by the decedent or by the
heirs themselves. (Paras)
Partition inter vivos: It is one that merely
allocates specific items or pieces of property
on the basis of the pro-indiviso shares fixed by
law or given under the will to heirs or
successors. [Art. 1080, CC]
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CIVIL LAW
The warranty of the solvency of the debtor can

only be enforced during the five years
following the partition.
Co-heirs do not warrant bad debts, if so
known to, and accepted by the distributee.
But if such debts are not assigned to a co-heir,
and should be collected, in whole or in part,
the amount collected shall be distributed
proportionately among the heirs. [Art. 1095
CC]
of his share. The partition with respect to

the mistaken heir is void. [Sempio-Dy]
RIGHT OF REDEMPTION IN PARTITION
Should any of the heirs sell his hereditary rights
to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of
the purchaser by reimbursing him for the price
of the sale, provided they do so within the
period of one month from the time they were
notified in writing of the sale by the vendor [Art.
1088, CC]
END OF WARRANTY
The obligation of warranty among co-heirs shall
cease in the following cases:
(1) The testator himself has made the partition
Unless it appears, or it may be reasonably
presumed, that his intention was
otherwise, but the legitime shall always
remain unimpaired.
(2) When it has been so expressly stipulated in
the agreement of partition
Unless there has been bad faith.
(3) When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of the
property. [Art. 1096, CC]
Strangers those who are not heirs on the

succession.
EFFECTS OF PARTITION
EFFECT
A partition legally made confers upon each heir
the exclusive ownership of the property
adjudicated to him [Art. 1091, CC]
WARRANTY
After the partition has been made, the coheirs shall be reciprocally bound to warrant
the title to, and the quality of, each property
adjudicated [Art. 1092 CC]
The reciprocal obligation of warranty shall be
proportionate to the respective hereditary
shares of the co-heirs;
If any one of them should be insolvent, the
other co-heirs shall be liable for his part in the
same proportion, deducting the part
corresponding to the one who should be
indemnified.
Those who pay for the insolvent heir shall
have a right of action against him for
reimbursement, should his financial condition
improve [Art. 1093 CC]
An action to enforce the warranty among the
co-heirs must be brought within ten years
from the date the right of action accrues. [Art.
1094 CC]
If a credit should be assigned as collectible,
the co-heirs shall not be liable for the
subsequent insolvency of the debtor of the
estate, but only for his insolvency at the time
the partition is made. [Art. 1095, CC]
RESCISSION AND NULLIFICATION OF

PARTITION
CAUSES FOR RESCISSION OR ANNULMENT
(1) A partition may be rescinded or annulled for
the same causes as contracts. [Art. 1097, CC]
(2) A partition, judicial or extra-judicial, may
also be rescinded on account of lesion,
when any one of the co-heirs received
things whose value is less by at least onefourth, than the share to which he is
entitled, considering the value of the things
at the time they were adjudicated [Art. 1098,
CC]
This article applies only to cases of
partition among co-heirs.
Lesion is the injury suffered in
consequence of inequality of situation by
one party who does not receive the full
equivalent for what she gives in a sale or
any commutative contract.
(3) The partition made by the testator cannot
be impugned on the ground of lesion,
except when the legitime of the compulsory
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heirs is thereby prejudiced, or when it

appears or may be reasonably be presumed,
that the intention of the testator was
otherwise. [Art. 1099, CC]
(4) Preterition of a compulsory heir in the
partition [Art. 1104, CC]:
Partition shall not be rescinded unless
bad faith or fraud on the part of other
heirs is proved.
The culpable heirs shall share in the
damages of the prejudiced compulsory
heir proportionately.
(5) A partition which includes a person believed
to be an heir, but who is not, shall be void
only with respect to such person. [Art. 1105,
CC]
The action for rescission on account of lesion
shall prescribe after four years from the time
the partition was made. [Art. 1100, CC]
The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or
consenting to a new partition.
Indemnity may be made:
o By payment in cash; or
o By the delivery of a thing of the same kind
and quality as that awarded to the plaintiff.
If a new partition is made, it shall affect
neither those who have not been prejudiced
nor those who have not received more than
their just share. [Art. 1101, CC]
An heir who has alienated the whole or a
considerable part of the real property
adjudicated to him cannot maintain an action
for rescission on the ground of lesion, but he
shall have a right to be indemnified in cash.
[Art. 1102, CC]
The omission of one or more objects or
securities of the inheritance shall not cause
the rescission of the partition on the ground of
lesion, but the partition shall be completed by
the distribution of the objects or securities
which have been omitted. [Art. 1103, CC]
PAGE 296
DIFFERENCE
RESCISSION
CIVIL LAW
OF
NULLITY
FROM
Nullity the act is supposed to never have

existed.
Rescission the act is valid at the origin though
it afterwards became ineffective.
IMPORTANT PERIODS IN PARTITION
Testator, if publicly known to
1 month or less
be insane, burden of proof is
before making
on the one claiming validity of
a will
the will
Maximum period testator can
20 years
prohibit
alienation
of
dispositions
5 years from
To claim property escheated
delivery to the
to the State
State
To report knowledge of
1 month
violent death of decedent lest
he be considered unworthy
5 years from
Action for declaration of
the
time
incapacity & for recovery of
disqualified
the inheritance, devise or
person
took
legacy
possession
30 days from
Must
signify
issuance
of
acceptance/repudiation
order
of
otherwise, deemed accepted
distribution
1 month form Right
to
repurchase
written notice hereditary rights sold to a
of sale
stranger by a co-heir
To enforce warranty of
title/quality
of
property
10 years
adjudicated to co-heir from
the time right of action
accrues
To enforce warranty of
5 years from solvency of debtor of the
partition
estate at the time partition is
made
4 years form Action for rescission of
partition
partition on account of lesion
[Type text]
[Type text]
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[Type text]
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AGENCY AND PARTNERSHIP
PARTNERSHIP
Contract of Partnership
DEFINITION
By the contract of partnership:

(1) Two or more persons;
(2) Bind themselves to contribute money,
property, or industry to a common fund;
(3) With the intention of dividing the profits
among themselves [Art. 1767]
Article 1767 defines partnership from the
viewpoint of a contract. From the contract arises
the partnership relation [De Leon (2010)]
CIVIL LAW
(1) Those who are prohibited from giving each

other any donation or advantage cannot
enter into a universal partnership [Art. 1782];
(2) A corporation cannot enter into a
partnership in the absence of express
authorization by statute or charter.
Although a corporation cannot enter into a
partnership contract, it may, however, engage in
a joint venture with others [Auerbach vs.
Sanitary Wares Manufacturing Corp (1989)]. On
the other hand, there is no prohibition against a
partnership being a partner in another
partnership [De Leon (2010)]
OBJECT
OBJECT OF UNIVERSAL
PARTNERSHIP
ESSENTIAL FEATURES
(1) There must be a valid contract;

(2) The parties must have legal capacity;
(3) There must be a mutual contribution of
money, property, or industry to a common
fund;
(4) The object must be lawful;
(5) The primary purpose must be to obtain
profits and to divide the same among the
parties;
(6) The partnership has a juridical personality
separate from individual partners [Art.
1768].
A universal partnership may refer to:

(1) All present property :
(a) The partners contribute all the property
which belongs to them to a common
fund, with the intention of dividing the
same among themselves, as well as the
profits they may acquire therewith [Art.
1778].
(b) The property contributed includes all
those belonging to the partners at the
time of the constitution of the
partnership.
(c) A stipulation for the common
enjoyment of any other profits may also
be made. However, the property which
the partners may acquire subsequently
by inheritance, legacy or donation
cannot be included in such stipulation,
except the fruits thereof [Art. 1779].
(2) All the profits:
(a) It comprises all that the partners may
acquire by their industry or work during
the existence of the partnership.
As such, any immovable property or an interest

therein may be acquired in the partnership
name. Title so acquired can be conveyed only in
the partnership name [Art. 1774].
PARTIES
General rule: Any person capacitated to contract
may enter into a contract of partnership.
As such, the following persons cannot enter into
a contract of partnership:
(1) Those suffering from civil interdiction;
(2) Minors;
(3) Insane or demented persons;
(4) Deaf-mutes who do not know how to write;
(5) Incompetents who are under guardianship.
(b) Only the usufruct over the property

of the partners passes to the
partnership [Art. 1780].
Exceptions : The capacity of the following

persons to enter into a contract of partnership,
though capacitated to contract generally, are
limited:
PAGE 298
Art. 1781. When the articles of universal

partnership does not specify its nature (all
present property or all the profits), the
partnership will be considered as one only of all
the profits.
UP LAW BOC
CIVIL LAW
DURATION
OBJECT OF PARTICULAR
PARTNERSHIP
COMMENCEMENT
Art. 1783. A particular partnership has for its

object determinate things, their use or fruits, or
a specific undertaking, or the exercise of a
profession or vocation.
Art. 1784. A partnership begins from the

moment of the execution of the contract, unless
otherwise stipulated.
EFFECT OF UNLAWFUL OBJECT
TERM
If the partnership has an unlawful object or

purpose:
(1) The contract is void ab initio [Art. 1409, par.
1].
(2) Once dissolved by judicial decree:
(a) The profits shall be confiscated by favor
of the State;
(b) The instruments or tools and proceeds
of the crime shall also be forfeited in
favor of the State [Art. 1770].
(3) The contributions of partners shall not be
confiscated unless they are instruments or
tools of the crime [De Leon (2010)].
As to period, a partnership may either be:

(1) For a fixed term or particular undertaking;
or
(2) At will, the formation and dissolution of
which depend on the mutual desire and
consent of the parties. Any one of the
partners may, at his sole pleasure, dictate
the dissolution of the partnership, even in
bad faith, subject to liability for damages
[Ortega v. CA (1995)].
EXTENSION
A partnership term may be extended by:

(1) Express renewal; or
(2) Implied renewal, when these requisites
concur:
(a) The partnership is for a fixed term or
particular undertaking;
(b) It is continued after the termination of
the fixed term or particular undertaking
without any express agreement [Art.
1785].
FORM
General rule: The contract may be constituted in
any form [Art. 1771].
Exceptions:
(1) Where immovable property or real rights
are contributed:
(a) The contract must appear in a public
instrument; and
(b) Attached to such instrument must be
an inventory, signed by the parties, of
the property contributed [Arts. 1771 and
1773];
(2) Where the capital is at least P3,000, in
money or property:
(a) The contract must appear in a public
instrument; and
(b) It must be recorded in the Office of the
Securities and Exchange Commission
(SEC).
RULES TO DETERMINE
EXISTENCE
When the intent of the parties is clear, such
intent shall govern. When it does not clearly
appear, the following rules apply:
(1) Persons who are not partners to each other
are not partners as to third persons, subject
to the provisions on partnership by
estoppel.
(2) Co-ownership or co-possession does not of
itself establish a partnership, even when
there is sharing of profits in the use of the
property.
(3) Sharing of gross returns does not of itself
establish a partnership, even when the
parties have joint or common interest in any
property from which the returns are derived.
As to the second, failure to comply with these

requirements, however, does not affect the
liability of the partnership and the partners to
third persons [Arts. 1768 and 1772].
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(4) The receipt by a person of a share in the

profits of a business is prima facie evidence
that he is a partner.
As to the fourth, no such inference is drawn if
the profits are received in payment:
(1) As a debt by installments or otherwise;
(2) As wages of an employee of rent to a
landlord;
(3) As an annuity to a widow or representative
of a deceased partner;
(4) As interest on a loan, though the amount of
payment vary with the profits of the
business;
(5) As the consideration for the sale of a
goodwill of a business or other property by
installments or otherwise [Art. 1769].
KINDS
(1) As to the legality of its existence:
(a) Partnership de jure is one which has
complied with all the requisites for its
lawful establishment;
(b) Partnership de facto is one which failed
to so comply.
(2) As to its object:
(a) Universal partnership:
(i) Of all present property;
(ii) Of profits;
(b) Particular partnership.
(3) As to its duration:
(a) For a fixed term or particular
undertaking;
(b) At will.
(4) As to the liability of the partners:
(a) General partnership, consisting of
general partners only, who are liable
pro rata for partnership obligations with
all their after exhaustion of partnership
assets;
(b) Limited partnership, includes, aside
from general partner/s, limited
partners, who are not personally liable
for partnership obligations.
(5) As to its publicity:
(a) Secret partnership, where the existence
of certain persons as partners is not
made known by the partners;
(b) Open or notorious partnership, the
existence of which is made known to the
public by the partners.
PAGE 300
CIVIL LAW
(6) As to its purpose:

(a) Commercial or trading partnership, for
transaction of business;
(b) Professional or non-trading partnership,
for the exercise of profession.
A profession has been defined as a group of
men pursuing a learned art as a common
calling in the spirit of public service no less a
public service because it may incidentally be a
means of livelihood [In the Matter of the Petition
for Authority to Continue Use of Firm name
Sycip, Salazar, etc./Ozaeta, Romulo, etc.
(1979)]. A professional partnership is a particular
KINDS OF PARTNERS
(1) Capitalist partner, whose contribution is

money or property;
(2) Industrial partner, contribution is only his
industry;
(3) General partner, whose liability to third
persons extends to his separate property;
(4) Limited partner, whose liability to third
persons is limited to his capital contribution;
(5) Managing partner, who was designated to
manage the affairs or business of the
partnership;
(6) Liquidating partner, who takes charge of the
winding up of partnership affairs;
(7) Partner by estoppel, who is not really a
partner but is liable as such for the
protection of innocent third persons;
(8) Continuing partner, who continues the
business after dissolution of the partnership
by admission of a new partner, or
retirement, death or expulsion of existing
partners;
(9) Surviving partner, who remains a partner
after dissolution by death of any partner;
(10) Subpartner, who is not a member of the
partnership but contracts with a partner
with regard to the share of the latter in the
partnership;
(11) Ostensible partner, who takes active part in
the business of the partnership and is
known by the public;
(12) Secret partner, who takes active part in the
business, but is unknown to the third
persons as a partner;
UP LAW BOC
(13) Silent partner, who does not take active part

in the business, but may be known to be a
partner by third persons;
(14) Dormant partner, who does not take active
part in the business and is not known or
held out as a partner;
(15) Original partner, who has been a partner
since the constitution of the partnership;
(16) Incoming partner, who is about to be taken
as a member into an existing partnership;
(17) Retiring partner, who is withdrawing from
the partnership.
Industrial
partner
PARTNERSHIP AND OTHER

CONTRACTS DISTINGUISHED
Partnership
Operates with
name
and
personality
Capitalist
partner
Form of contribution
Industry
Money or property
equitable
According
to
agreement; if none, in
proportion
to
contribution
Share in losses
Exempted as to losses
as between partners,
but liable to third
persons,
without
prejudice
to
reimbursement from
capitalist partners
According
to
agreement; if none, in
the same proportion
as the agreed share in
profits; if none, in
proportion
to
contribution
Engagement in business
Cannot engage in
business for himself,
unless the partnership
expressly permits him
to do so; should he do
so without permission,
the capitalist partners
may: (1) exclude him
from the firm; or (2)
avail themselves of
the benefits obtained
in violation of the
prohibition, with right
to damages in either
case [Art. 1789]
Joint venture
firm
legal
Operates without firm

name
and
legal
personality
Generally relates to a
continuing business of
various transactions of
a certain kind
Usually limited to a
single transaction
Corporations may not

enter
into
a
partnership
Corporations
enter
into
ventures
may
joint
Under Philippine law, a joint venture is a form of

partnership and should thus be governed by the
laws of partnership [Auerbach vs. Sanitary Wares
Manufacturing Corp. (1989)].
Share in profits
Just and
share
CIVIL LAW
Cannot engage, for his

own account, in the
same kind of business
as that of the
partnership,
unless
there is a stipulation
to the contrary; should
he do so, he shall
bring to the common
fund
any
profits
accruing to him from
his transactions and
shall personally bear
all the losses [Art.
1808]
Partnership
Co-ownership
Generally created by
either express or
implied contract
Generally created by
law and may exist
even
without
a
contract
Has
a
separate
juridical personality
Has
no
separate
juridical personality
Generally, the purpose

is to obtain profits
The purpose is the

common enjoyment of
a thing or right
Duration
limitation
no
An agreement to keep
a thing undivided for
more than ten years is
not allowed, but may
be extended
mutual
between
There is no mutual
representation among
co-owners
Death or incapacity of
a partner dissolves the
partnership
Death or incapacity of
a co-owner does not
dissolve
the
coownership
A partner cannot
dispose of his interest,
so as to make the
assignee a partner,
without consent of
others
A
co-owner
can
dispose of his share
without consent of
others
There
is
agency
partners
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has
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Partnership
Corporation
CIVIL LAW
Partnership
Conjugal Partnership of
Gains
Created by voluntary
agreement of two or
more partners of either
sex
Arises in case the

spouses, of opposite
sex,
agree
before
marriage
Distributes its profits to those who contributed

capital to the business
Governed
agreement
by
Governed by law
Can only be organized where there is a law

authorizing its organization
Has
personality
juridical
Has juridical personality separate and distinct

from its individual members
Can only act through agents
Composed of an aggregate of individuals
Taxable as in a corporation
Created by agreement
Created by operation
of law
Involves at least two

persons
Except for corporation

sole, requires at least
five incorporators
Personality
commences from the
moment of execution
of the contract
Personality
commences from the
issuance of certificate
of incorporation
Can exercise any

power authorized by
partners
Can exercise only

powers conferred by
the Corporation Code
or by its articles of
incorporation,
and
such as are necessary
or incidental to the
exercise
of
such
powers
When management is
not agreed upon,
every partner may act
for the partnership
Management is vested
in the board of
directors or trustees
Partners are generally

liable for partnership
debts
Stockholders
are
liable only to the
extent of their shares
A partner cannot
dispose of his interest,
so as to make the
assignee a partner,
without consent of
others
A stockholder has the

right to transfer his
shares
without
consent of others
Duration
limitation
The term limit is 50

years, but may be
extended
has
no
May be dissolved at
any time by one or all
of the partners
PAGE 302
juridical
Commencement date
may be stipulated
Commencement is on
the date of the
celebration of the
marriage and any
stipulation
to
the
contrary is void
Share in profits may be

stipulated; otherwise,
in
proportion
to
contribution
Share in profits is equal
Management shared by
all partners, unless
otherwise agreed upon
Administration belongs
to the spouses jointly,
but
decision
of
husband prevails in
case of disagreement
Partner can dispose of

interest even without
consent of others
Spouse cannot dispose

of
interest
during
marriage, even with
consent
Partnership
Association
Has
personality
May only be dissolved

with the consent of
the state
Has
no
personality
juridical
Has
no
personality
juridical
Organized for profit
Not always organized

for profit
Capital is contributed
Capital
is
not
contributed, although
fees are collected from
members
The partnership is
primarily liable; the
partners are liable only
subsidiarily
The members are liable

individually for debts
which they authorized
or ratified
Share in profits may be

stipulated; otherwise,
in
proportion
to
contribution
Share in profits is equal
UP LAW BOC
Rights and Obligations of

the Partnership
(2) The majority of the capitalist partners are of

the opinion that an additional contribution
to the common fund would save the
business;
(3) The capitalist partner refuses deliberately
(not because of financial inability) to
contribute an additional share to the
capital; and
(4) There is no agreement that even in case of
imminent loss of the business, the partners
are not obliged to contribute.
RIGHT TO CONTRIBUTION
The partnership has a right to the contribution
(or the partners are obliged to contribute). The
money or property thus contributed, or their use
or fruits, become the property of the
partnership.
CONTRIBUTION
PROPERTY
OF
MONEY
CIVIL LAW
Any partner who refuses to contribute an

additional share to the capital, except an
industrial partner, to save the venture, shall be
obliged to sell his interest to the other partners,
unless there is an agreement to the contrary
[Art. 1791].
OR
With respect to contribution of property, a

partner is obliged to:
(1) To contribute, at the beginning of the
partnership or at the stipulated time, the
money, property or industry which he
undertook to contribute;
(2) In case a specific and determinate thing is
to be contributed:
(a) To warrant against eviction in the same
manner as a vendor; and
(b) To deliver to the partnership the fruits
of the property promised to be
contributed, from the time they should
have been delivered, without need of
demand [Art. 1786];
(3) In case a sum of money is to be contributed,
or in case he took any amount from the
partnership coffers, to indemnify the
partnership for:
(a) Interest; and
(b) Damages, from the time he should have
complied with his obligation, or from
the time he converted the amount to his
own use, respectively [Art. 1788].
CONTRIBUTION OF INDUSTRY
An industrial partner is obliged to contribute his

industry at the stipulated time.
General rule: An industrial partner cannot
engage in business for himself. Should he do so,
the capitalist partners, as well as industrial
partners [De Leon (2010)] may either:
(1) Exclude him from the firm; or
(2) Avail themselves of the benefit which he
may have obtained.
Exception: He may engage in business for
himself when the partnership expressly permits
him to do so [Art. 1789].
RIGHT TO APPLY PAYMENT

RECEIVED TO PARTNERSHIP
CREDIT
AMOUNT OF CONTRIBUTION
General rule: A partner authorized to manage,

who collects a demandable sum owed to him in
his own name from a person who also owes the
partnership a demandable sum, is obliged to
apply the sum collected to both credits pro rata,
even if he issued a receipt for his own credit
only.
General rule: Partners are to contribute equal

shares to the capital of the partnership.
Exception: When there is an agreement to the
contrary, the contribution shall follow such
agreement [Art. 1790].
ADDITIONAL CAPITAL CONTRIBUTION
Requisites:
(1) There exist at least two debts, one where
the collecting partner is creditor, and the
other, where the partnership is the creditor;
Requisites:
(1) There is an imminent loss of the business of
the partnership;
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(2) Both debts are demandable; and

(3) The partner who collects is authorized to
manage and actually manages the
partnership.
Exceptions:
(1) In case the receipt was issued for the
account of the partnership credit only,
however, the sum shall be applied to the
partnership credit alone.
(2) When the debtor declares, pursuant to
Article 1252, at the time of making the
payment, to which debt the sum must be
applied, it shall be so applied [Art. 1792].
RIGHT TO RETURN OF CREDIT

RECEIVED
SUIT FOR DAMAGES
Before a partner may sue another for alleged

fraudulent
management
and
resultant
damages, liquidation must first be effected to
determine the extent of the damage. Without
liquidation of partnership affairs, a partner
cannot claim damages [Soncuya v. De Luna
(1939)].
In the absence of any stipulation to the contrary,
every partner is an agent of the partnership for
the purpose of its business. As such, it is
responsible to every partner:
(1) For amounts, and the corresponding
interest from the time the expenses were
made, which he may have disbursed on
behalf of the partnership;
(2) For obligations he may have contracted in
good faith in the interest of the partnership
business; and
(3) For risks in consequence of the
management of the partnership [Art. 1796].
This obligation exists even when he issued a

receipt for his share only [Art. 1793].
Ratio: In this case, the debt becomes a bad
debt. It would be unfair for the partner who
already collected not to share in the loss of the
other partners.
INDEMNITY
Exception : The court may equitably lessen the

liability if, through his extraordinary efforts in
other activities of the partnership, unusual
profits were realized [Art. 1794]. Note, however,
that there is still no compensation in this case.
RESPONSIBILITY TO PARTNERS
A partner, authorized to manage or not, who

already received, in whole or in part, his share of
a partnership credit, is obliged to bring to the
partnership capital what he received when:
(1) The other partners have not collected their
shares; and
(2) The partnership debtor has become
insolvent.
RIGHT TO
DAMAGES
CIVIL LAW
Rights and Obligations of

Partners Inter Se
FOR
RIGHT TO ASSOCIATE
ANOTHER IN SHARE
Every partner is responsible to the partnership

for damages suffered by it through his fault.
Every partner may associate another person

with him in his share. The admission of the
associate to the partnership, however, requires
consent of all the other partners even if the
partner having an associate is a managing
partner [Art. 1804].
SET-OFF OF LIABILITY
General rule: The liability for damages cannot

be set-off or compensated by profits or benefits
which the partner may have earned for the
partnership by his industry.
This arrangement refers to a contract of

subpartnership, which is a partnership within a
partnership, distinct and separate from the
main partnership. It is considered a modification
of the original contract [De Leon (2010)].
Ratio: The partner has the obligation to secure

the benefits for the partnership. As such, the
requirement for compensation, that the partner
be both a creditor and a debtor of the
partnership at the same time, is not complied
with [Art. 1278; De Leon (2010)].
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RIGHT TO INSPECT
PARTNERSHIP BOOKS
CIVIL LAW
PROPERTY AND CAPITAL

DISTINGUISHED
Partnership capital
The partnership books shall be kept:

(1) At a place agreed upon by the partners;
(2) When there is no such agreement, at the
principal place of business of the
partnership.
Every partner shall, at any reasonable hour,
have access to and may inspect and copy any of
them.
Any reasonable hour means reasonable hours
on business days throughout the year [Pardo v.
Lumber Co. (1925)].
Partnership property
With constant value
Value varies with

market conditions
Includes only actually

contributed
and
promised capital
Includes
the
contributions
and
property acquired by
the partnership
OWNERSHIP
PROPERTIES
OF
CERTAIN
(1) The ownership of property used by the

partnership depends on the intention of the
parties, which may be drawn from an
express agreement or their conduct.
(a) A partner may allow the property to be
used by the partnership without transfer
of ownership, contributing only the use
or enjoyment thereof.
(b) He may also hold title to partnership
property, without acquiring ownership
thereof [Art. 1819].
(2) Property acquired by a partner with
partnership funds is presumed to be
partnership property.
(3) The same presumption also arises when the
property is indicated in the partnership
books as partnership asset.
(4) Other factors may be considered to
determine ownership of the property.
RIGHT TO FORMAL ACCOUNT

General rule: The right to a formal account of
partnership affairs accrues only when the
partnership is dissolved.
Exceptions: In the special and unusual cases
mentioned in Article 1809, formal accounting
may be demanded by any partner even before
dissolution:
(1) If he is wrongfully excluded from the
partnership business or possession of its
property by his co-partners;
(2) If the right exists under the terms of any
agreement;
(3) If, without his consent, a partner has derived
profits from any transaction connected with
the formation, conduct, or liquidation of the
partnership or from any use of partnership
property;
(4) Whenever other circumstances render it just
and reasonable [Art. 1809].
RIGHTS IN SPECIFIC PROPERTY
(1) The partners have equal rights to possess

partnership property for partnership
purposes.
(2) For other purposes, the consent of his
partners is necessary.
(3) If the partner is excluded, he may ask for:
(a) Formal accounting [Art. 1809]; or
(b) Dissolution by judicial decree [Art. 1831].
(4) A partners right in such property is not
assignable, except when all the partners
assign their rights in the same property;
(5) The right is not subject to attachment or
execution, except on claim against the
partnership. In case of such attachment, the
partners, or any of them, or the
representatives of a deceased partner,
PROPERTY RIGHTS OF
PARTNERS
IN GENERAL
The property rights of a partner are:

(1) Rights in specific partnership property;
(2) Interest in the partnership; and
(3) Right to participate in the management
[Art. 1810].
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cannot claim any right under the

homestead or exemption laws.
(6) The right is not subject to legal support
under Article 291 [Art. 1811].
CIVIL LAW
court, may be purchased without causing

dissolution:
(1) With separate property, by one or more of
the partners; or
(2) With partnership property, by one or more
of the partners, will consent of all, except
the debtor partner [Art. 1814].
INTEREST IN PARTNERSHIP
A partners interest in the partnership is his

share of the profits and surplus [Art. 1812].
RIGHT TO PARTICIPATE
MANAGEMENT
ASSIGNMENT OF INTEREST
Assignment by a partner of his whole interest in

the partnership, of itself:
(1) Does not dissolve the partnership; or
(2) Does not entitle the assignee to:
(a) Interfere in the management or
administration of the partnership
business or affairs;
(b) Require information or account of
partnership; or
(c) Inspect the partnership books.
IN
Management of the partnership is primarily

governed by the agreement of the partners in
the articles of partnership. It may be stipulated
that the partnership will be managed by:
(1) All the partners; or
(2) A number of partners appointed as
managers, which may be appointed:
(a) In the articles of partnership; or
(b) After constitution of the partnership.
POWERS OF A MANAGING PARTNER
It merely entitles the assignee to:

(1) Receive the profits to which the assigning
partner was entitled;
(2) In case of fraud in management, avail
himself of the usual remedies;
(3) In case of dissolution:
(a) Receive his assignors interest; and
(b) Require an accounting from the date
only of the last account agreed to by all
the partners [Art. 1813].
General rule: The partner designated as

manager in the articles may execute all acts of
administration despite opposition by the other
partners.
Exception: He cannot do so when he acts in bad
faith.
REVOCATION
OF
POWER
MANAGING PARTNER
BY
The powers of the managing partner may be

revoked:
(1) If appointed in the articles of partnership,
when:
(a) There is just or lawful cause for
revocation; and
(b) The
partners
representing
the
controlling interest revoke such power.
(2) If appointed after the constitution of the
partnership, at any time and for any cause
[Art. 1800].
INTEREST BY PERSONAL CREDITORS
General rule: Partnership creditors are preferred

over the personal creditors of the partners as
regards partnership property.
Exception: On due application by any judgment
creditor of a partner, a competent court may:
(1) Charge the interest of the partner for the
satisfaction of the judgment debt;
(2) Appoint a receiver of the share of the profits
and of any other money due or to fall due to
the partner; and
(3) Make all other orders, directions, accounts
and inquiries, which the debtor partner
might have made, or which the
circumstances may require.
MANAGING
PARTNERS
BY
TWO OR MORE
When there are two or more managing partners

appointed, without specification of their duties
or without a stipulation on how each one will
act:
The interest charged may be redeemed before

foreclosure or, in case of sale directed by the
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(1) Each one may separately execute all acts of

administration.
(2) If any of them opposes the acts of the
others, the decision of the majority prevails.
(3) In case of a tie, the partners owning the
controlling interest will decide [Art. 1801].
CIVIL LAW
MUTUAL AGENCY
In addition to the Article 1801, there is effectively
a mutual agency in the following cases:
(1) Partners can dispose of partnership
property even when in partnership name
[Art. 1819].
(2) An admission or representation made by
any partner concerning partnership affairs is
evidence against the partnership [Art. 1820].
(3) Notice to any partner of any matter relating
to partnership affairs is notice to the
(4) Wrongful act or omission of any partner
acting for partnership affairs makes the
partnership liable [Art. 1822].
(5) Partnership is bound to make good losses
for wrongful acts or misapplications of
partners [Art. 1823].
Requisites:
(1) Two or more partners have been appointed
as managers;
(2) There is no specification of their respective
duties; and
(3) There is no stipulation that one of them
shall not act without the consent of all the
others.
STIPULATION OF UNANIMITY
Art. 1802. In case there is a stipulation that none
of the managing partners shall act without the
consent of others, the concurrence of all is
necessary for the validity of the acts, and the
absence or disability of one cannot be alleged,
unless there is imminent danger of grave or
irreparable injury to the partnership.
RIGHT TO PROFITS AND

OBLIGATIONS FOR LOSSES
RULES FOR DISTRIBUTION
PROFITS AND LOSSES
OF
The distribution of profits and losses shall be in

accordance with the following rules:
(1) They shall be distributed in conformity with
the agreement.
(2) If only the share in profits has been
stipulated, the share in the losses shall be in
the same proportion.
(3) In the absence of any stipulation:
(a) The share in the profits of the capitalist
partners shall be in proportion to their
contributions.
(b) The losses shall be borne by the
capitalist partners, also in proportion to
the contributions.
(c) The share of the industrial partners in
the profits is that share as may be just
and equitable. If he also contributed
capital, he will receive a share of the
profits in proportion to his contribution;
and
(d) The industrial partner, who did not
contribute capital, is not liable for losses
[Art. 1797].
MANAGEMENT WHEN MANNER NOT

AGREED UPON
When there is no agreement as to the manner
of management, the following rules apply:
(1) All the partners are considered agents
(mutual agency). Whatever any one does
alone binds the partnership, unless there is
a timely opposition to the act, under Article
1801.
(2) Any important alteration in the immovable
property of the partnership, even if useful to
the partnership, requires unanimity. If the
alteration is necessary for the preservation
of the property, however, consent of the
others is not required [De Leon (2010)].
If the refusal is manifestly prejudicial to the
partnership, court intervention may be sought
[Art. 1803].
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CIVIL LAW
EXCLUSION OF PARTNER FROM

SHARE
Obligations
of
the
Partnership/Partners to
Third Persons
Exception: A stipulation exempting an industrial

partner from losses is valid, since, if the
partnership fails to realize profits, he can no
longer withdraw his work or labor [De Leon
(2010)].
OBLIGATION
TO
OPERATE
UNDER A FIRM NAME
General rule: A stipulation excluding one or

more partners from any share in the profits or
losses is void [Art. 1799].
OBLIGATION
TO
INFORMATION
Art. 1815. Every partnership shall operate under

a firm name, which may or may not include the
name of one or more of the partners.
RENDER
Those who, not being members of the

partnership, include their names in the firm
name, shall be subject to the liability of a
partner.
Partners shall render on demand true and full

information of all things affecting the
partnership to:
(1) Any partner;
(2) The legal representative of any deceased
partner; or
(3) The legal representative of any partner
under legal disability [Art. 1806].
General rule: The partners may adopt any firm

name desired.
Exceptions:
(1) They cannot use a name which is identical
or deceptively or confusingly similar to an
existing or corporation [or partnership] or to
any other name already protected by law or
is patently deceptive, confusing or contrary
to existing laws [Sec. 18, Corporation Code].
(2) Use of names of deceased partner in law
firms is permissible provided that the firm
indicates in all its communications that said
partner is deceased [Rule 3.02, Code of
Professional Responsibility].
OBLIGATION TO ACCOUNT AND

ACT AS TRUSTEE
Every partner must (1) account to the
partnership for any benefit and (2) hold as
trustee for it any profits derived by him without
the consent of the other partners:
(1) From any transaction connected with the
formation, conduct, or liquidation of the
partnership; or
(2) From any use by him of its property [Art.
1807].

PARTNERSHIP CONTRACTS
The partnership is primarily liable for contracts
entered into:
(1) In its name and for its account;
(2) Under its signature; and
(3) By a person authorized to act for it.
Upon exhaustion of its assets, all partners are
liable pro rata with all their property.
Any partner may enter into a separate
obligation to perform a partnership contract
[Art. 1816].
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PARTNERSHIP CONTRACTS
NATURE OF INDIVIDUAL LIABILITY

SUBSIDIARY
General rule: The partners are liable subsidiarily.
It only arises upon exhaustion of partnership
assets [Cia. Maritima v. Muoz (1907)].
ACTS APPARENTLY FOR THE

CARRYING ON OF USUAL BUSINESS
Exceptions:
(1) A third person who transacted with the
partnership can hold the partners solidarily
(rather than subsidiarily) liable for the whole
obligation if the case falls under Articles
1822 or 1823 [Muasque v. CA (1985)]. The
provisions refer to wrongful acts or omission
and misapplication of money or property by
a partner in the ordinary course of business.
(2) A person admitted as a partner into an
existing partnership is liable for all the
obligations of the partnership arising before
his admission, except that his liability shall
be satisfied only out of partnership property,
unless there is a stipulation to the contrary
[Art. 1826]. In other words, he is not
personally liable.
PRO RATA
The partners are liable pro rata.
This liability is not increased even when a
partner:
(1) Has left the country and the payment of his
share of the liability cannot be enforced [CoPitco v. Yulo (1907)]; or
(2) His liability is condoned by the creditor
[Island Sales v. United Pioneers (1975)].
LIABILITY
PARTNER
OF
AN
CIVIL LAW
General rule: Any act of a partner which is

apparently for the carrying on of the usual
business of the partnership binds the latter,
including the execution of any instrument in the
partnership name.
Exception: The partnership is not bound when
the following concur:
(1) The partner has in fact no authority to act;
and
(2) The person with whom he deals has
knowledge of such fact [Art. 1818, par. 1].
ACTS NOT APPARENTLY FOR

CARRYING ON OF THE USUAL
BUSINESS
General rule: Acts of a partner which is not

apparently for carrying on of the usual business
does not bind the partnership.
Exception: The partnership is bound if the other
partners authorized him to do the act [Art. 1818,
par. 2].
ACTS OF STRICT DOMINION
General Rule: One or some of the partners have

no authority to do the following acts of strict
dominion:
(1) Assign the partnership property in trust for
creditors or on the assignees promise to
pay the debts of the partnership;
(2) Dispose of the goodwill of the business;
(3) Do any other act which makes it impossible
to carry on the ordinary business of the
partnership;
(4) Confess a judgment;
(5) Enter into a compromise concerning a
partnership claim or liability;
(6) Submit a partnership claim or liability to
arbitration;
(7) Renounce a claim of the partnership.
INDUSTRIAL
An industrial partner, who is not liable for

losses, is not exempt from this liability.
However, he can recover the amount he has
paid from the capitalist partners, unless there is
a stipulation to the contrary [Cia. Maritima v.
Muoz (1907)].
STIPULATION AGAINST INDIVIDUAL

LIABILITY
Any stipulation against this liability is:
(1) Void against third persons; but
(2) Valid among the partners [Art. 1817].
Exceptions: They may do so if:

(1) Authorized by all the partners; or
(2) The other partners have abandoned the
business [Art. 1818, par. 3].
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Where the title is in the names of all the

partners, a conveyance executed by all of them
passes all the rights to the property [Art. 1819,
par. 5].
ACTS IN CONTRAVENTION OF A
RESTRICTION
Any act of a partner in contravention of a

restriction on authority does not bind the
partnership to persons having knowledge of the
restriction [Art. 1818, par. 4].
LIABILITY OF PARTNERSHIP
FOR ADMISSION BY A PARTNER
CONVEYANCE
OF
PARTNERSHIP REAL PROPERTY
An admission or representation by any partner

may be used as evidence against the
partnership when:
(1) It concerns partnership affairs;
(2) Such affairs are within the scope of his
authority [Art. 1820].
TITLE IN PARTNERSHIP NAME
Any partner may convey the real property in the

name of the partnership.
The partnership can recover it, except when:
(1) The act of the partner binds the partnership,
when he has authority to carry out the usual
business of the partnership, under Article
1818, 1st par.; or
(2) If not so authorized, the property has been
conveyed by the grantee, or a person
claiming under him, to a holder for value
and without knowledge that the partner
exceeded his authority [Art. 1819, par. 1].
LIABILITY OF PARTNERSHIP
FOR WRONGFUL ACTS OF A
PARTNER
The partnership is solidarily liable with the

partner who causes loss or injury to any person
not a partner, or incurs any penalty through any
wrongful act or omission:
(1) In the ordinary course of the business of the
partnership; or
(2) Not in such ordinary course of business, but
with the authority of his co-partners [Art.
1822].
A partner authorized to carry out the usual

business may convey, in his own name, the
equitable interest of the partnership [Art. 1819,
par. 2].
LIABILITY OF THE
PARTNERSHIP FOR
MISAPPLICATION OF MONEY
OR PROPERTY
TITLE IN THE NAME OF OTHER

PERSONS
Where the title is in the name of one or more

but not all the partners, and the record does not
disclose the right of the partnership:
(1) The partners having title may convey title.
(2) The partnership may recover it when the
partners conveying title have no authority to
carry on the usual business of the
partnership, unless the purchaser or his
assignee is:
(a) A holder for value; and
(b) Without knowledge that the act
exceeded authority [Art. 1819, par. 4].
The partnership is liable for losses suffered by a

third person whose money or property was:
(1) Received by a partner:
(a) Acting within the scope of his apparent
authority; and
(b) Misapplied it;
(2) Received by the partnership:
(a) In the course of its business; and
(b) Misapplied by any partner while it is in
the custody of the partnership [Art.
1823].
Where the title is in the name of one or more or

all the partners, or in a third person in trust for
the partnership a partner authorized to carry on
the usual business may convey equitable title in
the partnership name or in his own name [Art.
1819, par. 4].
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consenting
to
the
contract
or
representation.
(3) When there are no such other persons, he is
separately liable [Art. 1825, par. 1].
LIABILITY OF THE OTHER

PARTNERS UNDER ART. 1822
AND 1823
All partners are solidarily liable with the
partnership for its liabilities under Articles 1822
and 1823 [Art. 1824].
EFFECT ON EXISTING PARTNERSHIP

OR OTHER PERSONS NOT ACTUAL
PARTNERS
This is without prejudice to the guilty partner

being liable to the other partners. However, as
far as third persons are concerned, the
partnership is answerable [De Leon (2010)].
(1) When a person has been represented to be

a partner (a) in an existing partnership, or
(b) with one or more persons not actual
partners, he is an agent of the persons
consenting to such representation to bind
them to the same extent and in the same
manner as though he were a partner in fact,
with respect to persons who rely upon the
representation.
(2) When all the members of the existing
partnership consent to the representation, a
partnership act or obligation results.
(3) In all other cases, it is the joint act or
obligation of the person acting and the
persons consenting to the representation
[Art. 1825, par. 2].
LIABILITY IN CASE OF
PARTNERSHIP BY ESTOPPEL
PARTNER BY ESTOPPEL
A partner by estoppel is a person who, by words

spoken or written or by conduct (1) represents
himself as a partner or (2) consents to another
representing him to anyone as a partner:
(1) In an existing partnership; or
(2) With one or more persons not actual
partners [Art. 1825, par. 1].
NATURE OF LIABILITY
LIABILITY OF A PARTNER BY
ESTOPPEL
Summarizing Article 1825, a partner by estoppel

is liable in the following manner:
(1) He is liable as though he were a partner
when:
(a) There is an existing partnership;
(b) All the partners consented to the
representation; and
(c) A partnership liability results.
(2) He is liable jointly and pro rata (as though
he were a partner in fact) with those who
consented to the representation when:
(a) There is an existing partnership but not
all the partners consented; or
(b) There is no existing partnership and all
those
represented
as
partners
consented to the representation.
(3) He is liable separately when:
(a) There is an existing partnership but
none of the partners consented; or
(b) There is no existing partnership and not
all of those represented as partners
consented to the representation.
PERSONAL REPRESENTATION
A partner by estoppel is liable to any such
persons:
(1) To whom such representation has been
made; and
(2) Who has, on the faith of such
representation, given credit to the actual or
apparent partnership [Art. 1825, par. 1].
PUBLIC REPRESENTATION
If he has made such representation or
consented to its being made in a public manner,
whether the representation has or has not been
(personally) made or communicated to such
persons so giving credit by or with his
knowledge, and:
(1) Partnership liability results, he is liable as
though he were an actual member of the
partnership.
(2) No partnership liability results, he is liable
pro rata with the other persons, if any, so
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Dissolution and Winding

Up
LIABILITY OF AN INCOMING
PARTNER
A person admitted as a partner is liable:

(1) For obligations incurred subsequent to his
admission as the other partners are liable;
(2) For obligations incurred before his
admission, but will be satisfied only out of
the partnership property, unless otherwise
stipulated that he fully assumes such
obligations.
CONCEPTS
Dissolution is the change in the relation of the
partners caused by any partner ceasing to be
associated in the carrying on of the business. It
is different from the winding-up of the business
[Art. 1828]. It does not terminate the
partnership, which continues until the winding
up of partnership affairs is completed [Art.
1829].
Ratio:
(1) The new partner partakes of the benefits of
the partnership property and an already
established business.
(2) He has every means of obtaining full
knowledge of the debts of the partnership
and remedies that amply protect his
interest [De Leon (2010)].
Winding up is the actual process of settling the

partnership business or affairs after dissolution.
It involves collection and distribution of
partnership assets, payment of debts, and
determination of the value of the interest of the
partners in the partnership.
NOTICE TO OR KNOWLEDGE OF
THE PARTNERSHIP
Termination is the point in time when all

partnership affairs are completely wound up
and finally settled. It signifies the end of the
partnership life [De Leon (2010)].
The following operate as notice to or knowledge

of the partnership:
(1) Notice to any partner of any matter relating
to partnership affairs;
(2) Knowledge of the partner acting in the
particular matter acquired while a partner;
(3) Knowledge of the partner acting in the
particular matter then present to his mind;
or
(4) Knowledge of any other partner who
reasonably could and should have
communicated it to the acting partner.
CAUSES OF DISSOLUTION
WITHOUT VIOLATION
AGREEMENT
OF
THE
(1) By the termination of the definite term or

particular undertaking specified in the
agreement;
(2) By the express will of any partner, who must
act in good faith, when no definite term or
particular is specified.
(3) By the express will of all the partners who
have not assigned their interests or suffered
them to be charged for their separate debts,
either before or after the termination of any
specified term or particular undertaking;
(4) By the expulsion of any partner from the
business bona fide in accordance with such
a power conferred by the agreement
between the partners [Art. 1830, par. 1].
These do not apply in case of fraud on the

partnership committed by or with the consent of
the partner [Art. 1821].
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If, after the expiration of the definite term or

particular undertaking, the partners continue
the partnership without making a new
agreement, the firm becomes a partnership at
will [Art. 1785].
BY DECREE OF A COURT
A partner may apply for dissolution in court
when:
(1) A partner has been declared insane in any
judicial proceeding or is shown to be of
unsound mind;
(2) A partner becomes in any other way
incapable of performing his part of the
partnership contract;
(3) A partner has been guilty of such conduct
as tends to affect prejudicially the carrying
on of the business;
(4) A partner willfully or persistently commits a
breach of the partnership agreement, or
otherwise so conducts himself in matters
relating to the partnership business that it is
not reasonably practicable to carry on the
business in partnership with him;
(5) The business of the partnership can only be
carried on at a loss;
(6) Other circumstances render a dissolution
equitable.
Any one of the partners may, at his sole

pleasure, dictate a dissolution of the
partnership at will. He must, however, act in
good faith, not that the attendance of bad faith
can prevent the dissolution of the partnership
but that it can result in a liability for damages
[Ortega v. CA (1995)].
IN
CONTRAVENTION
AGREEMENT
Where
circumstances
do
OF
THE
not
permit
CIVIL LAW
dissolution under any other provision of Article

1830, it may also be dissolved by the express
will of any partner at any time.
Thus, even if there is a specified term, one
partner can cause its dissolution by expressly
withdrawing even before the expiration of the
period, with or without justifiable cause. If the
cause is not justified or no cause was given, the
withdrawing partner is liable for damages but in
no case can he be compelled to remain in the
firm [Rojas v. Maglana (1990)].
A person who acquires the interest of a partner

may likewise apply:
(1) After the termination of the specified term
or particular undertaking;
(2) At any time if the partnership was a
partnership at will when the interest was
assigned or when the charging order was
issued
BY OPERATION OF LAW
(1) By any event which makes it unlawful for

the business of the partnership to be carried
on or for the members to carry it on in
partnership;
(2) When a specific thing which a partner had
promised to contribute, perishes before
delivery, or by the loss of the thing, only the
use or enjoyment of which has been
contributed; the loss of a specific thing,
however, does not dissolve the corporation
after its ownership has already been
transferred to the partnership;
(3) By the death of any partner;
(4) By the insolvency of any partner or of the
partnership;
(5) By the civil interdiction of any partner;
OTHER CAUSES
(1) When a new partner is admitted into an

existing partnership;
(2) When any partner retires;
(3) When the other partners assign their
rights to the sole remaining partner;
(4) When all the partners assign their rights
in the partnership property to third
persons [Art. 1840].
The statutory enumeration of the causes of
dissolution is exclusive [De Leon (2010)].
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Note the character of the notice required:

(1) As to persons who extended credit to the
partnership prior to dissolution, notice must
be actual.
(2) As to persons who merely knew of the
existence of the partnership, publication in a
place of business of the partnership is
sufficient.
EFFECTS OF DISSOLUTION
ON AUTHORITY OF THE PARTNERS
In general, upon dissolution, the authority of the

partners to represent the partnership is
confined only to acts necessary to:
(1) Wind up partnership affairs; or
(2) Complete transactions begun but not then
finished [Art. 1832, par. 1].
ON LIABILITY FOR TRANSACTIONS

AFTER DISSOLUTION
WITH RESPECT TO PARTNERS

The authority of partners to act for the
partnership is terminated, with respect to
partners:
(1) When the dissolution is not by the act,
insolvency or death of a partner; or
(2) When the dissolution is by such act,
insolvency or death, when the partner
acting for the partnership has knowledge or
notice of the cause [Arts. 1832 and 1833].
The liability of a partner, in general, is the same

as in ordinary contracts (pro rata and
subsidiary).
In the following cases, however, the liability
shall be satisfied out of the partnership assets
alone (i.e., there is no subsidiary liability):
(1) When the partner had been, prior to the
dissolution, unknown as a partner to the
person with whom the contract is made;
(2) When the partner had been, prior to the
dissolution, so far unknown or inactive in
partnership affairs that the business
reputation of the partnership could not be
said to have been in any degree due to his
connection with it [Art. 1834].
In other cases, each partner is still liable for his

share in the liability created by the partner
acting for the partnership [Art. 1833].
WITH RESPECT TO THIRD PERSONS
With respect to persons not partners:
(1) After dissolution, a partner can bind the
partnership by any act appropriate for:
(a) Winding up partnership affairs; or
(b) Completing transactions unfinished at
dissolution.
(2) He can also bind it by any transaction which
would bind the partnership as if dissolution
had not taken place, provided the other
party to the transaction:
(a) Had extended credit to the partnership
prior to dissolution and had no
knowledge or notice thereof; or
(b) Had not so extended credit but had
known of the partnership prior to
dissolution, and having no knowledge
or notice of dissolution, the fact had not
been advertised in a newspaper of
general circulation in the place (or in
each place if more than one) at which
the partnership business was regularly
carried on [Art. 1834, par. 1].
Any act of a partner after dissolution in no case

binds the partnership in the following cases:
(1) Where the partnership is dissolved because
it is unlawful to carry on the business,
unless the act is appropriate for winding up
partnership affairs;
(2) Where the partner has become insolvent; or
(3) Where the partner has no authority to wind
up partnership affairs, except by a
transaction with one who:
(a) Had extended credit to the partnership
prior to dissolution and had no
knowledge or notice of his want of
authority; or
(b) Had not extended credit to the
partnership prior to dissolution, and,
having no knowledge or notice of his
want of authority, the fact of his want of
authority has not been advertised [Art.
1834].
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Article 1834 does not affect the liability under

Article 1825 of any person who, after
dissolution, represents himself or consents to
another representing him as a partner in a
partnership engaged in carrying on business
[Art. 1834].
WINDING UP PARTNERS
WHO MAY WIND UP
The following partners have the right to wind up

the partnership affairs:
(1) Those designated in an agreement;
(2) Those who have not wrongfully dissolved
the partnership; or
(3) The legal representative of the last surviving
partner, who was not insolvent.
ON LIABILITY FOR CONTRACTS

AFTER DISSOLUTION BY SPECIFIC
CAUSES
General rule: A contract entered into by a

partner acting for the partnership after
dissolution by act, death or insolvency of a
partner binds the other partners.
Any partner or his legal representative or

assignee may obtain winding up by the court,
upon cause shown [Art. 1836].
MANNER OF WINDING UP
Exceptions:
(1) The dissolution being by act of any partner,
the partner acting for the partnership had
knowledge of the dissolution; or
(2) The dissolution being by death or insolvency
of a partner, the partner acting for the
partnership had knowledge or notice of the
death or insolvency [Art. 1833].
ON
EXISTING
PARTNERS
LAIBILITY
CIVIL LAW
(1) Extrajudicial, by the partners themselves; or

(2) Judicial, under the control and direction of
the proper court.
The action for liquidation of the partnership is
personal. The fact that sale of assets, including
real property, is involved does not change its
character, such sale being merely a necessary
incident of the liquidation of the partnership,
which should precede and/or is part of its
process of dissolution [Claridades v. Mercader
(1966)].
OF
General rule: Dissolution does not of itself

discharge the existing liability of any partner.
RIGHTS OF PARTNERS IN CASE

OF DISSOLUTION
Exception: A partner may be relieved when there

is an agreement to that effect between:
(1) Himself;
(2) The partnership creditor; and
(3) The person or partnership continuing the
business.
DISSOLUTION WITHOUT VIOLATION

OF THE AGREEMENT
Such agreement may be inferred from the

course of dealing between the creditor having
knowledge of the dissolution and the person or
partnership continuing the business.
Each partner may have:

(1) The partnership property applied to
discharge the partnership liabilities; and
(2) The surplus applied in cash to the net
amount owing to the respective partners.
In case of dissolution by death, the individual

property of a deceased partner is liable for
obligations of the partnership incurred while he
was a partner, after payment of his separate
debts [Art. 1835].
This is a right as against his co-partners and all

partners claiming through them in respect of
their interests in the partnership. It cannot be
availed if there is an agreement to the contrary
[Art. 1837, par. 1].
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The goodwill of a business may be defined to be

the advantage which it has from its
establishment or from the patronage of its
customers, over and above the mere value of its
property and capital. The goodwill (which
includes the firm name) is part of the
partnership assets and may be subject of sale
[De Leon (2010)].
DISSOLUTION IN CONTRAVENTION
OF THE AGREEMENT
PARTNER WHO DID NOT CAUSE THE
DISSOLUTION
The partners who did not cause the dissolution
wrongfully has the following rights:
(1) To demand the right under Article 1837, 1st
par.;
(2) To be indemnified for damages for breach
of the agreement against the partner who
caused the dissolution wrongfully [Art.
1837(1)];
(3) To continue the business:
(a) In the same name;
(b) By themselves or jointly with others;
(c) During the agreed term for the
partnership.
RIGHTS OF PARTNERS IN CASE

OF RECISSION
A partner, who is induced by fraud or

misrepresentation to become such partner, may
rescind the contract. Without prejudice to any
other right, he is entitled:
(1) To a lien on, or right of retention of, the
surplus of the partnership property after
satisfying the partnership liabilities to third
persons for any sum of money paid by him
for the purchase of an interest in the
partnership and for any capital or advances
contributed by him;
(2) To stand, after all liabilities to third persons
have been satisfied, in the place of the
creditors of the partnership for any
payments made by him in respect of the
partnership liabilities; and
(3) To be indemnified by the person guilty of
the fraud or making the representation
against all debts and liabilities of the
For the purpose of continuing the business, the

said partners may possess the partnership
property provided:
(1) They secure the payment by bond approved
by the court; or
(2) They pay any partner who has caused the
dissolution wrongfully the value of his
interest in the partnership, less any
damages recoverable, and indemnity
against all present or future partnership
liabilities [Art. 1837(2)].
PARTNER WHO CAUSED THE DISSOLUTION
The partner who caused the dissolution
wrongfully has the following rights:
(1) If the business is not continued, all the
rights Article 1837, par. 1, subject to liability
for damages;
(2) If the business is continued, the right, as
against his co-partners and all claiming
through them, to:
(a) Ascertainment, without considering the
value of the goodwill of the business,
and payment to him in cash the value of
his partnership interest, less any
damage, or have the payment secured
by a bond approved by the court; and
(b) Be released from all existing liabilities
of the partnership [Art. 1837(3)].
SETTLING
OF
ACCOUNTS
BETWEEN PARTNERS
Subject to any agreement to the contrary, the
following rules shall be observed in settling
accounts between partners after dissolution.
COMPOSITION
ASSETS
OF
PARTNERSHIP
(1) The partnership property; and

(2) The contributions of the partners necessary
for the payment of all the liabilities [Art.
1839(1)].
In accordance with the subsidiary liability of the
partners, the partnership property shall be
applied first to satisfy any liability of the
partnership [Art. 1839(3)].
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(3) Anything left from either shall be applied to

satisfy the other [Art. 1839(8)].
AMOUNT OF CONTRIBUTION FOR

LIABILITIES
The rules for distribution of losses shall

determine the contributions of the partners [Art.
1839(4)]. As such:
(1) The contribution shall be in conformity with
the agreement.
(2) If only the share in profits has been
stipulated, the contribution shall be in the
same proportion.
(3) In the absence of any stipulation, the
contribution shall be in proportion to the
capital contribution [Art. 1797].
DISTRIBUTION OF PROPERTY OF
INSOLVENT PARTNER
Where a partner has become insolvent or his

estate is insolvent, the claims against his
separate property shall rank in the following
order:
(1) Those owing to separate creditors;
(2) Those owing to partnership creditors;
(3) Those owing to partners by way of
contribution [Art. 1839(9)].
ENFORCEMENT OF CONTRIBUTION
RIGHTS OF CREDITORS
DISSOLVED PARTNERSHIP
The following persons have the right to enforce

the contributions:
(1) An assignee for the benefit of creditors;
(2) Any person appointed by the court; or
(3) To the extent of the amount which he has
paid in excess of his share of the partnership
liability, any partner or his legal
representative [Art. 1839(5) and (6)].
AS CREDITORS
PARTNERSHIP
OF
THE
OF
NEW
In the following cases, creditors of the dissolved

partnership are also creditors of the person or
partnership continuing the business:
(1) When the business is continued without
liquidation, and the cause of dissolution is:
(a) Admission of a new partner into the
existing partnership;
(b) Retirement or death of any partner, and
his rights to partnership property are
assigned to (1) two or more of the
partners, or (2) one or more of the
partners and one or more third persons;
(c) Retirement of all but one partner, and
their rights to partnership property are
assigned to the remaining partner, who
continues the business, either alone or
with others;
(d) Wrongful dissolution by any partner,
and the remaining partners continue
the business, either alone or with
others;
(e) Expulsion of a partner, and the
remaining partners continue the
business, either alone or with others.
(2) When the cause of dissolution is the
retirement or death of any partner, and
business is continued with the consent of
the retired partner or the representative of
the deceased partner, without assignment
of their rights to partnership property.
The individual property of a deceased partner

shall be liable for the contributions [Art.
1839(7)].
ORDER OF APPLICATION OF ASSETS
The partnership liabilities shall rank, in order of

payment, as follows:
(1) Those owing to creditors other than
partners;
(2) Those owing to partners other than for
capital and profits;
(3) Those owing to partners in respect of
capital;
(4) Those owing to partners in respect of profits
[Art. 1839(2)].
DOCTRINE OF MARSHALLING OF
ASSETS
When partnership property and the individual
properties of the partners are in possession of a
court for distribution:
(1) Partnership creditors have priority on
partnership property;
(2) Separate creditors have priority on
individual property, saving the rights of lien
of secured creditors.
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(3) When the cause of dissolution is the

assignment by all the partners or their
representatives of their rights in partnership
property to one or more third persons who
promise to pay the debts and who continue
the business of the partnership [Art. 1840,
par. 1].
right in the property of the dissolved

RIGHT TO AN ACCOUNT
In the absence of any agreement to the
contrary, the right to an account of his interest
shall accrue to any partner, or his legal
representative at the date of dissolution, as
against:
(1) The winding up partners;
(2) The surviving partners; or
(3) The person or partnership continuing the
business [Art. 1842].
LIABILITY OF A NEW PARTNER
The liability to the creditors of the dissolved

partnership of a new partner in the partnership
continuing the business shall be satisfied out of
the partnership property alone. However, he
may, through agreement, assume individual
liability [Art. 1840, par. 2].
PRIORITY
OF
CREDITORS
DISSOLVED PARTNERSHIP
CIVIL LAW
Limited Partnership
OF
DEFINITION
Creditors of the dissolved partnership have prior

right to any claim of the retired partner or the
representative of the deceased partner against
the person or partnership continuing the
business [Art. 1840, par. 3].
A limited partnership is:

(1) A partnership;
(2) Formed by two or more persons;
(3) Having as members:
(a) One or more general partners; and
(b) One or more limited partners.
This is without prejudice to the right of creditors

to set aside any assignment on the ground of
fraud [Art. 1840, par. 4].
The limited partners as such shall not be bound

by the obligations of the partnership [Art. 1843].
RIGHTS OF A RETIRED
PARTNER OR A
REPRESENTATIVE OF
DECEASED PARTNER
CHARACTERISTICS
(1) A limited partnership is formed by
compliance with the statutory requirements
[Art. 1844].
(2) The business is controlled or managed by
one or more general partners, who are
personally liable to creditors [Arts. 1848 and
1850].
(3) One or more limited partners contribute to
the capital and share in the profits but do
not manage the business and are not
personally liable for partnership obligations
beyond their capital contributions [Arts.
1845, 1848 and 1856].
(4) Obligations or debts are paid out of the
partnership assets and the individual
property of the general partners [Art. 1843].
(5) The limited partners may have their
contributions back subject to conditions
prescribed by law [Arts. 1844 and 1957].
Unless otherwise agreed upon, when any

partner retires or dies, and the business is
continued without any settlement of accounts
as between him or his estate and the person or
partnership continuing the business, he or his
legal representative, as against such person or
partnership, subject to the prior rights of
creditors of the dissolved partnership:
(1) May have the value of his interest at the
date of dissolution ascertained; and
(2) Shall receive as an ordinary creditor:
(a) An amount equal to the value of his
interest in the dissolved partnership
with interest; or
(b) At his option or at the option of his legal
representative, in lieu of interest, the
profits attributable to the use of his
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A limited partnership has the following

advantages:
(1) For general partners, to secure capital from
others while retaining control and
supervision for the business;
(2) For limited partners, to have a share in the
profits without risk of personal liability.
General partner
Dissolves partnership
Not assignable
Extent of liability
Liable only to the
extent of his capital
contributions
Assignable
GENERAL
AND
LIMITED
PARTNERSHIP DISTINGUISHED
General
partnership
Right to participate in management

Unless
otherwise
agreed
upon, all
general partners have
an equal right to
manage
the
partnership
Limited
partnership
Creation
No right to participate
in management
May be constituted in
any form, subject to
exceptions
Nature of contribution
Cash, property
industry
or
Cash or property only,

not industry
Only general partners
Not proper party,

unless (1)
he is
also a general partner;
or (2) where the object
of the proceedings is
to enforce his right
against or liability to
the partnership
Must contain the word

Company
[SEC
Memo Circ No. 14-00],
except for professional
partnerships
May or may not
include the name of
one or more of the
partners
Name
must
not
appear in the firm
name
Prohibition to engage in other business

Prohibited (subject to
qualifications)
One or more general,

and one or more
limited partners
Firm name
Firm name
Name may appear in
the firm name
Partners must: (1) sign

and swear to a
certificate
in
compliance
with
Article 1844; and (2)
file the certificate for
record in the SEC
Composition
Proper party in proceedings by

or against partnership
Proper party
Does not dissolve

partnership;
rights
transferred
to
executor
or
administrator
for
selling his estate
Assignability of interest
Limited partner
Personally,
but
subsidiarily, liable for
obligations of the
partnership
Limited partner
Effect of retirement, death, insanity

or insolvency
GENERAL AND LIMITED

PARTNERS DISTINGUISHED
General partner
CIVIL LAW
Not prohibited
Must include the word

Limited [SEC Memo.
Circ. No. 14-00]
Must not include
name
of
limited
partners, unless: (1) it
is also the surname of
a general partner, or
(2) prior to the time
when the limited
partner became such,
the business has been
carried on under a
name in which his
surname appeared
Rules governing dissolution

Articles 1828-1842
PAGE 319
Articles 1860-1863
UP LAW BOC
FORMATION
FALSE
STATEMENT
CERTIFICATE
GENERAL REQUIREMENTS
CIVIL LAW
IN
THE
If the certificate contains a false statement, one

who suffers loss by reliance thereon may hold
liable any party to the certificate who knew the
statement to be false:
(1) At the time he signed the certificate; or
(2) Subsequently, but within a sufficient time
before the statement was relied upon to
enable him to cancel or amend the
certificate, or to file a petition for its
cancellation or amendment [Art. 1847].
Two or more persons desiring to form a limited

partnership shall:
(1) Sign and swear to a certificate stating the
items in Article 1844; and
(2) File for record the certificate in the SEC [Art.
1844].
A limited partnership is formed if there is
substantial compliance in good faith with the
requirements. When there is failure to
substantially comply with the requirements:
(1) In relation to third persons, the partnership
is general, unless they recognized that the
firm is a limited partnership; and
(2) As between the partners, the partnership
remains limited, since they are bound by
their agreement [De Leon (2010)].
Requisites:
(1) The partner knew the statement to be false:
(a) At the time he signed the certificate; or
(b) Subsequently, but having sufficient time
to cancel or amend it, or file a petition
for its cancellation or amendment, and
he failed to do so;
(2) The person seeking to enforce liability has
relied upon the false statement in
transacting business with the partnership;
and
(3) The person suffered loss as a result of
reliance upon such false statement.
PURPOSE OF FILING
The purpose of filing the certificate in the SEC

is:
(1) To give actual or constructive notice to
potential creditors or persons dealing with
the partnership; and
(2) To acquaint them with its essential features,
including the limited liability of limited
partners [De Leon (2010)].
GENERAL AND LIMITED PARTNER

AT THE SAME TIME
Art. 1853. A person may be a general and a
limited partner in the same partnership at the
same time. This fact must be stated in the
certificate.
FIRM NAME
General rule: The surname of a limited partner

shall not appear in the partnership name.
Exceptions:
(1) It is also the surname of a general partner;
or
(2) Prior to the time when the limited partner
became such, the business had been carried
on under a name in which his surname
appeared.
A person who is a general, and also at the same

time a limited partner, shall have all the rights
and powers, and be subject to all the
restrictions of a general partner, except that, in
respect to his contribution as a limited partner,
he shall have the rights against the other
members which he would have had if he were
not also a general partner.
A limited partner whose surname appears in a

partnership name contrary to this prohibition is
liable as a general partner to partnership
creditors who extend credit without actual
knowledge that he is not a general partner.
MANAGEMENT
Only general partners have the right to manage

the partnership. If a limited partner takes part in
the control of the business, he becomes liable
as a general partner [Art. 1848].
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A general partner shall have the rights and

powers and be subject to all restrictions and
liabilities of a partner in a partnership without
limited partners. Thus, he has general authority
over the business.
He holds as trustee for the partnership:

(1) Specific property stated in the certificate as
contributed by him, but which was not
contributed or which has been wrongfully
returned; and
(2) Money or other property wrongfully paid or
conveyed to him on account of his
contribution [Art. 1858, par. 2].
However, written consent or ratification by all

limited partners is necessary to authorize the
general partners to:
(1) Do any act in contravention of the
certificate;
(2) Do any act which would make it impossible
to carry on the ordinary business of the
partnership;
(3) Confess a judgment against the
partnership;
(4) Possess partnership property, or assign
their rights in specific property, for other
than a partnership purpose;
(5) Admit a person as a general partner;
(6) Admit a person as a limited partner, unless
the right to do so is given in the certificate;
(7) Continue the business with partnership
property on the death, retirement, insanity,
civil interdiction or insolvency of a general
partner, unless the right so to do is given in
the certificate.
These liabilities can be waived or compromised

only by the consent of all members. Such waiver
or compromise, however, shall not affect the
right to enforce said liabilities of a creditor:
(1) Who extended credit; or
(2) Whose claim arose, after the filing or before
a cancellation or amendment of the
certificate, to enforce such liabilities [Art.
1858, par. 3].
Even after a limited partner has rightfully
received the return in whole or in part of his
capital contribution, he is still liable to the
partnership for any sum, not in excess of such
return with interest, necessary to discharge its
liabilities to all creditors:
(1) Who extended credit; or
(2) Whose claims arose before such return [Art.
1858, par. 4].
OBLIGATIONS OF A LIMITED
PARTNER
OBLIGATIONS
CONTRIBUTION
RELATED
CIVIL LAW
A person who has contributed capital to a

partnership, erroneously believing that he has
become a limited partner, but his name appears
in the certificate as a general partner or he is
not designated as a limited partner, is not
personally liable as a general partner by reason
of his exercise of the rights of a limited partner,
provided:
(1) On ascertaining the mistake, he promptly
renounces his interest in the profits of the
business or other compensation by way of
income [Art. 1852];
(2) He does not participate in the management
of the business [Art. 1848]; and
(3) His surname does not appear in the
partnership name [Art. 1846].
TO
The contributions of a limited partner may be

cash or other property, but not services [Art.
1845].
A limited partner is liable for partnership
obligations when he contributes services
instead of only money or property to the
partnership [De Leon (2010)].
A limited partner is liable to the partnership:
(1) For the difference between his actual
contribution and that stated in the
certificate as having been made; and
(2) For any unpaid contribution which he
agreed in the certificate to make in the
future at the time and on the conditions
stated in the certificate [Art. 1858, par. 1].
LIABLITY
CREDITORS
TO
PARTNERSHIP
General rule: A limited partner is not liable as a

general partner. His liability is limited to the
extent of his contributions [Art. 1843].
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Exceptions: The limited partner is liable as a

general partner when:
(1) His surname appears in the partnership
name, with certain exceptions [Art. 1846,
par. 2].
(2) He takes part in the control of the business
[Art. 1848].
CIVIL LAW
RIGHT TO TRANSACT BUSINESS

WITH THE PARTNERSHIP
A limited partner may:

(1) Loan money to the partnership;
(2) Transact other business with the
partnership; and
(3) Receive a pro rata share of the partnership
assets with general creditors if he is not also
a general partner [Art. 1854, par. 1].
LIABILITY TO SEPARATE CREDITORS
On due application to a court of competent

jurisdiction by any separate creditor of a limited
partner, the court may:
(1) Charge his interest with payment of the
unsatisfied amount of such claim;
(2) Appoint a receiver; and
(3) Make all other orders, directions and
inquiries which the circumstances of the
case may require.
Limitations: A limited partner, with respect to

his transactions with the partnership, cannot:
(1) Receive or hold as collateral security any
partnership property; or
(2) Receive any payment, conveyance, or
release from liability if it will prejudice the
right of third persons [Art. 1854, par. 1].
Violation of the prohibition is considered a fraud
on the creditors of the partnership [Art. 1854,
par. 2].
The interest so charged may be redeemed with

the separate property of any general partner,
but may not be redeemed with partnership
property [Art. 1862].
RIGHT TO SHARE IN PROFITS
A limited partner may receive from the

partnership the share of the profits or the
compensation by way of income stipulated for in
the certificate.
Note: In a general partnership, the interest may

be redeemed with partnership property with the
consent of all the partners whose interests are
not charged [Art. 1814].
This right is subject to the condition that

partnership assets will still be in excess of
partnership liabilities after such payment [Art.
1856] The partnership liabilities being referred
to exclude the liabilities to the limited and
general partners.
RIGHTS OF A LIMITED PARTNER

IN GENERAL
A limited partner shall have the same rights as

a general partner to:
(1) Require that the partnership books be kept
at the principal place of business of the
partnership;
(2) To inspect and copy any of them at a
reasonable hour;
(3) To demand true and full information of all
things affecting the partnership;
(4) To demand a formal account of partnership
affairs whenever circumstances render it
just and reasonable;
(5) To ask for dissolution and winding up by
decree of court;
(6) To receive a share of the profits or other
compensation by way of income; and
(7) To receive the return of his contribution
provided the partnership assets are in
excess of all its liabilities [Art. 1851].
Ratio: Otherwise, he will receive a share to the

prejudice of third-party creditors.
RIGHT
TO
CONTRIBUTION
RETURN
OF
A limited partner may have his contributions

withdrawn or reduced when:
(1) All the liabilities of the partnership, except
liabilities to general partners and to limited
partners on account of their contributions,
have been paid or there remains property of
the partnership sufficient to pay them;
(2) The consent of all members is had, unless
the return may be demanded as a matter of
right; and
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(3) The certificate is cancelled or so amended

as to set forth the withdrawal or reduction
[Art. 1857, par. 1].
CIVIL LAW
who has died or has assigned his interest in a

partnership. He has all the rights and powers,
and is subject to all the restrictions and
liabilities of his assignor, except those liabilities
which:
(1) The assignee was ignorant of; and
(2) Cannot be ascertained from the certificate
[Art. 1859, pars. 2 and 6].
The return of his contributions may be

demanded, as a matter of right (i.e., even when
not all the other partners consent), when (1) and
(2) above are complied with:
(1) On the dissolution of the partnership;
(2) Upon the arrival of the date specified in the
certificate for the return; or
(3) After the expiration of a 6-month notice in
writing given by him to the other partners, if
no time is fixed in the certificate for:
(a) The return of the contribution; or
(b) The dissolution of the partnership [Art.
1857, par. 2].
An assignee is only entitled to receive the share

of the profits or other compensation by way of
income, or the return of contribution, to which
the assignor would otherwise be entitled. He
has no right:
(1) To require any information or account of the
partnership transactions;
(2) To inspect the partnership books [Art. 1859,
par. 3].
General rule: A limited partner, irrespective of

the nature of his contribution has only the right
to demand and receive cash in return for his
contribution.
An assignee has the right to become a

substituted limited partner if:
(1) All the partners consent thereto; or
(2) The assignor, being empowered to do so by
the certificate, gives him that right [Art.
1859, par. 4].
Exceptions: He may receive his contribution in a

form other than cash when:
(1) There is a statement in the certificate to the
contrary; or
(2) All the members of the partnership consent
[Art. 1857, par. 3].
An assignee becomes a substituted limited

partner when the certificate is appropriately
amended [Art. 1859, par. 5].
PREFERENCE OF LIMITED
PARTNERS
RIGHT TO ASK FOR DISSOLUTION
A limited partner may have the partnership

dissolved and its affairs wound up when:
(1) He rightfully but unsuccessfully demands
the return of his contribution; or
(2) He has a right to contribution but his
contribution is not paid because the
partnership property is insufficient to pay its
liabilities [Art. 1857, par. 4].
General rule: The limited partners stand on

equal footing.
Exception: By an agreement of all the partners
(general and limited) in the certificate, priority or
preference may be given to some limited
partners over others with respect to:
(1) The return of contributions;
(2) Their compensation by way of income; or
(3) Any other matter [Art. 1855].
DISSOLUTION
A limited partnership is dissolved in much the
same way and causes as an ordinary
partnership [De Leon (2010)].
RIGHT TO ASSIGN INTEREST
The interest of a limited partner is assignable.

The assignee may become:
(1) A substituted limited partner; or
(2) A mere assignee.
General rule: The retirement, death, insolvency,

insanity or civil interdiction of a general partner
dissolves the partnership.
A substituted limited partner is a person

admitted to all the rights of a limited partner
Exception: It is not so dissolved when the

business is continued by the remaining general
partners:
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(1) Under a right to do so stated in the

certificate; or
(2) With the consent of all members [Art. 1860].
CIVIL LAW
(2) There is a subsequent agreement fixing

their share [Art. 1863].
AMENDMENT OR
CANCELLATION OF
CERTIFICATE
Upon the death of a limited partner, his

executor or administrator shall have:
(1) All the rights of a limited partner for the
purpose of settling his estate; and
(2) The power to constitute an assignee as a
substituted limited partner, if the deceased
was so empowered in the certificate.
CANCELLATION OF CERTIFICATE
The certificate shall be cancelled when:

(1) The partnership is dissolved; or
(2) All limited partners cease to be such limited
partners.
The estate of a deceased limited partner shall

be liable for all his liabilities as a limited partner
[Art. 1861].
AMENDMENT OF CERTIFICATE
A certificate shall be amended when:

(1) There is a change in the name of the
partnership or in the amount or character of
the contribution of any limited partner;
(2) A person is substituted as a limited partner;
(3) An additional limited partner is admitted;
(4) A person is admitted as a general partner;
(5) A general partner retires, dies, becomes
insolvent or insane, or is sentenced to civil
interdiction and the business is continued;
(6) There is a change in the character of the
business of the partnership;
(7) There is a false or erroneous statement in
the certificate;
(8) There is a change in the time as stated in
the certificate for the dissolution of the
partnership or for the return of a
contribution;
(9) A time is fixed for the dissolution of the
partnership, or the return of a contribution,
no time having been specified in the
certificate; or
(10) The members desire to make a change in
any other statement in the certificate in
order that it shall accurately represent the
agreement among them [Art. 1864].
SETTLEMENT OF ACCOUNTS
ORDER OF PAYMENT
In settling accounts after dissolution, the

liabilities of the partnership shall be entitled to
payment in the following order:
(1) Those to creditors, including limited
partners except those on account of their
contributions, in the order of priority as
provided by law;
(2) Those to limited partners in respect to their
share of the profits and other compensation
by way of income in their contributions;
(3) Those to limited partners in respect to the
capital of their contributions;
(4) Those to general partners other than for
capital and profits;
(5) Those to general partners in respect to
profits;
(6) Those to general partners in respect to
capital [Art. 1863, par. 1].
Note: In settling accounts of a general
partnership, those owing to partners in respect
to capital enjoy preference over those in respect
to profits.
REQUIREMENTS FOR AMENDMENT

OR CANCELLATION
SHARE IN PARTNERSHIP ASSETS
The share of limited partners in respect to their

claims for capital, profits, or for compensation
by way of income, is in proportion of their
contribution, unless:
(1) There is a statement in the certificate as to
their share in the profits; or
To amend or cancel a certificate:

(1) The amendment or cancellation must be in
writing;
(2) It must be signed and sworn to by all the
members including the new members, and
the assigning limited partner in case of
PAGE 324
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substitution or addition of a limited or

general partner; and
(3) The writing to amend (with the certificate,
as amended) or to cancel must be filed for
record in the SEC.
CIVIL LAW
(5) Bilateral, if for compensation, giving rise to

reciprocal rights and obligations, but
unilateral, if gratuitous, creating obligations
only for the agent.
FORMATION
When a person required to sign the writing, a

person desiring the cancellation or amendment
may petition the court to order cancellation or
amendment. The court shall order the SEC to
record the cancellation or amendment if it finds
that the petitioner has a right to have the
writing executed.
ESSENTIAL ELEMENTS
(1) There is consent, express or implied, of the

parties to establish the relationship;
(2) The object is the execution of a juridical act
in relation to third persons;
(3) The agent acts as a representative and not
for himself; and
(4) The agent acts within the scope of his
authority [Rallos v. Felix Go Chan (1978)].
From
the
moment
the
amended
certificate/writing or a certified copy of a court
order granting the petition for amendment has
been filed, such amended certificate shall
thereafter be the certificate of partnership [Art.
1865].
PARTIES
(1) Principal, one whom the agent represents

and from whom he derives his authority;
and
(2) Agent, who acts for and represents the
principal, having derivative authority in
carrying out the business of the latter.
AGENCY
Contract of Agency
DEFINITION
Juridical persons such as corporations and

partnerships can be principals and agents [Art.
1919(4)].
By the contract of agency:

(1) A person binds himself to render some
service or to do something;
(2) In representation or on behalf of another;
(3) With the consent or authority of the latter
[Art. 1868].
CAPACITY
(1) A principal must have legal capacity to
enter into contract in his own right.
(2) An agent must have legal capacity to enter
into the contract of agency, although he
may not have capacity to enter into the
particular contract subject of agency.
Agency may refer to both a contract, as defined

in the provision, and the representative relation
created. As a relationship, it is fiduciary (based
on trust and confidence), where the agent is
empowered to contract with a third person on
behalf of a principal [De Leon (2010)].
Ratio: One who acts through an agent in law

does the act himself. As such, the capacity to
act by an agent depends in general on the
capacity of the principal to do the act himself as
if he were present.
The basis of agency is representation [Victorias

Milling v. CA (2000)].
INTENT
(1) On the part of the principal, there must be
an actual intention to appoint or an
intention naturally inferable from his words
or actions; and
(2) On the part of the agent, there must be an
intention to accept the appointment and act
on it [Victorias Milling v. CA (2000)].
CHARACTERISTICS
The contract of agency is:
(1) Consensual, perfected by mere consent;
(2) Nominate, has its own name;
(3) Preparatory, entered into as a means to
enter into other contracts;
(4) Principal, does not depend on another
contract for existence and validity;
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General rule: In the absence of such intent, there

is no agency.
CIVIL LAW
POWER OF ATTORNEY
A power of attorney is an instrument in writing
by which one person, as principal, appoints
another as his agent and confers upon him the
authority to perform certain specified acts of
kinds of acts on his behalf [De Leon (2010)].
Exceptions:
(1) Agency by estoppel; and
(2) Agency by operation of law.
CONSENT
An agency, both on the part of the principal and
the agent, is either express or implied. It does
not require express appointment and
acceptance.
FORM OF CONTRACT
General rule: There are no formal requirements

governing the appointment of an agent.
Exceptions: The law imposes formal
requirements on certain types of agency [Art.
1869, par. 2]:
(1) When a sale of piece of land or any interest
therein is through an agent, in which case
the authority shall be in writing; otherwise
the sale is void [Art. 1874];
(2) When the law requires a special power of
attorney [Art. 1878].
The manner by which the parties designate the
relationship is not controlling. The use of this
term (agent) in one clause of the contract
cannot dominate the real nature of the
agreement as revealed in other clauses, no less
than in the caption (agency agreement) of the
agreement itself [Albadejo y Cia. v. Phil. Refining
(1923)].
As to the principal, the appointment of an agent

may be implied:
(1) From his acts;
(2) From his silence or lack of action; or
(3) From his failure to repudiate the agency,
knowing that another person is acting on his
behalf without authority.
The appointment may be oral, unless the law
requires a specific form [Art. 1869].
As to the agent, acceptance may also be
implied:
(1) From his acts which carry out the agency;
(2) From his silence or inaction according to the
circumstances [Art. 1870];
(3) When both the principal and the agent
being present if:
(a) The principal delivers his power of
attorney to the agent; and
(b) The agent receives it without any
objection [Art. 1871];
(4) When both the principal and the agent
being absent if:
(a) The principal transmits his power of
attorney to the agent, who receives it
without any objection; or
(b) The principal entrusts to him by letter or
telegram a power of attorney with
respect to the business in which he is
habitually engaged as an agent, and he
did not reply to the letter or telegram.
ACTS DELEGATED
General rule: What a person may do in person,

he may do through another.
Exceptions:
(1) Personal acts, which the law or public policy
requires to be performed personally (e.g., to
vote, make a will, make statements under
oath, or attend board meetings as director
or trustee of a corporation);
(2) Criminal acts;
(3) Acts not allowed by law to be done by the
principal.
PRESUMPTION OF EXISTENCE
General rule: Agency must exist as a fact. The

law makes no presumption thereof. The person
alleging it has the burden of proof to show, not
only the fact of its existence, but also its nature
and extent [People v. Yabut (1977)].
In other cases between persons who are absent,

acceptance cannot be implied from the silence
of the agent [Art. 1872].
PAGE 326
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Exceptions: A presumption of agency may arise:

(1) Where an agency may arise by operation of
law (e.g., all the partners being considered
agents of the partnership when the manner
of management has not been agreed upon);
or
(2) To prevent unjust enrichment [De Leon
(2010)].
CIVIL LAW
Requisites:
(1) Actual notice to the agent;
(2) Notice must pertain to a matter of fact and
not of law;
(3) The fact must be within the scope of the
agents authority.
Exceptions:
(1) Where the agents interests are adverse to
those of the principal;
(2) Where the agents duty is not to disclose the
information (e.g., he is informed by way of
confidential information);
(3) Where the person claiming the benefit of
the rule colludes with the agent to defraud
the principal [De Leon (2010)].
COMMUNICATION OF EXISTENCE
There are two ways of giving notice of agency

with different effects:
(1) If a person specially informs another (e.g.,
by letter), the person appointed is
considered an agent with respect to the
person specially informed;
(2) If a person states by public advertisement,
the person appointed is considered an
agent with regard to any person.
AGENCY
AND
OTHER
CONTRACTS DISTINGUISHED
One factor which most clearly distinguishes

agency from other legal concepts is control; one
person the agent agrees to act under the
control or direction of another the principal
[Victorias Milling v. CA (2000)].
In either case, the power of the agent continues

in full force until the notice is rescinded in the
same manner in which it was given [Art. 1873].
DUTY OF THIRD PERSONS
The person dealing with the agent must act

with ordinary prudence and reasonable
diligence. Obviously, if he knows or has good
reason to believe that the agent is exceeding his
authority, he cannot claim protection [Keeler
Electric v. Rodriguez (1922)].
Agency
Partnership
Representation
An agent acts only for

the principal
EFFECT
A partner acts for the

other partners, the
partnership
and
himself
Control
An agents power to
bind the principal is
subject to the latters
control
EXTENSION OF PERSONALITY
In an agent-principal relationship, the

personality of the principal is extended through
the facility of the agent. The agent, by legal
fiction, becomes the principal, authorized to
perform all acts which the latter would have
him do [Litonjua v. Eternit Corp. (2006)].
A partners power to
bind his co-partners is
not subject to their
control
Personal liability
An agent does not
assume
personal
liability, if he acts
within the scope of his
authority
THEORY OF IMPUTED KNOWLEDGE
General rule: Notice to the agent constitutes

notice to the principal [Air France v. CA (1983)].
Thus, knowledge of the agent is ascribed to the
principal [Rovels Enterprises v. Ocampo (2002)].
A partner is personally
liable with all his
property,
after
exhaustion of the
partnership properties
Share in profits
An agent is not
entitled to profits, only
compensation
PAGE 327
A partner is entitled to
a share in the profits
of the partnership
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Independent
contractor
Agency
Agency
An agent acts under
the
control
and
instruction of the
principal
An
independent
contractor is not
subject to control,
except insofar as the
result of the work is
concerned
Agency may involve

things other than
property
Employer is not liable

for torts committed by
the
independent
contractor
Employees
of
independent
contractor are not
subject to control of
his employer
Agency
retains
Buyer
ownership
acquires
A buyer pays
purchase price
the
Return of goods
Generally, an agent
can return goods
unsold
Execution of piece of
work or rendition of
service
Generally, a buyer
cannot return the
goods bought
Dealing with the goods
Authorized acts
Material acts only
Discretion
An agent deals with

the goods according
to the instructions of
the principal
A buyer, being the

owner, can deal with
the goods as he
pleases
Agency to buy
Sale
Ownership of goods
Ordinarily,
lessor
performs
only
ministerial functions
Ownership is acquired
in behalf of the
principal
Parties
Three parties are
involved (principalagent-third party)
Sale
An agent delivers the

proceeds of the sale to
the principal
Purpose
An agent is authorized
to exercise discretion
Agency to sell
Payment
Employment
Juridical
acts
(creation,
modification,
extinction of relations
with third parties)
Lessee cannot bind

the lessor
Principal
ownership
Basis
Execution of juridical
acts in relation to third
persons
An agent can bind the

principal
Ownership of goods
Lease of service
Representation
Lease of property
involves property only
Authority to bind
Sub-agents
Agents of the agent is
still subject to the
control of the principal
A lessee is not subject

to the control of the
lessor
Things involved
Liability for tort

Principal is liable for
torts committed by
the agent with the
scope of his authority
Lease of property
Control
Control
An agent acts under
the
control
and
instruction of the
principal
CIVIL LAW
Ownership
transferred
buyer
to
is
the
Change in price
Two parties are

involved (employeremployee)
Generally, any change

in the price is borne by
the principal
A buyer cannot adjust

the price already
agreed upon
Payment
Price is paid in behalf
of the principal
PAGE 328
Price is paid by the

buyer
UP LAW BOC
Agency
Note: Agency is presumed to be for a

compensation, unless there is proof to the
contrary [Art. 1875].
Guardianship
Person represented
An agent represents a
capacitated person
A guardian represents
an
incapacitated
person
As to the extent of business covered:

(1) Universal;
(2) General;
(3) Special.
Source of authority
An agent is appointed
by the principal
A
guardian
is
appointed by the court
As to the authority conferred:

(1) Couched in general terms;
(2) Couched in specific terms.
Control
An agent is subject to
the control of the
principal
A guardian is not
subject to the control
of the ward
As to nature and effect:

(1) Ostensible or representative, where the
agent acts in the name and representation
of the principal [Art. 1868];
(2) Simple or commission, where the agent acts
in his own name but for the account of the
principal.
Authority to bind
An agent can make
the
principal
principally liable
A guardian has no
power to impose
personal liability on
the ward
Agency
Trust
As to the kinds of principal:

(1) With a disclosed principal, where, at the
time the transaction was contracted by the
agent, the other party thereto has known:
(a) That the agent is acting for a principal;
and
(b) The principals identity;
(2) Partially disclosed, where the other party
knows or has reason to know that the agent
is or may be acting for a principal but is
unaware of the principals identity;
(3) Undisclosed, where the party has no notice
of the fact that the agent is acting as such
for a principal.
Title to property
Title
retained
principal
by
Title passes to the

trustee
Control
An agent is subject to
the control of the
principal
A trustee is only
subject
to
the
stipulated guidance of
the trustor
Termination
In general, an agency
may be revoked at any
time
CIVIL LAW
In general, a trust may

be terminated only
when its purpose is
fulfilled
AS TO MANNER OF CREATION
EXPRESS AGENCY
Kinds of Agency
An express agency is one where the agent has

been actually authorized by the principal, either:
(1) Orally; or
(2) In writing [Art. 1869].
IN GENERAL
As to manner of creation:
(1) Express;
(2) Implied.
IMPLIED AGENCY
The appointment and acceptance are implied:

(1) As to the appointment of an agent by the
principal:
(a) From his acts;
(b) From his silence or lack of action; or
As to cause or consideration:
(1) Gratuitous;
(2) Compensated or onerous.
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UP LAW BOC
(c) From his failure to repudiate the agency

knowing that another person is acting
on his behalf without authority [Art.
1869].
(2) As to the acceptance of the agency by the
agent:
(a) From his acts which carry out the
agency;
(b) From his silence or inaction according
to the circumstances (i.e., presence or
absence of the parties) [Arts. 1870, 1871
and 1872].
AS TO AUTHORITY CONFERRED
COUCHED IN GENERAL TERMS
An agency couched in general terms is one

created in general terms and is deemed to
comprise only acts of administration, even if:
(1) The principal should state that he withholds
no power;
(2) He should state that the agent may execute
such acts as he may consider appropriate;
or
(3) Even though the agency should authorize a
general and unlimited management [Art.
1877].
AS TO EXTENT OF BUSINESS
COVERED
COUCHED IN SPECIFIC TERMS
(1) Universal agency comprises all acts which

the principal can lawfully delegate to an
agent;
(2) General agency comprises all the business
of the principal.
(3) Special agency comprises one or more
specific transactions [Art. 1876].
General agency
An agency couched in specific terms
authorizes only the performance of specific acts.

Certain specific acts, however, require special
powers of attorney.
A special power of attorney is an instrument in
writing by which one person, as principal,
appoints another as his agent and confers upon
him the authority to perform certain specified
acts or kinds of acts on behalf of the principal.
Special agency
Scope of authority
All acts connected
with the business or
employment in which
agent is engaged
Only
specific
authorized acts or
those
necessarily
implied
The following acts of strict dominion require

special powers of attorney:
(1) To make such payments as are not usually
considered as acts of administration;
(2) To effect novations which put an end to
obligations already in existence at the time
the agency was constituted;
(3) To compromise, to submit questions to
arbitration, to renounce the right to appeal
from a judgment, to waive objections to the
venue of an action or to abandon a
prescription already acquired;
(4) To waive any obligation gratuitously;
(5) To enter into any contract by which the
ownership of an immovable is transmitted
or acquired either gratuitously or for a
valuable consideration;
(6) To make gifts, except customary ones for
charity or those made to employees in the
business managed by the agent;
(7) To loan or borrow money, unless the latter
act be urgent and indispensable for the
preservation of the things which are under
administration;
Nature of service authorized

Involves
service
continuous
Usually involves
single transaction
Authority to bind
Acts within the scope
of authority, even in
conflict with special
instructions, may bind
principal
Acts beyond authority

given cannot bind
principal
Termination of authority
Notice
to
third
persons required to
terminate apparent
authority
No notice required,
since third parties are
required to inquire as
to authority
Instructions
Notice
to
third
persons required
CIVIL LAW
The instructions, in so
far as they grant
authority, are strictly
construed
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(8) To lease any real property to another person

for more than one year;
(9) To bind the principal to render some service
without compensation;
(10) To bind the principal in a contract of
partnership;
(11) To obligate the principal as a guarantor or
surety;
(12) To create or convey real rights over
immovable property;
(13) To accept or repudiate an inheritance;
(14) To ratify or recognize obligations contracted
before the agency;
(15) Any other act of strict dominion
CIVIL LAW
accurate nor correct to conclude that its

absence renders the compromise agreement
void. In such a case, the compromise is merely
unenforceable [Dugo v. Lopena (1962)].
SPECIAL KINDS
AGENCY BY ESTOPPEL
Through estoppel:
(1) An admission or representation;
(2) Is rendered conclusive upon the person
making it; and
(3) Cannot be denied or disproved as against
the person relying thereon [Art. 1431].
The requirement of special power of attorney

refers to the nature of the authorization, not to
its form. Thus, even if a document is titled as a
general power of attorney, the requirement of a
special power of attorney is met if there is a
clear mandate from the principal specifically
authorizing the performance of the act [BravoGuerrero v. Bravo (2005)].
Ratification
A special power of attorney can be included in

the general power when it is specified therein
the act or transaction for which the special
power is required [Veloso v. CA (1996)].
Estoppel
Rests on intention
Rests on prejudice
Retroacts
as
if
originally authorized
Affects only relevant

parts
of
the
transaction
Substance
is
confirmation
of
unauthorized
acts
after it has been done
Substance is the
principals
inducement for third
party to act to his
prejudice
For an agency by estoppel to exist, the following

must be established:
(1) The principal manifested a representation
of the agents authority or knowingly
allowed the agent to assume such
authority;
(2) The third person, in good faith, relied upon
such representation;
(3) Relying upon such representation, such
third person has changed his position to his
detriment [De Leon (2010)].
Art. 1879. A special power to sell excludes the

power to mortgage; and a special power to
mortgage does not include the power to sell.
Art. 1879. A special power to compromise does
not authorize submission to arbitration.
The power to exact the payment of sums of
money by legal means includes the power to
institute suits for their recovery [Germann & Co.,
v. Donaldson, Sim & Co. (1901)].
In agency by estoppel, there is no agency. The

alleged agent seemed to have apparent or
ostensible authority, but not real authority to
represent another.
A power of attorney to loan and borrow

money and to mortgage the principals
property does not carry with it or imply that that
the agent has a legal right to make the principal
liable for the personal debts of the agent [BPI v.
De Coster (1925)].
An agency by estoppel, which is similar to the

doctrine of apparent authority, requires proof of
reliance upon the representations, and that, in
turn, needs proof that the representations
predated the action taken in reliance [Litonjua v.
Eternit Corp. (2006)].
Although the Civil Code expressly requires a

special power of attorney in order that one may
compromise an interest of another, it is neither
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CIVIL LAW
As to liability, implied agency and agency by

estoppel are different in that, in the former, the
principal is liable, while in the latter, the person
who acts in bad faith is liable.
Qualification: The exception only applies if the

agent contracts with the properties of the
principal within the scope of his authority [PNB
v. Agudelo (1933)].
Article 1911 states that: Even when the agent

has exceeded his authority, the principal is
solidarily liable with the agent if the former
allowed the latter to act as though he had full
powers. In this case, there is a duly formed
agency and estoppel only applies to the excess
of authority. This is an application of the
doctrine of apparent authority.
AGENCY BY OPERATION OF LAW
An agency may exist by operation of law, such

as in the following cases:
(1) Every partner is an agent of the partnership
for the purpose of its business [Art. 1818];
(2) When the principals actions would
reasonably lead a third person to conclude
that an agency exists, an agency by
estoppel is created by operation law [Blacks
Law Dictionary (9th)];
(3) In case of certain necessity or emergency, an
agency by necessity may arise.
The doctrine of apparent authority is to the

effect that: One who clothes another with
apparent authority as his agent, and holds him
out to the public as such, cannot be permitted
to deny the authority of such person to act as his
agent, to the prejudice of innocent third parties
dealing with such person in good faith.
IRREVOCABLE AGENCY
Article 1927 (on agency coupled with an

interest) mentions three instances where the
sole will of the principal cannot terminate an
agency:
(1) A bilateral contract depends upon it;
(2) It is the means of fulfilling an obligation
already contracted; or
(3) A partner is appointed manager of a
partnership in the contract of partnership
and his removal from the management is
unjustifiable.
Under the doctrine of apparent authority, the

question in every case is whether the principal
has, by his voluntary act, placed the agent in
such a situation that a person of ordinary
prudence, conversant with business usages and
the nature of the particular business, is justified
in presuming that such agent has authority to
perform the particular act in question
[Professional Services v. Agana (2008)].
Qualifications:
(1) Coupled with interest or not, the authority
certainly can be revoked for a just cause,
such as when the attorney-in-fact betrays
the interest of the principal. It is not open to
serious doubt that the irrevocability of the
power of attorney may not be used to shield
the perpetration of acts in bad faith, breach
of confidence, or betrayal of trust, by the
agent for that would amount to holding
that a power coupled with an interest
authorizes the agent to commit frauds
against the principal [Coleongco v. Claparols
(1964)].
(2) A mere statement in the power of attorney
that it is coupled with an interest is not
enough. In what does such interest consist
must be stated in the power of attorney [Del
Rosario v. Abad (1958)].
AGENCY WITH UNDISCLOSED

PRINCIPAL
General Rule: If an agent acts in his own name

(the principal is undisclosed), the agent is
directly bound in favor of the person with whom
he has contracted as if the transaction were his
own.
Ratio: There is no representation of the principal
when the agent acts in his own name. The third
person cannot allege that he was misled by any
representation since he did not know of the
existence of the undisclosed principal.
Exception: The principal is bound when the
contract involves things belonging to him [Art.
1883]. In this case, the contract is considered as
one between the principal and the third person.
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(3) An agency couple with an interest cannot

affect third persons. They are obligatory
only on the principal who executed the
agency [New Manila Lumber v. Republic
(1960)].
CIVIL LAW
possession of the goods involved in the

transaction.
(5) Cashier in bank is one whose business is to
represent a banking institution in its
financial transactions;
(6) Attorney-in-fact is one who is given
authority by his principal to do a particular
act not of a legal character. In its strict legal
sense, it means an agent having a special
authority.
KINDS OF AGENTS
AS TO NATURE AND EXTENT OF
AUTHORITY
According to the nature and extent of their

authority, agents have been classified into:
(1) Universal agents are authorized to do all
acts for his principal which can lawfully be
delegated to an agent. So far as such a
condition is possible, such an agent may be
said to have universal authority.
(2) General agents are authorized to do all acts
pertaining to a business of a certain kind or
at a particular place, or all acts pertaining to
a business of a particular class or series. He
has usually authority either expressly
conferred in general terms or in effect made
general by the usages, customs or nature of
the business which he is authorized to
transact. An agent, therefore, who is
empowered to transact all the business of
his principal of a particular kind or in a
particular place, would, for this reason, be
ordinarily deemed a general agent.
(3) Special agents are authorized to do some
particular act or to act upon some particular
occasion (i.e., acts usually in accordance
with specific instructions or under
limitations necessarily implied from the
nature of the act to be done) [Siasat v. IAC
(1985)].
Attorneys have authority to bind their clients in

any case by any agreement in relation thereto
made in writing, and in taking appeals, and in
all matters of ordinary judicial procedure. But
they cannot, without special authority,
compromise their clients litigation, or receive
anything in discharge of a clients claim but the
full amount in cash [Sec. 23, Rule 138, Rules of
Court].
Powers of the Agent

AUTHORITY OF AN AGENT
Authority is the power of the agent to affect the
legal relations of his principal by acts done in
accordance with the principals manifestations
of consent. An agent can make the principal
legally responsible only when he is authorized
by the principal to act the way he did [De Leon
(2010)].
KINDS OF AUTHORITY
(1) Actual, when it is actually granted, and it
may be express or implied. It is the authority
that the agent does, in fact, have. It results
from what the principal indicates to the
agent;
(2) Express, when it is directly conferred by
words;
(3) Implied, when it is incidental to the
transaction or reasonably necessary to
accomplish the main purpose of the agency;
(4) Apparent or ostensible, when it arises by the
acts or conduct of the principal giving rise to
an appearance of authority. It makes the
principal responsible to third persons for
certain actions of the agent that were not
really authorized;
SPECIAL TYPES OF AGENTS
(1) Attorney-at-law is one whose business is to

represent clients in legal proceedings;
(2) Auctioneer is one whose business is to sell
property for others to the highest bidder at
a public sale;
(3) Broker is one whose business is to act as
intermediary between two other parties
such as insurance broker and real estate
broker;
(4) Factor or commission merchant is one
whose business is to receive and sell goods
for a commission, being entrusted with the
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CIVIL LAW
(5) General, when it refers to all the business of

the principal;
(6) Special, when it is limited only to one or
more specific transactions;
(7) By necessity or by operation of law, when it
is demanded by necessity or by virtue of the
existence of an emergency. The agency
terminates when the emergency passes.
POWER
TO
PRINCIPAL
SCOPE OF AUTHORITY
Even when the agent acts in his own name the

principal is still bound in the following
instances:
(1) When the contract involves things
belonging to the principal [Art. 1883]; or
(2) When the principal ratifies the contract,
expressly or tacitly [Art. 1910].
BIND
THE
Requisites:
(1) The agent must act within the scope of his

authority; and
(2) The agent must act in behalf of the
principal.
General rule: The scope of the authority of
the agent is what appears in the terms of the

power of attorney [Siredy Enterprises v. CA
(2002)].
Exceptions: An agent is considered acting within
the scope of his authority when:
(1) He performs acts which are conducive to the
accomplishment of the purpose of the
agency [Art. 1881];
(2) He performed the agency in a manner more
advantageous to the principal than that
specified by said principal [Art. 1881];
(3) The principal ratifies the act, expressly or
tacitly [Art. 1910].
EFFECTS OF THE ACTS OF AN

AGENT
When the agent acts:
(1) With authority of the principal:
(a) If done in the name of the principal, the
principal is bound to comply with the
obligations contracted [Art. 1910] and
the agent is not personally liable to the
party with whom he contracts [Art.
1897];
(b) If done in the name of the agent, the
agent is directly bound in favor of the
person with whom he has contracted,
except when the contract involves
things belonging to the principal;
(2) Without authority or beyond the authority
granted by the principal:
(a) If done in the name of the principal, it is
unenforceable against him, unless he
ratifies it expressly or tacitly [Art. 1910];
(b) If done in the name of the agent, the is
personally liable.
Art. 1900. So far as third persons are concerned,

an act is deemed to have been performed within
the scope of the agents authority, if such act is
within the terms of the power of attorney, as
written, even if the agent has in fact exceeded
the limits of his authority according to an
understanding between the principal and the
agent.
While third persons are bound to inquire into
the extent or scope of the agents authority, they
are not required to go beyond the terms of the
written power of attorney. Third persons cannot
be adversely affected by an understanding
between the principal and his agent as to the
limits of the latters authority. Third persons
need not concern themselves with instructions
given by the principal to his agent outside of the
written power of attorney [Siredy Enterprises v.
CA (2002)].
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Obligations of Agent
CIVIL LAW
Exception: An agent shall not carry out an

agency if its execution would manifestly result in
loss or damage to the principal [Art. 1888].
IN GENERAL
OBLIGATION
DECLINES
GOOD FAITH AND LOYALTY TO HIS

TRUST
WHEN
AGENT
In case a person declines an agency, he is bound

to observe the diligence of a good father of a
family in the custody and preservation of the
goods forwarded to him.
The duty of good faith is also called the fiduciary

duty, which imposes upon the agent the
obligation of faithful service. The duty to be
loyal to the principal demands that the agent
look out for the best interests of the principal as
against his own or those of third parties (see Art.
1889).
The obligation lasts until the owner, as soon as

practicable:
(1) Appoints an agent; or
(2) Takes charge of the goods [Art. 1885].
General rule: Until proven otherwise, the

presumption arises that an agent has
performed his duty in good faith, and the
principal, until notice is received of a breach of
relational duties, may rely upon his agents
faithfulness.
Declining an agency is different from

withdrawal. In the former, no agency was
formed. Withdrawal, on the other hand,
presupposes an existing agency.
The obligation of the agent, in case of
withdrawal, is to continue to act as such agent
until the principal has had reasonable
opportunity to take the necessary steps to meet
the situation [Art. 1929].
Exception: The presumption does not arise

when there is no relation of trust or confidence
between the parties (e.g., the agent is bound
merely as an instrument/servant, or there is no
agency relationship) [De Leon (2010)].
OBLIGATION TO
NECESSARY FUNDS
EXERCISE OF REASONABLE CARE
By accepting an employment whose

requirements he knows, without stipulating
otherwise the agent impliedly undertakes that:
(1) He possesses a degree of skill reasonably
and ordinarily competent for the
performance of the service; and
(2) In performing his undertaking, he will
exercise reasonable care, skill and diligence.
ADVANCE
General rule: The agent is not bound to advance

the necessary funds. The principal is obliged to
advance to the agent, should the latter so
request, the sums necessary for the execution of
the agency.
Exception: He shall be bound to do so should
there be a stipulation to that effect, subject to
the obligation of the principal to reimburse the
agent.
OBLIGATION TO CARRY OUT

AGENCY
General rule: The agent is:
(1) Bound by his acceptance to carry out the
agency;
(2) Liable for damages, which the principal may
suffer, in case of non-performance;
(3) Bound to finish the business already begun
on the death of the principal should delay
entail danger [Art. 1884].
Exception to the Exception: He is not bound to

do so, even when there is a stipulation, when
the principal is insolvent [Art. 1886].
Note: Insolvency of the principal is also a ground
for extinguishment.
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A specific application of this subordination of

interests is found in Article 1890:
(1) If the agent has been empowered to borrow
money, he may himself be the lender at the
current rate of interest.
(2) If he has been authorized to lend money at
interest, he cannot borrow it without the
consent of the principal.
OBLIGATION TO ACT IN
ACCORDANCE WITH
INSTRUCTIONS
In the execution of the agency:
(1) The agent shall act in accordance with the
instructions of the principal; or
(2) In default thereof, he shall do all that a
good father of a family would do, as
required by the nature of the business [Art.
1887].
OBLIGATION
RECEIVED
Instructions
Sum total of the

powers committed or
permitted to the agent
Private
rule
of
guidance to the agent
Relates
to
the
transaction
or
business with which
the
agent
is
empowered to act
Refers to the manner

or mode of agents
action with respect to
matters within the
permitted scope of
authority
Binds third parties
Does not bind third

parties
FOR
THINGS
Every agent is bound to:

(1) Render an account of his transactions; and
(2) Deliver to the principal whatever he may
have received by virtue of the agency, even
though it may not be owing to the principal.
Note: The limits of the agents authority shall

not be considered exceeded should it have been
performed in a manner more advantageous to
the principal than that specified by him [Art.
1882].
Authority
CIVIL LAW
Every stipulation exempting the agent to render

an account shall be void [Art. 1891].
WHAT TO DELIVER
The agent has to deliver all money and property

which may have come into his hands or in that
of a sub-agent. This includes gifts from third
parties in connection with the agency. It is
immaterial whether such money or property is
the result of the performance or violation of the
agents duty, if it be the fruit of the agency.
If the agent fails to deliver and instead converts
or appropriates for his own use the money or
property belonging to the principal, he is liable
for estafa.
OBLIGATION
TO
PREFER
INTEREST OF PRINCIPAL
WHEN
OBLIGATION
APPLICABLE
General rule: The agent shall be liable for

damages if, there being a conflict between his
interest and those of the principal, he should
prefer his own [Art. 1889].
IS
NOT
(1) If the agent or broker acted only as a

middleman with the task of merely bringing
together the vendor and the vendee
[Domingo v. Domingo (1971)].
(2) If the agent had informed the principal of
the gift or bonus or profit he received from
the purchaser and the principal did not
object thereto;
(3) When a right of lien exists in favor of the
agent.
Exceptions: The agent is not liable for giving

preference to his own when:
(1) The principal waives the benefit of this rule,
with full knowledge of the facts; or
(2) When the interest of the agent is superior.
An example of the latter is where the agent has
security interest in goods of the principal in his
possession, he may protect his interest even if in
doing so, he disobeys the principals orders or
injures his interest [De Leon (2010)].
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CIVIL LAW
created between and among the principal,

agent, and sub-agent. Neither the agent
nor the substitute can be held personally
liable so long as they act within the scope of
their authority [Macias & Co. v. Warner,
Barnes & Co. (1922)].
RESPONSIBILITY FOR ACTS OF

SUBSTITUTE
The agent may appoint a substitute if the

principal has not prohibited him from doing so.
The agent is responsible for the acts of the
substitute:
(1) When he was not given the power to
appoint one;
(2) When he was given such power, but:
(a) Without designating the person; and
(b) The person appointed was notoriously
incompetent or insolvent.
EFFECTS OF SUBSTITUTION
(1) When substitution was prohibited by the

principal, appointment by the agent is an
act in excess of the limits of his authority.
All acts of the substitute are void.
(2) When substitution was authorized, the
agent is only liable when he appointed one
who is notoriously incompetent or insolvent,
unless the person was designated by the
principal.
(3) When substitution was not authorized, but
also not prohibited, the appointment is
valid, but the agent is liable for damage
caused by the substitution to the principal.
(4) When substitution was authorized and the
sub-agent was designated by the principal,
the agent is released from any liability for
the acts of the sub-agent [Art. 1892].
All acts of the substitute appointed against the

prohibition of the principal shall be void [Art.
1892].
The principal may bring an action against the
substitute with respect to the obligations which
the latter contracted under the substitution [Art.
1893].
SUB-AGENCY
A sub-agent or substitute is a person employed

or appointed by an agent as his agent, to assist
him in the performance of an act for the
principal, which the agent has been empowered
to perform. The agent is a principal with respect
to the sub-agent.
RESPONSIBILITY OF TWO OR
MORE AGENTS
General rule: The responsibility of two or more
agents is not solidary, even though they have
been appointed simultaneously. They are liable
jointly.
General rule: The agent may appoint a subagent.
Exception: They are solidarily liable if solidarity

has been expressly stipulated [Art. 1894].
Ratio: The law allows such substitution for

reasons of convenience and practicality.
If solidarity has been thus agreed upon, each of

the agents is responsible for:
(1) The non-fulfillment of agency, even when
the fellow agents acted beyond the scope of
their authority; and
(2) The fault or negligence of his fellow agents,
except when the fellow agents acted
beyond their authority.
Exceptions:
(1) The appointment is prohibited by the
principal [Art. 1892];
(2) The work entrusted to the agent requires
special knowledge, skill, or competence,
unless authorized to do so by the principal
[De Leon (2010)].
RELATIONS AMONG THE PARTIES
OBLIGATION
FOR
SUMS
APPLIED TO HIS OWN USE
(1) When the sub-agent has been employed for

own account of the agent, to assist him, the
sub-agent is a stranger to the principal.
(2) When the appointment was authorized by
the principal a fiduciary relationship is
The agent owes interest:

(1) On the sums applied to his own use from
the day on which he did so; and
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(2) On the sums which he still owes after the

agency is extinguished [Art. 1896].
PRESENTATION
ATTORNEY
CIVIL LAW
OF
POWER
OF
The liability of the agent for interest for sums

converted to his own use is without prejudice to
a criminal action that may be brought against
him [De Leon (2010)].
A third person, with whom the agent wishes to

contract on behalf of the principal may require
the presentation of:
(1) The power of attorney; or
(2) The instructions as regards the agency.
The sums referred to as still owing to the

principal after extinguishment of the agency are
those which were not misapplied by the agent,
but were found to be owing to the principal after
such extinguishment.
Private or secret orders and instructions of the

principal do not prejudice third persons who
have relied upon the power of attorney or
instructions shown them [Art. 1902].
OBLIGATIONS TO THIRD
PERSONS
Art. 1900. So far as third persons are concerned,

an act is deemed to have been performed within
the scope of the agents authority, if such act is
within the terms of the power of attorney, as
written, even if the agent has in fact exceeded
the limits of his authority according to an
understanding between the principal and the
agent.
LIABILITY OF AGENT FOR

OBLIGATIONS CONTRACTED
General rule: The agent who acts as such is not

personally liable to the party with whom he
contracts. The principal is responsible for such
acts done within the scope of the authority
granted to the agent, and should bear any
damage caused to third persons [Art. 1910].
RATIFICATION OF ACTS OF AGENT
A third person, who contracts with the agent

(thereby recognizing the authority of the agent),
cannot later disaffirm his contract based on the
fact that the agent has exceeded his powers, if
the principal has:
(1) Ratified the acts of the agent; or
(2) Signified his willingness to ratify said acts
[Art. 1901].
Exceptions: He is personally liable when:

(1) He acts in his own name [Art. 1883];
(2) He expressly binds himself; or
(3) He exceeds the limits of his authority
without giving such party sufficient notice of
his powers [Art. 1897].
The ratification has retroactive effect, relating

back to the time of the act or contract ratified
and is equivalent to original authority [Board of
Liquidators v. Kalaw (1967)].
VOID CONTRACTS
The contract entered into by an agent on behalf

of the principal shall be void when:
(1) The agent contracts in the name of the
principal;
(2) He exceeded the scope of his authority;
(3) The principal does not ratify the contract;
and
(4) The party with whom the agent contracted
is aware of the limits of the powers granted
by the principal.
A principal may not accept the benefits of a

transaction and repudiate its burdens. Thus, a
principal who seeks to enforce a sale made by
the agent cannot ordinarily allege that the
agent exceeded his authority.
Before ratification, however, the third person
may repudiate the contract.
IGNORANCE OF AGENT
The agent, however, is liable if he undertook to

secure the principals ratification.
If a duly authorized agent acts in accordance

with the orders of the principal, the principal
cannot set up the ignorance of the agent as to
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circumstances whereof he himself was, or ought

to have been, aware [Art. 1899].
damage and deterioration suffered by the

same [Art. 1903].
(2) The commission agent who handles goods
of the same kind and mark, which belong to
different owners, shall:
(a) Distinguish them by countermarks; and
(b) Designate the merchandise respectively
belonging to each principal [Art. 1904].
Ratio: If the principal appoints an agent who is

ignorant, the fault is his alone. He is bound by
the acts of the agent. The agent is not liable to
third persons in this case.
OBLIGATIONS OF A
COMMISSION AGENT
SALE OF GOODS ON
WITHOUT AUTHORITY
A factor or commission agent is one whose

business is to receive and sell goods for a
commission (also called factorage) and who is
entrusted by the principal with the possession of
goods to be sold, and usually selling in his own
name. He may act in his own name or in that of
the principal.
An ordinary agent need not have possession of
the goods of the principal, while the commission
agent must be in possession [De Leon (2010)].
Commission agent
Acts for and in behalf

of the principal
Acts in his own name

or that of his principal
Need
not
have
possession of the
goods
Must have possession

of the goods
Broker
Commission agent
Has no custody of the

thing to be disposed
of, only acts as
intermediary between
seller and buyer
Has
custody
possession of
things to be sold
Maintains no relations
with things to be
sold/bought
Maintains
relations
with the thing, the
buyer and the seller
CREDIT
General rule: The commission agent cannot sell

on credit. Should he do so, the principal may:
(1) Demand from him payment in cash, in
which case the commission agent shall be
entitled to any interest or benefit, which
may result from such sale [Art. 1905]; or
(2) Ratify the sale on credit, in which case the
principal will have all the risks and
advantages to him [De Leon (2010)].
FACTOR OR COMMISSION AGENT
Ordinary agent
CIVIL LAW
Exception: The commission agent can sell on

credit with the express or implied consent of the
principal.
SALE OF GOODS ON CREDIT WITH

AUTHORITY
If the commission agent was authorized to sell

on credit and should he so sell on credit, he
shall inform the principal of such sale, with a
statement of the names of the buyers. Should
he fail to inform the principal, the sale is
deemed to have been made for cash as far as
the principal is concerned [Art. 1906].
or
the
The commission agent is obliged to collect the

credits of his principal when they become due
and demandable [Art. 1908].
General rule: Failing to so collect, the agent
shall be liable for damages.
GOODS
Exception: He is not liable if he proves that he

exercised due diligence for that purpose.
(1) The commission agent shall be responsible

for goods received by him in the terms and
conditions and as described in the
consignment, unless upon receiving them
he should make a written statement of the
Should the commission agent receive a

guarantee
commission
(del
credere
commission) on a sale, in addition to the
ordinary commission, he shall:
(1) Bear the risk of collection; and
RESPONSIBILITY
RECEIVED
FOR
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(2) Pay the principal the proceeds of the sale on

the terms agreed upon with the purchaser
[Art. 1907].
CIVIL LAW
entered into between the principal and the third

person [Sy-Juco and Viardo v. Sy-Juco (1920)].
RATIFICATION
RESPONSIBILITY FOR FRAUD

AND NEGLIGENCE
Ratification is the adoption or affirmance by a

person of a prior act which did not bind him, but
which was done or professed to be done on his
account, thus giving effect to the acts as if
originally authorized.
In the fulfillment of his obligation, the agent is

responsible for:
(1) Fraud; and
(2) Negligence.
The circumstance that the agency is or is not
gratuitous will be considered by the courts in
fixing the liability for negligence only [Art. 1909].
The liability may be to the principal or to third
persons.
Obligations of the
Principal
IN GENERAL
In addition to his duties specified under the
contract itself, the principal is under obligation
to deal fairly and in good faith with his agent,
who owes the same to his principal.
OBLIGATION TO COMPLY WITH

CONTRACTS
General rule: The principal must comply with all
the obligations which the agent may have
contracted within the scope of his authority [Art.
1910, par. 1]. As for any obligation where in the
agent has exceeded his power, the principal is
not bound.
Aside from the intent to ratify, the following

conditions must be fulfilled for ratification to be
effective:
(1) The principal must have the capacity and
power to ratify;
(2) He must have had knowledge or had reason
to know of material or essential facts about
the transaction;
(3) He must ratify the acts entirely;
(4) The act must be capable of ratification; and
(5) The act must be done in behalf of the
principal [De Leon (2010)].
Ratification has the following effects:
(1) With respect to the agent, it relieves him of
liability. He may thus recover compensation
from the principal.
(2) With respect to the principal, he assumes
responsibility for the unauthorized act as
fully as if the agent had acted under an
original authority. But he is not liable for
acts outside the authority affirmed by his
ratification.
(3) With respect to third persons, they are
bound by the ratification and cannot set up
the fact that the agent has exceeded his
powers [Art. 1901].
Exceptions: The principal is:

(1) Bound by the obligation entered into by the
agent in excess of his power, when he
ratifies it expressly or tacitly [Art. 1910, par.
2];
(2) Solidarily liable with the agent if the
principal allowed the agent to act as though
he had full powers [Art. 1911].
SEPARATE
CONTRACTS
PRINCIPAL AND AGENT
Note: If the agent acts in his own name, but the

contract involves things belonging to the
principal, the contract must be considered as
The rules on double sales [Art. 1544] provide:

(1) If the same movable property is sold to
different persons, ownership is transferred
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WITH
When (1) two persons contract with regard to

the same thing, one with the agent and the
other with the principal, and (2) the two
contracts are incompatible with each other, that
of prior date shall be preferred, subject to the
rules on double sales [Art. 1916].
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CIVIL LAW
to whoever first took possession in good

faith.
(2) If it be an immovable:
(a) Ownership belongs to the person who
in good faith first recorded it in the
Registry of Property.
(b) If there is no inscription, ownership shall
belong to the person who, in good faith
was first in possession; and in the
absence of such, to the one who
presents the oldest title, provided there
is good faith.
COMPENSATION OF BROKER
The liability for damages suffered by the third

person whose contract must be rejected shall
be borne by:
(1) The principal, if the agent acted in good
faith; or
(2) The agent, if he acted in bad faith [Art. 1918].
Procuring cause refers to a cause originating a

series of events which, without break in their
continuity, result in the accomplishment of the
prime objective of the employment of the broker
producing a purchaser ready, willing and able
to buy on the owners terms.
WHEN PRINCIPAL IS NOT LIABLE, IN

SUMMARY
Since the brokers only job is to bring together

the parties to a transaction, it follows that if the
broker does not succeed in bringing the mind of
the purchaser and the vendor to an agreement
with reference to the terms of a sale, he is not
entitled to a commission [Rocha v. Prats (1922)].
A broker is entitled to the usual commissions

whenever he brings to his principal a party who
is able and willing to take the property and
enter into a valid contract upon the terms
named by the principal. A broker is never
entitled to commission for unsuccessful efforts.
He must prove that he was the procuring cause
of the transaction. Otherwise, he is not entitled
to the stipulated brokers commission [Inland
Realty v. CA (1997)].
(1) Void or inexistent contracts [Art. 1409];

(2) Sale of a piece of land or any interest
therein when the authority of the agent is
not in writing [Art. 1874];
(3) Acts of the substitute appointed against the
prohibition of the principal [Art. 1892];
(4) Acts done in excess of the scope of the
agents authority [Art. 1898 and 1910];
(5) When the agent acts in his own name,
except when the contract involves things
belonging to the principal [Art. 1883];
(6) Unenforceable contracts [Art. 1403].
If the principal breaks off from negotiations with

a buyer brought by the agent in order to
deliberately deal later with the buyer personally,
this is evident bad faith. In such case, justice
demands compensation for the agent [Infante v.
Cunanan (1953)].
LIABILITY FOR EXPENSES AND

DAMAGES
OBLIGATION FOR
COMPENSATION OF AGENT
NECESSARY FUNDS
(1) The principal must advance to the agent,

should the latter so request, the sums
necessary for the execution of the agency.
(2) In case the agent already advanced them,
the principal must reimburse him therefor:
(a) Even if the business or undertaking was
not successful;
(b) Provided that the agent is free from all
fault [Art. 1912].
Art. 1875. Agency is presumed to be for a

compensation, unless there is proof to the
contrary.
AMOUNT
The principal must pay the agent:

(1) The compensation agreed upon; or
(2) The reasonable value of the agent's services
if no compensation was specified.
The reimbursement shall include the interest on

the sums advanced from the day the advances
were made.
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WHEN THE PRINCIPAL

LIABLE FOR EXPENSES
IS
CIVIL LAW
(3) The agent is appointed for a common

transaction or undertaking.
NOT
The principal is not liable for the expenses

incurred by the agent in the following cases:
(1) If the agent acted in contravention of the
principals instructions, unless the latter
should wish to avail himself of the benefits
derived from the contract;
(2) When the expenses were due to the fault of
the agent;
(3) When the agent incurred them with
knowledge that an unfavorable result would
ensue, if the principal was not aware
thereof;
(4) When it was stipulated that:
(a) The expenses would be borne by the
agent; or
(b) That the latter would be allowed only a
certain sum [Art. 1918].
LIABILITY FOR QUASI-DELICT BY AN

AGENT
The principal is solidarily liable to third persons

for torts of an agent committed:
(1) At the principals direction; or
(2) In the course and within the scope of the
agents employment.
Modes of Extinguishment
IN GENERAL
Agency is extinguished:
(1) By its revocation;
(2) By the withdrawal of the agent;
insolvency of the principal or of the agent;
(4) By the dissolution of the firm or corporation
which entrusted or accepted the agency;
(5) By the accomplishment of the object or
purpose of the agency;
(6) By the expiration of the period for which the
agency was constituted [Art. 1919].
DAMAGES
Art. 1913. The principal must also indemnify the
agent for all the damages which the execution
of the agency may have caused the latter,
without fault or negligence or his part.
RIGHT OF RETENTION BY AN AGENT
The provision enumerates only those which are

peculiar to agency and is, therefore, not
exclusive. Agency may also be extinguished by
the modes of extinguishment of obligations in
general [De Leon (2010)].
The agent may retain in pledge the things which

are the object of the agency until the principal
effects:
(1) Reimbursement of necessary funds
advanced; and
(2) Payment of indemnity for damages [Art.
1914].
The modes of extinguishment may be classified

into three:
(1) By agreement (Nos. 5 and 6);
(2) By subsequent acts of the parties:
(a) By the act of both parties or by mutual
consent; or
(b) By the unilateral act of one of them
(Nos. 1 and 2);
(3) By operation of law (Nos. 3 and 4).
This is a case of legal pledge. However, the

agent is not entitled to the excess in case the
things are sold to satisfy his claims.
MULTIPLE PRINCIPALS
If there are two or more principals who
appointed the agent for a common transaction
or undertaking, they shall be solidarily liable for
all the consequences of the agency [Art. 1915].
REVOCATION BY PRINCIPAL
General rule: The principal may:
(1) Revoke the agency at will; and
(2) Compel the agent to return the document
evidencing the agency.
Requisites:
(1) There are two or more principals;
(2) The principals have all concurred in the
appointment of the same agent; and
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Qualifications: The right of the principal to

terminate the authority of his agent is absolute
and unrestricted, except that he is liable for
damages in case:
(1) He revokes the agency in bad faith [Danon
v. Brimo (1921)]; or
(2) He revokes the agency before the expiration
of the period stipulated in the agency
contract.
CIVIL LAW
There is implied revocation only where the new

appointment is incompatible with the previous
one.
EFFECT
OF
REVOCATION
RELATION TO THIRD PARTIES
IN
Art. 1921. If the agency has been entrusted for

the purpose of contracting with specified
persons, its revocation shall not prejudice the
latter if they were not given notice thereof.
Exception: Agency cannot be revoked if it is

coupled with an interest, such that:
(1) A bilateral contract depends upon it;
(2) It is the means of fulfilling an obligation
already contracted; or
(3) A partner is appointed manager of a
partnership in the contract of partnership
and his removal from the management is
unjustifiable.
If the agent had general powers, revocation of

the agency does not prejudice third persons who
acted:
(1) In good faith; and
(2) Without knowledge of the revocation.
Notice of the revocation in a newspaper of
general circulation is a sufficient warning to
third persons [Art. 1922].
Art. 1925. When two or more principals have

granted a power of attorney for a common
transaction, any one of them may revoke the
same without the consent of the others.
WITHDRAWAL BY AGENT
The agent may withdraw from the agency by
giving due notice to the principal.
MANNER
Revocation may be express or implied.
General rule: If the principal should suffer any

damage by reason of the withdrawal, the agent
must indemnify him therefor.
There is express revocation when the principal

clearly and directly makes a cancellation of the
authority of the agent orally or in writing.
Exception: The agent is not liable for damages if

he should base his withdrawal upon the
impossibility of continuing the performance of
the agency without grave detriment to himself
[Art. 1928].
There is implied revocation in the following

cases:
(1) The appointment of a new agent for the
same business or transaction revokes the
previous agency from the day on which
notice thereof was given to the former
agent, without prejudice to the requirement
of notice to third persons [Art. 1923].
(2) The agency is revoked if the principal
directly manages the business entrusted to
the agent, dealing directly with third
persons [Art. 1924].
(3) A general power of attorney is revoked by a
special one granted to another agent, as
regards the special matter involved in the
latter [Art. 1926].
Art. 1929. The agent, even if he should withdraw

from the agency for a valid reason, must
continue to act until the principal has had
reasonable opportunity to take the necessary
steps to meet the situation.
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DEATH, CIVIL INTERDICTION,

INSANITY OR INSOLVENCY
EXPIRATION OF TERM
(1) If created for fixed period, expiration of the
period extinguishes agency even if the
purpose was not accomplished.
(2) If no time is specified, the courts may fix the
period as under the circumstances have
been probably contemplated by the parties
[Art. 1197]. Otherwise, the agency terminates
at the end of a reasonable period of time.
Either party can terminate the relationship
at will by giving notice to the other [De Leon
(2010)].
DEATH OF PRINCIPAL
General rule: Death extinguishes agency.

Exceptions:
(1) The agency remains in full force and effect
even after the death of the principal, if it has
been constituted:
(a) In the common interest of the principal
and agent; or
(b) In the interest of a third person who has
accepted the stipulation in his favor
[Art. 1930].
(2) Anything done by the agent, without
knowledge of the death of the principal or of
any other cause which extinguishes the
agency, is valid and shall be fully effective
with respect to third persons who may have
contracted with him in good faith [Art. 1931].
(3) The agent must finish business already
begun on the death of the principal, should
delay entail any danger [Art. 1884].
The period contemplated may be implied from

terms of agreement, purpose of agency, and the
circumstances of the parties.
DEATH OF AGENT
If the agent dies, his heirs must:

(1) Notify the principal thereof; and
(2) In the meantime adopt such measures as
the circumstances may demand in the
interest of the latter [Art. 1932].
ACCOMPLISHMENT OF OBJECT
OR PURPOSE
The fulfillment of the purpose for which agency

was created ipso facto terminates agency even
though it was expressly made irrevocable. If the
purpose has not been accomplished, the agency
continues indefinitely for as long as the intent to
continue is manifested through words or actions
of the parties.
DISSOLUTION OF
CORPORATION
FIRM
CIVIL LAW
OR
The dissolution of a partnership or corporation

which entrusted (principal) or accepted (agent)
the agency extinguishes its juridical existence,
except for the purpose of winding up its affairs.
It is equivalent to death.
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CREDIT TRANSACTIONS
Credit Transactions
In a contract of loan, the cause is, as to the

borrower, the acquisition of the thing, and as to
the lender, the right to demand its return or its
equivalent. [Monte de Piedad v. Javier, 36 O.G.
2176]
Refers to all transactions involving the purchase

or loan of goods, services or money in the
present with a promise to pay or deliver in the
future (contract of security)
Upon delivery of the object of the contract of

loan (in this case the money received by the
debtor when the checks were encashed) the
debtor acquires ownership of such money or
loan proceeds and is bound to pay the creditor
an equal amount. [Garcia v. Thio, G.R. No.
154878, March 16, 2007]
SECURITY
A transaction by which a creditor mitigates the
risk of non-payment of debt by equating a sum
of money owed with property or another
persons undertaking to pay [Somera, Notes and
Cases in Credit Transactions]
TYPES OF
SECURITY
CONTRACTS
CIVIL LAW
CONTRACT OF LOAN VS. CONTRACT

TO LOAN
OF
Contract of Loan
(1) Secured transactions those supported by a

collateral or an encumbrance of property
(2) Unsecured transactions those supported
only by a promise to pay or the personal
commitment of another such as a guarantor
or surety
Contract to Loan
Real Contract:
Consensual Contract:
perfected, not by mere perfected by mere
consent,
but
the consent
delivery of the contract
SIMPLE LOAN VS. BARTER
Loan
In simple loan, the primary purpose of the

contract is the permissive use of the money or
consumable
property.
Ownership
is
transferred as a necessary consequence of the
permissive use of the property loan
In barter, the primary purpose of the contract
is the transfer of ownership of a non-fungible
property, and payment is made by giving
some thing of the same kind, quantity and
quality
CONTRACTS OF LOAN
(1) Commodatum - A contract where one party
delivers to another something not consumable
so that the latter may use the same for a certain
sum and return it [Art. 1933]
(2) Mutuum (Simple Loan)- A contract where
one party delivers to another money or other
consumable thing, upon the condition that the
same amount of the same kind and quality shall
be paid [Art. 1933]
COMMODATUM VS. MUTUUM

Commodatum
CHARACTERISTICS OF A LOAN
Mutuum
Ordinarily
involves Involves
something
not other
consumable* [Art.1936] thing
(1) Real contract

(a) Delivery is essential for perfection of the
contract of loan.
(b) An accepted promise to loan, is
nevertheless binding on the parties, it
being a consensual contract.
Ownership of the thing Ownership

loaned is retained by transferred
lender [Art.1933]
borrower
Essentially
[Art.1933]
(2) Unilateral contract

(a) creates obligations on only one party, i.e.,
the borrower
PAGE 346
money or
consumable
to
is
the
gratuitous May be gratuitous or

onerous,
i.e.
with
stipulated interest
UP LAW BOC
Commodatum
CREDIT TRANSACTIONS
But the bailee himself may not lend nor lease

the thing loaned to him to a third person [Art
1939(2)]
Mutuum
Borrower must return Borrower need only pay

the same thing loaned an equal amount of the
[Art.1933]
same kind and quality
[Art. 1953]
KINDS OF COMMODATUM
(1) Ordinary commodatum the use of the thing

by the bailee is for a certain period of time
[Art. 1933]
(2) Precarium one where the bailor may
demand the thing loaned at will; if any one of
the following is present
(a) The duration and purpose of the contract
is not stipulated
(b) The use of the thing is merely tolerated by
the owner [Art. 1947]
May involve real or Refers only to personal

personal
property property
[Art.1937]
Loan for use or Loan for consumption
temporary possession
[Art.1935]
Bailor may demand the
return of the thing
loaned before the
expiration of the term
in case of urgent need
[Art.1946]
Lender
may
not
demand its return
before the lapse of the
term agreed upon
Bailor suffers the loss

of the subject matter
since he is the owner
[Art.1942; Art.1174]
Borrower suffers the

loss even if caused
exclusively
by
a
fortuitous event and he
is
not,
therefore,
discharged from his
duty to pay
CIVIL LAW
OBLIGATIONS OF
COMMODATUM
BAILOR
IN
(1) To allow the bailee the use of the thing

loaned for the duration of period stipulated
or until the accomplishment of the purpose
for which commodatum was constituted.
Exceptions:
(a) Urgent need of the thing, during which
time he may demand its return or
temporary use [Art.1946]
(b) Precarium [Art.1947]
If duration of the contract has not been
stipulated
If use or purpose of the thing has not
been stipulated
If use of thing is merely tolerated by the
bailor
(c) Bailee commits an act of ingratitude
specified in Art. 765 [Art.1948]:
Commission of offenses against the
person, the honor, or the property of the
bailor, or of his wife or children under
his parental authority
Imputing to the bailor any criminal
offense, or any act involving moral
turpitude, even though he should prove
it, unless the crime or the act has been
committed against the bailee himself,
his wife, or children under his authority
Undue refusal to give the bailor support
when the bailee is legally or morally
bound to do so
Purely personal in Not purely personal in

character [Art. 1939]
character
CONSUMABLES
ARE
ONLY
FOR
EXHIBITION, OR TO BE RETURNED AT THE
END OF PERIOD
If the consumable goods are loaned only for
purposes of exhibition, or when the intention of
the parties is to lend consumable goods and to
have the very same goods returned at the end of
the period agreed upon, the loan is a
commodatum and not a mutuum. [Producers
Bank v. CA (2003)]
COMMODATUM [NCC 1935-1952]

PARTIES TO THE COMMODATUM
The Civil code refers to the parties in a

commodatum as the bailor (or creditor) or
bailee (or debtor)
WHO MAY BE A BAILOR IN COMMODATUM?
Anyone. The bailor in commodatum need not
be the owner of the thing loaned. [Art.1938]
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UP LAW BOC
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Note: Article 765 is applicable, because like

donation, commodatum is essentially
gratuitous. [Art.1933, par.2]
LIABILITY FOR LOSS

General Rule: Bailee is not liable for loss or
damage due to a fortuitous event [Art.1174],
since the bailor retains ownership of the thing
(2) To refund extraordinary expenses for the

preservation of the thing loaned provided
bailor is notified before the expenses were
incurred. [Art.1949]
Exceptions: Bailee is liable for loss even if due to

a fortuitous event when [Art 1942]
(1) He devotes the thing to any purpose different
from that for which it was loaned
(2) He keeps it longer than the period
stipulated, or after the accomplishment of
the use for which the commodatum has been
constituted
(3) The thing loaned has been delivered with
appraisal of its value, unless there is
stipulation exempting the bailee from
responsibility in case of a fortuitous event
(4) He lends or leases the thing to a third person
who is a not a member of his household
(5) Being able to save either the thing borrowed
or his own thing, he chose to save the latter.
Exception: Urgent need such that reply to

the notification cannot be awaited without
danger, hence no notice is necessary.
(3) To bear 50% of the extraordinary expenses
arising from actual use of bailee of the thing
loaned [Art.1949]
Exception: Contrary stipulation
(4) To pay damages to bailee for known hidden
flaws in the thing loaned [Art. 1951]
Note: Bailor has no right of abandonment; he
cannot exempt himself from payment of
expenses or damages to the bailee by
abandoning the thing to the latter. [Art.
1952]
OBLIGATIONS OF
COMMODATUM
BAILEE
CIVIL LAW
LIABILITY FOR DETERIORATION
General Rule: Bailee is liable for deterioration of

thing loaned.
Exception: The deterioration of the thing is due
only to the use thereof and without his fault
[Art.1943]
IN
(1) Obligation to pay for the ordinary expenses

for the use and preservation of the thing
loaned [Art.1941]
(2) Obligation to take good care of the thing
with the diligence of a good father of a family
[Art.1163]
(3) Liability for loss, even if loss through
fortuitous event, under certain circumstances
[Art.1942]
(4) Liability for deterioration of thing loaned,
except
under
certain
circumstances
[Art.1943]
(5) Obligation to return the thing upon
expiration of term or upon demand in case of
urgent need [Art. 1946]
(6) Solidary obligation where there are 2 or
more bailees to whom a thing was loaned in
the same contract [Art.1945]
PAGE 348
RIGHT OF RETENTION
General Rule: Bailee has no right of retention of

the thing loaned, on the ground that the bailor
owes him something. [Art. 1944]
Exception: Bailee has a right of retention for
damages for known hidden flaws mentioned in
Art 1951. [Art.1944]
INTEREST AND SUSPENSION

OF USURY LAW
Interest is the compensation allowed by law or

fixed by the parties for the loan or forbearance
of money, goods or credits
KINDS OF INTEREST
(1) Simple interest Paid for the principal at a

certain rate fixed or stipulated by the parties.
(2) Compound Interest that which is imposed
upon interest due and unpaid.
UP LAW BOC
CREDIT TRANSACTIONS
(3) Legal Interest that which the law directs to

be charged in the absence of any agreement
as to the rate between the parties.
(4) Lawful Interest that which the laws allow
or do not prohibit.
(5) Unlawful or Usurious Interest paid or
stipulated to be paid beyond the maximum
fixed by law. However, by virtue of CB
Circular 905, usury has become legally
inexistent.
CIVIL LAW
demand under and subject to the provisions

of Article 1169 of the Civil Code.
(2) When an obligation, not constituting a loan
or forbearance of money, is breached, an
interest on the amount of damages awarded
may be imposed at the discretion of the court
at the rate of 6% per annum. No interest,
however, shall be adjudged on unliquidated
claims or damages, except when or until the
demand can be established with reasonable
certainty. Accordingly, where the demand is
established with reasonable certainty, the
interest shall begin to run from the time the
claim is made judicially or extrajudicially [Art.
1169, Civil Code], but when such certainty
cannot be so reasonably established at the
time the demand is made, the interest shall
begin to run only from the date the judgment
of the court is made (at which time the
quantification of damages may be deemed
to have been reasonably ascertained). The
actual base for the computation of legal
interest shall, in any case, be on the amount
finally adjudged.
(3) When the judgment of the court awarding a
sum of money becomes final and executory,
the rate of legal interest, whether the case
falls under paragraph 1 or paragraph 2,
above, shall be 6% per annum from such
finality until its satisfaction, this interim
period being deemed to be by then an
equivalent to a forbearance of credit.
WHEN IS COMPOUND INTEREST

ALLOWED?
(1) When there is an express written stipulation

to that effect [Art.1956]
(2) Upon judicial demand. HOWEVER, debtor is
not liable to pay compound interest even
after judicial demand when there is no
stipulation for payment of interest. [Art.2212]
REQUISITES FOR INTEREST TO BE

CHARGEABLE
(1) Must be expressly stipulated [Art. 1956]

Exceptions:
(a) The debtor in delay is liable to pay legal
interest (6% or 12% per annum) as
indemnity for damages [Art.2209]
(b) Interest accruing from unpaid interest
Interest demanded shall earn interest
from the time it is judicially demanded
[Art.2212] or where there is an express
stipulation [Art.1959]
(2) Agreement must be in writing [Art.1956]
(3) Must be lawful
Forbearance is defined, within the context of

usury law, as a contractual obligation of lender
or creditor to refrain, during given period of
time, from requiring borrower or debtor to repay
loan or debt then due and payable [Bataan
Seedling v. Republic, 383 SCRA 590]
RULES FOR AWARD OF INTEREST IN

THE CONCEPT OF ACTUAL AND
COMPENSATORY DAMAGES [Nacar v.
Gallery Frames, G.R. No. 189871 (2013) modifying

Eastern Shipping Lines vs. CA, (1994) in light of
BSP-MB Circular No. 799]
(1) When the obligation is breached, and it
consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the
interest due should be that which may have
been stipulated in writing. Furthermore, the
interest due shall itself earn legal interest
from the time it is judicially demanded. In the
absence of stipulation, the rate of interest
shall be 6% per annum to be computed from
default, i.e., from judicial or extrajudicial
THE USURY LAW [Act No.2566] is an act fixing

rates of interests upon loans and declaring the
effect of receiving or taking usurious rates and
for other purposes. [Arevalo v. Dimayuga, 1927]
CB Circular No. 905 abolished interest rate
ceilings. With the promulgation of such circular,
usury has become legally inexistent as the
parties can now legally agree on any interest
that may be charged on the loan.
PAGE 349
UP LAW BOC
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CIVIL LAW
(A) VOLUNTARY DEPOSIT
ELEMENTS OF USURY
(1) A loan or forbearance of money
(2) An understanding between parties that the
loan shall and may be returned
(3) An unlawful intent to take more than the
legal rate for the use of money or its
equivalent
(4) The taking or agreeing to take for the use of
the loan of something in excess of what is
allowed by law.
GENERAL CONCEPTS
An agreement to constitute a deposit is binding,

but the deposit itself is a real contract, as it is
not perfected until the delivery of the thing. [Art.
1963]
HOW ENTERED INTO: Orally or in writing [Art.
1969]
HOW PERFECTED: The deposit is perfected
upon delivery, which is made by the will of the
depositor. [Arts. 1963, 1968]
A usurious loan transaction is not a complete

nullity but defective only with respect to the
agreed interest. [Carpo v. Chua, G.R. Nos.
150773 and 153599, September 30, 2005]
Deposit
A deposit is constituted from the moment a

person receives a thing belonging to another,
with the obligation of safely keeping it and of
returning the same. [Art. 1962]
OBJECT OF DEPOSIT
Art. 1966 provides that only movable things may

be the object of a deposit. However, Art. 2006
provides that movable as well as immovable
property may be the object of sequestration or
judicial deposit.
A deposit may be made by two or more persons

(who believe that they are entitled to the thing
deposited with a third person). Said person is to
deliver the thing to the one to whom it belongs.
[NCC 1968]
EXTINGUISHMENT
(1) Loss or destruction of thing deposited, or

(2) In case of a gratuitous deposit, upon the
death of either the depositor or depositary
[Art. 1995]. The depositary is not obliged to
continue with the contract of deposit
(3) By other modes provided in the Civil Code,
e.g. novation, merger, etc. [See Art.1231]
OBLIGATIONS OF DEPOSITOR
(1) Depositor is obliged to reimburse the

depositary for expenses incurred for
preservation if deposit is gratuitous.
[Art.1992]
(2) Depositor is obliged to pay losses incurred
due to character of thing deposited. [Art.
1993]
PRINCIPAL PURPOSE
Safekeeping of the thing; if NOT, there is NO

DEPOSIT but some other contract. [Art. 1962]
CONSIDERATION
A deposit is generally GRATUITOUS, except:

(a) If there is an agreement to the contrary
(b) Unless the depositary is engaged in the
business of storing goods [Art. 1965]
General Rule: The depositor shall reimburse the

depositary for any loss arising from the
character of the thing deposited [Art. 1993]
KINDS OF DEPOSIT
(1) Extrajudicial
(a) Voluntary Obligation arises as a
consequence of contract
(b) Necessary Obligation arises as a
consequence of law or quasi-contract
(2) Judicial Obligation arises as a
consequence of a law allowing the issuance
of a judicial order constituting a deposit
Exceptions
1. Depositor was not aware of the danger;
2. Depositor was not expected to know the
dangerous character of the thing;
3. Depositor notified the depositary of
such dangerous character;
4. Depositary was aware of the danger
without advice from the depositor.
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UP LAW BOC
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(2) The loss is caused by the act of a thief or

robber done without the use of arms and
irresistible force. [Art. 2001]
(B) NECESSARY DEPOSIT

Made in compliance with a legal obligation, or
on the occasion of any calamity, or by travelers
in hotels and inns [Arts.1996-2004] or by
travelers with common carriers [Arts.1734-1735]
WHEN HOTEL-KEEPER NOT LIABLE
(1) The loss or injury is caused by force majeure,

like flood, fire, [Art.2000] theft or robbery by
a strangernot the hotel-keepers servant or
employeewith the use of firearms or
irresistible force [Art.2001]
Exception: Hotel-keeper is guilty of fault or
negligence in failing to provide against the
loss or injury from his cause. [Arts.1170 and
1174]
(2) The loss is due to the acts of the guests, his
family, servants, visitors [Art.2002]
(3) The loss arises from the character of the
things brought into the hotel [Ibid.]
KINDS OF NECESSARY DEPOSIT
(1) It is made in compliance with a legal

obligation, in which case it is governed by the
law establishing it, and in case of deficiency,
the rules on voluntary deposit e.g. Arts. 538,
586 and 2104
(2) It takes place on the occasion of any
calamity, such as fire, storm, flood, pillage,
shipwreck, or other similar events. There
must be a causal relation between the
calamity and the constitution of the deposit.
In this case the deposit is governed by the
rules on voluntary deposit and Art. 2168
(3) Made by passengers with common carriers.
[Art.1754]
($) Made by travelers in hotels or inns. [Art.
1998]
The hotel-keeper cannot free himself from

responsibility by posting notices to the effect
that he is not liable for the articles brought by
the guest. Such kind of stipulation shall be
VOID. [Art. 2003]
DEPOSIT BY TRAVELERS IN HOTELS

AND INNS
Regarding the legal deposit of a vehicle that

was stolen while parked with Saisaki restaurant,
the depositary may not exempt itself from
responsibility for loss or damage of the thing
deposited with it, by exclusionary stipulation.
Such stipulations are void for being contrary to
law. [Triple-V Food Services v. Filipino
Merchants Insurance Company, February 21,
2005]
Before keepers of hotels or inns may be held

responsible as depositaries with regard to the
effects of their guests, the following must
concur:
(1) They have been previously informed about
the effects brought by the guests; and
(2) The latter have taken the precautions
prescribed regarding their safekeeping.
EXTENT
ART.1998
OF
LIABILITY
CIVIL LAW
HOTEL-KEEPERS RIGHT TO
RETENTION
UNDER
The hotel-keeper has a right to retain the things

brought into the hotel by the guest, as a security
for credits on account of
(a) lodging, and
(b) supplies usually furnished to hotel guests
[Art. 2004]
(1) Those in hotel rooms which come under the

term baggage or articles such as clothing
as are ordinarily used by travelers
(2) Include those lost or damaged in hotel
annexes such as vehicles in the hotels
garage.
The right of retention recognized in this article is

in the nature of a pledge created by operation of
law.
WHEN HOTEL-KEEPER LIABLE
Regardless of the amount of care exercised the

hotel-keeper is liable when
(1) The loss or injury to personal property is
caused by his servants or employees as well
as by strangers [Art. 2000].
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bound, the one rather than the other should

perform.
If a person binds himself solidarily with the
principal debtor, the contract is called
suretyship and the guarantor is called a
surety.
(C) JUDICIAL DEPOSIT

Takes place when an attachment or seizure of
property in litigation is ordered [Arts. 20052009]
NATURE AND PURPOSE
It is auxiliary to a case pending in court. The

purpose is to maintain the status quo during
pendency of the litigation or to insure the right of
the parties to the property in case of a favorable
judgment.
DEPOSITARY
PROPERTY
OF
CIVIL LAW
GUARANTY
DISTINGUISHED
FROM SURETYSHIP [ZOBEL,
INC. VS. CA, 1998]
SEQUESTERED
A person is appointed by the court [Art. 2007]

with the obligations
(1) To take care of the property with the
diligence of a good father of the family. [Art.
2008]
(2) To continue in his responsibility until the
controversy which give rise thereto is ended
unless the court so orders. [Art. 2007]
APPLICABLE LAW
The law on judicial deposit is remedial or

procedural in nature.
Rules of Court shall govern matters not
provided for in the Civil Code. [Art. 2009]
Guaranty and Suretyship

GUARANTY
A contract whereby a person, called the

guarantor, binds himself to the creditor to
fulfill the obligation of the principal debtor in
case the latter should fail to do so. [Art. 2047]
While a surety undertakes to pay if the
principal does not pay, the guarantor only
binds himself to pay if the principal cannot
pay (See benefit of excussion, Art. 2058).
SURETYSHIP
A relation which exists where one person

(principal) has undertaken an obligation and
another person (surety) is also under a direct
and primary obligation or other duty to a third
person (oblige), who is entitled to but one
performance, and as between the two who are
PAGE 352
Surety
Guaranty
An accessory promise
by which a person
binds
himself
for
another already bound,
and agrees with the
creditor to satisfy the
obligation if the debtor
does not
A
collateral
undertaking to pay the
debt of another in case
the latter does not pay
the debt.
A surety is usually
bound
with
his
principal by the same
instrument, executed
at the same time, and
on
the
same
consideration. He is an
original promissor and
debtor
from
the
beginning, and is held,
ordinarily, to know
every default of his
principal.
The
contract
of
guaranty
is
the
guarantor's
own
separate undertaking,
in which the principal
does not join. It is
usually entered into
before or after that of
the principal, and is
often supported on a
separate consideration
from that supporting
the contract of the
principal. The original
contract of his principal
is not his contract, and
he is not bound to take
notice of its nonperformance
A surety will not be

discharged, either by
the mere indulgence of
the creditor to the
principal, or by want of
notice of the default of
the principal, no matter
how much he may be
injured thereby
A guarantor is often
discharged by the mere
indulgence of the
creditor
to
the
principal, and is usually
not
liable
unless
notified of the default
of the principal
UP LAW BOC
CREDIT TRANSACTIONS
Surety
Guaranty
A surety is the insurer

of the debt, and he
obligates himself to
pay if the principal does
not pay
A guarantor is the
insurer of the solvency
of the debtor and thus
binds himself to pay if
the principal is unable
to pay
NATURE AND
GUARANTY
EXTENT
CIVIL LAW
A GUARANTY NEED NOT BE

UNDERTAKEN
WITH
THE
KNOWLEDGE OF THE DEBTOR [ART.
2050]
Guaranty is unilateral. It exists for the benefit of

the creditor and not for the benefit of the
principal debtor
Creditor has every right to take all possible
measures to secure payment of his credit
guaranty can be constituted even against the
will of the principal debtor
OF
A
GUARANTY
IS
GENERALLY
GRATUITOUS [ART. 2048]
However, as regards payment made by a third

person
(1) If payment is without the knowledge or
against the will of the debtor
(a) Guarantor can recover only insofar as the
payment has been beneficial to the
debtor [Art. 1236]
(b) Guarantor cannot compel the creditor to
subrogate him in his rights [Art. 1237]
(2) If payment is with knowledge or consent of
the debtor: Subrogated to all the rights
which the creditor had against the debtor
General Rule: Guaranty is gratuitous

Exception: When there is a stipulation to the
contrary
ON THE CAUSE OF A GUARANTY

CONTRACT
A guarantor or surety is bound by the same

consideration that makes the contract
effective between the principal parties
thereto. [Severino v. Severino, 1931]
Presence of cause which supports principal
obligation: Cause of the contract is the same
cause which supports the obligation as to the
principal debtor. The consideration which
supports the obligation as to the principal
debtor is a sufficient consideration to support
the obligation of a guarantor or surety.
Absence of direct consideration or benefit to
guarantor: Guaranty or surety agreement is
regarded valid despite the absence of any
direct consideration received by the guarantor
or surety, such consideration need not pass
directly to the guarantor or surety; a
consideration moving to the principal will
suffice.
THE GUARANTY MUST BE FOUNDED

ON A VALID PRINCIPAL OBLIGATION
[ART. 2052(1)]
Guaranty is an accessory contract: It is an

indispensable condition for its existence that
there must be a principal obligation. Hence, if
the principal obligation is void, it is also void.
A GUARANTY MAY SECURE THE

PERFORMANCE OF A VOIDABLE,
UNENFORCEABLE, AND NATURAL
OBLIGATION [ART. 2052(2)]
A guaranty may secure the performance of a:

(a) Voidable contract such contract is binding,
unless it is annulled by a proper court action
(b) Unenforceable contract because such
contract is not void
(c) Natural obligation the creditor may
proceed against the guarantor although he
has no right of action against the principal
debtor for the reason that the latters
obligation is not civilly enforceable. When
the debtor himself offers a guaranty for his
natural obligation, he impliedly recognizes
his liability, thereby transforming the
obligation from a natural into a civil one.
A MARRIED WOMAN WHO IS A

GUARANTOR BINDS ONLY HER
SEPARATE PROPERTY, GENERALLY
[ART. 2049]
Exceptions:
(1) With her husbands consent, bind the
community or conjugal partnership property
(2) Without husbands consent, in cases
provided by law, such as when the guaranty
has redounded to the benefit of the family.
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A GUARANTY MAY SECURE

FUTURE DEBT [ART. 2053]
CIVIL LAW
A GUARANTY MAY SECURE THE

PERFORMANCE OF A CONDITIONAL
OBLIGATION [ART. 2053]
CONTINUING GUARANTY
(1) Not limited to a single transaction but which
contemplates a future course of dealings,
covering a series of transactions generally for
an indefinite time or until revoked.
(2) It is prospective in its operation and is
generally intended to provide security with
respect to future transactions.
(3) Future debts, even if the amount is not yet
known, may be guaranteed but there can be
no claim against the guarantor until the
amount of the debt is ascertained or fixed
and demandable.
(a) Principal obligation subject to a suspensive

condition the guarantor is liable only after
the fulfillment of the condition.
(b) Principal obligation subject to a resolutory
condition the happening of the condition
extinguishes both the principal obligation
and the guaranty
A GUARANTORS LIABILITY CANNOT

EXCEED THE PRINCIPAL
OBLIGATION [ART. 2054]
General Rule: Guaranty is a subsidiary and

accessory contract guarantor cannot bind
himself for more than the principal debtor and
even if he does, his liability shall be reduced to
the limits of that of the debtor. But the
guarantor may bind himself for less than that of
the principal.
RATIONALE: A CONTRACT OF GUARANTY IS

SUBSIDIARY
(a) To secure the payment of a loan at maturity
surety binds himself to guarantee the
punctual payment of a loan at maturity and
all other obligations of indebtedness which
may become due or owing to the principal by
the borrower.
(b) To secure payment of any debt to be
subsequently incurred a guaranty shall be
construed as continuing when by the terms
thereof it is evident that the object is to give a
standing credit to the principal debtor to be
used from time to time either indefinitely or
until a certain period, especially if the right to
recall the guaranty is expressly reserved.
(c) To secure existing unliquidated debts
refers to debts existing at the time of the
constitution of the guaranty but the amount
thereof is unknown and not to debts not yet
incurred and existing at that time.
(d) The surety agreement itself is valid and
binding even before the principal obligation
intended to be secured thereby is born, just
like obligations which are subject to a
condition precedent are valid and binding
before the occurrence of the condition
precedent.
Exceptions
(a) Interest, judicial costs, and attorneys fees as
part of damages may be recovered
creditors suing on a suretyship bond may
recover from the surety as part of their
damages, interest at the legal rate, judicial
costs, and attorneys fees when appropriate,
even without stipulation and even if the
surety would thereby become liable to pay
more than the total amount stipulated in the
bond.
Interest runs from:
Filing of the complaint (upon judicial
demand); or
The time demand was made upon the
surety until the principal obligation is fully
paid (upon extra-judicial demand)
Rationale: Surety is made to pay, not by
reason of the contract, but by reason of his
failure to pay when demanded and for
having compelled the creditor to resort to
the courts to obtain payment.
(b) Penalty may be provided a surety may be
held liable for the penalty provided for in a
bond for violation of the condition therein.
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PRINCIPALS LIABILITY MAY EXCEED

GUARANTORS OBLIGATIONS
The amount specified in a surety bond as the
suretys obligation does not limit the extent of
the damages that may be recovered from the
principal, the latters liability being governed by
the obligations he assumed under his contract
even though he was not a party to the

proceedings;
(b) The creditor may sue, separately or together,
the principal debtor and the surety;
(c) A demand or notice of default is not required
to fix the suretys liability
Exception: Where required by the provisions
of the contract of suretyship
(d) A surety bond is void where there is no
principal debtor because such an
undertaking presupposes that the obligation
is to be enforceable against someone else
besides the surety, and the latter can always
claim that it was never his intention to be the
sole person obligated thereby.
THE EXISTENCE OF A GUARANTY IS

NOT PRESUMED [Art. 2055]
Guaranty requires the expression of consent on

the part of the guarantor to be bound. It cannot
be presumed because of the existence of a
contract or principal obligation.
Rationale:
(a) There be assurance that the guarantor had
the true intention to bind himself;
(b) To make certain that on making it, the
guarantor proceeded with consciousness of
what he was doing.
Note: Surety is not entitled to exhaustion
THE UNDERTAKING IS TO
CREDITOR, NOT THE DEBTOR
Guaranty must not only be expressed but must

so be reduced into writing. Hence, it shall be
unenforceable by action, unless the same or
some note or memorandum thereof be in
writing, and subscribed by the party charged, or
by his agent; evidence, therefore, of the
agreement cannot be received without the
writing, or a secondary evidence of its contents.
However, it need not appear in a public
document
EXTENT
THE
The surety makes no covenant or agreement

with the principal that it will fulfill the
obligation guaranteed for the benefit of the
principal. The suretys undertaking is that the
principal shall fulfill his obligation and that
the surety shall be relieved of liability when
the obligation secured is performed.
UNLESS otherwise expressly provided.
CONTRACT OF GUARANTY IS
COVERED BY THE STATUTE OF
FRAUDS [SEE ART. 1403(2(B))]
NATURE AND
SURETYSHIP
CIVIL LAW
PRIOR DEMAND BY THE CREDITOR

UPON PRINCIPAL NOT REQUIRED.
SURETY IS NOT EXONERATED BY
NEGLECT OF CREDITOR TO SUE
PRINCIPAL.
Strictissimi juris rule is applicable only to

accommodation surety.
OF
Reason: An accommodation surety acts without

motive of pecuniary gain and hence, should be
protected
against
unjust
pecuniary
impoverishment by imposing on the principal,
duties akin to those of a fiduciary. This rule will
apply only after it has been definitely
ascertained that the contract is one of
suretyship or guaranty.
LIABILITY IS CONTRACTUAL AND

ACCESSORY BUT DIRECT
LIABILITY IS LIMITED BY THE TERMS
OF THE CONTRACT
Strictissimi juris rule is NOT applicable to

compensated sureties
LIABILITY
ARISES
ONLY
IF
PRINCIPAL DEBTOR IS HELD LIABLE
(a) In the absence of collusion, the surety is

bound by a judgment against the principal
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Reasons:
(1) Compensated corporate sureties are
business associations organized for the
purpose of assuming classified risks in large
numbers, for profit and on an impersonal
basis.
(2) They are secured from all possible loss by
adequate counter-bonds or indemnity
agreements.
CIVIL LAW
debtor cannot fulfill his obligation

(iv) When the debtor has absconded, or
cannot be sued within the Philippines
the creditor is not required to go after a
debtor who is hiding or cannot be sued in
our courts, and to incur the delays and
expenses incident thereto.
Exception: When the debtor has left a
manager or representative
(v) If it may be presumed that an execution
on the property of the principal debtor
would not result in the satisfaction of the
obligation If such judicial action
including execution would not satisfy the
obligation, the guarantor can no longer
require the creditor to resort to all such
remedies against the debtor as the same
would be but a useless formality. It is not
necessary that the debtor be judicially
declared insolvent.
Such corporations are in fact insurers and in

determining their rights and liabilities, the rules
peculiar to suretyship do not apply.
The stipulation in the indemnity agreement
allowing the surety to recover even before it
paid the creditor is enforceable. In accordance
therewith, the surety may demand from the
indemnitors even before paying the creditors.
[Mercantile Insurance Company v. Ysmael, 169
SCRA 66, 1989]
The right of guarantorsto demand exhaustion

of the property of the principal debtor, exists
only when a pledge or a mortgage has not been
given as special security for the payment of the
principal obligation. [Southern Motors, Inc. v.
Barbosa, 1956]
EFFECT OF GUARANTY
EFFECTS OF GUARANTY BETWEEN
THE
GUARANTOR
AND
THE
CREDITOR
(1) THE GUARANTOR HAS THE RIGHT TO

BENEFIT FROM EXCUSSION/ EXHAUSTION
The surety in the present case bound itself

"jointly and severally" (in solidum) with the
defendant; and excussion (previous exhaustion
of the property of the debtor) shall not take
place "if he (the guarantor) has bound himself
solidarily with the debtor." [Luzon Steel Corp. v.
Sia, 1969]
[2058]
The guarantor cannot be compelled to pay the

creditor unless the latter has:
(a) Exhausted all of the property of the debtor;
and
(b) Resorted to all the legal remedies against
the debtor.
(b) If he does not comply with Article 2060

In order that the guarantor may make use of
the benefit of excussion, he must:
(i) Set it up against the creditor upon the
latters demand for payment from him;
(ii) Point out to the creditor:
(a) Available property of the debtor the
guarantor should facilitate the
realization of the excussion since he is
the most interested in its benefit.
(b) Within the Philippine territory
excussion of property located abroad
would be a lengthy and extremely
difficult proceeding and would not
conform with the purpose of the
guaranty to provide the creditor with
Exceptions to the benefit of excussion [Art. 2059]

(a) As provided in Art. 2059:
(i) If the guarantor has expressly renounced
it.
(ii) If he has bound himself solidarily with the
debtor. Here, the liability assumed is that
of a surety. The guarantor becomes
primarily liable as a solidary co- debtor. In
effect, he renounces in the contract itself
the benefit of exhaustion.
(iii) In case of insolvency of the debtor
guarantor guarantees the solvency of the
debtor. If the debtor becomes insolvent,
the liability of the guarantor arises as the
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UP LAW BOC
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the means of obtaining the fulfillment

of the obligation.
(c) Sufficient to cover the amount of the
debt
(c) If he is a judicial bondsman and sub- surety
[Art. 2084]
(d) Where a pledge or mortgage has been given
by him as a special security
(e) If he fails to interpose it as a defense before
judgment is rendered against him.
CIVIL LAW
(b) If he fails to do so, he shall suffer the loss for

the insolvency of the debtor, but only to the
extent of the value of the said property
(6) THE CREDITOR HAS THE DUTY TO
NOTIFY THE GUARANTOR IN THE ACTION
AGAINST THE DEBTOR [ART. 2062]
Notice to the guarantor is mandatory in the
action against the principal debtor. The
guarantor, however, is not duty bound to appear
in the case, and his non- appearance shall not
constitute default, w/ its consequential effects.
(2) THE CREDITOR HAS THE RIGHT TO

SECURE A JUDGMENT AGAINST THE
GUARANTOR PRIOR TO THE EXCUSSION
General Rule: An ordinary personal guarantor
(NOT a pledgor or mortgagor), may demand
exhaustion of all the property of the debtor
before he can be compelled to pay.
Exception: The creditor may, prior thereto,
secure a judgment against the guarantor, who
shall be entitled, however, to a deferment of
the execution of said judgment against him,
until after the properties of the principal
debtor shall have been exhausted, to satisfy
the latters obligation.
Rationale: To give the guarantor the opportunity

to allege and substantiate whatever defenses
he may have against the principal obligation,
and chances to set up such defenses as are
afforded him by law
(7) A COMPROMISE SHALL NOT PREJUDICE
THE PERSON NOT PARTY TO IT [ART. 2063]
A compromise between creditor and principal
debtor benefits the guarantor but does not
prejudice him.
A compromise between guarantor and the
creditor benefits but does not prejudice the
principal debtor.
(3) THE CREDITOR HAS THE DUTY TO MAKE

PRIOR DEMAND FOR PAYMENT FROM THE
GUARANTOR [ART. 2060]
The demand is to be made only after
judgment on the debt
Joining the guarantor in the suit against the
principal debtor is not the demand intended
by law. Actual demand has to be made.
(8) CO-GUARANTORS ARE ENTITLED TO

THE BENEFIT OF DIVISION [ART. 2065]
The benefit of division applies only when there
are several guarantors and one debtor for a
single debt. Except when solidarity has been
stipulated, a co-guarantor is liable only to the
extent of his share in the obligation as divided
among all the co-guarantors.
(4) THE GUARANTOR HAS THE DUTY TO

SET UP THE BENEFIT OF EXCUSSION [ART.
EFFECTS OF GUARANTY BETWEEN

THE DEBTOR AND THE GUARANTOR
2060]
As soon as he is required to pay, guarantor must

also point out to the creditor available property
(not in litigation or encumbered) of the debtor
within the Philippines.
(1) THE GUARANTOR WHO PAYS HAS THE

RIGHT TO BE SUBROGATED TO THE RIGHTS
OF THE CREDITOR [ART. 2067]
A guarantor who pays the debt is entitled to
every remedy which the creditor has against
the principal debtor, to enforce every security
and all means of payments; to stand in the
place of the creditor not only through the
medium of the contract, but even by means of
the securities entered into w/out the
knowledge of the surety; having the right to
have those securities transferred to him
though there was no stipulation for it, and to
(5) THE CREDITOR HAS THE DUTY TO

RESORT TO ALL LEGAL REMEDIES [ARTS.
2058, 2061]
After the guarantor has fulfilled the conditions

required for making use of the benefit of
excussion, it becomes the duty of the creditor to:
(a) Exhaust all the property of the debtor
pointed out by the guarantor;
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CIVIL LAW
avail himself of all securities against the

debtor
The need to enforce the provisions on
indemnity in Article 2066 forms the basis for
the subrogation clause of Article 2067. The
assumption, however, is that the guarantor
who is subrogated to the rights of the creditor,
has the right to be reimbursed for his
answering for the obligation of the debtor.
Absent this right of reimbursement,
subrogation will not be proper.
reason of the expiration of the period for

payment;
(e) After the lapse of 10 years, when the
principal obligation has no fixed period for its
maturity, unless it be of such nature that it
cannot be extinguished except within a
period longer than 10 years;
(f) If there are reasonable grounds to fear that
the principal debtor intends to abscond;
(g) If the principal debtor is in imminent danger
of becoming insolvent.
(2) THE GUARANTOR HAS THE DUTY TO

NOTIFY THE DEBTOR BEFORE PAYING THE
CREDITOR [ART. 2068]
Should payment be made without notification,
and supposing the debtor has already made a
prior payment, the debtor would be justified in
setting up the defense that the obligation has
already been extinguished by the time the
guarantor made the payment. The guarantor
will then lose the right of reimbursement and
consequently the right of subrogation.
Rationale: To enable the guarantor to take

measures for the protection of his interest in
view of the probability that he would be called
upon to pay the debt. As such, he may, in the
alternative, obtain release from the guaranty; or
demand security that shall protect him from any
proceeding by the creditor, and against the
insolvency of the debtor.
Art. 2066
Art. 2071
(3) THE GUARANTOR CANNOT DEMAND

REIMBURSEMENT FOR PAYMENT MADE BY
HIM BEFORE THE OBLIGATION HAS
BECOME DUE [ART. 2069]
General Rule: Since a contract of guaranty is
only subsidiary, the guarantor cannot be
liable for the obligation before the period on
which the debtors liability will accrue. Any
payment made by the guarantor before the
obligation is due cannot be indemnified by the
debtor.
Exception: Prior consent or subsequent
ratification by the debtor
Provides
for
the
enforcement of the
guaranty/surety
against the debtor
after he has paid the
debt
Provides
for
the
protection before he
has paid but after he
has become liable
ART. 2066 AND 2071 DISTINGUISHED
Gives a right of action Protective

remedy
after payment
before payment
Substantive Right
Preliminary remedy
EFFECTS
OF
GUARANTY
BETWEEN CO-GUARANTORS
AS
When there are two or more guarantors, one

debtor and one debt:
(a) The one who pays may demand from each of
the others the share proportionally owing to
him
(b) If any of the guarantors is insolvent, his share
shall be borne by the others, including the
payer, in the same proportion [Art. 2073]
For purposes of proportionate reimbursement,
the other guarantors may interpose such
defenses against the paying guarantor as are
available to the debtor against the creditor,
except those that are personal to the debtor
[Art. 2074]
(4) THE GUARANTOR MAY PROCEED

AGAINST THE DEBTOR EVEN BEFORE
PAYMENT HAS BEEN MADE [ART. 2071]
General Rule: Guarantor has no cause of action
against the debtor until after the former has
paid the obligation.
Exceptions [Art. 2071]
(a) When he is sued for the payment;
(b) In case of insolvency of the principal debtor;
(c) When the debtor has bound himself to
relieve him from the guaranty within a
specified period, and this period has expired;
(d) When the debt has become demandable, by
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REQUISITES FOR THE APPLICABILITY OF
CIVIL LAW
LEGAL AND JUDICIAL BONDS
ART. 2073
Bond an undertaking that is sufficiently

secured, and not cash or currency.
(1) Payment has been made by one guarantor;

(2) The payment was made because
(a) Of the insolvency of the debtor, or
(b) By judicial demand
(3) The paying guarantor seeks to be
indemnified only to the extent of his
proportionate share in the total obligation.
Bondsman a surety offered in virtue of a

provision of law or a judicial order.
QUALIFICATIONS
OF
PERSONAL
BONDSMAN [2082 IN RELATION TO ART.
2056]
EXTINGUISHMENT OF
GUARANTY
(1) He possesses integrity;

(2) He has capacity to bind himself;
(3) He has sufficient property to answer for the
obligation which he guarantees.
Once the obligation of the debtor is

extinguished in any manner provided in the
Civil Code, the obligation of the guarantor is
also extinguished [Art. 2076]. However, there
may be instances when, after the
extinguishment of the guarantors obligation
(as in the case of a release from the guaranty),
the obligation of the debtor still subsists.
Although the guarantor generally has to
make payment in money, any other thing of
value, if accepted by the creditor, is valid
payment and therefore releases the guarantor
[dacion en pago] [Art. 2077].
If one guarantor is released without the
consent of the others, the release would
benefit the co-guarantors to the extent of the
proportionate share of the guarantor released
[Art. 2078].
A guarantor is released if the creditor, without
the guarantors consent, extends the time
within which the debtor may perform his
obligation [Art. 2079]. This is to protect the
interest of the guarantor should the debtor be
insolvent during the period of extension and
deprive the guarantor of his right to
reimbursement.
The guarantors are released if by some act of
the creditor they cannot be subrogated to the
rights, mortgages and preferences of the
latter. [Art. 2080]
In order to constitute an extension
discharging the surety, it should appear that
the extension was for (1) a definite period, (2)
pursuant to an enforceable agreement
between the principal and the creditor, and (3)
that it was made without the consent of the
surety or with a reservation of rights with
respect to him. [Filipinas Textile Mills v. CA,
November 12, 2003]
PLEDGE OR MORTGAGE IN LIEU OF BOND
[ART. 2083]
Guaranty or suretyship is a personal security.

Pledge or mortgage is a property or real
security. If the person required to give a legal
or judicial bond should not be able to do so, a
pledge or mortgage sufficient to cover the
obligation shall be admitted in lieu thereof.
BONDSMAN NOT ENTITLED TO EXCUSSION
[ART. 2084]
A judicial bondsman and the sub-surety are not

entitled to the benefit of excussion.
Reason: They are not mere guarantors, but
sureties whose liability is primary and solidary.
EFFECT OF NEGLIGENCE OF CREDITOR
Mere negligence on the part of the creditor in
collecting from the debtor will not relieve the
surety from liability.
Pledge
A contract by virtue of which the debtor

delivers to the creditor or to a third person a
movable or document evidencing incorporeal
rights for the purpose of securing the
fulfillment of a principal obligation with the
understanding that when the obligation is
fulfilled, the thing delivered shall be returned
with all its fruits and accessions. [Art.2085 in
relation to 2093]
The pledgor must be the absolute owner of
the collateral, and he must have either free
PAGE 359
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disposal of the property or he must be legally

authorized to constitute the pledge;
otherwise, the pledge is void [Gomez-Somera].
The pledger remains to be the owner of the
collateral. Although the pledge is regarded as
a lien, it passes no title to the creditor. The
delivery of the collateral is only to secure the
fulfillment of the principal obligation, and it
does not give the creditor the right to convey
said collateral in favor of a third person
[Gomez-Somera].
CHARACTERISTICS
(1) Real perfected upon delivery of thing
pledged
(2) Accessory cannot exist independently
(3) Unilateral obligation on the part of the
creditor to return the thing pledged upon the
fulfillment of the principal obligation
(4) Subsidiary obligation incurred does not
arise until the fulfillment of the secured
principal obligation
KINDS
(1) Voluntary or conventional Created by
agreement of parties
(2) Legal Created by operation of law
Common to pledge and mortgage [Art. 2085]
(1) Constituted to secure the fulfillment of a
principal obligation.
(2) Pledgor or mortgagor must be the absolute
owner of the thing pledged or mortgaged.
(3) The persons constituting the pledge or
mortgage have the free disposal of their
property, and in the absence thereof, that
they be legally authorized for the purpose.
(4) Cannot exist without a valid obligation.
(5) Debtor retains the ownership of the thing
given as a security.
(6) When the principal obligation becomes due,
the thing pledged or mortgaged may be
alienated for the payment to the creditor.
[Art. 2087]
PROVISIONS APPLICABLE ONLY

TO PLEDGE
(1) Transfer of possession to the creditor or to

third person by common agreement is
PAGE 360
CIVIL LAW
essential [Art. 2093].

(a) Actual delivery is important.
(b) Constructive or symbolic delivery of the key
to the warehouse is sufficient to show that
the depositary appointed by common
consent of the parties was legally placed
in possession.
(2) All movables within the commerce of man
may be pledged as long as they are
susceptible of possession [Art. 2094].
(3) Incorporeal rights may be pledged. The
instruments representing the pledged rights
shall be delivered to the creditor; if
negotiable, they must be indorsed [Art.
2095].
(4) Pledge shall take effect against 3rd persons
only if the following appear in a public
instrument:
(a) Description of the thing pledged.
(b) Date of the pledge [Art. 2096].
(5) The thing pledged may be alienated by the
pledgor or owner only with the consent of the
pledgee. Ownership of the thing pledged is
transmitted to the vendee or transferee as
soon as the pledgee consents to the
alienation, but the latter shall continue to
have possession [Art. 2097].
(6) Creditor has the right to retain the thing in
his possession or in that of a third person to
whom it has been delivered, until the debt is
paid [Art. 2098].
(7) Special Laws apply to pawnshops and
establishments engaged in making loans
secured by pledges. Provisions of the Civil
Code shall apply subsidiarily to them.
In case of doubt as to whether a transaction is a
pledge or a dation in payment, the presumption
is in favor of pledge, the latter being the lesser
transmission of rights and interests. [Manila
Banking Corp. v. Teodoro, 1989]
OBLIGATIONS OF PLEDGEE
(1) The pledgee cannot deposit the thing
pledged with a 3rd person, unless there is a
contrary stipulation [Art. 2100].
(2) Is responsible for the acts of his agents or
employees with respect to the thing pledged
[Art. 2100].
(3) Has no right to use the thing or to
appropriate its fruits without authority from
the owner [Art. 2104]
UP LAW BOC
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CIVIL LAW
FORECLOSURE [NCC 2112, 2115]
(4) May cause the public sale of the thing

pledged if, without fault on his part, there is
danger of destruction, impairment or
diminution in value of the thing. The
proceeds of the auction shall be a security for
the principal obligation [Art. 2108].
Requirements in sale of the thing pledged by a

creditor, if credit is not paid on time [NCC 2112]
(1) Debt is due and unpaid.
(2) Sale must be at a public auction.
(3) Notice to the pledgor and owner, stating the
amount due.
(4) Sale must be made with the intervention of a
notary public.
(5) If at the first auction the thing is not sold, a
second one with the same formalities shall
be held.
(6) If at the second auction, there is no sale
either, the creditor may appropriate the thing
pledged but he shall give an acquittance
(release) for his entire claim.
RIGHTS OF PLEDGOR
(1) Takes responsibility for the flaws of the thing
pledged [Art. 2101 in relation to Art. 1951.
(2) Cannot ask for the return of the thing
against the will of the creditor, unless and
until he has paid the debt and its interest,
with expenses in a proper case [Art. 2105].
(3) Subject to the right of the pledgee under
article 2108, pledgor is allowed to substitute
the thing which is in danger of destruction or
impairment without any fault on the part of
the pledgee with another thing of the same
kind and quality [Art. 2107].
(4) May require that the thing be deposited with
a 3rd person, if through the negligence or
willful act of the pledgee the thing is in
danger of being lost or impaired [Art. 2106].
EFFECT OF THE SALE OF THE

THING PLEDGED [ART. 2115]
(1)
Extinguishes the principal obligation,

whether the proceeds of the sale is more or
less than the amount due.
(2) If the price of sale is more than amount due,
the debtor is not entitled to the excess unless
the contrary is provided.
(3) If the price of sale is less, the creditor is not
entitled to recover the deficiency. A contrary
stipulation is void.
The pledgee can temporarily entrust the

physical possession of the chattels pledged to
the pledgor without invalidating the pledge. The
pledgor is regarded as holding the pledged
property merely as trustee for the pledgee. The
type of delivery will depend upon the nature and
the peculiar circumstances of each case.
[Yuliongsiu v. PNB (1968)]
LEGAL PLEDGE / PLEDGE BY

OPERATION OF LAW (ARTS.
2121-2122)
(1) Necessary expenses shall be refunded to

every possessor, but only a possessor in good
faith may retain the thing until he has been
reimbursed.
Useful expenses shall be refunded only to
the possessor in good faith with the same
right of retention, the person who has
defeated him in the possession having the
option of refunding the amount of the
expenses or of paying the increase in value
which the thing may have acquired and by
reason thereof [Art. 546]
(2) He who has executed work upon a movable
has a right to retain it by way of pledge until
he is paid. This is called the mechanics lien.
[Art. 1731]
(3) The agent may retain the things which are
the objects of agency until the principal
A pledgee cannot become the owner of, nor

appropriate to himself, the thing given in
pledge. If by the contract of pledge the pledgor
continues to be the owner of the thing pledged
during the pendency of the obligation, it stands
to reason that in case of loss of the property, the
loss should be borne by the pledgor. [PNB v.
Atendido (1954)]
REQUISITES FOR PERFECTION
[ARTS. 2093, 2096]
(1) The thing pledged is placed in the possession

of the creditor or a third person [Art. 2093]
(2) For the pledge to take effect as against third
persons, a description of the thing pledged
and the date of the pledge should appear in
a public instrument [Art. 2096]
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UP LAW BOC
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effects the reimbursement and pays the

indemnity. This is called the agents lien. [Art.
1914]
(4) The laborers wages shall be a lien on the
goods manufactured or the work done. [Art.
1707]
Note:
(1) In legal pledges, the remainder of the price of
the sale shall be delivered to the obligor.
(2) Public auction of legal pledges may only be
executed after demand of the amount for
which the thing is retained. It shall take place
within one month after the demand,
otherwise the pledgor may demand the
return of the thing pledged, provided s/he is
able to show that the creditor did not cause
the public sale without justifiable grounds.
[Article 2122]
The provisions of the Civil Code on pledge,

insofar as they are not in conflict with the
Chattel Mortgage Law shall be applicable to
chattel mortgages [Art. 2141]
PACTUM COMMISSORIUM
It is a stipulation that allows the creditor to

appropriate the collateral, or dispose of it, in
contravention of the provisions on foreclosure,
and as such, is considered null and void
[Gomez-Somera].
ELEMENTS
(1) There is property pledged (collateral) by way

of security for the payment of the principal
obligation
(2) There is a stipulation for automatic
appropriation by the creditor in case of nonpayment of the principal obligation within
the stipulated period
PLEDGE AS DISTINGUISHED
FROM CHATTEL MORTGAGE
EFFECT ON PLEDGE
[ARTS. 2140, 1484]

Chattel
Mortgage
Delivery
is
required for the
validity of the
pledge
Necessary
for
validity of the
CM against third
persons
Not necessary;
Public document
is enough to bind
third persons
The excess goes

Right to
to the debtor/
Excess of
mortgagor
Proceeds of
Sale
The excess goes

to
the
pledgee/creditor,
unless otherwise
stipulated
Creditor/
mortgagee can
recover from the
debtor/
Right to
mortgagor,
Recover
except if covered
Deficiency
by Recto Law
Creditor/
mortgagee is not
entitled
to
recover
any
deficiency after
the property is
sold,
notwithstanding
contrary
stipulation
Registratio
n in the
Chattel
Mortgage
Register
The nullity of the pactum commissorium does

not affect the validity of the contract of pledge.
The creditor may recover the credit from the
proceeds of a foreclosure sale effected in
accordance with law [Gomez-Somera].
Pledge
Not required
Delivery of
Personal
Property
CIVIL LAW
EQUITABLE MORTGAGE
It is a contract that reveals the intention of the

parties to charge property as security for a debt,
but contains nothing impossible or contrary to
law [Gomez-Somera].
(1) Parties entered into a contract denominated

as a contract of sale
(2) The true intention is to secure an existing
debt by way of mortgage
PAGE 362
UP LAW BOC
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Real Mortgage
CIVIL LAW
(b) To exclude them, there must be an

express stipulation, or the fruits must be
collected before the obligation becomes
due.
(c)Third
persons
who
introduce
improvements upon the mortgaged
property may remove them at any time
MORTGAGE
A contract whereby the debtor secures to the

creditor the fulfillment of a principal obligation,
immediately making immovable property or real
rights answerable to the principal obligation in
case it is not complied with at the time
stipulated.
KINDS
(1) Voluntary constituted by the will of the

owner of the property on which it is created
(2) Legal required by law to be executed in
favor of certain persons:
(a) Persons in whose favor the law
establishes a mortgage have no other
right than to demand the execution and
recording of the document in which the
mortgage is formalized [Article 2125]
(b) The bondsman who is to be offered in
virtue of a provision of law or of a judicial
order shall have the qualifications
prescribed in Art 2056 (integrity, capacity
to bind himself, and sufficient property to
answer for the obligation), and in other
laws [Article 2082]
(c) If the person bound to give a bond should
not be able to do so, a pledge or
mortgage considered sufficient to recover
his obligation shall be admitted in lieu
thereof [Article 2083]
(3) Equitable One which, although lacking the
proper formalities of a mortgage, shows the
intention of the parties to make the property
a security for the debt.
(a) lien created through equitable mortgage
ought not to be defeated by requiring
compliance with formalities necessary to
the validity of a voluntary real estate
mortgage. Ex.: Pacto de retro
(b) provisions governing equitable mortgage:
Arts. 1365, 1450, 1454, 1602, 1603, 1604
and 1607.
OBJECTS OF REAL MORTGAGE [ART.
2124]
(1) Immovables
(2) Alienable real rights over immovables.
Future property cannot be an object of
mortgage; however, a stipulation subjecting to
the mortgage improvements which the
mortgagor may subsequently acquire, install or
use in connection with real property already
mortgaged belonging to the mortgagor is valid.
CHARACTERISTICS
(1) As a general rule, the mortgagor retains

possession of the property. He may deliver
said property to the mortgagee without
altering the nature of the contract of
mortgage.
(2) It is not an essential requisite that the
principal of the credit bears interest, or that
the interest as compensation for the use of
the principal and the enjoyment of its fruits
be in the form of a certain percentage
thereof.
(3) Mortgage creates an encumbrance over the
property, but ownership of the property is not
parted with. It merely restricts the
mortgagors jus disponendi over the property.
The mortgagor may still sell the property,
and any stipulation to the contrary is void
[Art. 2130]
(4) Mortgage extends to the natural accessions,
to the improvements of growing fruits and
the rents or income NOT YET RECEIVED
when the obligation becomes DUE, including
indemnity from insurance, and/or amount
received from expropriation for public use
[Art. 2127]
(a) Applies only when the accessions and
accessories subsequently introduced
belongs to the mortgagor.
PRINCIPLE OF INDIVISIBILITY OF
PLEDGE/MORTGAGE [ARTS. 2089
TO 2090]
A mortgage directly and immediately subjects

the property upon which it is imposed. It is
indivisible even though the debt may be
divided, and such indivisibility is likewise
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UP LAW BOC
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unaffected by the fact that the debtors are not

solidarity liable. [Dayrit v. CA]
Where only a portion of the loan is released,
the mortgage becomes enforceable only as to
the proportionate value of the loan [Central
Bank v. CA]
Indivisibility
applies
only
as
to
pledgors/mortgagors who are themselves
debtors in the principal obligation, and not to
accommodation pledgors/ mortgagors
"When several things are pledged or
mortgaged, each thing for a determinate
portion of the debt, the pledges or mortgage,
are considered separate from each other. But
when the several things are given to secure
the same debt in its entirety, all of them are
liable for the debt, and the creditor does not
have to divide his action by distributing the
debt among the various things pledged or
mortgaged. Even when only a part of the debt
remains unpaid, all the things are still liable
for such balance." [Tolentino]
The question is whether or not the written
instrument in controversy was a mortgage OR
a conditional sale. The correct test, where it
can be applied, is the continued existence of a
debt or liability between the parties. If such
exists, the conveyance may be held to be
merely a security for the debt or an indemnity
against the liability. [Reyes v. Sierra, 93 SCRA
473]
CIVIL LAW
alienated for the payment to the creditor.

[Art. 2087]
(7) Must be recorded in the Registry of Property
in order to be validly constituted.
Note: The mortgage would still be binding
between the parties even if the instrument is not
recorded.
FORECLOSURE OF MORTGAGE
It is the remedy available to the mortgagee by

which he subjects the mortgaged property to
the satisfaction of the obligation secured by
the mortgage.
In general, an action for foreclosure of a
mortgage is limited to the amount mentioned
in the mortgage, EXCEPT when the mortgage
contract intends to secure future loans or
advancements
Blanket Mortgage/Dragnet mortgage that
subsumes all debts of past or future origin
Mortgage may be used as a continuing
security which secures future advancements
and is not discharged by the repayment of the
amount in the mortgage
Alienation or assignment of mortgage credit is
valid even if it is not registered
ACCELERATION CLAUSE ALLOWED
Acceleration clause, or the stipulation stating

that on the occasion of the mortgagors default,
the whole sum remaining unpaid automatically
becomes due and demandable, is ALLOWED
ESSENTIAL REQUISITES COMMON

TO PLEDGE AND MORTGAGE
(1) Constituted to secure the fulfillment of a

principal obligation.
(2) Pledgor or mortgagor must be the absolute
owner of the thing pledged or mortgaged.
(3) The persons constituting the pledge or
mortgage have the free disposal of their
property, and in the absence thereof, that
they be legally authorized for the purpose.
Note: Third persons who are not parties to
the principal obligation may secure the
latter by pledging or mortgaging their own
property. [Art. 2085]
(4) Cannot exist without a valid obligation.
(5) Debtor retains the ownership of the thing
given as a security.
(6) When the principal obligation becomes due,
the thing pledged or mortgaged may be
KINDS OF FORECLOSURE
1. Judicial Foreclosure
2. Extrajudicial Foreclosure
JUDICIAL
FORECLOSURE
EXTRAJUDICIAL FORECLOSURE
Judicial
PAGE 364
VS.
Extrajudicial
Court intervenes
No court intervention
There is equity of
redemption period
starts from the finality
of the judgment until
order of confirmation
There is right of
redemption period
start from date of
registration
of
certificate of sale
UP LAW BOC
CREDIT TRANSACTIONS
Judicial
Decisions
appealable
NATURE
OF
JUDICIAL
FORECLOSURE PROCEEDINGS
Extrajudicial
are Not appealable
No need for a special

power of attorney in
the
contract
of
mortgage
CIVIL LAW
(1) Quasi in rem action. Hence, jurisdiction may

be acquired through publication.
(2) Foreclosure is only the result or incident of
the failure to pay debt.
(3) Survives death of mortgagor.
Special
power
of
attorney in favor of the
mortgage is required in
the contract
EXTRAJUDICIAL FORECLOSURE
JUDICIAL FORECLOSURE
[ACT NO. 3135]
Rule 68, ROC:

(a) May be availed of by bringing an action in
the proper court which has jurisdiction over
the area wherein the real property involved
or a portion thereof is situated
(b) If the court finds the complaint to be wellfounded, it shall order the mortgagor to pay
the amount due with interest and other
charges within a period of not less than 90
days nor more than 120 days from the entry
of judgment
(c) If the mortgagor fails to pay at time directed,
the court, upon motion, shall order the
property to be sold to the highest bidder at a
public auction.
(d) Upon confirmation of the sale by the court,
also upon motion, it shall operate to divest
the rights of all parties to the action and to
vest their rights to the purchaser subject to
such rights of redemption as may be allowed
by law
(e) Before the confirmation, the court retains
control of the proceedings; execution on
judgment
(f) The proceeds of the sale shall be applied to
the payment of the:
(i) costs of the sale;
(ii) amount due the mortgagee;
(iii) claims of junior encumbrancers or
persons holding subsequent mortgages in
the order of their priority; and
(iv) the balance, if any shall be paid to the
mortgagor
(g)Sheriffs
certificate
is
executed,
acknowledged and recorded to complete the
foreclosure
(1) Applies to mortgages where the authority to

foreclose is granted to the mortgagee.
(2) Authority is not extinguished by death of
mortgagor or mortgagee. This is an agency
coupled with interest.
(3) Public sale should be made after proper
notice to the public, otherwise it is a
jurisdictional defect which could render the
sale voidable.
(4) There is no need to notify the mortgagor,
where there is no contractual stipulation
therefor.
Proper notice consists of:
(a) posting notice in three public places
and/or
(b) publication in newspaper of general
circulation
Purpose of notice is to obtain the best bid
for the foreclosed property
(5) Surplus proceeds of foreclosure sale belong
to the mortgagor.
(6) Debtor (who must be a NATURAL PERSON)
has the right to redeem the property sold
within 1 year from and after the date of sale.
(a)If the mortgagee is a bank and the debtor
is a juridical person, then there is no right
of redemption. However, it may redeem
the property BEFORE the registration of
the TCT to the buyer, which is similar to
the equity of redemption. The TCT must
be registered within THREE MONTHS
after the foreclosure.
(b) The mortgagor can only legally transfer
the right to redeem and the use of the
property during the period of redemption.
(7) Remedy of party aggrieved by foreclosure is
a petition to set aside sale and the
cancellation of writ of possession. However,
if the mortgagee is a bank, the mortgagor is
required to post a bond equal to the value of
the mortgagees claim.
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UP LAW BOC
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(8) Republication of the notice of sale is

necessary for the validity of the postponed
extrajudicial sale
(9) In foreclosure of real estate mortgage under
Act 3135, the buyer at auction may petition
the land registration court for a writ of
possession pending the one-year period of
redemption of the foreclosed property.
CIVIL LAW
bearing on the bid price at the public

auction, provided that the public auction was
regularly and honestly conducted.
A suit for the recovery of the deficiency after the
foreclosure of a mortgage is in the nature of a
mortgage action because its purpose is
precisely to enforce the mortgage contract.
[Caltex v. IAC, 176 SCRA 741]
NATURE OF POWER OF
FORECLOSURE BY EXTRAJUDICIAL
SALE
WAIVER OF SECURITY BY CREDITOR
(1) Mortgagee may waive the right to foreclose

his mortgage and maintain a personal action
for recovery of the indebtedness.
(2) Mortgagee cannot have both remedies. This
is because he only has one cause of action,
the non-payment of the mortgage debt.
(1) Conferred for mortgagees protection.

(2) An ancillary stipulation.
(3) A prerogative of the mortgagee.
Note:
(a) Both should be distinguished from execution
sale governed by Rule 39, ROC.
(b) Foreclosure retroacts to the date of
registration of mortgage.
(c) A stipulation of upset price, or the minimum
price at which the property shall be sold to
become operative in the event of a
foreclosure sale at public auction, is null and
void.
REDEMPTION
(1) It is a transaction by which the mortgagor
reacquires the property which may have
passed under the mortgage or divests the
property of the lien which the mortgage may
have created
(2) Kinds:
(a) Equity of redemption: in judicial
foreclosure of real estate mortgage under
the ROC, it is the right of the mortgagor
to redeem the mortgaged property by
paying the secured debt within the 120
day period from entry of judgment or after
the foreclosure sale, but before the sale of
the mortgaged property or confirmation
of sale
formal offer to redeem preserves the
right of redemption, e.g., by filing an
action to enforce the right to redeem
(b) Right of redemption: in extrajudicial
foreclosure of real estate mortgage, the
right of the mortgagor to redeem the
property within a certain period after it was
sold for the satisfaction of the debt. [if the
mortgagee is a bank, the redemption
period expires after registration of the
sale.]
(i) For natural persons one year from the
registration of the TCT
(ii) For juridical persons three months
from the foreclosure
(iii) Formal offer to redeem must be with
tender of redemption price to preserve
right of redemption
RIGHT OF MORTGAGEE TO RECOVER

DEFICIENCY
(1) Mortgagee is entitled to recover deficiency.

(2) If the deficiency is embodied in a judgment,
it is referred to as deficiency judgment.
(3) Action for recovery of deficiency may be filed
even during redemption period.
(4) Action to recover prescribes after 10 years
from the time the right of action accrues.
EFFECT OF INADEQUACY OF PRICE

IN FORECLOSURE SALE
(1) Where there is right to redeem, inadequacy of

price is immaterial because the judgment
debtor may redeem the property.
Exception: Where the price is so inadequate
as to shock the conscience of the court,
taking into consideration the peculiar
circumstances.
(2) Property may be sold for less than its fair
market value, upon the theory that the lesser
the price the easier it is for the owner to
redeem.
(3) The value of the mortgaged property has no
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Note: There is no right of redemption in pledge

and chattel mortgage.
CIVIL LAW
AS
DISTINGUISHED
OTHER CONTRACTS
Antichresis
The rule up to now is that the right of a

purchaser at a foreclosure sale is merely
inchoate until after the period of redemption
has expired without the right being exercised.
The title to land sold under mortgage
foreclosure remains, in the mortgagor or his
grantee until the expiration of the redemption
period and conveyance by the master's deed
[Medida v. CA]
Pledge
Kind
of Real property
property
Personal property
Perfection Mere consent
Delivery of thing
pledged
Antichresis
Possession
Antichresis
Delivered
creditor
Real mortgage
to Retained
debtor
Creditor
acquires
only
Right
to the right to
the fruits receive fruits
A real security transaction that arises by

contract, with the antichretic creditor acquiring
the right to receive the fruits of an immovable of
the antichretic debtor, and the obligation to
apply them to the payment of the interest, if
owing, and thereafter to the principal. [Art. 2132]
FROM
by
Creditor does not

have the right to
receive fruits, but
a real right over
the property is
created
CHARACTERISTICS
Payment of Creditor
is Creditor has no
taxes and generally
obligation to pay
charges
obliged to pay
(1) Accessory contract it secures the

performance of a principal obligation
(2) Formal contract it must be in a specified
form to be valid [Art. 2134]
First applied to Mortgagee has

Application the payment of no
such
of fruits
interest,
and obligation
then to principal
SPECIAL REQUISITES
OBLIGATIONS OF ANTICHRETIC
CREDITOR
(1) It can cover only the fruits of an immovable

property
(2) Delivery of the immovable is necessary for
the creditor to receive the fruits, not to make
the contract binding
(3) Amount of principal and interest must be
specified in writing; otherwise, the contract of
antichresis shall be void [NCC 2134]
(4) Express agreement that debtor will give
possession of the property to creditor and
that the latter will apply the fruits to the
interest, if any, then to the principal of his
credit
(1) To pay taxes and charges on the estate,

including necessary expenses (NCC 2135)
The creditor may avoid said obligation by:
(a) Compelling the debtor to reacquire
enjoyment of the property
(b) By stipulation to the contrary
(2) To apply all the fruits, after receiving them,
to the payment of interest, if owing, and
thereafter to the principal
(3) To render an account of the fruits to the
debtor
(4) To bear the expenses necessary for its
preservation and repair
Note: The obligation to pay interest is not the

essence of the contract of antichresis; there
being nothing in the Code to show that
antichresis is only applicable to securing the
payment of interest-bearing loans. On the
contrary, antichresis is susceptible of
guaranteeing all kinds of obligations, pure or
conditional.
PAGE 367
UP LAW BOC
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CIVIL LAW
for its validity (but only as against third

persons)
(3) It is a unilateral contract because it produces
only obligations on the part of the creditor to
free the thing from the encumbrance on
fulfillment of the obligation.
(4) The excess of the proceeds of the sale goes
to the debtor or mortgagor
(5) Creditor or mortgagee can recover deficiency
from the debtor or mortgagor, except if
covered by the Recto Law
REMEDIES OF CREDITOR IN
CASE OF NON-PAYMENT OF
DEBT
(1) Action for specific performance
(2) Petition for the sale of the real property as in
a foreclosure of mortgage under Rule 68 of
the Rules of Court [NCC 2137]
(a) The parties, however, may agree on an
extrajudicial foreclosure in the same
manner as they are allowed in contracts
of mortgage and pledge Tavera v. El
Hogar Filipino, Inc. [1939]
(b) A stipulation authorizing the antichretic
creditor to appropriate the property upon
the non-payment of the debt within the
agreed period is void [NCC 2088]
OBLIGATIONS SECURED
A chattel mortgage can only cover obligations

existing at the time the mortgage is
constituted. It cannot secure after-incurred
obligations even if these future debts are
accurately described.
An increase or extension of the chattel
mortgage obligation becomes a new chattel
mortgage in itself. Although a contract TO
mortgage that includes future debts is a
binding commitment, the contract OF chattel
mortgage itself is not perfected until after an
agreement covering the newly contracted
debt is executed. [Gomez-Somera]
Because of the right of the creditor to judicially

foreclose, antichresis is generally viewed as a
species of real estate mortgage, in which the
mortgagee retains possession of the collateral
and takes the fruits of the property in lieu of
interest on the debt. [Gomez-Somera]
Chattel Mortgage
PROPERTY COVERED
CHATTEL MORTGAGE
Generally, only personal or movable property

can be covered by a chattel mortgage. However,
the parties may agree to treat real property as
personal property for purposes of executing a
chattel mortgage. There must be a description
of the property as would enable the parties or
other persons to identify the same after
reasonable investigation and inquiry.
A conditional sale of personal property as

security for the payment of a debt, or the
performance of some other obligation
specified therein, the condition being that the
sale shall be void upon the seller paying to
the purchaser a sum of money or doing some
other act named. If the condition is performed
according to its terms, the mortgage and sale
immediately become void, and the mortgagee
is thereby divested of his title. [Section 3, Act
1508]
It is a contract by virtue of which personal
property is recorded in the Chattel Mortgage
Register as a security for the performance of
an obligation. [Art. 2140]
VALIDITY OF CHATTEL
MORTGAGE
Chattel mortgage shall not be valid against any

person except the mortgagor, his executors or
administrators unless:
(1) The possession of the property is delivered to
and retained by the mortgagee or
(2) The mortgage is recorded. [Sec. 4, Act 1508]
CHARACTERISTICS
FORMAL REQUISITES
(1) It is an accessory contract because it secures

performance of a principal obligation
(2) It is a formal contract because it requires
registration in the Chattel Mortgage Register
(1) It should substantially comply with the form

prescribed by law
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UP LAW BOC
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(2) It should be signed by the person/s

executing the same in the presence of two
witnesses who shall sign the mortgage as
witnesses to the execution thereof and
(3) Each mortgagor and mortgagee or, in the
absence of the mortgagee, his agent or
attorney, shall make and subscribe an
affidavit in the form prescribed by law, which
affidavit, signed by the parties to the
mortgage and the two witnesses and the
certificate of the oath signed by the person
authorized to administer an oath shall be
appended to such mortgage and recorded
therewith. [Sec. 5, Act 1508]
REGISTRATION
MORTGAGE
OF
CIVIL LAW
(ii) The principal obligation is a just and valid

obligation, and one not entered into for the
purpose of fraud
The effect of absence of affidavit of good faith is
that the chattel mortgage is vitiated only as
against third persons without notice
EFFECT OF FAILURE TO REGISTER IN

THE CHATTEL MORTGAGE REGISTRY
The mortgage is binding between the parties.

However, the right of the person in whose favor
the law establishes a mortgage is to demand
the execution and the recording of the
instrument.
CHATTEL
REGISTRATION OF ASSIGNMENT OF
MORTGAGE NOT REQUIRED
PERIOD
There is substantial and sufficient compliance

with the law when registration is made by the
mortgagee before the mortgagor has complied
with his principal obligation, and no right of
innocent third persons is prejudiced.
A chattel mortgage may be alienated or

assigned to a third person
The debtor is protected if he pays his creditor
without actual knowledge that the debt has
been assigned
VENUE
FAILURE OF MORTGAGEE
DISCHARGE THE MORTGAGE
If the mortgagor resides in the Philippines in

the office of the register of deeds of the province
in which the mortgagor resides at the time of
the making of the chattel mortgage
TO
If the mortgagee, assign, administrator,

executor, or either of them,
(1) After performance of the condition before
or after the breach thereof, or
(2) After tender of the performance of the
condition, at or after the time fixed for the
performance,
does not within ten days after being requested
thereto by any person entitled to redeem,
discharge the mortgage in the manner provided
by law, the person entitled to redeem may
recover of the person whose duty it is to
discharge the same, twenty pesos for his
neglect and all damages occasioned thereby in
an action in any court having jurisdiction of the
subject-matter thereof. [Sec. 8]
If the mortgagor does not reside in the

Philippines in the province in which the
property is situated
If the property is located in a different province
registration in both provinces is required
Effect
Creates real rights which follows the chattel
It is an effective and binding notice to other
creditors
Registration gives the mortgagee symbolical
possession
When the condition of the chattel mortgage is

broken, a mortgagor or person holding a
subsequent mortgage, or a subsequent
attaching creditor may redeem the same by
paying or delivering to the mortgagee the
amount due on such mortgage and the
reasonable costs and expenses incurred by such
breach of condition before the sale thereof. An
Affidavit of good faith is required, and it states

that the chattel mortgage is
(i) Made solely for the purpose of securing the
obligation specified in the chattel mortgage,
and
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CIVIL LAW
Quasi-Contracts
attaching creditor who so redeems shall be

subrogated to the rights of the mortgagee and
entitled to foreclose the mortgage in the same
manner that the mortgagee could foreclose it
A quasi-contract is that juridical relation

resulting from a lawful, voluntary and unilateral
act, and which has for its purpose the payment
of indemnity to the end that no one shall be
unjustly enriched or benefited at the expense of
another [Art. 2142]
FORECLOSURE
The mortgagee, his executor, administrator or

assign may cause the mortgaged property or
any part thereof to be sold at a public auction by
a public officer:
(1) After 30 days from the time of condition
broken
(2) At a public place in the municipality where
the mortgagor resides, or where the property
is situated
(3) Provided at least 10 day-notice of the time,
place, and purpose of such sale has been
posted at 2 or more public places in such
municipality, and
(4) The mortgagee, his executor, administrator,
or assign shall notify the mortgagor or
person holding under him and the persons
holding subsequent mortgages of the time
and place of sale at least 10 days previous to
the sale:
(a) Either by notice in writing directed to him
or left at his abode, if within the
municipality, or
(b) Sent by mail if he does not reside in such
municipality
(A) NEGOTIORUM GESTIO

(UNAUTHORIZED
MANAGEMENT)
This takes place when a person voluntarily takes

charge of anothers abandoned business or
property without the owners authority [Art.
2144]. Reimbursement must be made to the
gestor (i.e. one who carried out the business) for
necessary and useful expenses, as a rule.
THE OBLIGATION DOES NOT ARISE:
(1) When the property or business is not

(2) If in fact the manager has been tacitly
authorized by the owner.
In the first case, the provisions of Articles 1317,
1403, No. 1, and 1404 regarding unauthorized
contracts shall govern.
In the second case, the rules on agency in Title X
of this Book shall be applicable. [Art. 2144]
DISPOSITION OF PROCEEDS
The proceeds of the sale shall be applied to the

payment:
(1) Costs and expenses of keeping and sale
(2) Payment of the obligation secured by the
mortgage
(3) The residue shall be paid to persons holding
subsequent mortgages in their order
(4) The balance shall be paid to the mortgagor
or person holding under him on demand
OBLIGATIONS OF A GESTOR
(1) Perform his duties with all the diligence of a

good father of a family
(2) Pay the damages which through his fault
and negligence may be suffered by the
owner of the property/business under his
management [Art. 2145]
(3) Be liable for the acts of the persons to whom
he delegated all or some of his duties. This is
without prejudice to the direct obligation of
the delegate to the owner of the business.
[Art. 2146]
(4) Be liable for any fortuitous event under the
following conditions:
(a) If he undertakes risky operations which
the owner was not accustomed to embark
upon
(b) If he has preferred his own interest to that
of the owner
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UP LAW BOC
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(c) If he fails to return the property or

business after demand of the owner
(d) If he assumed management in bad faith
[Art. 2147]
(e) If he is manifestly unfit to carry on the
management
(f) If by his intervention he prevented a more
competent person from taking up the
management. [Art. 2148]
CIVIL LAW
property or business, the owner would still be

liable for the abovementioned obligations and
expenses, provided:
(1) The gestor has acted in good faith; AND
(2) The property or business is intact, ready to
be returned to the owner. [Art. 2151]
EFFECT OF RATIFICATION
The ratification of the management by the

owner of the business produces the effects of an
express agency, even if the business may not
have been successful. [Art. 2149]
Note: The gestor shall not be liable for e and

f if the management was assumed to save the
property or business from imminent danger.
EXTINGUISHMENT OF
MANAGEMENT
(5) Be personally liable for contracts which he

entered into with third persons, even though
he acted in the name of the owner, and there
shall be no right of action between the owner
and third persons.
The gestor shall not be personally liable for
such contracts, provided:
(a) The owner has expressly or tacitly ratified
the management, or
(b) When the contract refers to things
pertaining to the owner of the business.
[Art. 2152]
(1) When the owner repudiates or puts an end

thereto
(2) When the gestor withdraws from the
management, subject to Art. 2144
insolvency of the owner or the gestor. [Art.
2153]
(B) SOLUTIO INDEBITI (UNDUE

PAYMENT)
This takes place when something is received

when there is no right to demand it, and it was
unduly delivered through mistake. The
recipient has the duty to return it [Art. 2154].
This situation covers payment by reason of a
mistake in the construction or application of a
doubtful or difficult question of law [Art. 2155]
Note: The responsibility of two or more gestors

shall be solidary, unless the management was
assumed to save the thing or business from
imminent danger.
OBLIGATIONS OF THE OWNER OF

THE PROPERTY OR BUSINESS
Although the management was not expressly

ratified, the owner who enjoys the advantages of
the same shall:
(a) Be liable for the obligations incurred in his
interest
(b) Reimburse the gestor for the necessary and
useful expenses and for the damages the
latter may have suffered in the performance
of his duties
WHEN DEBT NOT YET DUE
If the payer was in doubt whether the debt was

due, he may recover if he proves that it was not
due. [Art. 2156]
RESPONSIBILITY OF TWO OR MORE

PAYEES
When there has been payment of what is not

due, their responsibility is solidary.
The above obligations shall be incumbent upon

the owner if the management had for its
purpose the prevention of an imminent and
manifest loss, although no benefit may have
been derived. [Art. 2150]
WHEN MONEY OR THING DELIVERED

IS OWNED BY THIRD PERSON
The payee cannot demand that the payor

prove his ownership of the thing delivered.
If the owner did not derive any benefit and there

was no imminent and manifest danger to the
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Nevertheless, should he discover that the

thing has been stolen and who its true owner
is, he must advise the latter.
If the owner, in spite of such information, does
not claim it within the period of one month,
the payee shall be relieved of all responsibility
by returning the thing deposited to the payor.
If the payee has reasonable grounds to
believe that the thing has not been lawfully
acquired by the payor, the former may return
the same. [Art. 2158]
CIVIL LAW
PRESUMPTION OF PAYMENT BY
MISTAKE, DEFENSE
The presumption arises if something which had

never been due or had already been paid was
delivered; but he from whom the return is
claimed may prove that the delivery was made
out of liberality or for any other just cause.
(C) OTHER QUASI-CONTRACTS
(1) When, without the knowledge of the person

obliged to give support, it is given by a
stranger, the latter shall have a right to claim
the same from the former, unless it appears
that he gave it out of piety and without
intention of being repaid. [Art. 2164]
(2) When funeral expenses are borne by a third
person, without the knowledge of those
relatives who were obliged to give support to
the deceased, said relatives shall reimburse
the third person, should the latter claim
reimbursement. [Art. 2165]
(3) When the person obliged to support an
orphan, or an insane or other indigent person
unjustly refuses to give support to the latter,
any third person may furnish support to the
needy
individual,
with
right
of
reimbursement from the person obliged to
give support. The provisions of this article
apply when the father or mother of a child
under eighteen years of age unjustly refuses
to support him. [Art. 2166]
(4) When through an accident or other cause a
person is injured or becomes seriously ill, and
he is treated or helped while he is not in a
condition to give consent to a contract, he
shall be liable to pay for the services of the
physician or other person aiding him, unless
the service has been rendered out of pure
generosity. [Art. 2167]
(5) When during a fire, flood, storm, or other
calamity, property is saved from destruction
by another person without the knowledge of
the owner, the latter is bound to pay the
former just compensation. [Art. 2168]
(6) When the government, upon the failure of
any person to comply with health or safety
regulations concerning property, undertakes
to do the necessary work, even over his
objection, he shall be liable to pay the
expenses. [Art. 2169]
LIABILITY OF PAYEE
If in bad faith, he shall be liable:

(1) For legal interest if a sum of money is
involved, or
(2) For the fruits received or which should have
been received if the thing produces fruits
AND
(3) For any loss or impairment of the thing for
any cause, and
(4) For damages to the person who delivered
the thing, until it is recovered. [Art. 2159]
If in good faith, he shall be liable:
(1) For the impairment or loss of the thing
certain and determinable or its accessories
and accessions insofar as he has thereby
been benefited.
(2) For the return of the price or assign the
action to collect the sum if he has alienated
the same. [Art. 2160]
EXEMPTION FROM THE OBLIGATION

TO RESTORE THE PAYMENT UNDULY
MADE
A person who, believing in good faith that the

payment was being made of a legitimate and
subsisting claim,
(1) destroyed the document, or
(2) allowed the action to prescribe, or
(3) gave up the pledges, or
(4) cancelled the guaranties for his right
shall be exempt from the obligation to restore.
The person who paid unduly may proceed only
against the true debtor or the guarantors with
regard to whom the action is still effective. [Art.
2162]
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(7) When by accident or other fortuitous event,

movables separately pertaining to two or
more persons are commingled or confused,
the rules on co-ownership shall be
applicable. [Art. 2170]
(8) The rights and obligations of the finder of
lost personal property shall be governed by
Articles 719 and 720. [Art. 2171]
(9) The right of every possessor in good faith to
reimbursement for necessary and useful
expenses is governed by Article 546. [Art.
2172]
(10) When a third person, without the
knowledge of the debtor, pays the debt, the
rights of the former are governed by Articles
1236 and 1237. [Art. 2173]
(11) When in a small community a nationality of
the inhabitants of age decide upon a
measure for protection against lawlessness,
fire, flood, storm or other calamity, any one
who objects to the plan and refuses to
contribute to the expenses but is benefited
by the project as executed shall be liable to
pay his share of said expenses. [Art. 2174]
(12) Any person who is constrained to pay the
taxes of another shall be entitled to
reimbursement from the latter. [Art. 2175]
CIVIL LAW
WHEN RULES ON PREFERENCE

ARE APPLICABLE
(1) There are two or more creditors
(2) With separate and distinct claims
(3) Against the same debtor
(4) Who has insufficient property AND
(5) Is insolvent
CLASSIFICATION OF CREDITS
(1) Special Preferred Credits
(a) These are considered as mortgages or
pledges of real or personal property, or
liens within the purview of legal provisions
governing insolvency. [NCC 2243]
(b) Taxes in NCC 2241 and 2242 shall first be
satisfied. [NCC 2243] Only taxes enjoy a
preference; for all other claims, there is
only a concurrence of credits. [GomezSomera]
(c) They exclude all other claims to the extent
of the value of the affected property.
(d) These take precedence over ordinary
preferred credits insofar as the property,
to which the liens attach, is concerned.
[Gomez-Somera]
(e) Pro-rating:
TOTAL AMOUNT TO BE PAID is equal to:
Credit
------------------ x value of property
Total amount of
concurring
debts
Concurrence and
Preference of Credits
Concurrence of credits implies possession by
two or more creditors of equal rights or
privileges over the same property or all of the
property of the debtor.
(2) Ordinary Preferred Credits

(a) These enjoy a preference, excluding the
credits that are later in order, but only as
against the value of the property not
otherwise subjected to any special
preferred credit. [Gomez-Somera]
(b) NCC 2244 does not create a lien on
specific property; rather, it create rights in
favor of certain creditors to have the free
property of the debtor applied in
accordance with an order of preference.
(3) Common Credits
These enjoy no preference, and there is only a
concurrence of credits, which must be paid pro
rata regardless of dates [NCC 2245, 2251].
Preference of credits is the right held by a

creditor to be preferred in the payment of his
claim above others out of the debtors assets.
Preference is merely a method adopted to
determine and specify the order in which credits
should be paid, as opposed to a lien, which
creates a charge on a particular property. [DBP
v. NLRC (1990)]
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CIVIL LAW
as such movables are in the hotel, but not for

money loaned to the guests;
(11) Credits for seeds and expenses for
cultivation and harvest advanced to the
debtor, upon the fruits harvested;
(12) Credits for rent for one year, upon the
personal property of the lessee existing on
the immovable leased and on the fruits of
the same, but not on money or instruments
of credit;
(13) Claims in favor of the depositor if the
depositary has wrongfully sold the thing
deposited, upon the price of the sale.
SPECIAL PREFERRED CREDITS

ON SPECIFIC MOVABLE
PROPERTY [ART. 2241]
With reference to specific movable property of

the debtor, the following claims or liens shall be
preferred:
(1) Duties, taxes and fees due thereon to the
State or any subdivision thereof;
(2) Claims arising from misappropriation,
breach of trust, or malfeasance by public
officials committed in the performance of
their duties, on the movables, money or
securities obtained by them;
(3) Claims for the unpaid price of movables sold,
on said movables, so long as they are in the
possession of the debtor, up to the value of
the same; and if the movable has been
resold by the debtor and the price is still
unpaid, the lien may be enforced on the
price; this right is not lost by the
immobilization of the thing by destination,
provided it has not lost its form, substance
and identity; neither is the right lost by the
sale of the thing together with other property
for a lump sum, when the price thereof can
be determined proportionally;
(4) Credits guaranteed with a pledge so long as
the things pledged are in the hands of the
creditor, or those guaranteed by a chattel
mortgage, upon the things pledged or
mortgaged, up to the value thereof;
(5) Credits for the making, repair, safekeeping or
preservation of personal property, on the
movable thus made, repaired, kept or
possessed;
(6) Claims for laborers' wages, on the goods
manufactured or the work done;
(7) For expenses of salvage, upon the goods
salvaged;
(8) Credits between the landlord and the
tenant, arising from the contract of tenancy
on shares, on the share of each in the fruits
or harvest;
(9) Credits for transportation, upon the goods
carried, for the price of the contract and
incidental expenses, until their delivery and
for thirty days thereafter;
(10) Credits for lodging and supplies usually
furnished to travellers by hotel keepers, on
the movables belonging to the guest as long
In the foregoing cases, if the movables to which

the lien or preference attaches have been
wrongfully taken, the creditor may demand
them from any possessor, within thirty days
from the unlawful seizure.
SPECIAL PREFERRED CREDITS

ON SPECIFIC IMMOVABLE
PROPERTY AND REAL RIGHTS
[ART. 2242]
With reference to specific immovable property

and real rights of the debtor, the following
claims, mortgages and liens shall be preferred,
and shall constitute an encumbrance on the
immovable or real right:
(1) Taxes due upon the land or building;
(2) For the unpaid price of real property sold,
upon the immovable sold;
(3) Claims of laborers, masons, mechanics and
other workmen, as well as of architects,
engineers and contractors, engaged in the
construction, reconstruction or repair of
buildings, canals or other works, upon said
buildings, canals or other works;
(4) Claims of furnishers of materials used in the
construction, reconstruction, or repair of
buildings, canals or other works, upon said
buildings, canals or other works;
(5) Mortgage credits recorded in the Registry of
Property, upon the real estate mortgaged;
(6) Expenses for the preservation or
improvement of real property when the law
authorizes reimbursement, upon the
immovable preserved or improved;
(7) Credits annotated in the Registry of Property,
in virtue of a judicial order, by attachments or
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executions, upon the property affected, and

only as to later credits;
(8) Claims of co-heirs for warranty in the
partition of an immovable among them,
upon the real property thus divided;
(9) Claims of donors or real property for
pecuniary charges or other conditions
imposed upon the donee, upon the
immovable donated;
(10) Credits of insurers, upon the property
insured, for the insurance premium for two
years. [1923a]
CIVIL LAW
(10) Taxes and assessments due any province,

other than those referred to in Articles 2241,
No. 1, and 2242, No. 1;
(11) Taxes and assessments due any city or
municipality, other than those indicated in
Articles 2241, No. 1, and 2242, No. 1;
(12) Damages for death or personal injuries
caused by a quasi-delict;
(13) Gifts due to public and private institutions of
charity or beneficence;
(14) Credits which, without special privilege,
appear in (a) a public instrument; or (b) in a
final judgment, if they have been the subject
of litigation. These credits shall have
preference among themselves in the order of
priority of the dates of the instruments and of
the judgments, respectively. [1924a]
ORDINARY PREFERRED
CREDITS [ART. 2244]
With reference to other property, real and

personal, of the debtor, the following claims or
credits shall be preferred in the order named:
(1) Proper funeral expenses for the debtor, or
children under his or her parental authority
who have no property of their own, when
approved by the court;
(2) Credits for services rendered the insolvent by
employees, laborers, or household helpers
for one year preceding the commencement
of the proceedings in insolvency;
(3) Expenses during the last illness of the debtor
or of his or her spouse and children under his
or her parental authority, if they have no
property of their own;
(4) Compensation due the laborers or their
dependents under laws providing for
indemnity for damages in cases of labor
accident, or illness resulting from the nature
of the employment;
(5) Credits and advancements made to the
debtor for support of himself or herself, and
family, during the last year preceding the
insolvency;
(6) Support during the insolvency proceedings,
and for three months thereafter;
(7) Fines and civil indemnification arising from a
criminal offense;
(8) Legal expenses, and expenses incurred in
the administration of the insolvent's estate
for the common interest of the creditors,
when properly authorized and approved by
the court;
(9) Taxes and assessments due the national
government, other than those mentioned in
Articles 2241, No. 1, and 2242, No. 1;
PD 442 (Labor Code, as amended), Art. 110.

Worker preference in case of bankruptcy
In the event of bankruptcy or liquidation of an
employers business, his workers shall enjoy first
preference as regards their wages and other
monetary claims, any provisions of law to the
contrary notwithstanding. Such unpaid wages
and monetary claims shall be paid in full before
claims of the government and other creditors
may be paid.
COMMON CREDITS [ART. 2245]
Credits of any other kind or class, or by any

other right or title not comprised in the four
preceding articles, shall enjoy no preference.
ORDER OF PREFERENCE OF CREDITS
(1) Credits which enjoy preference with respect

to specific movables exclude all others to the
extent of the value of the personal property
to which the preference refers [NCC 2246].
(2) If there are two or more credits with respect
to the same specific movable property, they
shall be satisfied pro rata, after the payment
of duties, taxes and fees due the State or any
subdivision thereof [NCC 2247]
(3) Those credits which enjoy preference in
relation to specific real property or real rights
exclude all others to the extent of the value
of the immovable or real right to which the
preference refers [NCC 2248].
(4) If there are two or more credits with respect
to the same specific real property or real
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rights, they shall be satisfied pro rata, after

the payment of the taxes and assessment of
the taxes and assessments upon the
immovable property or real right [NCC 2249].
(5) The excess, if any, after the payment of the
credits which enjoy preference with respect
to specific property, real or personal, shall be
added to the free property which the debtor
may have, for the payment of other credits
[NCC 2250].
(6) Those credits which do not enjoy any
preference with respect to specific property,
and those which enjoy preference, as to the
amount not paid, shall be satisfied according
to the following rules:
(a) Order established by NCC 2244
(b) Common credits referred to in NCC 2245
shall be paid pro rata regardless of dates
[NCC 2251].
EXEMPT PROPERTY
(1) Present property

(a) Family home [NCC 152, 153 and 155]
(b) Right to receive support, as well as money
or property obtained by such support,
shall not be levied upon on attachment or
execution. [NCC 205]
(c) Rule 39, Sec. 13
(d) Sec 118, Public Land Act [CA 141, as
amended]
(2) Future property:
(a) A debtor who obtains a discharge from
his debts on account of insolvency, is not
liable for the unsatisfied claims of his
creditors with said property [Sec. 68 and
69, Insolvency Law, Act 1956]
(3) Property in custodia legis and of public
dominion
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Land Title
(2) Less-than-Freehold Estate Signifies some

sort of right short of title
(a) Estate for Years In the nature of a
lease; grantee or lessee takes over
possession of the land for a period
agreed upon but the grantor retains the
legal title to the property
(b) Tenancy from Period to Period Also in
the nature of a lease which may run
from month to month or from year to
year, with the peculiarity of automatic
renewal from time to time, unless
expressly terminated by either party
(c) Tenancy at Will Another form of lease
agreement where a person is permitted
to occupy the land of another without
any stipulation as to period, but either
party reserves the right to terminate the
occupation at will or at any time
CONCEPT
It is the evidence of the right of the owner or the

extent of his interest, by which he can maintain
control, and as a rule, assert right to exclusive
possession and enjoyment of the property.
[Pena]
Deed
CONCEPT
A written instrument executed in accordance

with law, wherein a person grants or conveys to
another
certain
land,
tenements
or
hereditaments.
ELEMENTS OF A DEED
(a)
(b)
(c)
(d)
(e)
(f)
(g)
CIVIL LAW
Land Registration
Grantor
Grantee
Words of Grant
Description of the property involved
Signature of the grantor
At least 2 witnesses
Notarial acknowledgment
CONCEPT
A judicial or administrative proceeding whereby
a persons claim of ownership over a particular
land is determined and confirmed or recognized
so that such land and the ownership thereof
may be recorded in a public registry.
Estate
NATURE OF LAND
REGISTRATION
CONCEPT
An estate, strictly speaking, represents the
nature, extent, degree, and quantity of a
persons interest in land.
Judicial proceedings for the registration of lands

throughout the Philippines shall be in Rem and
shall be based on the generally accepted
principles underlying the Torrens system [Sec. 2,
par. 1, PD 1529]
TYPES OF ESTATE
(1) Freehold Estate Indicates title of
ownership
(a) Fee Simple An absolute title in
perpetuity; Title to land is conferred
upon a man and his heirs absolutely
and without any limitation imposed
upon the estate
(b) Fee Tail One designed to pass title
from grantee to his heirs, in the intent of
the grantor being to keep the property
in the grantees line of issue
(c) Life Estate One held for the duration
of the life of the grantee; In some cases,
it may terminate earlier as by forfeiture
It is therefore binding on the whole world

because by the description in the notice (of
initial hearing of the application for registration)
To Whom It May Concern, all world are made
parties defendant. [Aquino, citing Esconde v.
Borlongay,( 1987)]
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LAWS IMPLEMENTING
REGISTRATION
(b) To facilitate transactions relative

thereto by giving the public the right to
rely upon the face of the Torrents
certificate of title and to dispense with
the need of inquiring further
LAND
(1) Property Registration Decree [PD 1529, as

amended]
(2) Cadastral Act [Act 2259, as amended]
(3) Public Land Act [CA 141, as amended]
(4) Emancipation Decree [PD 27, as amended]
(5) Comprehensive Agrarian Reform Law of
1988 [RA 6657, as amended]
(6) Indigenous Peoples Rights Act of 1997 [RA
8371]
OBJECT OF REGISTRATION
Only real property or real rights may be the

object of registration under the existing land
registration laws.
CLASSIFICATION OF LANDS
To simplify and streamline land registration

proceedings, Presidential Decree No. 1529 was
issued on June 11, 1978, otherwise known as the
Property Registration Decree, governing
registration of lands under the Torrens system
as well as the recording of transactions relating
to unregistered lands, including chattel
mortgages. This Decree consolidates, in effect,
all pre-existing laws on property registration
with such appropriate modifications as are
called for by existing circumstances. [Pena]
PURPOSES
OF
REGISTRATION
CIVIL LAW
(1)
(2)
(3)
(4)
Private or public
Alienable or inalienable
Registered or unregistered
Registrable or Non-registrable
REGISTRABLE LANDS
(1) Alienable public agricultural lands - If in the

public domain, the land must be classified
as alienable and disposable. It must be
classified as such at the time of filing the
application for registration. [Republic vs. CA
and Naguit (2005)]
(2) Private Lands
LAND
NON-REGISTRABLE LANDS
(1) To notify and protect the interests of

strangers to a given transaction, who may
be ignorant thereof [Sapto, et al. v. Fabiana
(1958)]
(2) As held in Legarda v. Saleeby (1915)
(a) To quiet title to the land and to stop
forever any question as to the legality of
said title
(b) To relieve the land of unknown claims
(c) To guarantee the integrity of land titles
and to protect their indefeasibility once
the claim of ownership is established
and recognized
(d) To give every registered owner complete
peace of mind
(e) To issue a certificate of title to the
owner which shall be the best evidence
of his ownership of the land
(f) To avoid conflicts of title in and to real
estate and to facilitate transactions
(3) As held in Capitol Subdivisions, Inc. v.
Province of Negros Occidental (1963)
(a) To avoid possible conflicts of title in and
to real property, and
Those found in the Civil Code dealing with nonregistrable properties (e.g. property of public
dominion)
Torrens System
CONCEPT
A system for registration of land under which,

upon landowners application, the court may,
after appropriate proceedings, direct the
issuance of a certificate of title. [Blacks Law
Dictionary]
By Torrens system generally are meant those
systems of registration of transactions with
interest in land whose declared object is, under
governmental authority, to establish and certify
to the ownership of an absolute and
indefeasible title to realty, and to simplify its
transfer. [Grey-Alba v. Dela Cruz (GR No. L-524)]
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registration, in the certificate, or which may arise

subsequent thereto. [Pena]
HISTORY
The boldest effort to grapple with the problem
of simplification of title to land was made by Mr.
(afterwards Sir Robert) Torrens, a layman, in
South Australia in 1857. In the Torrens system
title by registration takes the place of "title by
deeds" of the system under the "general" law. A
sale of land, for example, is effected by a
registered transfer, upon which a certificate of
title is issued. The certificate is guaranteed by
statute, and, with certain exceptions, constitutes
indefeasible title to the land mentioned therein.
The object of the Torrens system, them, is to do
away with the delay, uncertainty, and expense of
the old conveyancing system.
ADMINISTRATION
TORRENS SYSTEM
OF
THE
(1) Land Registration Authority

The agency charged with the efficient
execution of the laws relative to the
registration of lands
Under the executive supervision of the
DOJ
Consists of an Administrator assisted by 2
Deputy Administrators
(2) Register of Deeds
Constitutes a public repository of records
of instruments affecting registered or
unregistered lands and chattel mortgages
in the province or city wherein such office
is situated
Headed by the Register of Deeds, assisted
by a Deputy
The Torrens system was introduced in the

Philippines by Act No. 496, which took effect on
Jan. 1, 1903. This was later amended and
superseded by PD 1529 which took effect on
June 11, 1978.
The underlying principle of the Torrens system
is security with facility in dealing with land. This
is made possible by defining the absolute status
of a given property in a certificate of title with a
governmental and universal guaranty. This
certificate of title should better be known as
certificate of title and encumbrances. In the
words of Torrens himself the main objects are
to simplify, quicken, and cheapen the transfer
of real estate and to render title safe and
indefeasible. [Ponce (1964)]
CERTIFICATE OF TITLE
THE TORRENS TITLE
ADVANTAGES [Legarda v Saleeby (1915)]

(1)
(2)
(3)
(4)
Secures title
Protection against fraud
Simplified dealings
Restoration of the estates to its just value,
whose depreciation is caused by some blur,
technical defect
(5) Barred the recurrence of faults in the title
NATURE
Judicial in Nature
PURPOSE
The real purpose of the Torrens system of
registration is to quiet title to land; to put a stop
forever to any question of the legality of the
PAGE 380
Certificate of ownership issued by the Register

of Deeds naming and declaring the owner of the
real property described therein free from all
liens and encumbrances, except such as may be
expressly noted thereon or otherwise reserved
by law.
(1) Original Certificate of Title (OCT) it is the
first certificate of title issued in the name of
the registered owner by the Register of
Deeds covering a parcel of land which had
been registered under the Torrens System,
by virtue of judicial or administrative
proceedings
(2) Transfer Certificate of Title (TCT) the
subsequent certificate of title pursuant to
any deed of transfer or conveyance to
another person. The Register of Deeds shall
make a new certificate of title and give the
registrant an owners duplicate certificate.
The previous certificate shall be stamped
cancelled.
(3) Patents Whenever public land is by the
Government alienated, granted or conveyed
to any person, the same shall be brought
forthwith under the operation of this Decree
[Sec. 103, par. 1, PD 1529]
UP LAW BOC
(a) Patents only involve public lands which

are alienated by the Government
pursuant to the Public Land Act [CA 141,
as amended]
(b) The patent (even if denominated as
deed of conveyance) is not really a
conveyance but a contract between the
grantee and the Government and
evidence of authority to the Register of
Deeds to make registration.
(c) The act of registration is the operative
act to affect and convey the land.
CIVIL LAW
Exceptions:
(a) Those claims noted on the certificate
(b) Liens, claims, or rights arising or
existing under the laws and the
Constitution, which are not by law
required to appear on record in the
Register in order to be valid
(c) Unpaid real estate taxes levied and
assessed within 2 years immediately
preceding the acquisition of any right
over the land by an innocent purchaser
for value
(3) Title to the land becomes non-prescriptible
(a) Even adverse, notorious, and continuous
possession under claim of ownership for
the period fixed by law is ineffective
against a Torrens title [JM Tuason and
Co. Inc. v. CA (1979)]
(b) The fact that the title to the land was
lost does not mean that the land ceased
to be registered land before the
reconstitution of its title. It cannot
perforce be acquired by prescription.
[Ruiz v. CA (1977)]
(4) Land becomes incontrovertible and
indefeasible. A decree of registration and
registered title cannot be impugned,
enlarged, altered, modified, or diminished
either in collateral or direct proceeding after
the lapse of the 1-year period prescribed by
the law.
PROBATIVE VALUE
A Torrens Certificate of Title is valid and

enforceable against the whole world. It may be
received in evidence in all courts of the
Philippines, and shall be conclusive as to all
matters contained therein, principally the
identity of the owner of the covered land
thereby and identity of the land.
A Torrens title, once registered, cannot be
defeated, even by adverse, open and notorious
possession. A registered title under the Torrens
system cannot be defeated by prescription. The
title, once registered, is notice to the whole
world. All persons must take notice. No one can
plead ignorance of the registration. [Egao vs. CA
(1989)]
EFFECT OF REGISTRATION
UNDER THE TORRENS SYSTEM
Exceptions:
(1) If previous valid title of the same land
exists
(2) When the land covered is not capable of
registration
(3) When acquisition of certificate is
attended by fraud
(1) Land is placed under the operation of the

Torrens system
(2) Claims and liens of whatever character
existing against the land prior to the
issuance of the certificate of title are cut off
by such certificate and the certificate so
issued binds the whole world, including the
government
(5) Torrens certificate is presumed valid and

devoid of flaws.
General rule: It is an elemental rule that a

decree of registration bars all claims and
rights which arose or may have existed prior
to the decree of registration. By the
issuance of the decree, the land is bound
and title thereto quieted, subject only to
certain exceptions under the property
registration decree. [Heirs of Alejandra Delfin
v. Avelina Rabadon (2013)]
NOTE:
Under the Torrens system, registration only
gives validity to the transaction or creates a lien
upon the land. It merely confirms, but does not
confer, ownership [Lu v. Manipon, (2002)]
PAGE 381
UP LAW BOC
CIVIL LAW
EFFECT OF NONREGISTRATION
registrant has already subdivided the land and

sold the same to innocent third parties. A
partys long inaction or passivity in asserting his
rights over disputed property precludes him
from recovering the same. [Heirs of Teodoro dela
Cruz vs. CA (1998); Aurora Ignacio vs. Valeriano
Basilio, et al. (2001)].
Exceptions:
(1) The grantor,
(2) His heirs and devisees, and
(3) Third persons having actual notice or
knowledge thereof.
Regalian Doctrine
General rule: If a purchaser, mortgagee or

grantee should fail to register his deed the
conveyance, in light of our existing registration
laws, shall not be valid against any person
unless registered.
CONCEPT
A western legal concept that was first

introduced by the Spaniards into the country
through the laws of the Indies and the Royal
Cedulas. Whereby the Philippines passed to
Spain by virtue of discovery and conquest.
Consequently, all lands became the exclusive
patrimony and dominion of the Spanish Crown.
[Agcaoli]
It is a settled rule that lands under a Torrens

title cannot be acquired by prescription or
adverse possession. Section 47 of P.D. No. 1529,
the Property Registration Decree, expressly
provides that no title to registered land in
derogation of the title of the registered owner
shall be acquired by prescription or adverse
possession. [Dream Village Neighborhood
Association, Inc.
v.
Bases
Conversion
Development Authority (2013)]
Enshrined in the Constitution [Art XII, Sec 2 & 3],

it states that all lands of public domain belong
to the state, thus private title to land must be
traced to some grant, express or implied, from
the state, i.e. The Spanish Crown or its
successors, the American Colonial government
and thereafter the Philippine Republic
DEALINGS IN LAND BEFORE

ISSUANCE OF DECREE
With the filing of an application for registration,

the land described therein does not cease to
become open to any lawful transaction. If the
transaction takes place before the issuance of
the decree of registration, Section 22 of PD 1529
provides that the instrument is to be presented
to the RTC, together with a motion praying that
the same be considered in relation with the
pending application.
It does not negate native title to lands held in

private ownership since time immemorial [Cruz
vs. Sec. of Environment and Natural
Resources(2000)]
It recognized ownership of land by Filipinos
independent of any grant from the Spanish
crown on the basis of possession since time
immemorial (cf: Carino v Insular Government), it
is presumed to have been held prior the Spanish
conquest and never to have been public land.
However, if the motion is filed after the decision

of adjudication has become final but before the
issuance of the decree by the Administrator of
Land Registration Authority, the court shall
require the interested party to pay the fees
prescribed as if such instrument had been
presented for registration in the office of the
Register of Deeds. [Pena]
EFFECTS
(1) All lands of public domain belong to the

state, and that the State is the source of any
asserted right to ownership in land and
charged with the conservation of such
patrimony [Republic v IAC (GR No. 71285)]
(2) All lands not otherwise appearing to be
clearly within private ownership are
LACHES
Laches sets in if it would take 18 years for a

person to file an action to annul the land
registration proceedings, especially so if the
PAGE 382
UP LAW BOC
presumed to belong to the State [Dir. Of

Lands v. IAC (1993)]
(3) Any applicant for judicial confirmation of an
imperfect title has the burden of proving, by
incontrovertible evidence, that the (a) land
applied for is alienable and disposable
public land; and, (b) the applicant, by
himself or through his predecessors-ininterest had occupied and possessed the
land, in the concept of owner, openly,
continuously, exclusively, and adversely
since June 12, 1945, or earlier. [Pelbel
Manufacturing Corp. v. CA (GR No. 141325)]
categorically declares ancestral lands and

domains held by native title as never to have
been public land. [Cruz v. Sec. of Environment
and Natural Resources (2000]]
Citizenship Requirement
INDIVIDUALS
CONSTITUTIONAL
AND LIMITATIONS
A recognized exception to the theory of jura

regalia, the ruling in Carino v Insular Government
institutionalized the recognition of the existence
of native title to land, or ownership of land by
Filipinos by virtue of possession under a claim of
ownership since time immemorial and
independent of any grant from the Spanish
Crown [Agcaoli]
Lands under native title are not part of public
domain, lands possessed by an occupant and
his predecessors since time immemorial, such
possession would justify the presumption that
the land had never been part of the public
domain or that it had been private property
even before the Spanish conquest [Republic v
CA (GR No. 130174)]
OF
REQUIREMENTS
Art. XII, Sec. 3, Constitution. Lands of the public

domain are classified into agricultural, forest or timber,
mineral lands and national parks. Agricultural lands of
the public domain may be further classified by law
according to the uses to which they may be devoted.
Alienable lands of the public domain shall be limited
to agricultural lands. Private corporations or
associations may not hold such alienable lands of the
public domain except by lease, for a period not
exceeding twenty-five years, renewable for not more
than twenty-five years, and not to exceed one
thousand hectares in area. Citizens of the Philippines
may lease not more than five hundred hectares, or
acquire not more than twelve hectares thereof, by
purchase, homestead, or grant.
CONCEPT OF NATIVE TITLE,

TIME
IMMEMORIAL
POSSESSION
CERTIFICATE
DOMAIN TITLE
CIVIL LAW
KRIVENKO DOCTRINE
The capacity to acquire private land is made
dependent upon the capacity to acquire or hold
lands of public domain. Private land may be
transferred or conveyed only to individuals or
entities qualified to acquire lands of public
domain [Bernas]
ANCESTRAL
A formal recognition, when solicited by

Indigenous Cultural Communities/ Indigenous
People (ICCs/IPs) concerned, shall be embodied
in a Certificate of Ancestral Domain Title
(CADT), which shall recognize the title of the
concerned ICCs/IPs over the territories
identified and delineated [Sec. 11, RA 8371]
The 1935 Constitution reserved the right xxx for

Filipino citizens or corporations at least sixty
percent of the capital of which was owned by
Filipinos. Aliens, whether individuals or
corporations, have been disqualified from
acquiring public lands; hence they have also
been disqualified from acquiring private lands.
[Krivenko v ROD (GR No. L-630); Ong Ching Po v
CA (GR. No. 113427)]
Like a Torrens title, a CADT is evidence of

private ownership of land by native title. Native
title, however, is a right of private ownership
particularly granted to ICCs/IPs over their
ancestral lands and domains. The IPRA
General rule: Non-Filipinos cannot acquire or

hold title to private lands of public domain,
except only by way of legal succession [Halili v
CA (GR No. 113539)]
*Based on Art. XII, Sec. 2, 5, Constitution
PAGE 383
UP LAW BOC
CIVIL LAW
Exceptions:
(1) Aliens by way of hereditary succession
(2) Natural born citizens who have lost their
citizenship- limited to 5,000 sq. m. for
urban land and 3 hectares for rural land [RA
No. 7042 as amended by RA No. 8179]
(3) Aliens, although disqualified to acquire
lands of public domain, may lease private
land for a reasonable period provided, that
such lease does not amount to a virtual
transfer of ownership. They may also be
given an option to buy property on the
condition that he is granted Philippine
citizenship. [Llantino v Co liong Chong (GR
No. 29663)]
(4) Lands acquired by an American citizen prior
the
proclamation
of
Philippine
Independence on July 4, 1946 but after the
passage of the 1935 Constitution may be
registered, based on the ordinance
appended to the 1935 Constitution [Moss v
Director of Lands (GR No. L-27170)]
(5) Land sold to an alien which is now in the
hands of a naturalized citizen can no longer
be annulled [De Castro v Tan (GR No. L31956)]. The litigated property is now in the
hands of a naturalized Filipino. It is no
longer owned by a disqualified vendee. The
purpose of the prohibition ceases to be
applicable. [Barsobia v Cuenco (GR No. L33048)]
(2) For patrimonial property of the State [Art.

XII, Sec. 3, Constitution]
(a) Lease only for a limited period of 25
years; cannot own land of the public
domain
(b) Limited to 1,000 hectares
(c) Applies to both Filipino and Foreign
Corporations
Original Registration
Subsequent Registration
CORPORATIONS
When right of ownership

or title to land is for the
first time made of public
record
Any transaction affecting

such originally registered
land, if in order, may be
registered in the Office of
the Register of Deeds
concerned
KINDS
OF
REGISTRATION
ORIGINAL
CORPORATION SOLE
A corporation sole may acquire and register

private agricultural land [RC Apostolic
Administrator of Davao v LRC (GR No. L-8415)].
A corporation sole, which consists of one person
only, is vested with the right to purchase and
hold real estate and register the same in trust
for the faithful or members of the religious
society or church for which the corporation was
organized.
Original Registration
CONCEPT
This is a proceeding brought before the land
registration court to determine title or
ownership of land on the basis of an application
for registration or answer by a claimant in a
cadastral registration.
Private corporations may not hold alienable

lands of the public domain except by lease for a
period not exceeding twenty-five years,
renewable for not more than twenty-five years,
and not to exceed one thousand hectares in
area. (Art. XII, Sec. 3, Constitution)
LIMITATIONS TO OWNERSHIP OF
LANDS
(1) For private lands
(a) At least 60% Filipino [Art. XII, Sec. 7,
Constitution]
(b) Restricted as to extent reasonably
necessary to enable it to carry out the
purpose for which it was created
(c) If engaged in agriculture, it is restricted
to 1,024 hectares
PAGE 384
(1) Voluntary by filing with the proper court

under:
(a) PD 1529, Property Registration Decree
(b) CA 141, Public Land Act
(c) RA 8371, IPRA
(2) Involuntary as in Cadastral Proceedings
This is compulsory registration initiated by
the government to adjudicate ownership
of the land
UP LAW BOC
Involuntary on the part of the claimant

but they are compelled to substantiate
their claim or interest
CIVIL LAW
the occupation of the Philippines by the

United States
*Note: They may enter a homestead of not
exceeding 24 hectares of agricultural land
of the public domain
(3) Under RA 8371
(a) Sec. 11 Formal recognition of ancestral
domains by virtue of Native Title may be
solicited by ICCs/IPs concerned
(b) Sec. 12 Option to secure certificate of
title under CA 141 or Land Registration
Act 496
(i) Individual members of cultural
communities with respect to
individually-owned ancestral lands
who, by themselves or through their
predecessors-in -interest, have
been in continuous possession and
occupation of the same in the
concept of owner since time
immemorial or for a period of not
less than thirty (30) years
immediately preceding the approval
of this Act and uncontested by the
members of the same ICCs/IPs
shall have the option to secure title
to their ancestral lands
(ii) Option granted shall be exercised
within 20 years from the approval of
RA 8371
WHO MAY APPLY
(1) Under Sec. 14, PD 1529

(a) Those who by themselves or through
their predecessors-in-interest, have
been in open, continuous, exclusive and
notorious possession and occupation of
alienable and disposable lands of the
public domain under a bona fide claim
of ownership since June 12, 1945, or
earlier.
(b) Those who have acquired ownership of
private lands by prescription under the
provisions of existing laws.
(c) Those who have acquired ownership of
private lands or abandoned river beds
by right or accession or accretion under
the existing laws.
(d) Those who have acquired ownership of
land in any other manner provided for
by law.
(i) If land is owned in common, all coowners shall file the application
jointly
(ii) If land has been sold under pacto
de retro, the vendor a retro may file
an application for the original
registration of the land, provided,
however that should the period for
redemption expire during the
pendency of the registration
proceedings and ownership to the
property consolidated in the vendee
a retro, the latter shall be
substituted for the applicant and
may continue the proceedings.
(iii) A trustee on behalf of his principal
may apply for original registration
of any land held in trust by him,
unless prohibited by the instrument
creating the trust.
(2) Under Sec. 12, CA 141; Any person who:
(a) Is a citizen of the Philippines over the
age of 18, or the head of a family
(b) Does not own more than 24 hectares of
land in the Philippines, or has not had
the benefit of any gratuitous allotment
of more than 24 hectares of land since
WHERE TO FILE
The court that should take cognizance of a
registration case is that which has territorial
jurisdiction over the property.
General rule: RTC of the province, city, or
municipality where the property is situated. The
RTC shall have exclusive jurisdiction over all
applications original for registration of title, with
power to hear and determine all questions
arising upon such applications or petition. [Sec.
2, par. 2, P.D. No. 1529]
Exception: Delegated jurisdiction to the MTC,
MeTC, and MCTC by the Supreme Court in
cadastral and land registration cases if:
(1) There is no controversy over the land, or
(2) Its value is less than P100,000 [Sec. 34, BP
129]
PAGE 385
UP LAW BOC
CIVIL LAW
(d) All original muniments of title in the

possession of the applicant which prove
his rights, to the title he prays for or to
the land he claims; and
(e) Certificate in quadruplicate of the city or
provincial treasurer of the assessed
value of the land, at its last assessment
for taxation, or, in the absence thereof,
that of the next preceding year.
However, in case the land has not been
assessed, the application may be
accompanied with an affidavit in
quadruplicate of the fair market value of
the land, signed by three disinterested
persons.
(4) Amendments to the Application
Sec. 19, PD 1529 permits the applicants to
amend the application at any stage of the
proceedings upon such just and
reasonable terms as the court may order;
However, Sec. 23, PD 1529 mandates that
there is a need to comply with the
required publication and notice as in an
original application if the amendment is
substantial as in:
(a) A change in the boundaries
(b) An increase in the area of the land
applied for; or
(c) The inclusion of an additional land
(5) Special Cases:
If the land bounded by a road, the
applicant must state in his application if
he claims any portion of the land within
the limits of the road, or if he likes to have
the boundaries determined. [Sec. 20, PD
1529]
If the applicant is a non-resident, he shall
appoint an agent or representative who is
a Philippine resident. [Sec. 16, PD 1529]
Intestate Estate of Don Mariano San
Pedro vs. CA (1996): A person claiming
ownership of real property must clearly
identify the land claimed by him.
In re: Application for Land Registration vs.
Republic (2008): An applicant in a land
registration case must prove the facts and
circumstances evidencing the alleged
ownership of the land applied for.
General statements which are mere
conclusions of law and not factual proof
of possession are unavailing. The deeds
in its favor only proved possession of its
PROCEDURE IN ORDINARY
LAND REGISTRATION
STEP 1: Survey of the land by the Bureau of
Lands or a duly registered private surveyor
Note: No plan of such survey, whether it be
original or subdivision, may be admitted in land
registration proceedings until approved by the
Director of lands [Sec. 1858, Administrative
Code]
STEP 2: Filing of application for registration by
the applicant:
(1) Form of the application
(a) In writing
(b) Signed by the applicant/s or person
duly authorized in his behalf
(c) Sworn before any officer authorized to
administer oath for the province or city
where the application was actually
signed
(d) Application is presented in duplicate
(2) Contents of the application:
(a) A description of the land
(b) The citizenship and civil status of the
applicant, whether single or married,
and, if married, the name of the wife or
husband, and, if the marriage has been
legally dissolved, when and how the
marriage relation terminated. It shall
also state
(c) The full names and addresses of all
occupants of the land and those of the
adjoining owners, if known, and, if not
known, it shall state the extent of the
search to find them.
(d) Whether the property is conjugal,
paraphernal or exclusively owned by the
applicant.
(3) Documents to accompany the application
(from Regulations in Ordinary Land
Registration Cases)
(a) Tracing-cloth plan duly approved by the
Director of Lands, together with two
blueprint or photographic copies
thereof;
(b) Three copies of the corresponding
technical descriptions;
(c) Three copies of the surveyors
certificate;
PAGE 386
UP LAW BOC
predecessors-in-interest as early as 1948.

(The law now stands that a mere showing
of possession for 30 years is not sufficient.
OCEN possession must be shown to have
stated on June 12, 1945 or earlier.)
CIVIL LAW
that jurisdiction attaches to the land or

lands mentioned and described in the
application. If it is later shown that the
decree of registration had included land or
lands not included in the original
application as published, then the
registration proceedings and the decree of
registration must be declared null and void
insofar but only insofar as the land not
included in the publication is concerned.
[Benin v. Tuason]
STEP 3: Setting of the date for the initial hearing

of the application by the Court;
(1) The court shall issue an order setting the
date and hour of the initial hearing within 5
days from filing of the application
(2) The initial hearing shall be 45 90 days
from the date of the order [Sec. 23, PD 1529]
STEP 6: Service of notice upon contiguous

owners, occupants and those known to have
interest in the property by the Sheriff;
(1) Mailing:
Within 7 days from publication, the CLR
shall mail a copy of the notice
Copies of the notice shall be mailed to:
(a) Every person named in the notice
whose address is known.
(b) The Secretary of Public Highways, to
the Provincial Governor, and to the
Mayor of the municipality or city, in
which the land lies, if the applicant
requests to have the line of a public
way or road determined
(c) Secretary of Agrarian Reform, the
Solicitor General, the Director of
Lands, the Director of Mines and/or
the Director of Fisheries and Aquatic
Resources, (as appropriate) if the land
borders on a river, navigable stream
or shore, or on an arm of the sea
where a river or harbor line has been
established, or on a lake, or if it
otherwise
appears
from
the
application or the proceedings that a
tenant-farmer or the national
government may have a claim
adverse to that of the applicant
(2) Posting:
CLR shall cause the sheriff or his deputy
to post the notice at least 14 days before
the hearing:
In a conspicuous place on each parcel of
land included in the application and in a
conspicuous place on the bulletin board
of the municipal building of the
municipality or city in which the land or
portion thereof is situated.
STEP 4: Transmittal to the LRA

The application and the date of initial hearing
together with all the documents or other
evidences attached thereto are transmitted by
the Clerk of Court to the Land Registration
Authority (LRA)
STEP 5: Publication of a notice of the filing of
the application and date and place of hearing
(1) Publication shall be sufficient to confer
jurisdiction upon the court. [Sec. 23, PD
1529]
(2) Form and contents of the notice:
(a) Addressed to all persons appearing to
have an interest in the land involved
(b) Requires all persons concerned to
appear in court on the date and time
indicated to show cause why the
application for registration should not
be granted
(3) The public shall be given notice of the initial
hearing of the application by publication
The Commissioner of Land Registration
(CLR) shall cause it to be published once
in the Official gazette AND once in a
newspaper of general circulation
This is sufficient to confer jurisdiction to
the court
(3) It is not necessary to give personal notice to
the owners or claimants of the land sought
to be registered to vest the court with
authority over the res. Land registration
proceedings are actions in rem. [Dir. Of
Lands v. CA]
(4) Once the registration court had acquired
jurisdiction over a certain parcel, or parcels,
of land in the registration proceedings in
virtue of the publication of the application,
PAGE 387
UP LAW BOC
The court may also cause notice to be

served to such other persons and in such
manner as it may deem proper.
(3) Notice of application and initial hearing by
publication is sufficient and the mere fact
that a person purporting to have a
legitimate claim in the property did not
receive personal notice is not a sufficient
ground to invalidate the proceedings
although he may ask for the review of the
judgment or the reopening of the decree of
registration, if he was made the victim of
actual fraud. [Republic v. Abadilla, CA (1951)]
CIVIL LAW
(b) With respect to those covered by the

default order they have no legal
standing in court; therefore, they are no
longer allowed to participate and no
opportunity to present evidence
(7) For relief from an order of default, see Sec.
3, Rule 18, Rules of Court
STEP 8: Hearing of the case by the court
(1) Applicable procedural law:
Reception of evidence is governed by PD
1529
Rules of Court shall, insofar as not
inconsistent with the provisions of the
Decree, be applicable to land registration
and cadastral cases by analogy or in a
suppletory character and whenever
practicable and convenient [Sec. 34, PD
1529]
(2) Sec. 27, PD 1529: Court may either:
(a) Hear the parties and their evidence, or
(b) Refer the case or any part thereof to a
referee
(i) Referee shall hear the parties,
receive their evidence, and submit
his report thereon to the Court
within 15 days after termination of
such hearing
(ii) Hearing before a referee may be
held at any convenient place within
the province or city as may be fixed
by him and after reasonable notice
thereof shall have been served to
the parties concerned
(iii) Upon receipt of the report the Court
may:
(1) Adopt the same
(2) Set aside the report
(3) Modify the report
(4) Refer back or recommit the
case to the referee for
presentation of evidence
STEP 7: Filing of answer or opposition to the

application by any person whether named in the
notice or not;
(1) Who may file? Any person claiming an
interest, whether named in the notice or not
(2) When to file? On or before the date of initial
hearing, or within such further time as may
be allowed by the court.
(3) What shall it contain? It shall state all the
objections and the interest claimed by the
party the remedy desired.
(4) How shall it be made? It shall be signed and
sworn to by him or by some other duly
authorized person. Sec. 25, PD 1529
provides for the requisites of an opposition:
(a) It shall set forth all the objections to
the application and
(b) It shall state the interest claimed by
the party filing the same
(5) Effect of Failure to Answer:
If no one appears/files an answer, upon
motion, the court shall order a default to
be recorded.
By the description in the notice "To all
Whom It May Concern", all the world are
made parties defendant and shall be
concluded by the default order.
Where an appearance has been entered
and an answer filed, a default order shall
be entered against persons who did not
appear and answer.
Absence of opposition does not justify
outright registration. [Director of Lands
vs. Agustin (1921)]
(6) Effects of Default:
(a) With respect to the Applicant he has
the right to present or adduce evidence
ex parte
STEP 9: Promulgation of judgment by the

Court;
(1) This is the adjudication, determination, and
resolution of the issue of ownership
(2) Forms of Judgment:
(a) Dismissal of the application with
prejudice or without prejudice
(b) Partial Judgment in a case where only
a portion of the land subject of
PAGE 388
UP LAW BOC
registration is contested, the court may

render partial judgment provided that a
subdivision plan showing the contested
and uncontested portions approved by
the Director of Land is previously
submitted to said court. [Sec. 28, PD
1529]
(3) Judgment Confirming Title - Judgment may
be rendered confirming the title of the
applicant, or the oppositor as the case may
be, to the land or portions thereof upon
finding that the party concerned has
sufficient title proper for registration. [Sec.
29, PD 1529]
(4) Finality of Judgment: Sec. 30, par. 1, PD
1529 provides that the judgment becomes
final upon the expiration of 30 days counted
from receipt of notice of judgment.
Note however that this has been modified
to the lapse of 15 days counted from
receipt of notice of judgment as per Sec.
39, BP 129
CIVIL LAW
STEP 11: Entry of the decree of registration

(1) Decree is entered in the LRA
(2) Every decree of registration shall:
(a) Bear the day of the year, hour, and
minute of its entry,
(b) Be signed by the Administrator of the
Land Registration Authority in his ex
officio capacity as Clerk of Court in land
registration matters
(c) State whether the owner is:
(i) Married or unmarried, and if
married, the name of the husband
or wife, provided that if the land
adjudicated is conjugal property, it
shall be issued in the names of both
spouses.
(ii) If the owner is under disability, it
shall state the nature of the
disability,
(iii) If the owner is a minor, his age
(d) Contain a description of the land as
finally determined by the court,
(e) Set forth the estate of the owner, and
also, in such manner as to show their
relative priority, all particular estates,
mortgages,
easements,
liens,
attachments and other encumbrances,
including rights of tenant-farmer, if any,
to which the land or owners estate is
subject,
(f) Contain any other matter properly to be
determined
STEP 10: Issuance of the decree

(1) If the court finds after hearing that the
applicant or adverse claimant has title as
stated in his application or adverse claim
and proper for registration, a decree of
confirmation and registration shall be
entered
(2) The Court declares the decision final and
instructs the LRA to issue a decree of
confirmation and registration within 15 days
from entry of judgment
NOTE it is not the court that issues the
decree, but the LRA
STEP 12: Sending of copy of the decree of

registration to the corresponding Register of
Deeds (Registrar of Land Titles and Deeds)
(2) One year after issuance of the decree, it

becomes incontrovertible and amendments
of the same will not be allowed except in
cases of clerical errors
Court retains jurisdiction over the case
until after the expiration of 1 year from the
issuance of the decree of registration.
[Gomez v. CA (1988)]
NOTE: While a decision in land
registration proceeding becomes final
after the expiration of thirty days from the
date of service of its notice, the decree of
registration does not become final until
after the lapse of one year from the date
of its issuance and entry.
STEP 13: Transcription of the decree of

registration
(1) It is transcribed in the registration book of
the Registrar of Land Titles and Deeds
(2) Registrar issues owners duplicate OCT of
the applicant by the Registrar of Land Titles
and Deeds, upon payment of the prescribed
fees.
PAGE 389
UP LAW BOC
Unlike ordinary civil actions, the adjudication of

land in a cadastral or land registration
proceeding does not become final in the sense
of incontrovertibility until after the expiration of
one (1) year after the entry of the final decree of
registration. As long as a final decree has not
been entered by the LRA and the period of 1
year has not elapsed from date of such decree,
the title is not finally adjudicated and the
decision in the registration proceeding
continues to be under the control and sound
discretion of the court rendering it. [Gomez v. CA
(1988)]
EVIDENCE NECESSARY
PROOFS NECESSARY
REGISTRATION
IN
CIVIL LAW
LAND
(1) Proofs that land has been declassified from

the forest zone, is alienable or disposable,
and is registrable (e.g. Presidential
proclamation, legislative acts)
(2) Identity of the land (e.g. survey plan)
(3) Possession and occupation of the land for
the length of time and in the manner
required by law [Sec. 4, PD 1073 amending
Sec. 48(b) and (c) of Public Land Act]
(4) If he claims private ownership not because
of his possession, he must prove the basis of
such claim by submitting muniments of
title.
ACTION FOR RECONVEYANCE

(1) When to file:
(a) Before issuance of decree, or
within/after 1 year from entry
(b) If based on implied trust, 10 years;
(c) If based on expressed trust and void
contract, imprescriptible
(d) If based on fraud, 4 years from the
discovery
(2) Not available if the property has already
been transferred to an innocent purchaser
for value.
(3) It does not reopen proceedings but a mere
transfer of the land from registered owner
to the rightful owner [Esconde v. Barlongay
(1987)]
PROVING PRIVATE OWNERSHIP
(1) Spanish titles are inadmissible and

ineffective proof of ownership in land
registration proceedings filed AFTER Aug.
16, 1976 [PD 892 as discussed in Santiago v.
SBMA (2006)]
(2) Tax declaration and receipts are not
conclusive but have strong probative value
when accompanied by proof of actual
possession. [Municipality of Santiago vs. CA,
1983]
(3) Other proofs such as testimonial evidence
ACTION FOR DAMAGES
REMEDIES
It can be availed of when reconveyance is no

longer possible as when the land has been
transferred to an innocent purchaser for value
[Ching v. CA (1990)]
An aggrieved party in a registration proceeding

may avail himself of the following remedies:
(1) Motion for New Trial (see Rule 37, ROC)
(2) Appeal
(3) Relief from Judgment (see Rule 38, ROC)
(4) Annulment of Judgment (see Rule 47, ROC)
(5) Reconveyance
(6) Recovery of Damages
(7) Reversion
(8) Review of Decree of Registration
REVERSION
Instituted by the government, thru Solicitor

General in all cases where lands of public
domain are held in violation of the Constitution
or were fraudulently conveyed. Indefeasibility of
title, prescription, laches, and estoppel do not
bar reversion suits.
APPEAL [Sec. 30, PD 1529 as amended

by BP 129]
PETITION TO REOPEN OR REVIEW

DECREE OF REGISTRATION [Sec. 32,
PD 1529]
An appeal may be taken from the judgment of

the court as in ordinary civil cases.
*Note: Period in Sec. 30, PD 1529 has been
modified to 15 days as per Sec. 39, BP 129
(1) To whom available: Only to an aggrieved

party who has been deprived of land or any
PAGE 390
UP LAW BOC
estate or interest therein by decree of

registration
(2) When to file: Within 1 year from entry of
decree of registration
Upon expiration of the 1 year period, every
decree becomes incontrovertible
The Court held that the petition may be
filed at any time after rendition of the
courts decision (no need to wait for actual
entry in the LRA) and before expiration of
one year from entry of the final decree of
registration. [Rivera v. Moran; Director of
Lands v. Aba, et al.]
(3) Sole and only ground: Actual Fraud
Actual fraud proceeds from an intentional
deception practiced by means of
misrepresentation or concealment of
material fact
The fraud must consist in an intentional
omission of fact required by law to be
stated in the application or a willful
statement of a claim against the truth
(4) Requisites for Petition to Reopen or Review
(a) That the plaintiff is the owner of the
land ordered registered in the name of
the defendant, or that the plaintiffs lien
or interest in said property does not
appear in the decree or title issued in
the defendants name;
(b) That the registration was procured
through actual fraud, or that the
omission of the lien or interest was
fraudulent;
(c) That the property has not been
transferred to an innocent purchaser for
value; and
(d) That the action is fi led within one year
from the issuance and entry of the
decree of registration. [Cruz v. Navarro
(1973)]
CIVIL LAW
Court will order issuance of new title after

due
notice
and
hearing,
with
memorandum that it is issued in place of
a lost certificate
(2) Petition seeking surrender of duplicate title
In voluntary and involuntary conveyances;
when the duplicate cannot be produced,
the party must petition the court to
compel surrender of duplicate certificate
of title to Register of Deeds
After hearing, court may order issuance of
a new certificate and annul the old
certificate
(3) Amendment and alteration of certificate of
title
A certificate of title cannot be altered or
amended except in a direct proceeding in
court which is summary in nature
Grounds:
(a) New interest that does not appear on
the instrument have been created
(b) Interest have been terminated or
ceased
(c) Omission or error was made in
entering certificate
(d) Name of person on certificate has
been changed
(e) Registered owner has married
(f) Marriage has terminated
(g) Corporation has dissolved and has
not conveyed the property within 3
years after its dissolution
(h) Allowable corrections as long as the
rights or interest of persons are not
impaired
(4) Reconstitution of Certificate of title
The restoration of the instrument which is
supposed to have been lost or destroyed
in its original form and condition, under
the custody of the Register of Deeds
To have the same reproduced after proper
proceedings in the same form they were
when the loss or destruction orccurred
[Heirs of Pedro Pinote v. Dulay (1990)]
Kinds:
(a) Judicial
(i) A petition is filed before the RTC
(ii) Petition is published in the Official
Gazette for 2 consecutive issues
and posted on main entrance of
municipality for at least 30 days
before hearing
PETITIONS AND MOTIONS

AFTER ORIGINAL
REGISTRATION
(1) Lost Duplicate Certificate
Person in interest must file a sworn
statement that the certificate is lost
before the Register of Deeds
A petition will then be filed for the
issuance of new title
PAGE 391
UP LAW BOC
(iii) Hearing is then conducted

(iv) Court
may
then
order
reconstitution if meritorious
(b) Administrative, which may be availed
only in case of:
(i) Substantial loss or destruction of
original land titles due to fire,
flood, or other force majeure as
determined by the LRA
(ii) Number of certificates of title lost
or damaged should be at least
10% of the total number in
possession of the Register of
Deeds
(iii) In no case shall the number of
certificates of title lost or
damaged be less than 500;
(iv) Petitioner
must
have
the
duplicate copy of the certificate of
title [RA 6732]
CIVIL LAW
say, forest land, is released in an official

proclamation to that effect so that if may form
part of the disposable agricultural lands of the
public domain. [Bracewell vs. CA (2000)]
The law, as presently phrased, requires that
possession of lands of the public domain must
be from June 12, 1945 or earlier, for the same to
be acquired through judicial confirmation of
imperfect title [Republic v. Doldol (1998)]
WHO MAY APPLY

INDIVIDUALS
(1) Filipino citizens who by themselves or
through their predecessors-in-interest have
been in open, continuous, exclusive, and
notorious possession and occupation of
alienable and disposable lands of public
domain under a bona fide claim of
acquisition since June 12, 1945 or prior
thereto since time immemorial [Sec. 48, CA
141, as amended by Sec. 4, PD 1073]
Judicial Confirmation of
Imperfect or Incomplete
Titles
(2) Filipino citizens who by themselves or their

predecessors-in-interest have been, prior to
effectivity of PD 1073 on Jan. 25, 1977, in
open, continuous, exclusive, and notorious
possession and occupation of agricultural
lands of the public domain, under a bona
fide claim of acquisition of ownership for at
least 30 years, or at least since Jan. 24, 1947
[RA 1942]
CONCEPT
No title or right to, or equity in, any lands of the
public domain may be acquired by prescription
or by adverse possession or occupancy except as
expressly provided by law. [CA 141, Sec 57]
(3) Natural born citizens of the Philippines who

have lost their citizenship and who has legal
capacity to enter into a contract under
Philippine laws may be a transferee of
private land up to a maximum area of
5,000sqm, in case of urban land, or 3
hectares in case of rural land to be used by
him for business or other purposes [Sec. 5,
RA 8179]
The Public Land Act recognizes the concept of

ownership under the civil law. This ownership is
based on adverse possession and the right of
acquisition is governed by the Chapter on
judicial confirmation of imperfect or incomplete
titles.
WHEN APPLICABLE
This applies only to alienable and disposable

agricultural lands of the public domain. Under
Sec. 6 of CA 141, the classification of public
lands into alienable and disposable forest
lands, or mineral lands is the prerogative of the
Executive Department.
(4) Natural-born citizens of the Philippines,

who have lost their Philippine citizenship,
who have acquired disposable and alienable
lands of the public domain from Filipino
citizens who had possessed the same in the
same manner and for the length of time
indicated in numbers (1) and (2) above.
The rule on confirmation of imperfect title does

not apply unless and until the land classified as,
PAGE 392
UP LAW BOC
domain or claiming to own any such lands or an

interest therein, but whose titles have not been
perfected or completed, may apply to the Court
of First Instance of the province where the land
is located for confirmation of their claims and
the issuance of a certificate of title therefor
under the Land Registration Act
CORPORATIONS
Private domestic corporations or associations
which had acquired lands from Filipino citizens
who had possessed the same in the manner and
for the length of time indicated in numbers (1)
and (2) above.
Notwithstanding the prohibition in the 1973 and
1987 Constitutions against private corporations
holding lands of the public domain except by
lease not exceeding 1000 hectares, still a
private corporation may institute confirmation
proceedings under Sec. 48, (b) of the Public
Land Act if, at the time of institution of the
registration proceedings, the land was already
private land. On the other hand, if the land was
still part of the public domain, then a private
corporation cannot institute such proceedings.
[Dir. Of Lands v. IAC and ACME, 146 SCRA 509,
1986]
Hence, the procedure in original registration

discussed in the previous section is also
followed in judicial confirmation of imperfect or
incomplete title.
EVIDENCE
NECESSARY
TO
SUBSTANTIATE APPLICATION
The applicant must prove:
(1) That the land applied for has been
declassified and is a public agricultural
land, is alienable and disposable, or
otherwise
capable
of
registration.
Specifically, the following may be
presented:
(a) Presidential proclamation
(b) Executive Order
(c) Administrative Order issued by the
DENR Secretary
(d) Bureau of Forest Development Land
Classification Map
(e) Certification by the Director of Forestry
(f) Investigation reports of Bureau of Lands
Investigator
(g) Legislative act or statute
(2) The identity of the land; the following may
be submitted:
(a) Survey plan
(b) Tracing cloth plan and blue print copies
of plan
(c) Technical description of the land
(d) Tax declarations
(e) Boundaries and area
(3) Possession and occupation of the land for
the length of time and in the manner
required by law
FILING OF THE APPLICATION

EXTENSION OF FILING PERIOD
RA No. 9176 extended the period to file an

application for judicial confirmation of imperfect
or incomplete title to December 31, 2020. Prior
to RA 9176 the deadline for filing was on Dec.
31, 1987.
SCOPE OF APPLICATION
RA 9176 also limited the area subject of the

application to 12 hectares. Prior to RA 9176, the
maximum area applied for was 144 hectares.
WHAT APPLICANT MUST PROVE
(1) The land is alienable and disposable land of

public domain; and
(2) They have been in open, continuous,
exclusive, and notorious possession and
occupation of the land for the length of time
and in the manner and concept provided by
law [Dir. Of Lands v. Buyco (1992)]
PROCEDURE
IN
CONFIRMATION
CIVIL LAW
JUDICIAL
Sec. 48, par. 1, of CA 141 as amended provides,

The following-described citizens of the
Philippines, occupying lands of the public
PAGE 393
UP LAW BOC
CIVIL LAW
Cadastral Registration
then orders the Director of Lands to conduct

cadastral survey
CONCEPT
STEP 2: Director of lands shall make a cadastral

survey
It is a proceeding in rem, initiated by the filing

of a petition for registration by the government,
not by the persons claiming ownership of the
land subject thereof, and the latter are, on the
pain of losing their claim thereto, in effect
compelled to go to court to make known their
claim or interest therein, and to substantiate
such claim or interest.
STEP 3: Director of Lands gives notice to

interested persons
Contents of the Notice:
(1) Day on which the survey will begin
(2) Full and accurate description of the lands to
be surveyed
STEP 4: Publication of notice
(1) Published once in the Official Gazette
(2) A copy of the notice in English or the
national language shall be posted in a
conspicuous place on the bulletin board of
the municipal building of the municipality in
which the lands or any portion thereof is
situated
Unlike other kinds of registration, this is

compulsory as it is initiated by the government.
The government does not seek the registration
of land in its name. The objective of the
proceeding is the adjudication of title to the
lands or lots involved in said proceeding.
Ordinary Registration
Voluntary
Cadastral Registration
STEP 5: A copy of the notice shall also be sent

to:
(1) Mayor of the municipality
(2) Barangay captain
(3) Sangguniang
Panlalawigan
and
Sangguniang Bayan concerned
Compulsory
Applicant is a person Applicant is the Director

claiming title to the land of Lands
Usually involves land; it All classes of land are
may also refer to public covered
agricultural lands if the
object of the action is
judicial confirmation of
imperfect or incomplete
title (in which case CA 141
applies)
Applicant comes to court
to confirm his title and
seek registration of the
land in his name
STEP 6: Geodetic engineers or other Bureau of

Land employees in charge of the survey shall
give notice reasonably in advance of the date of
the survey. They shall also mark the boundaries
of the lands with monuments
Government asks the

court to settle and
adjudicate the title of the
land
STEP 7: Interested persons should communicate

with the geodetic engineer if he requests for any
information about the land
If the applicant fails to

prove his title, application
may be dismissed without
prejudice
STEP 8: Actual survey and plotting of the land

STEP 9: Director of Lands represented by
Solicitor General shall institute original
registration proceedings
(1) Petition is filed in the appropriate RTC
where the land is situated
(2) Contents of the Petition:
(a) That public interest requires that the
title to such lands be settled and
adjudicated and praying that such titles
be so settled and adjudicated
(b) Description of the lands
PROCEDURE IN CADASTRAL
REGISTRATION [Sec. 35 and 36,
PD 1529]
STEP 1: Determination of the President that
public interest requires title to unregistered
lands be settled and adjudicated. President
PAGE 394
UP LAW BOC
(c) Accompanied by a plan thereof

(d) Such other data as may serve to furnish
full notice to the occupants of the lands
and to all persons who may claim any
right or interest therein
CIVIL LAW
NECESSITY AND EFFECTS OF

REGISTRATION [Sec. 51 and 52,
PD 1529]
The deed, mortgage, lease, or other voluntary
instrument, except a will shall ONLY operate as:
(1) A contract between the parties and
(2) Evidence of authority to the Register of
Deeds to make registration.
STEP 10: Publication, mailing posting

STEP 11: Hearing
Jurisdiction of the Cadastral Court:
(1) Adjudicate title to any claimant thereto
(2) Declare land as a public land
(3) Order correction of technical description
(4) Order the issuance of new title in place of
the title issued under voluntary registration
proceedings
(5) Determine the priority of overlapping title
(6) Order the partition of the property
The act of registration shall be the operative act

to convey or affect the land insofar as third
persons are concerned.
Also, by registration, it creates constructive
notice to the world.
General rule: A forged deed is an absolute
nullity and conveys no title.
STEP 12: Decision
Exception: If there is good faith, a TCT has

already been issued to the purchaser, the latter
being an innocent purchaser for value according
to Sec. 39, PD 1529, then the title is good.
STEP 13: Issuance of the decree and certificate

of title
DISALLOWANCE OF
REOPENING CADASTRAL
CASES
General rule: A person dealing with registered

property need not go beyond, but only has to
rely on, the title. [Campillo v. PNB (1969)]
RA 931, effective June 20, 1953 for 5 years,

authorizing the reopening of cadastral cases
under certain conditions and which had been
extended until Dec. 31, 1968, is no longer in
force.
He is charged with notice only of such burdens

and claims which are annotated on the title, for
registration is the operative act that binds the
property.
Exception: When should a purchaser
investigate?
(1) Banks are required to exercise more care
and prudence in dealing with registered
lands for their business is one affected with
public interest. The general rule does not
apply.
(2) When party concerned has actual
knowledge of facts and circumstances that
would impel a reasonably cautious man to
make inquiry. [Leung Yee vs. Strong
Machinery (1918)]
(3) When purchaser is in bad faith; e.g. he had
full knowledge of a previous sale. [Jamoc vs.
CA (1991)]
(4) When a person buys land from one whose
rights over the land is evidenced only by a
deed of sale and an annotation in the
Courts are thus without jurisdiction or authority

to reopen a cadastral proceeding since Dec. 31,
1968. [Aquino citing Republic v. Estenzo (1988)]
Subsequent Registration
CONCEPT
Subsequent registration is a proceeding where
incidental matters AFTER original registration
may be brought before the land registration
court by way of motion or petition filed by the
registered owner or a party in interest
PAGE 395
UP LAW BOC
certificate of title but no TCT. [Quiniano vs.

CA (1971)]
TWO TYPES OF DEALINGS

(1) Voluntary Dealings these are deeds,
instruments, documents which are the
results of free and voluntary acts of parties
thereto.
(2) Involuntary Dealings these refer to writ,
order, or process issued by the court of
record affecting registered land, also other
instruments which are not willful acts of the
registered owner, executed without his
knowledge or consent.
Voluntary Dealings
Involuntary Dealings
Presentation of the Entry in the day book is

owners
duplicate sufficient notice to all
certificate of title is persons
required to notify;
mere entry insufficient
An innocent purchaser
for value of registered
land becomes the
registered owner the
moment he presents
and files a duly
notarized and valid
deed of sale and the
same is entered in the
day book and at the
same
time
he
surrenders or presents
the owners duplicate
certificate
of
title
covering the land sold
and
pays
the
registration fees.
Lenin vs. Bass (1952):

Entry thereof in the day
book of the ROD is
sufficient notice to all
persons even if the
owners
duplicate
certificate of title is not
presented to the ROD.
Villasor vs. Camon

(1951): It is necessary to
register the deed or
instrument in the entry
book
and
a
memorandum thereof
shall also be made in
the owners duplicate
certificate
and
its
original
Dir. Of Lands vs. Reyes

(1976): Entry in the day
book is sufficient notice
to all persons of an
adverse claim without
the
same
being
annotated at the back
of the certificate of title
CIVIL LAW
Voluntary Dealings
Involuntary Dealings
Spouses Labayen vs.

Leonardo
Serafica
(2008,): At the time of
the filing of the petition
for cancellation of
encumbrance,
the
lease contract already
lost its efficacy. Thus,
there is no basis to save
its
annotation
on
defendants title. The
fact
that
the
cancellation of the
lease contract was
forged is of no
moment, for there was
no violation of a right.
AFP Mutual Benefit

Association
vs.
Santiago (2008): Entry
of the attachment in
the books is sufficient
notice to all persons.
Hence, the fact that the
deed of sale was
already annotated is of
no moment with regard
to third persons. The
preference created by
the levy on attachment
is not diminished by
the
subsequent
registration of the deed
of sale.
VOLUNTARY DEALINGS
PROCESS OF REGISTRATION
VOLUNTARY
INSTRUMENTS
GENERAL [Sec. 55, PD 1529]
OF
IN
(1) The deed or other voluntary instrument

must contain:
(a) The following details of the grantee or
other person acquiring or claiming
interest:
(i) Full name
(ii) Nationality
(iii) Residence
(iv) Postal address
(v) Civil status (if married, include
name in full of spouse)
(b) If grantee is a corporation:
It must contain a recital showing that
such corporation or association is
legally qualified to acquire private lands
(2) File instrument creating or transferring
interest and certificate of title with Register
of Deeds together with:
(a) Owners duplicate
The issuance of a new transfer
certificate without presentation of an
owners duplicate is unwarranted and
confers no right on the purchaser (PNB
v. Fernandez, 1935)
(b) Payment of fees & documentary stamp
tax
PAGE 396
UP LAW BOC
(c) Evidence of full payment of real estate

tax
(d) Document of transfer 1 copy
additional for city/provincial assessor
(3) Payment of fees and DST
(a) After payment of entry fee the Register
of Deeds shall the instruments in a
primary entry book (Sec. 56, PD 1529)
(b) The national, provincial and city
governments are exempted from
payment of entry fees
(c) RA 456 prohibits registration of
documents affecting real property
which is delinquent in the payment of
real estate taxes. Further, if evidence of
such payment is not presented with 15
days from the date of entry of said
document in the primary entry book of
the register of deeds the entry shall be
deemed cancelled.
(4) Entry of the Instrument in the Primary Entry
Book
Instruments are regarded as registered from
the time the Register of Deeds enters them
in the book
(5) TCT shall then be issued
CIVIL LAW
(2) A new certificate of title is issued and

Register of Deeds prepares and delivers to
grantee his owner's duplicate certificate
(3) Register of Deeds notes upon the OCT and
the duplicate certificate the date of transfer,
the volume and page of the registration
book where the new certificate is registered
(4) The original and the owner's duplicate of
the grantor's certificate shall be stamped
cancelled.
(5) The deed of conveyance shall be filed and
indorsed with the number and the place of
registration of the certificate of title of the
land conveyed.
IF ONLY A PORTION OF THE PROPERTY IS
SUBJECT
[Sec. 58, PD 1529]
(1) Include a plan which shows all the portions
already subdivided with verified and
approved technical description.
(2) That plan with the certified copy of the
technical descriptions shall be filed with the
Register of Deeds for annotation in the TCT.
(3) Register of Deeds shall issue a TCT and
cancel the grantor's certificate partially OR
it may be cancelled totally and a new one
issued describing therein the remaining
portion.
PROCESS OF REGISTRATION OF
DEALINGS LESS THAN OWNERSHIP
[Sec. 54, PD 1529]
IF
THERE
ARE
SUBSISTING
ENCUMBRANCES AND ANNOTATIONS
They shall be carried over in the new certificate
or certificates; except when they have been
simultaneously discharged.
*Note: If an instrument does not divest

ownership or title from owner or from transferee
of the registered owners, then no new certificate
shall be entered or issued.
(1) Filing of the instrument with the Register of
Deeds
(2) A brief memorandum thereof is made:
(a) On the certificate of title by the Register
of Deeds and signed by him, and
(b) On the owners duplicate
REGISTRATION OF MORTGAGES
AND LEASES [Sec. 60, PD 1529]
Sec. 60, PD 1529 provides that mortgages and

leases shall be registered in the manner
provided in Sec. 54 (Dealings less than
ownership)
Cancellation or extinguishment of such interests

shall be registered in the same manner.
The deed shall take effect upon the title only

from the time of registration.
REGISTRATION OF DEEDS OF SALE

AND TRANSFERS
When a deed of mortgage is presented, the

Register of Deeds will enter upon the OCT and
upon the owners duplicate a memorandum
thereof and shall sign said memorandum.
IF THE ENTIRE PROPERTY IS SUBJECT [Sec.

57, PD 1529]
(1) Owner executes and registers the deed
which must be sufficient in form.
PAGE 397
UP LAW BOC
REGISTRATION OF POWERS
ATTORNEY [Sec. 64, PD 1529]
OF
CIVIL LAW
REGISTRATION OF ATTACHMENT
Attachment is a writ issued at the institution or
during progress of an action commanding the
sheriff to attach the property, rights, credits or
effects of the defendant to satisfy demands of
the plaintiff.
Powers of attorney and revocations shall be

registered with the Register of Deeds of the
province or city where the land lies.
Any instrument revoking such power shall be
registered in like manner.
KINDS
(1) Preliminary
(2) Garnishment
(3) Levy on execution
REGISTRATION OF TRUSTS
Registration is by memorandum:
(1) A memorandum by the words in trust or
upon condition or other apt words is made
if a deed or other instrument is filed in order
to:
(a) Transfer registered land in trust, or
upon any equitable condition or
limitation expressed therein, or
(b) Create or declare a trust or other
equitable interests in such land without
transfer [Sec. 65, PD 1529]
(2) A memorandum by the words with power
to sell, or power to mortgage or other apt
words is made when:
(1) Copy of writ in order to preserve any lien,
right or attachment upon registered land
shall be filed with the Register of Deeds
where the land lies, containing number of
certificate of title of land to be affected or
description of land (PD 1529, Sec 69)
(2) Register of Deeds to index attachment in
names of both plaintiff & defendant or
name of person whom property is held or in
whose name stands in the records
(a) If duplicate of certificate of title is not
presented:
(i) Register of Deeds shall within 36
hours send notice to registered
owner by mail stating that there has
been registration & requesting him
to produce duplicate so that
memorandum be made
(ii) If owner neglects or refuses
Register of Deeds shall report
matter to court.
(b) Court after notice shall enter an order to
owner to surrender certificate at time &
place to be named therein.
(3) Although notice of attachment is not noted
in duplicate, notation in book of entry of
Register of Deeds produces effect of
registration already
The instrument creating or declaring a trust

or other equitable interest contains an
express power to sell, mortgage, or deal
with the land in any manner
However, if an implied or constructive trust
is claimed, person claiming such must
execute a sworn statement thereof with the
Register of Deeds, containing a description
of the land, the name of the registered
owner and a reference to the number of the
certificate of title. Such claim shall not
affect the title of a purchaser for value and
in good faith before its registration. [Sec. 68,
PD 1529]
INVOLUNTARY DEALINGS
EFFECT
OF
REGISTRATION
OF
ATTACHMENT
(1) Creates real right
(2) Has priority over execution sale
(3) But between 2 attachments one that is
earlier in registration is preferred
The following involuntary dealings affecting

registered land must be registered:
(1) Attachments [Sec. 69, PD 1529]
(2) Sale on execution or for taxes or for any
assessment [Sec. 74, PD 1529]
(3) Adverse claim [Sec. 70, PD 1529]
(4) Notice of lis pendens [Sec. 76, PD 1529]
DUTY OF THE REGISTER OF DEEDS Duty is

ministerial but may refuse registration in the
following circumstances:
PAGE 398
UP LAW BOC
(1) Title to land is not in the name of defendant
CIVIL LAW
(3) Memorandum shall be entered in the

certificate as an adverse claim or
encumbrance
(4) After the period of redemption has expired
& no redemption (2 years from registration
of auction sale) is made: cancellation of title
& issuance of a new one
(5) Before cancellation, notice shall be sent to
registered owner: to surrender title & show
cause why it shall not be cancelled
Exception: If petitioner is an heir

(2) No evidence is submitted to show that he
has present or possible future interest in
land
REGISTRATION OF EXECUTION AND

TAX DELINQUENCY SALES
*Note: Actual knowledge is equivalent to

registration
EXECUTION SALE
(1) To enforce a lien of any description on
registered land, any execution or affidavit to
enforce such lien shall be filed with Register
of Deeds where the land lies
(2) Register in the registration book &
memorandum upon proper certificate of
title as adverse claim or as an encumbrance
(3) To determine preferential rights between 2
liens: priority of registration of attachment
REGISTRATION
PENDENS
OF
NOTICE
LIS
PURPOSE OF NOTICE LIS PENDENS

To keep the subject matter within the power of
the court until the entry of final judgment. It
therefore creates merely a contingency and not
a lien.
TAX SALE
(1) Sale of land for collection of delinquent
taxes and penalties due the Government
(2) In personam (all persons interested shall be
notified so that they are given opportunity
to be heard)
Notice to be given to delinquent tax payer
at last known address
Publication of notice must also be made
in English, Spanish & local dialect &
posted in a public & conspicuous place in
place wherein property is situated & at the
main entrance of the provincial building
(3) Sale cannot affect rights of other lien
holders unless they are given the right to
defend their rights: due process must be
strictly observed
(4) Tax lien superior to attachment
WHEN NOTICE OF LIS PENDENS IS PROPER

(1) To recover possession of real estate
(2) To quiet title
(3) To remove clouds upon the title thereof
(4) For partition
(5) Other proceedings of any kind in court
directly affecting the title to land or the use
or occupation thereof or the buildings
thereon
WHEN NOTICE OF LIS PENDENS IS NOT
PROPER
(1) Proceedings for the recovery of money
judgments
(2) Attachments
(3) Proceedings on the probate of wills
(4) Administration of the estate of deceased
persons
(5) Levies on execution
(6) Foreclosure
*Note: No need to register tax lien because it is

automatically registered once the tax accrues.
However sale of registered land to foreclose a
tax lien needs to be registered.
PROCESS
OF
REGISTRATION:
By
Memorandum or Notice stating
(1) The institution of the action or proceeding
(2) The court wherein the same is pending
(3) The date of the institution of the action
(4) Reference to the number of the certificate of
title
(1) Officers return shall be submitted to
Register of Deeds together with duplicate
title
(2) Register in the registration book
PAGE 399
UP LAW BOC
(5) Adequate description of the land affected

and registered owner thereof
OTHER PARTIES WHO NEED TO REGISTER
(1) Assignee in involuntary proceeding for
insolvency
Duty of the officer serving notice to file a
copy of the notice to the Register of
Deeds where the property of debtor lies
Assignee elected or appointed by court
shall be entitled to entry of new certificate
of registered land upon presentment of
copy of assignment with bankrupts
certificate of title (duplicate)
New certificate shall note that it is entered
to him as assignee or trustee in insolvency
proceedings
CIVIL LAW
REGISTRATION OF ADVERSE CLAIM

WHEN A CLAIM IS ADVERSE [Sec. 70, par. 1,
PD 1529]
(1) Claimants right or interest in registered
land is adverse to the registered owner, and
(2) Such right arose subsequent to date of
original registration, and
(3) No other provision is made in the Decree for
the registration of such right or claimant
(2) Government in eminent domain

Copy of judgment shall be filed in the
Register of Deeds which states
description of property, certificate
number, interest expropriated, nature of
public use
Memorandum shall be made or new
certificate of title shall be issued
REQUISITED FOR REGISTRATION OF AN

ADVERSE CLAIM
(1) The adverse claimant must give a statement
of the following in writing:
(a) His alleged right or interest
(b) How and under whom such alleged
right or interest is acquired
(c) The description of the land in which the
right or interest is claimed and
(d) The number of the certificate of title
(2) The statement must be:
(a) Signed by the adverse claimant
(b) Sworn before a notary public
(3) The statement must also state his residence
or the place to which all notices may be
served upon him.
EFFECT OF REGISTRATION
(1) Impossibility of alienating the property in
dispute during the pendency of the suit
may be alienated but purchaser is subject to
final outcome of pending suit
(2) Register of Deeds is duty bound to carry
over notice of lis pendens on all new titles to
be issued
DURATION OF AN ADVERSE CLAIM

(1) 30 days from the date of registration.
(2) After that the annotation of adverse claim
may be cancelled upon filing of a verified
petition by the party in interest. When
cancelled, no second adverse claim based
on the same ground may be registered by
the same claimant.
CANCELLATION OF LIS PENDENS [Sec.
77, PD 1529]
(1) Before final judgment court may order
cancellation after showing that notice is
only for the purpose of molesting an
adverse party or it is not necessary to
protect the rights of the party who caused it
to be registered
(2) Register of Deeds may also cancel upon
verified petition of the party who caused
such registration
(3) Deemed cancelled when certificate of clerk
of court stating manner of disposal of
proceeding is registered
Non-Registrable
Properties
CONCEPT
All lands of the public domain, waters, minerals,

coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other
natural resources are owned by the State. [Art.
XII, Sec. 2, Constitution]
PAGE 400
UP LAW BOC
With the exception of agricultural lands, all

other natural resources shall not be alienated.
[Art. II, Sec. 2 Constitution]
CIVIL LAW
municipality from the moment they leave

such lands
(9) The waste waters of fountains, sewers, and
public establishments
The classification of public lands is an exclusive

prerogative of the Executive Department of the
Government and not of the courts. In the
absence of such classification, the land remains
as unclassified land until it is released
therefrom and rendered open to disposition.
[Aquino citing Dir. Of Lands and Dir. Of Forest
Development v. CA (1984)]
SPECIFIC KINDS OF NONREGISTRABLE PROPERTIES OR

LANDS
(1) Forest or timberland, public forest, forest
reserves
(2) Mangrove swamps Mangrove swamps or
mangroves should be understood as
comprised within the public forests of the
Philippines as defined in Sec. 1820,
Administrative Code of 1917. [Dir. Of Forestry
v. Villareal (1980)]
(3) Mineral lands Both under the 1987
Constitution and Sec. 2 of the Public Land
Act, mineral lands are not alienable and
disposable. [Lepanto Consolidated Mining
Co. v. Dumyung (1979)]
(4) Foreshore land and seashore Seashore,
foreshore, and/or portions of territorial
waters and beaches, cannot be registered.
Even alluvial formation along the seashore
is part of public domain. [Aquino citing
Dizon v. Rodriguez (1965)]
(5) Lakes Lakes are part of public dominion.
[Art. 502(4), Civil Code]
(6) Military Reservations The reservation
made segregates it from the public domain
and no amount of time in whatever nature
of possession could have ripen such
possession into private ownership. [Republic
v. Marcos (1973)]
(7) Watershed The Constitution expressly
mandates the conservation and utilization
of natural resources, which includes the
countrys watershed. [Tan v. Dir. Of Forestry
(1983)]
(8) Grazing lands While the 1987 Constitution
does not specifically prove that grazing
lands are not disposable, yet if such lands
are part of a forest reserve, there can be no
doubt that the same are incapable of
registration. [Aquino citing Dir. Of Lands v.
Rivas]
(9) Previously titled land Proceeds from the
indefeasibility of the Torrens title.
(10) Alluvial deposit along river when manmade Such deposit is really an
CIVIL CODE PROVISIONS

DEALING WITH NONREGISTRABLE PROPERTIES
PROPERTIES OF PUBLIC DOMINION
[Art. 420, Civil Code]
(1) Those intended for public use, such as

roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks,
shores, roadsteads, and others of similar
character;
(2) Those which belong to the State, without
being for public use, and are intended for
some public service or for the development
of the national wealth.
WATERS UNDER ART. 502, CIVIL

CODE
(1) Rivers and natural beds

(2) Continuous or intermittent waters of springs
and brooks running in their natural beds
and the beds themselves
(3) Waters rising continuously or intermittently
on lands of public dominion
(4) Lakes and lagoons formed by Nature on
public lands, and their beds
(5) Rain waters running through ravines or
sand beds, which are also part of public
dominion;
(6) Subterranean waters on public lands
(7) Waters found within the zone of operation
of public works, even if constructed by a
contractor
(8) Waters rising continuously or intermittently
on lands belonging to private persons, to
the State, to a province, or to a city or
PAGE 401
UP LAW BOC
encroachment of a portion of the bed of the

river, classified as property of the public
domain under Art. 420, par. 1 and Art. 502
(1) of the Civil Code, hence not open to
registration. [Republic v. CA (1984)]
(d) Date, hour and minute it was presented

and received
(2) The Registration Book Provides spaces
whereon the annotation is made after the
instrument has been entered in the Primary
Entry Book
The land registration court has no jurisdiction

over non-registrable property and cannot validly
adjudge the registration of title thereof in favor
of a private applicant. [Pena]
Thus, where it has so been adjudged, the river

not being capable of private appropriation or
acquisition by prescription, the title thereto may
be attacked, either directly or collaterally, by the
State which is not bound by any prescriptive
period provided by the Statute of Limitation.
[Pena citing Martinez v. CA (1974)]
Dealings with
Unregistered Lands
No deed, conveyance, mortgage, lease, or other
voluntary instrument affecting land not
registered under the Torrens system shall be
valid, except as between the parties thereto,
unless such instrument shall have been
recorded in the manner herein prescribed in the
office of the Register of Deeds for the province
or city where the land lies. [Sec. 113, par. 1, PD
1529]
EFFECTS OF
COVERING
LAND
CIVIL LAW
TRANSACTIONS
UNREGISTERED
(1) As between the parties The contract is

binding and valid even if not registered
(2) As among third persons There must be
registration for the transaction to be
binding against third persons
PRIMARY ENTRY BOOK AND

REGISTRATION BOOK
The Register of Deeds for each province or city
shall keep a Primary Entry Book and a
Registration Book.
(1) The Primary Entry Book shall contain,
among other particulars:
(a) Entry number
(b) Names of the parties
(c) Nature of the document
PAGE 402
(1) Registration is by way of annotation

(2) The instrument dealing with unregistered
land is presented before the Register of
Deeds
(3) The Register will then determine if it can be
registered:
(a) If, on the face of the instrument, it
appears that it is sufficient in law, the
Register of Deeds shall forthwith record
the instrument
(b) In case the Register of Deeds refuses its
administration to record, he shall advise
the party in interest in writing of the
ground or grounds for his refusal
(4) The latter may appeal the matter to the
Commissioner of Land Registration
THIRD PARTY WITH A BETTER

RIGHT NOT PREJUDICED
It shall be understood that any recording made

under this section shall be without prejudice to
a third party with a better right. [Sec. 113, PD
1529]
Better right refers to a right which must have
been acquired by a third party independently of
the unregistered deed, such, for instance, as
title by prescription, and that it has no reference
to rights acquired under that unregistered deed
itself. [Pena]
INVOLUNTARY DEALINGS
UNREGISTERED LANDS
IN
PD 1529 now permits the registration of

involuntary dealings in unregistered lands.
Tax sale, attachment and levy, notice of lis
pendens, adverse claim and other instruments
in the nature of involuntary dealings with
respect to unregistered lands, if made in the
form sufficient in law, shall likewise be
admissible to record under Sec. 113. [Sec. 113 (d),
PD 1529]
PAGE 403
UP LAW BOC
TORTS AND DAMAGES
TORTS
ABUSE OF RIGHT
Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act
with justice, give everyone his due, and observe
honesty and good faith.
Generally, the exercise of any right must be in

accordance with the purpose for which it was
established. It must not be excessive or unduly
harsh; there must be no intention to injure
another.
There is abuse of right when:
(1) The right is exercised for the only purpose of
prejudicing or injuring another;
(2) The objective of the act is illegitimate;
(3) There is an absence of good faith.
Elements:
(1) There is a legal right or duty;
(2) Which is exercised in bad faith;
(3) For the sole intent of prejudicing or injuring
another.
LEGAL RIGHT
AND INJURY
The transfer
of credit from
Shell
Philippines to
Shell
USA
was deemed a
violation
of
Velayo
vs. NCC 21 as it
Shell (1959)
allowed Shell
to
attach
properties of
their creditor
CALI to the
prejudice of
its
other
creditors.
LEGAL RIGHT
AND INJURY
The dismissal
itself was not
illegal but it
was
the
manner
of
dismissal
which
was
Globe vs. CA
deemed
in
(1989):
violation
of
Article 19, as
such
was
based
on
unfounded
accusations of
dishonesty.
CASE
Principles
CASE
CIVIL LAW
DOCTRINE
The standards
in NCC 19 are
implemented
by NCC 21.
PAGE 404
DOCTRINE
When a right is
exercised in a
manner which
does
not
conform with
the norms in
NCC 19, and
results
in
damage
to
another,
a
legal wrong is
thereby
committed.
The conscious
indifference of
a person to the
rights
or
welfare of the
University
of
others
who
the East vs.
may
be
Jader (2000):
affected by his
act or omission
can support a
claim
for
damages.
Article
19,
known
to
contain what is
commonly
Ruby
Lims
referred to as
throwing out
the principle of
of complainant
abuse
of
Reyes, as a
rights, is not a
gatecrasher in
panacea for all
a private party,
human hurts
was merely in
and
social
Nikko
Hotel exercise of her
grievances.
Manila Garden duties
as
The object of
vs.
Reyes Executive
this article is to
(2005)
Secretary
of
set
certain
the
hotel
standards
where
the
which must be
party was held,
observed not
and did not
only in the
constitute
a
exercise
of
violation
of
ones
rights
Article 19.
but also in the
performance
of ones duties.
The conscious
indifference of
the school in
not informing
its
student
that he could
not graduate
formed
the
basis for the
award
of
damages.
UP LAW BOC
TORTS AND DAMAGES

Art. 20. Every person who, contrary to law,
willfully or negligently causes damage to
another, shall indemnify the latter for the
same.
The provision is intended to provide a remedy in
cases where the law declares an act illegal but
fails to provide for a relief to the party injured.
[Jarencio]
NCC 20 does not distinguish, and the act may
be done willfully or negligently.
Requisites:
(1) The act must be willful or negligent;
(2) It must be contrary to law; and
(3) Damages must be suffered by the injured
party.
ACTS CONTRARY TO MORALS
CIVIL LAW
cause of the giving of herself unto him in a

sexual congress, proof that he had, in reality, no
intention of marrying her and that the promise
was only a subtle scheme or deceptive device to
entice or inveigle her to accept him and to
obtain her consent to the sexual act, could
justify the award of damages pursuant to Article
21 not because of such promise to marry but
because of the fraud and deceit behind it and
the willful injury to her honor and reputation. It
is essential, however, that such injury should
have been committed in a manner contrary to
morals, good customs or public policy. [Baksh
vs. CA (1993)]
However, when for one whole year, the plaintiff,
a woman of legal age, maintained sexual
relations with the defendant, with repeated acts
of intercourse, there is here voluntariness. No
case under Article 21 is made. [Tanjanco vs. CA
(1966)]
Art. 21. Any person who wilfully causes loss or

injury to another in a manner that is contrary to
morals, good customs or public policy shall
MALICIOUS PROSECUTION
This article is designed to fill in the countless

gaps in the statutes which would otherwise
leave victims of moral wrongs helpless.
Elements: (Magbanua vs. Junsay [2007])

(1) The fact of the prosecution and that the
defendant filed an action ,
(2) That the criminal action was finally
terminated with an acquittal
(3) In bringing the action, the prosecutor acted
without probable cause
(4) The prosecutor was impelled by legal
malice or an improper or sinister motive.
Malicious prosecution is the institution of any

action or proceeding, either civil or criminal,
maliciously and without probable cause.
Elements:
(1) Legal action;
(2) Contrary to morals, public policy, good
customs; and
(3) Intent to injure.
BREACH OF PROMISE TO MARRY,

SEDUCTION AND SEXUAL ASSAULT
Mere breach of promise to marry is not an

actionable wrong. But to formally set a wedding
and go through all the above-described
preparation and publicity, only to walk out of it
when the matrimony is about to be solemnized,
is quite different. This is palpably and
unjustifiably contrary to good customs xxx.
[Wassmer vs. Velez (1964)]
Where a man's promise to marry is in fact the
proximate cause of the acceptance of his love by
a woman and his representation to fulfill that
promise thereafter becomes the proximate
PAGE 405
Note: Although elements as enumerated in the

above case indicate that the prosecutor must
have acted maliciously, in the case of Industrial
Insurance vs. Bondad (2000) it was the
petitioner Industrial Insurance who was held
liable for malicious prosecution and was made
to pay damages, as they prosecuted a case
which was clearly without basis in fact.
To constitute malicious prosecution, there must
be proof that the prosecution was prompted by
a sinister design to vex and humiliate a person
and that it was initiated deliberately by the
defendant knowing that his charges were false
and groundless. Concededly, the mere act of
UP LAW BOC
TORTS AND DAMAGES
submitting a case to the authorities for

prosecution does not make one liable for
malicious prosecution. [Que vs. IAC (1989)]
Malicious prosecution involves not only criminal
but civil and administrative suits as well. [Drilon
vs. CA (1997)]
PUBLIC HUMILIATION
It is against morals, good customs and public

policy to humiliate, embarrass and degrade the
dignity of a person. Everyone must respect the
dignity, personality, privacy and peace of mind
of his neighbors and other persons [Art.icle 26,
Civil Code). [Grand Union vs. Espino (1979)]
UNJUSTIFIED DISMISSAL
The right of an employer to dismiss an

employee is not to be confused with the manner
in which this right is to be exercised.
When the manner in which the company
exercised its right to dismiss was abusive,
oppressive and malicious, it is liable for
damages.
UNJUST ENRICHMENT
Art. 22. Every person who through an act of
performance by another, or any other means,
acquires or comes into possession of something at
the expense of the latter without just or legal
ground, shall return the same to him.
CIVIL LAW
appropriated where it is just and equitable that

such restitution be made, and where such action
involves no violation or frustration of law or
opposition to public policy, either directly or
indirectly.
While neither Art. 22 nor Art. 23 expressly
provides for the effects of unjust enrichment,
the Chapter on Quasi-Contracts [Art.icles 21592163), which complements or supplements and
should be so considered in appropriate cases,
does.
Enrichment at the expense of another is not per
se forbidden. It is such enrichment without just
or legal cause that is contemplated here.
Just and legal cause is always presumed, and
the plaintiff has the burden of proving its
absence.
The restitution must cover the loss suffered by
the plaintiff but it can never exceed the amount
of unjust enrichment of the defendant if it is less
than the loss of the plaintiff.
Requisites:
(1) That the defendant has been enriched;
(2) That the plaintiff has suffered a loss;
(3) That the enrichment of the defendant is
without just or legal ground; and
(4) That the plaintiff has no other action based
on contract, crime or quasi-delict.
LIABILITY WITHOUT FAULT
Art. 23. Even when an act or event causing

damage to anothers property was not due to the
fault or negligence of the defendant, the latter
shall be liable for indemnity if through the act or
event he was benefited

damage to anothers party was not due to the fault
or negligence of the defendant, the latter shall be
liable for indemnity if through the act or event he
was benefited.
Art. 2142. Certain lawful, voluntary and unilateral

acts give rise to the juridical relation of quasicontract to the end that no one shall be unjustly
enriched or benefited at the expense of another.
BASIS OF LIABILITY
Equity. An involuntary act, because of its
character, cannot generally create an
obligation; but when by such act its author has
been enriched, it is only just that he should
indemnify for the damages caused to the extent
of this enrichment.
Art. 2143. The provisions for quasi contracts in this

Chapter do not exclude other quasi-contracts
which may come within the purview of the
preceding article.
One person should not be permitted to unjustly

enrich himself at the expense of another, but
should be required to make restitution of, or for
property or benefits received, retained, or
PAGE 406
SCOPE OF LIABILITY
The indemnity does not include unrealized
profits of the injured party, because the
defendants enrichment is the limit of his
liability.
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TORTS AND DAMAGES
Classification of Torts
CIVIL LAW
The Tortfeasor
Tortfeasor refers to all persons who command,
instigate,
promote,
encourage,
advise,
countenance, cooperate in, aid or abet the
commission of a tort, or who approve of it after
it is done, if done for their benefit. [Worcester vs.
Ocampo (1958)]
COMMISSION
NEGLIGENT TORT
A negligent tort consists in the failure to act

according to the standard of diligence required
under the attendant circumstances. It is a
voluntary act or omission which results in injury
to others, without intending to cause the same.
THE DIRECT TORTFEASOR

Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage done.
xxx
INTENTIONAL TORT
An intentional tort is perpetrated by one who
intends to do that which the law has declared to
be wrong. It is conduct where the actor desires
to cause the consequences of the act, or that he
believes
that
the
consequences
are
substantially certain to result therefrom.
The tortfeasor may be a natural or juridical

person. For natural persons, apply requisites of
Art. 2176 and for juridical persons, apply
vicarious liability provisions.
PERSONS MADE LIABLE FOR

OTHERS
Note: Article 2176 where it refers to fault or

negligence covers not only acts not
punishable by law but also acts criminal in
character, whether intentional and voluntary or
negligent. (Elcano vs. Hill [1977])
Art. 2180 (1). The obligation imposed by Article

2176 is demandable not only for ones own acts or
omissions, but also for those of persons for whom
one is responsible.
STRICT LIABILITY
PRINCIPLE OF VICARIOUS LIABILITY;

DEFINITION
One is liable independent of fault or negligence.

It only requires proof of a certain set of facts.
Liability here is based on the breach of an
absolute duty to make something safe. It most
often applies to ultra-hazardous activities or in
product liability cases. It is also known as
absolute liability or liability without fault.
A person who has not committed the act or

omission which caused damage or injury to
another may nevertheless be held civilly liable
to the latter either directly or subsidiarily under
certain circumstances.
Strict liability is imposed by articles 1314, 1711,

1712, 1723, 2183, 2187, 2189, 2190, 2191, 2192,
2193.
This is also known as the doctrine of imputed

negligence.
GENERAL
Art. 2180, par. 8. The responsibility treated of in

this article shall cease when the persons herein
mentioned prove that they observed all the
diligence of a good father of a family to prevent
damage.
SPECIFIC
General rule: Proper defense is the exercise of

the diligence of a good father of a family. (bonus
paterfamilias)
ACCORDING TO SCOPE
Tort liability is based on any of the three
categories: intentional, negligent, strict liability.
Includes trespass, assault, battery, negligence,
products liability, and intentional infliction of
emotional distress.
PAGE 407
Exceptions: See discussion on different

standards of diligence in foregoing sections.
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BASIS OF VICARIOUS LIABILITY

The basis of vicarious liability is NOT respondeat
superior; rather, it is the principle of pater
familias.
Respondeat
superior
Under American jurisprudence, it

means that the negligence of the
servant is conclusively the negligence
of the master.
Bonus pater Under the principle of pater familias,

familias
the basis of the masters liability is
the negligence in the supervision of
his subordinates. The master will be
freed from liability if he can prove that
he had observed all the diligence of a
good father of the family to prevent
the damage.
LIABILITY
OF
TORTFEASOR
THE
ACTUAL
The author of the act is not exempted from

personal liability. He may be sued alone or with
the person responsible for him.
2 Requisites According to Chironi:
(1) The duty of supervision;
(2) The possibility of making such supervision
effective.
PRESUMPTION OF NEGLIGENCE ON
PERSONS
INDIRECTLY
RESPONSIBLE
Liability arises by virtue of a presumption juris

tantum of negligence on the part of the persons
made responsible under the article, derived from
their failure to exercise due care and vigilance
over the acts of the subordinates to prevent
them from causing damage.
The basis of this vicarious, although primary,
liability is, as in Article 2176, fault or negligence,
which is presumed from that which
accompanied the causative act or omission. The
presumption is merely prima facie and may
therefore be rebutted. [Tamargo vs. CA (1992)]
NATURE OF LIABILITY
The liability of the vicarious obligor is PRIMARY

and DIRECT (solidarily liable with the
tortfeasor), not subsidiary. His responsibility is
PAGE 408
CIVIL LAW
not conditioned upon the insolvency of or prior

recourse against the negligent tortfeasor.
PERSONS VICARIOUSLY LIABLE [Art.

2180)
WHO ARE LIABLE FOR MINORS?
(1) Parents (the father, and in case of his death
or incapacity, the mother)
(2) Adoptive parents
(3) Court-appointed guardians
(4) Substitute Parental Authorities
(a) Grandparents
(b) Oldest qualified sibling over 21 years old
(c) Childs actual custodian, provided he is
qualified and over 21 years old.
(5) Special Parental Authorities
(a) School
(b) Administrators
(c) Teachers
(d) Individual, entity, or institution engaged
in child care
PARENTS AND ADOPTERS
Basis of Liability
It is based on the presumption of failure on their
part to properly exercise their parental authority
for the good education of their children and
exert adequate vigilance over them.
It is imposed only when children are living with
the parents.
If there is just cause for separation, the
responsibility ceases.
Note: The responsibility of the father and
mother is not simultaneous but alternate.
When Responsibility Ceases
When parent is not in the position to exercise
authority and supervision over the child
Meaning of Minority
Par. 2 and 3 of Art. 2180 speak of minors.
Minors here refer to those who are below 21
years of age, NOT below 18 years. The law
reducing the majority age from 21 to 18 years
old did not amend these pars.
Art. 236, par. 3 of the FC, as amended by RA
6809, provides:
UP LAW BOC
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CIVIL LAW
parents had exercised all the diligence of a

good father of a family to prevent the damage.
[Tamargo vs. CA (1992)]
Nothing in this Code shall be construed to

derogate from the duty or responsibility of
parents and guardians for children and
wards below 21 years of age mentioned in
the second and third paragraphs of 2180 of
the Civil Code.
Adopted Children
Judicially adopted children are considered
legitimate children of their adopting parents.
Thus, adopters are civilly liable for their
tortious/ criminal acts if the children live with
them and are below 21 years of age.
Illegitimate Children
Responsibility is with the mother whom the law
vests with parental authority.
Reason for Vicarious Liability
The civil liability which the law imposes upon
the father and, in case of his death or incapacity,
the mother, for any damages that may be
caused by the minor children who live with
them, is obvious. This is a necessary
consequence of the parental authority they
exercise over them which imposes upon the
parents the duty of supporting them, keeping
them in their company, educating them in
proportion to their means, while, on the other
hand, gives them the right to correct and
punish them in moderation. [Exconde vs.
Capuno (1957)]
The basis of parental authority for the torts of a
minor child is the relationship existing between
the parents and the minor child living with them
and over whom, the law presumes, the parents
exercise supervision and control. To hold that
parental authority had been retroactively
lodged in the adoptive parents so as to burden
them with the liability for a tortious act that they
could not have foreseen and prevented would
be unfair.
Parental liability is, in other words, anchored
upon parental authority coupled with presumed
parental dereliction in the discharge of the
duties accompanying such authority. The
parental dereliction is, of course, only presumed
and the presumption can be overturned under
Article 2180 of the Civil Code by proof that the
PAGE 409
Note: Art. 2180, par. 2 of the Civil Code which

holds the father liable for damages has been
modified by the Family Code and PD 603. Art.
211 of the FC declares joint parental authority of
the mother and father over common children.
The parent(s) exercising parental authority are
liable for the torts of their children.
The parent's liability under 2180 should be
primary and not subsidiary. If it were subsidiary,
the parents cannot invoke due diligence as a
defense. Such interpretation reconciles 2180
with 2194 which calls for solidary liability of joint
tortfeasors. [Libi vs. IAC (1992)]
Requisites for liability to attach:
(1) The child is below 21 years old;
(2) The child is under the parental authority of
the parents;
(3) The child is living in the company of the
parents.
Parental
authority
over
foundlings,
abandoned, neglected or abused and other
similarly situated children
In case of foundlings, abandoned, neglected or
abused children and other children similarly
situated, parental authority shall be entrusted in
summary judicial proceedings to heads of
children's homes, orphanages and similar
institutions duly accredited by the proper
government agency. [Art. 217, FC]
GUARDIANS
Liability of guardians
Guardians are liable for damages caused by the
minors or incapacitated persons who are under
their authority and live in their company. [Art.
2180, par. 3]
The liability of guardians with respect to their
wards is governed by the same rule as in the
liability of parents with respect to their
children below 21 years and who live with
them.
Incompetent includes those:
(1) suffering the penalty of civil interdiction,
(2) prodigals,
UP LAW BOC
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(3) deaf and dumb who are unable to read

and write,
(4) of unsound mind, even though they have
lucid intervals
(5) being of sound mind, but by reason of
age, disease, weak mind, and other
similar causes, cannot take care of
themselves or manage their property.
(Rule 92, ROC)
Who are liable
Requisites for
liability to
attach
Teacher-inPupils
and
charge (the
students
one
Pupils
and remain
in
designated to students
teachers
exercise
custody
supervision
regardless of
over students)
the age
Head
of
establishment
of arts and Apprentices
trades
be
Note: Parental Authority of Special Parental

Authorities may only be exercised while under
their supervision, instruction, or custody. This
attaches to all authorized activities, whether
inside or outside the school, entity, or
institution.
Custody
regardless of
the age
If
the
tortfeasor is a
School
student of the Must
(generally not
school [Art. below 18
held liable)
218 FC]
Requisites for
liability to
attach
If
the
School
tortfeasor is a Must
(generally not
stranger, it is below 18
held liable)
liable
for
breach
of
contract since
the school has
the implied
duty to its
students to
maintain
peace
and
order within
its premises.
(PSBA vs. CA
[1992])
SCHOOL,
TEACHERS
AND
ADMINISTRATORS
Teachers or heads of establishments of arts and
trades shall be liable for damages caused by
their pupils and students or apprentices, so long
as they remain in their custody. [Art. 2180, par.
7]
For whose acts
For whose acts

If
the
tortfeasor is a
teacher/
employee of
the school, it
is liable as
employer
under 2180
(5) of CC (St.
Francis vs. CA
[1991])
Liability of minor or insane tortfeasor without

a parent or guardian
He shall be answerable with his own property in
an action against him where a guardian ad
litem shall be appointed. [Art. 2182]
Who are liable
CIVIL LAW
Custody means the protective and supervisory

custody that the school, its head and teachers
exercise over the pupils, for as long as they are
in attendance in school, which includes recess
time.
be
There is nothing in the law that requires that for

such liability to attach, the pupil or student who
commits the tortious act must live and board in
the school, as erroneously held by the lower
court, and the dicta in Mercado (as well as in
Exconde) on which it relied, must now be
PAGE 410
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deemed to have been set aside by this decision.

[Palisoc vs. Brillantes (1971)]
increasing such vigilance where the school

is non-academic.
As long as it is shown that the student is in the

school premises pursuant to a legitimate
student objective, in the exercise of a legitimate
right, or the enjoyment of a legitimate student
privilege, the responsibility of the school
authorities over the student continues.
[Amadora vs. CA (1988)]
The case of Ylarde vs. Aquino discusses the

liability of the PRINCIPAL. Court said that
according to Art. 2180, only the HEAD of ARTS
AND TRADES schools can be held liable under
such Article. Since the principal was the head of
an academic school, he was still exculpated
from responsibility.
A student not at attendance in the school

cannot be in recess thereat. A recess, as the
concept is embraced in the phrase at
attendance in the school, contemplates a
situation of temporary adjournment of school
activities where the student still remains within
call of his mentor and is not permitted to leave
the school premises, or the area within which
the school activity is conducted. Recess by its
nature does not include dismissal.
OWNERS
AND
MANAGERS
OF
ESTABLISHMENTS AND ENTERPRISES
The owners and managers of an establishment
or enterprise are likewise responsible for
damages caused by their employees in the
service of the branches in which the latter are
employed or on the occasion of their functions.
[Art. 2180, par. 4]
Who are liable
Mere fact of being enrolled or being in the

premises of a school without more does not
constitute attending school or being in the
protective and supervisory custody of the
school, as contemplated by law. [Salvosa vs. IAC
(1988)]
For whose
acts
Owners and
managers of
Their
an
employees
establishment
or enterprise
The principal of the school cannot be held liable

for the reason that the school he leads is an
academic school and not a school of arts and
trades. [Ylarde vs. Aquino (1988)]
Note that in Amadora vs. CA (1988) the Court
said:
Requisites for
liability to attach
The
damage
was caused in
the service of
the branches in
which
the
employees are
employed
-ORThe
damage
was caused on
the occasion of
their functions
Owners and managers of an establishment or

enterprise does not include a manager of a
corporation. (Spanish term directores
connotes employer. But manager of a
corporation is not an employer, but rather
merely an employee of the owner.) [Philippine
Rabbit vs. Philam Forwarders (1975)]
There is really no substantial distinction

between the academic and the nonacademic schools insofar as torts
committed by their students are concerned.
The same vigilance is expected from the
teacher over the students under his control
and supervision, whatever the nature of the
school where he is teaching.
EMPLOYERS (in general)

Employers shall be liable for the damages
caused by their employees and household
helpers acting within the scope of their assigned
tasks, even though the former are not engaged
in any business or industry. [Art. 2180, par. 5]
The Court cannot see why different

degrees of vigilance should be exercised by
the school authorities on the basis only of
the nature of their respective schools. There
does not seem to be any plausible reason
for relaxing that vigilance simply because
the school is academic in nature and for
PAGE 411
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Meaning of employer
CIVIL LAW
To make the employer liable, it must be

established that the injurious or tortious act was
committed at the time that the employee was
performing his functions.
Art. 97 (b), Labor Code. Employer includes any

person acting directly or indirectly in the interest of
an employer in relation to an employee and shall
include the government and all its branches,
subdivisions
and
instrumentalities,
all
government-owned or controlled corporations and
institutions, as well as non-profit private
institutions, or organizations.
Within the scope of their assigned task in Art.

2180 includes any act done by an employee in
furtherance of the interests, or for the account
of the employer at the time of the infliction of
the injury or damage. [Filamer vs. IAC (1992)]
This Court still employs the control test to

determine the existence of an employeremployee relationship between hospital and
doctor. Under the control test, an
employment relationship exists between a
physician and a hospital if the hospital controls
both the means and the details of the process
by which the physician is to accomplish his task.
The Court earlier ruled that there was employeremployee relationship between the doctor and
employee but reversed itself upon motion for
reconsideration. They still held the hospital
liable on the basis of agency and corporate
responsibility. [Professional Services vs. CA and
Agana (2010)]
Employer need not be riding in the vehicle to

become liable for a drivers negligence. Article
2184 mandating that the owner is only held
solidarily liable if he is riding in the vehicle at
the time of the mishap, only applies to those
owners of vehicles, who do not come within the
ambit of Article 2180 (as owners of an
establishment or enterprise.) [De Leon
Brokerage vs. CA (1962)]
Basis of liability
Employers negligence in:
(1) The selection of their employees (culpa in
eligiendo); and
(2) The supervision over their employees (culpa
in vigilando).
Independent contractor
General rule: Master not generally liable for the
fault or negligence of an independent
contractor performing some work for him
Basis for civil liability of employers is

paterfamilias. [Cuison vs. Norton & Harrison
(1930)]
Exception: One who hires an independent

contractor, but controls the latters work is also
responsible for the independent contractors
negligence upon the finding of an employeremployee relationship.
Presumption of negligence
The presentation of proof of the negligence of
its employee gives rise to the presumption that
the defendant employer did not exercise the
diligence of a good father of a family in the
selection and supervision of its employees.
The existence of the employer-employee

relationship must first be established before an
employer may be made vicariously liable under
Art. 2180, CC.
For the employer to avoid the solidary liability

for a tort committed by his employee, an
employer must rebut the presumption by
presenting adequate and convincing proof that
in the selection and supervision of his employee,
he or she exercised the care and diligence of a
good father of a family. Employers must submit
concrete
proof, including
documentary
evidence, that they complied with everything
that was incumbent on them. [Ramos vs. C.O.L.
Realty Corp. (2009)]
Requisites:
(1) Employee chosen by employer or through
another;
(2) Services rendered in accordance with orders
which employer has authority to give;
(3) Illicit act of employee was on the occasion
or by reason of the functions entrusted to
him;
(4) Presumption of negligence.
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Necessity of presumption of negligence

It is difficult for any person injured to prove the
employers negligence as they would be proving
negative facts.
interpose the defense of due diligence in the

selection and supervision of the employee.
[Castilex Industrial Corp. vs. Vasquez (1999)]
Distinction between 4th and 5th paragraph of
2180
EMPLOYER NEED NOT BE ENGAGED

IN BUSINESS OR INDUSTRY
The phrase even though the former are not

engaged in any business or industry found in
the fifth paragraph should be interpreted to
mean that it is not necessary for the employer to
be engaged in any business or industry to be
liable for the negligence of his employee who is
acting within the scope of his assigned task.
A distinction must be made between the two
provisions to determine what is applicable. Both
provisions apply to employers: the fourth
paragraph, to owners and managers of an
establishment or enterprise; and the fifth
paragraph, to employers in general, whether or
not engaged in any business or industry. The
fourth paragraph covers negligent acts of
employees committed either in the service of
the branches or on the occasion of their
functions,
while
the
fifth
paragraph
encompasses negligent acts of employees
acting within the scope of their assigned task.
The latter is an expansion of the former in both
employer coverage and acts included. Negligent
acts of employees, whether or not the employer
is engaged in a business or industry, are covered
so long as they were acting within the scope of
their assigned task, even though committed
neither in the service of the branches nor on the
occasion of their functions. For, admittedly,
employees oftentimes wear different hats. They
perform functions which are beyond their office,
title or designation but which, nevertheless, are
still within the call of duty.
CIVIL LAW
4th paragraph
5th paragraph
Owners
and
managers of an
establishment or an
enterprise
Employers in
general,
whether or not
engaged
in
business
or
industry
Negligent acts of
employees
committed either in
Covered acts the service of the
branches or on the
occasion of their
functions
Negligent acts
of employees
acting within
the scope of
their assigned
task
Liable
persons
DEFENSE
OF
DILIGENCE
SELECTION AND SUPERVISION
IN
Metro Manila Transit vs. CA (1993): Due diligence

in the SUPERVISION of employees includes the
formulation of suitable rules and regulations for
the guidance of employees and the issuance of
proper instructions intended for the protection
of the public and persons with whom the
employer has relations through his or her
employees and the imposition of necessary
disciplinary measures upon employees in case
of breach or as may be warranted to ensure
performance of acts as indispensable to the
business of and beneficial to their employee.
Due diligence in the SELECTION of employees
require that the employer carefully examined
the applicant for employment as to his
qualifications, his experience and record of
service.
Under the fifth paragraph of Article 2180,

whether or not engaged in any business or
industry, an employer is liable for the torts
committed by employees within the scope of his
assigned tasks. But it is necessary to establish
the employer-employee relationship; once this
is done, the plaintiff must show, to hold the
employer liable, that the employee was acting
within the scope of his assigned task when the
tort complained of was committed. It is only
then that the employer may find it necessary to
The responsibility of employers for the

negligence of their employees in the
performance of their duties is primary, that is,
the injured party may recover from the
employers directly, regardless of the solvency of
their employees. The rationale for the rule on
vicarious liability of the employer for the torts of
the employees is that this is a required cost of
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doing business. They are placed upon the

employer because, having engaged in the
enterprise, which will on the basis of all past
experience involve harm to others through the
tort of employees, and sought to profit by it, it is
just that he, rather than the innocent plaintiff,
should bear them; and because he is better able
to absorb them, through prices, rates or liability
or insurance, and so to shift them to society, to
the community at large. [Metro Manila Transit
vs. CA (1998)]
held responsible so as not to inconvenience

or prejudice the third party injured.
[Cadiente vs. Macas, 2008]The registered
owner, however, has the right to be
indemnified by the real or actual owner of
the amount that he may be required to pay
as damages for the injury caused to the
plaintiff. [Orix Metro Leasing v. Mangalinan
2012]
(2) This rule applies even if the vehicle is leased
to third persons.
NATURE OF EMPLOYERS LIABILITY
Remedy of the registered owner

His liability is subject to his right of recourse
against the transferee or buyer.
The employer is PRIMARILY and SOLIDARILY

liable for the tortious act of the employee. The
employer may recover from the employee, the
amount it will have to pay the offended partys
claim.
THE STATE
The State may not be sued without its consent.
[Sec 3, Art XVI, 1987 Constitution]
Such recovery, however, is NOT for the entire

amount. To allow such would be as if to say that
the employer was not negligent.
The State is responsible in like manner when it

acts through a special agent; but not when the
damage has been caused by the official to
whom the task done properly pertains, in which
case what is provided in Article 2176 shall be
applicable. [Art. 2180, par. 6]
The liability of the registered owner and driver is

solidary, primary and direct. [Philtranco vs. CA
(1997)]
A special agent is one who receives a definite

and fixed order or commission, foreign to the
exercise of the duties of his office if he is a
special official.
Criminal Negligence
The vicarious liability of the employer for
criminal negligence of his employee is governed
by Art. 103, RPC. Conviction of the employee
conclusively binds the employer. Defense of due
diligence in the selection and supervision of the
employee is NOT available. The employer
cannot appeal the conviction. [Fernando vs.
Franco (1971)]
This concept does not apply to any executive

agent who is an employee of the active
administration and who on his own
responsibility performs the functions which are
inherent in and naturally pertain to his office.
Note: The liability of the employer under Art.

103, RPC is subsidiary.
The responsibility of the state is limited to that

which it contracts through a special agent, duly
empowered by a definite order or commission to
perform some act or charged with some definite
purpose which gives rise to the claim. [Merritt vs.
Government of the Philippine Islands (1960)]
Liability for illegal or harmful acts committed by

security guards attaches to the employer
agency, not to the clients or customers of such
agency [Soliman vs. Tuazon (1992)].
General rule: The State cannot be sued.
Registered Owner Rule

(1) The registered owner of the vehicle is
primarily responsible to the public for
whatever damage or injury the vehicle may
have caused, even if he had already sold the
same to someone else. The policy is the
easy identification of the owner who can be
Exceptions:
(1) There is express legislative consent;
(2) The State filed the case (because here, it is
deemed to have waived its immunity).
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Instances where the State gives its consent to

be sued
(1) Art. 2180 (6) is an example of an express
legislative consent. Here, the State assumes
a limited liability for the acts of its special
agents.
(2) Art. 2189 provides for state liability for
damages caused by defective condition of
public works.
(3) Local Government Code provides for the
liability of local government units for
wrongful exercise of its proprietary (as
opposed to its governmental) functions. The
latter is the same as that of a private
corporation or individual. [Mendoza vs. De
Leon, 1916]
CIVIL LAW
JOINT TORTFEASORS
Art. 2194. The responsibility of two or more
persons who are liable for quasi-delict is solidary.
DEFINITION OF JOINT
TORTFEASORS
They are all persons who command, instigate,

promote, encourage, advise, countenance,
cooperate in, aid or abet in the commission of a
tort, or who approve of it after it is done, if done
for their benefit. [Filipinas Broadcasting Network
vs. AMEC-BCCM (2005)]
APPLICABILITY OF THE PROVISION

The provision applies when there are 2 or more
persons who have participated in the
commission of a single quasi-delict.
The State agencies or subdivisions, in the

pursuance of proprietary functions, are akin to
any other private corporation. They may be sued
for:
(1) Torts committed by them [Art. 2176] or
(2) Torts committed by their employees [Art.
2180].
The injury must be indivisible.
NATURE OF LIABILITY
Solidary the person injured may sue all of

them, or any number less than all, and they are
all together solidarily liable for the whole
damage.
As long as it is performing proprietary functions,

it can be held liable for the acts of its
employees, both regular and special.
Acts of Omission and Its

Modalities
Notes:
As a governmental entity: Liable only for acts
of its special agents.
As a corporate entity: May be held liable just
as any other employer for the acts of its
employees.
Special agent one duly empowered by a
definite order or commission to perform some
act or one charged with some definite purpose
which give rise to the claim; if he is a
government employee or official, he must be
acting under a definite and fixed order or
commission, foreign to the exercise of the
duties of his office.
Human conduct can be described alternatively

as acts or omission. In relation to the existence
of a legal duty, conduct may be described in
terms of action or inaction, or misfeasance or
nonfeasance.
Manresa: Liability for personal acts or omission
is founded on that indisputable principle of
justice recognized by all legislators that when a
person by his act or omission causes damage or
prejudice to another, a juridical relation is
created by virtue of which the injured person
acquires a right to be indemnified and the
person causing the damage is charged with the
corresponding duty of repairing the damage.
The reason for this is found in the obvious truth
that man should subordinate his acts to the
precepts of prudence and if he fails to observe
them and cause damage to another, he must
repair the damage.
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Proximate Cause
CONCEPT
CAUSE
OF
CIVIL LAW
injury, even though such injury would not have

happened but for such condition or occasion.
[Manila Electric vs. Remonquillo (1956)]
PROXIMATE
Concurrent cause Several causes producing

the injury, and each is an efficient cause without
which the injury would not have happened. The
injury is attributed to any or all the causes, and
recovery may be had against any or all of those
responsible.
In order that civil liability for negligence may

arise, there must be a direct causal connection
between the damage suffered by the plaintiff
and the act or omission of the defendant. In
other words, the act or omission of the
defendant must be the proximate cause of the
loss or damage of the plaintiff.
Where the concurrent or successive negligent

acts or omissions of two or more persons,
although acting independently, are in
combination the direct and proximate cause of
a single injury to a third person, it is impossible
to determine in what proportion each
contributed to the injury and either of them is
responsible for the whole injury. Where their
concurring negligence resulted in injury or
damage to a third party, they become joint
tortfeasors and are solidarily liable for the
resulting damage. [Eastern Shipping vs. CA
(1998)]
DEFINITION
Proximate cause that cause, which, in natural
and continuous sequence, unbroken by any
efficient intervening cause, produces the injury,
and without which the result would not have
occurred.
Proximate legal cause that acting first and
producing the injury, either immediately or by
setting other events in motion, all constituting a
natural and continuous chain of events, each
having a close causal connection with its
immediate predecessor, the final event in the
chain immediately effecting the injury as a
natural and probable result of the cause which
first acted, under such circumstances that the
person responsible for the first event should, as
an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of
his act or default that an injury to some person
might probably result therefrom. [Bataclan vs.
Medina (1957)]
Intervening cause
If the intervening cause is one which in ordinary
human experience is reasonably to be
anticipated, or one which the defendant has
reason to anticipate under the particular
circumstances, the defendant may be negligent,
among other reasons, because of failure to
guard against it.
There is an intervening cause combining with
the defendants conduct to produce the result,
and the defendants negligence consists in
failure to protect the plaintiff against that very
risk.
Proximate cause is determined from the facts of

each case, upon a combined consideration of
logic, common sense, policy or precedent. [
Quezon City vs. Dacara (2005):]
Foreseeable intervening forces are within the

scope of the original risk, and hence of the
defendants negligence. [Phoenix Construction
vs. IAC (1987)]
DIFFERENTIATED FROM:
Remote cause
A prior and remote cause cannot be made the
basis of an action if such remote cause did
nothing more than furnish the condition or give
rise to the occasion by which the injury was
made possible, if there intervened between such
prior or remote cause and the injury a distinct,
successive, unrelated, and efficient cause of the
Efficient intervening cause

The test is not in the number of intervening
causes, but in their character and in the natural
and probable connection between the wrong
done and the injurious consequence. Teague vs.
Fernandez (1973)]
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prudent and experienced party, fully acquainted

with all the circumstances which in fact exist,
whether they could have been ascertained by
reasonable diligence, or not, would have
thought at the time of the negligent act as
reasonably possible to follow, if they had been
suggested to his mind.
TESTS TO DETERMINE
PROXIMATE CAUSE
CAUSE IN FACT
The first step is to determine whether the

defendants conduct, in point of fact, was a
factor in causing plaintiffs damage.
EFFECTIVENESS OF THE
BUT FOR RULE
ORBIT OF THE RISK TEST
CAUSE;
If the foreseeable risk to plaintiff created a duty

which the defendant breached, liability is
imposed for any resulting injury within the orbit
or scope of such injury. It is not the unusual
nature of the act resulting in injury to plaintiff
that is the test of foreseeability, but whether the
result of the act is within the ambit of the
hazards covered by the duty imposed upon the
defendant.
Whether such negligent conduct is a cause

without which the injury would not have taken
place (sine qua non rule) or is the efficient cause
which set in motion the chain of circumstances
leading to the injury. [Bataclan vs. Medina,
supra]
SUBSTANTIAL FACTOR TEST
CAUSE vs. CONDITION
If the actors conduct is a substantial factor in

bringing about harm to another, the fact that
the actor neither foresees nor should have
foreseen the harm or the manner in which it
occurred, does not prevent him from being
liable. [Philippine Rabbit vs. IAC, 1990]
Many courts have sought to distinguish between

the active cause of the harm and the existing
conditions upon which that cause operated. If
the defendant has created only a passive, static
condition which made the damage possible, he
is said not to be liable.
FORESEEABILITY TEST
The distinction between cause and condition

has already been almost entirely discredited.
Prosser and Keeton: So far as the fact of
causation is concerned, in the sense of
necessary antecedents which could have played
an important part in producing the result, it is
quite impossible to distinguish between active
forces and passive situations, particularly since
the latter are the result of other active forces
which have gone before. Note: active force is the
cause while the passive situation is the
condition.
Anticipation of consequence is a necessary

element in determining not only whether a
particular act or omission was negligent, but
also whether the injury complained of was
proximately caused by such act or omission.
NATURAL
AND
CONSEQUENCE TEST
PROBABLE
A natural consequence of an act is the

consequence which ordinarily follows it. A
probable consequence is one that is more likely
to follow than fail to follow its supposed cause
but it need not be one which necessarily follows
such cause.
ORDINARY AND NATURAL

DIRECT CONSEQUENCE TEST
CIVIL LAW
It is not the distinction which is important but

the nature of the risk and the character of the
intervening cause. [Phoenix Construction vs. IAC
(1987)]
OR
If negligence is a cause in fact of the injury, the

liability of the wrongdoer extends to all the
injurious consequences.
LEGAL CAUSE
NATURAL
AND
CONSEQUENCES
HINDSIGHT TEST
PROBABLE
A natural consequence of an act is the

consequence which ordinarily follows it. A
A party guilty of negligence or omission of duty

is responsible for all the consequences which a
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probable consequence is one that is more likely

to follow than fail to follow its supposed cause
but it need not be one which necessarily follows
such cause.
impending harm by the exercise of due

diligence. [Consolidated Bank vs. CA (2003)]
If both parties are found to be negligent; but,
their negligence are not contemporaneous, the
person who has the last fair chance to avoid the
impending harm and fails to do so is chargeable
with the consequences, without reference to the
prior negligence of the other party. [Picart vs.
Smith (1918)]
FORESEEABILITY
Anticipation of consequence is a necessary

element in determining not only whether a
particular act or omission was negligent, but
also whether the injury complained of was
proximately caused by such act or omission.
Elements:
(1) Plaintiffs own negligence puts himself in a
dangerous situation;
(2) Defendant saw or discovered, by exercising
reasonable care, the perilous position of
plaintiff;
(3) In due time to avoid injuring him
(4) Despite notice and imminent peril,
defendant failed to employ care to avoid
injury; and
(5) Injury of plaintiff resulted.
Where the particular harm sustained was

reasonably foreseeable at the time of the
defendants misconduct, his act or omission is
the legal cause thereof [Jarencio]
Foreseeability is the fundamental basis of the
law of negligence. To be negligent, the
defendant must have acted or failed to act in
such a way that an ordinary reasonable man
would have realized that certain interests of
certain persons were reasonably subjected to a
general but definite class of risks.
DOCTRINE
CHANCE
OF
LAST
CIVIL LAW
COVERS SUCCESSIVE
NEGLIGENCE
CLEAR
INAPPLICABLE
TORTFEASORS
Also known as: doctrine of discovered peril or

doctrine of supervening negligence or
humanitarian doctrine
TO
ACTS
OF
JOINT
However, the doctrine cannot be extended into

the field of joint tortfeasors as a test of whether
only one of them should be held liable to the
injured person by reason of his discovery of the
latters peril, and it cannot be invoked as
between defendants concurrently negligent.
The negligence of the plaintiff does not

preclude a recovery for the negligence of the
defendant where it appears that the defendant
by exercising reasonable care and prudence,
might have avoided injurious consequences to
the plaintiff notwithstanding the plaintiffs
(own) negligence. [Sangco, Torts and Damages.]
Primary negligence of the defendant
The doctrine of last clear chance states that

where both parties are negligent but the
negligent act of one is appreciably later than
that of the other, or where it is impossible to
determine whose fault or negligence caused the
loss, the one who had the last clear opportunity
to avoid the loss but failed to do so, is
chargeable with the loss. The antecedent
negligence of the plaintiff does not preclude
him from recovering damages caused by the
supervening negligence of the defendant, who
had the last fair chance to prevent the
Contributory negligence of the plaintiff
Subsequent negligence of the defendant

in failing to avoid the injury to the plaintiff
Note:
If plaintiff is the proximate cause: NO
RECOVERY can be made.
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If plaintiff is NOT the proximate cause:

Recovery can be made but such will be
mitigated.
If negligence of parties is equal in degree,
then each bears his own loss.
merely an element to the damage caused upon

him.
Last clear chance applies only if the person who

allegedly had the last opportunity to avert the
accident was aware of the existence of peril or
should, with exercise of due care, have been
aware of it. [Pantranco vs. Baesa (1989)]
WHEN IS IT A BAR TO RECOVERY?
Not exculpatory but results in reduction of

damages. [MH Rakes vs. Atlantic (1907)]
Only when the proximate cause is on the part of
the plaintiff. Where the plaintiff contributes to
the principal occurrence, as one of its
determining factors, he cannot recover. Where,
in conjunction with the occurrence, he
contributes only to his own injury, he may
recover the amount that the defendant
responsible for the event should pay for such
injury, less a sum deemed a suitable equivalent
for his own imprudence.
Last clear chance does not apply where the

party charged is required to act instantaneously,
and if the injury cannot be avoided by the
application of all means at hand after the peril
is or should have been discovered. [Ong vs.
Metropolitan (1958)]
The doctrine of last clear chance, as enunciated
in Anuran v. Buno, applies in a suit between the
owners and drivers of colliding vehicles. It does
not arise where a passenger demands
responsibility from the carrier to enforce its
contractual obligations. It will be inequitable to
exempt the negligent driver of the jeepney and
its owners on the ground that the other driver
was likewise guilty of negligence. [Bustamante
vs. CA (1991)]
Legal Injury
Doctrine of last clear chance does not seem to

have a role to play in a jurisdiction where the
common law concept of contributory negligence
as an absolute bar to recovery by the plaintiff,
has itself been rejected, as it has been in 2179 of
CC. [Phoenix vs. IAC (1987)]
Elements:
(1) Legal right in favor of a person;
(2) Correlative legal duty on the part of
another;
(3) Wrong in the form of an act or omission or
violation of said legal right and duty with
consequent injury or damage.
Injury is the illegal invasion of a legal right.

Legal right a legal claim enforced by
sanctions.
Legal duty that which the law requires to be
done to a determinate person.
CONTRIBUTORY NEGLIGENCE
To warrant recovery of damages, there must be

both a right of action for a legal wrong inflicted
by the defendant, and damage resulting to the
plaintiff therefrom.
Conduct on the part of the injured party, which

contributed as a legal cause to the harm he has
suffered, which falls below the standard to
which he is required to conform for his own
protection. [Valenzuela vs. CA (1996)]
The underlying basis for the award of tort

damages is the premise that an individual was
injured in contemplation of law. The law affords
no remedy for damages resulting from an act
which does not amount to a legal injury or
wrong. The act must not only be hurtful, but
wrongful (damnum et injuria). [Custodio vs. CA
(1996)]
Contributory negligence does not defeat an

action if it can be shown that the defendant
might, by the exercise of reasonable care and
prudence, have avoided the consequences of
the injured party's negligence. Petitioners
negligence contributed only to his own injury
and not to the principal occurrenceit was
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The exercise of a right ends when the right

disappears, and it disappears when it is abused,
especially to the prejudice of others. The mask
of a right without the spirit of justice which gives
it life, is repugnant to the modern concept of
social law. It cannot be said that a person
exercises a right when he unnecessarily
prejudices another xxx. Over and above the
specific precepts of positive law are the supreme
norms of justice; and he who violates them
violates the law. For this reason it is not
permissible to abuse our rights to prejudice
others. [Amonoy vs. Gutierrez (2001)]
CLASSES OF INJURY
INJURY TO PERSONS
Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act
with justice, give everyone his due, and observe
honesty and good faith.
Art. 20. Every person who, contrary to law, willfully
or negligently causes damage to another shall
indemnify the latter for the same.
Art. 21. Any person who willfully causes loss or
CIVIL LAW
Art. 33. In cases of defamation, fraud, and physical

injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may
be brought by the injured party. Such civil action
shall proceed independently of the criminal
prosecution, and shall require only a
preponderance of evidence.
Intentional Torts
CONCEPT
Under Article 2176, a person is also held liable

for intentional and malicious acts. The liability is
founded on the indisputable principle of justice
recognized by all legislations that when a
person, by his act or omission, causes damage
or prejudice to another, a juridical relation is
created by virtue of which the injured person
acquires a right to be indemnified and the
person causing the damage is charged with the
corresponding duty of repairing the damage.
[NCC 21-36] serve as catch all provisions or
dragnet clauses. They cover any imaginable tort
action, because these articles were intended to
expand the concept of torts in our jurisdiction. It
grants adequate legal remedies for the
(otherwise) untold number of moral wrongs,
which is impossible for human foresight to
provide in our statutes. [PNB vs. CA (1978)]
INJURY TO PROPERTY
damage to anothers property was not due to the
fault or negligence of the defendant, the latter
shall be liable for indemnity if through the act or
event he was benefited.
VIOLATIONS OF A PERSONS
SECURITY
AND
PHYSICAL
INJURIES [ART. 33, CC)
INJURY TO RELATIONS
Art. 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a
criminal offense, shall produce a cause of action
for damages, prevention and other relief:
(1) Prying into the privacy of anothers residence;
(2) Meddling with or disturbing the private life or
family relations of another;
(3) Intriguing to cause another to be alienated
from his friends;
(4)
Vexing or humiliating another on account
of his religious beliefs, lowly station in life, place of
birth, physical defect, or other personal condition.
BATTERY (PHYSICAL INJURY)
The actual infliction of any unlawful or

unauthorized violence on the person of another,
irrespective of its degree.
The least touching of another in anger, or in any
manner which amounts to an unlawful setting
upon his person, may subject one to an action
for battery.
INTERESTS PROTECTED BY LAW:
(1) Interest of the individual in freedom from
bodily harm or any impairment whatever of
the physical integrity of the body;
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(2) Interest in freedom from offensive bodily

touching although no actual harm is done.
INTERFERENCE
PROPERTY
Defamation and fraud (in Art. 33) are used in

their ordinary sense because there are no
specific provisions in the Revised Penal Code
using these terms as names of offenses defined
therein, so that these two terms defamation and
fraud must have been used not to impart to
them any technical meaning in the laws of the
Philippines, but in their generic sense. With
these apparent circumstances in mind, it is
evident that the term physical injuries could
not have been used in its specific sense as a
crime defined in the Revised Penal Code, for it is
difficult to believe that the Code Commission
would have used terms in same articlesome in
this general and others in its technical sense. In
other words, the term physical injuries should
be understood to mean bodily injury, not the
crime of physical injuries, because the terms
used with the latter are general terms.
[Carandang vs. Santiago and Valenton (1955)]
TRESPASS TO LAND
Any intentional use of anothers real property,
without authorization and without a privilege by
law to do so, is actionable as a trespass without
regard to harm. [Prosser and Keeton, p. 70]
PERSONAL
Elements: An invasion
(1) which interfered with the right of exclusive
possession of the land, and
(2) which was a direct result of some act
committed by the defendant. [Prosser and
Keeton, p. 67]
TRESPASS TO CHATTELS
Any direct and immediate intentional
interference with a chattel in the possession of
another. [Prosser and Keeton, p. 85]
Conversion
Major interferences with the chattel, or with the
plaintiffs rights in it, which are so serious, and
so important, as to justify the forced judicial sale
to the defendant. [Prosser and Keeton, p. 90]
ASSAULT (GRAVE THREAT)
An intentional, unlawful offer of physical injury

to another by force unlawfully directed toward
the person of another, under such
circumstances as to create a well-founded fear
of imminent peril, coupled with the apparent
present ability to effectuate the attempt if not
prevented.
INTENTIONAL NON-PHYSICAL
HARMS
from his friends;
(4) Vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of
birth, physical defect, or other personal
condition.
The wrong is committed when unreasonable

fear is inspired in the plaintiff by threatening
gestures, especially when these are connected
with unlawful, sinister, and wicked conduct on
the part of the defendant.
FALSE IMPRISONMENT
DETENTION)
WITH
(ILLEGAL
Art. 32. Any public officer or employee, or any

private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and
liberties of another person shall be liable to the
latter for damages:
(1) Freedom from arbitrary or illegal detention;
The principal rights protected under this

provision are the following:
(1) The right to personal dignity
(2) The right to personal security
(3) The right to family relations
(4) The right to social intercourse
(5) The right to privacy
(6) The right to peace of mind
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VIOLATION OF PERSONAL DIGNITY

In order to be actionable it is not necessary that
the act constitutes a criminal offense. The
remedy afforded by the law is not only the
recovery of damages. Prevention and other
relief is also available. In other words,
injunction and other appropriate reliefs may
also be obtained by the aggrieved party.
CIVIL LAW
who is entitled to peace of mind. [MVRS

Publications vs. Islamic Da'wah Council (2003)]
VIOLATION OF PRIVACY
It is the right to be let alone, or to be free from
unwarranted publicity, or to live without
unwarranted interference by the public in
matters in which the public is not necessarily
concerned.
(Illustration of a similar act): The acts and

omissions of the firm fall under Article 26.
Persons who know the residence of Doctor
Aramil were confused by the distorted, lingering
impression that he was renting his residence
from Arcadio or that Arcadio had leased it from
him. Either way, his private life was mistakenly
and unnecessarily exposed.[ St. Louis Realty
Corporation vs. CA (1984)]
Reasonableness of Expectation of Privacy

(The 2-prong test)
(1) Whether by ones conduct, the individual
has exhibited an expectation of privacy;
(2) Whether this expectation is one that society
recognizes and accepts as reasonable.
Note: Coverage of Art. 26 is not limited to those
enumerated therein, the enumeration being
merely examples of acts violative of a persons
rights to dignity, personality, privacy and peace
of mind. Other similar acts are also covered
within the scope of the article.
INFLICTION OF EMOTIONAL DISTRESS

Article 26 specifically applies to intentional acts
which fall short of being criminal offenses. It
itself expressly refers to tortious conduct which
may not constitute criminal offenses. The
purpose is precisely to fill a gap or lacuna in the
law where a person who suffers injury because
of a wrongful act not constituting a crime is left
without any redress. Under Article 26, the
person responsible for such act becomes liable
for damages, prevention and other relief. In
short, to preserve peace and harmony in the
family and in the community, Article 26 seeks to
eliminate cases of damnum absque injuria in
human relations.
Persons who can invoke privacy

General rule: The right to privacy may only be
invoked by natural persons. Juridical persons
cannot invoke this because the basis to this
right is an injury to the feelings and sensibilities
of the injured party, and a corporation has none
of those.
Exception: The right to privacy may be invoked
along with the right against unreasonable
searches and seizures.
Consequently, the elements that qualify the

same acts as criminal offenses do not apply in
determining responsibility for tortious conduct
under Article 26.
General rule: The right to privacy is purely

personal in nature:
(1) It can be invoked only by the person actually
injured;
(2) It is subject to a proper waiver;
(3) It ceases upon death.
In intentional infliction of mental distress, the

gravamen of the tort is not the injury to plaintiff's
reputation, but the harm to plaintiff's mental
and emotional state. In libel, the gist of the
action is the injury to plaintiff's reputation.
Reputation is the community's opinion of what a
person is. In intentional infliction of mental
distress, the opinion of the community is
immaterial to the existence of the action
although the court can consider it in awarding
damages. What is material is the disturbance on
the mental or emotional state of the plaintiff
Exception: The privilege may be given to the

heirs of a deceased to protect his memory, but
this privilege exists for the benefit of the living.
It enables the protection of their feelings, and
prevents the violation of their own rights
regarding the character and memory of the
deceased.
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Invasion of Privacy
defendants benefit or advantage (ex. it was

used in the defendants advertisement), of
the plaintiffs name or likeness (picture or
portrait).
Types:
(1) Publication of embarrassing private facts
the interest here is the right to be free from
unwarranted publicity, wrongful publicizing
of private affairs and activities, as these are
outside the ambit of legitimate public
concern.
DISTURBANCE OF PEACE OF MIND

The disturbance of the mental and emotional
tranquility of the plaintiff by the defendant is a
legal injury in itself and, therefore, a sufficient
cause of action for damages, injunction, and
other relief.
Public figures enjoy a limited right to privacy

as compared to ordinary individuals. [Ayer v.
Capulong (1988)]
A person, however, cannot be held liable for

damages for the mental or emotional
disturbance of the plaintiff which was due to the
latters susceptibility to such disturbance, where
the defendant had no knowledge of such
peculiar susceptibility. The tendency of the law
is to secure an interest in mental comfort only to
the extent of the ordinary sensibilities of men.
(2) Intrusion upon plaintiffs private affairs this

is not limited to situations where the
wrongdoer physically trespasses into ones
property.
Generally, there is no invasion of privacy
when journalists report something that
occurs in the public realm, except when
the acts of the journalist are to an extent
that it constitutes harassment.
RA 4200: It is illegal for any person not
authorized by both parties to any private
communication to secretly record such
communication.
Limitations to Right to Information v.
Right to Privacy:
o Must be of public interest.
o Must not be excluded by law.
MALICIOUS PROSECUTION
Art. 2219. Moral damages may be recovered in
the following and analogous cases:
(8) Malicious prosecution;
injury to another in manner that is contrary to
Malicious prosecution the institution of any
action or proceeding either civil or criminal
against another, maliciously and without
probable cause.
(3) Publicity which puts one in a false light in

the public eye to protect the interest of
one in not being made or forced to appear
before the public in an objectionable false
light or position.
Tort of putting in false
light
CIVIL LAW
Elements:
(1) That the defendant was himself the
prosecutor or that he instigated its
commencement;
(2) That the action was finally terminated with
an acquittal;
(3) That in bringing the action, the prosecutor
acted without probable cause;
(4) That he was actuated or impelled by legal
malice, that is, by improper and sinister
motives. [Lao vs. CA, 1991]
Defamation
The embarrassment of a Concerns

the
person being portrayed reputational harm to a
as something he is not
person
Publication is satisfied
Statement should be even if communicated to
actually made in public
only one specific third
person
Malicious Prosecution defined: An action for

damages brought by one against whom a
criminal prosecution, civil suit, or other legal
(4) Commercial appropriation of likeness of

image consists of appropriation, for the
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proceeding has been instituted maliciously and

without probable cause, after the termination of
such prosecution, suit or other proceeding in
favor of the defendant herein. The gist of the
action is the putting of legal process in force,
regularly, for the mere purpose of vexation or
injury. [Drilon vs. CA (1997)]
reputation or standing of the person.) [MVRS vs.

Islamic Da'wah (2003)]
The provisions of the Civil Code in taking

reference to malicious prosecutions must
necessarily imply that the person to be held
liable to pay moral damages should have acted
deliberately and with knowledge that his
accusation of the person subject to such
malicious prosecution, was false and
groundless.
The article must be construed in its entirety

including the headlines, as they may enlarge,
explain, or restrict or be enlarged, explained or
strengthened or restricted by the context.
Whether or not it is libelous, depends upon the
scope, spirit and motive of the publication taken
in its entirety.
In actions for damages for libel, it is axiomatic

that the published work alleged to contain
libelous material must be examined and viewed
as a whole.
A publication claimed to be defamatory must be

read and construed in the sense in which the
readers to whom it is addressed would
ordinarily understand it. [Arafiles vs. Philippine
Journalists (2004)]
x x x Proof and motive that the prosecution or

institution of the action was prompted by a
sinister design to vex and humiliate a person
and to cast dishonor and disgrace must be
clearly and preponderantly established to
entitle the victims to damages and other rights
granted by law; otherwise, there would always
be a civil action for damages after every
prosecution's failure to prove its cause resulting
in the consequent acquittal of the accused
therein. [Buenaventura vs. Domingo and Ignacio
(1958)]
DEFAMATION, FRAUD
PHYSICAL INJURIES
Defenses:
(1) Absence of elements
(2) Privilege
FRAUD OR MISREPRESENTATION
(FORMERLY DECEIT)
Independent civil actions are permitted to be
filed separately regardless of the result of the
criminal action. [Salta vs. De Veyra (1982]
AND
Unfair competition under the Intellectual

Property Code and fraud under Art. 33 are
independent actions. Art. 33 does not operate
as a prejudicial question to justify the
suspension of the criminal cases at bar.
[Samson vs. Daway (2004)]
Art. 33. In case of defamation, fraud, and physical

injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may
be brought by the injured party. Such civil action
shall proceed independently of the criminal
prosecution, and shall require only a
SEDUCTION
Sangco: Seduction is sexual intercourse with an
unmarried woman of chaste character whose
consent was obtained through abuse of
confidence or through deceit.
DEFAMATION
Separate civil action may be consolidated with

the criminal action. [Cojuangco vs. CA (1991)]
Defamation is that which tends to injure
reputation or diminish esteem, respect, good
will, or confidence of the plaintiff, or excite
derogatory feelings about him. It must be
personal. (What is definitive is not the level of
hurt, but the effect of the statement on the
Seduction under the RPC (criminal seduction) is

different from seduction under the NCC (civil
seduction, Art. 21)
In criminal seduction, either qualified or
simple, the offended woman must be less
than 18 years of age.
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In civil seduction, the offended woman may be

over 18 years of age.
CIVIL LAW
employment but questions the manner in which

said right was exercised and predicates thereon
his claim for moral and exemplary damages, the
claim is one for tort under the Civil Code and
not one arising from employer-employee
relation under the Labor Code even if he also
demands in the action therefor payment of
termination pay which unquestionably derives
from their prior employer-employee relation.
The essential feature is seduction, that in law is

more than mere sexual intercourse, or a breach
of a promise of marriage; it connotes essentially
the idea of deceit, enticement, superior power or
abuse of confidence on the part of the seducer
to which the woman has yielded.
To constitute seduction there must in all cases
be some sufficient promise or inducement and
the woman must yield because of the promise
or other inducement. If she consents merely
from carnal lust and the intercourse is from
mutual desire, there is no seduction. [Tanjanco
vs. CA (1966)]
INTERFERENCE WITH
RELATIONS
UNJUST DISMISSAL
Kinds:
(1) Family relations
(2) Social relations
(3) Economic relations
(4) Political relations
An interference with the continuance of

unimpaired interests founded upon the relation
in which the plaintiff stands toward one or more
third persons. [Prosser and Keeton, p. 915]
The employers right to dismiss his employee

differs from, and should not be confused with
the manner in which the right is exercised.
When the manner in which the company
exercised its right to dismiss was abusive,
oppressive or malicious, it is liable for damages.
Although the acts complained of seemingly
appear to constitute matters involving
employee-employer relations as Quisaba's
dismissal was the severance of a pre-existing
employee-employer relation, his complaint is
grounded not on his dismissal per se as in fact
he does not ask for reinstatement or backwages,
but on the manner of his dismissal and the
consequent effects of such dismissal.
The case at bar is intrinsically concerned with a
civil (not a labor) dispute; it has to do with an
alleged violation of Quisaba's rights as a
member of society, and does not involve an
existing employee-employer relation within the
meaning of section 2(1) of Presidential Decree
No. 21. The complaint is thus properly and
exclusively cognizable by the regular courts of
justice, not by the National Labor Relations
Commission. [Quisaba vs. Sta. Ines-Melale
Veneer & Plywood (1974)]
FAMILY RELATIONS
The three causes of action enumerated below

are offenses against marital relations.
ALIENATION OF AFFECTION
This is a cause of action in favor of a husband
against one who wrongfully alienates the
affection of his wife, depriving him of his
conjugal rights to her consortium, that is, her
society, affection, and assistance.
Elements:
(1) Wrongful conduct of the defendant:
intentional and malicious enticing of a
spouse away from the other spouse
Note: Where the alienation or separation of
the spouses is caused by the plaintiffs own
conduct and not by reason of the wrongful
conduct of the defendant, there is no
liability on the defendant. However, if the
defendant interferes and by his wrongful
conduct prevents a reconciliation between
the spouses, or destroys the possibility
thereof, the defendant is liable for
alienation of affection.
Note: The foregoing decision thus states that

where the employee does not seek
reinstatement or expressly or impliedly accepts
the employers right to terminate the contract of
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(2) Loss of affection or consortium
CIVIL LAW
enticed his child away, or does not maliciously

entice or cause him or her to stay away, from his
or her spouse. This rule has more frequently
been applied in the case of advice given to a
married daughter, but it is equally applicable in
the case of advice given to a son.
Note: Complete absence of affection

between the spouses is not a defense.
(3) Causal connection between such conduct
and loss
LOSS OF CONSORTIUM
The plaintiff Aleko E. Lilius also seeks to recover
the sum of P2,500 for the loss of what is called
Anglo-Saxon common law consortium of his
wife, that is, her services, society and conjugal
companionship, as a result of personal injuries
which she had received from the accident now
under consideration.
There is no evidence that the parents of Vicenta,

out of improper motives, aided and abetted her
original suit for annulment, or her subsequent
divorce; she appears to have acted
independently, and being of age, she was
entitled to judge what was best for her and ask
that her decisions be respected. Her parents, in
so doing, certainly cannot be charged with
alienation of affections in the absence of malice
or unworthy motives, which have not been
shown, good faith being always presumed until
the contrary is proved. [Tenchavez vs. Escao
(1965)]
In the case of Goitia vs. Campos Rueda, this

court, interpreting the provisions of the Civil
Marriage Law of 1870, in force in these Islands
with reference to the mutual rights and
obligations of the spouses, contained in articles
44-48 thereof, said as follows:
Liability of Parents, Guardians or Kin

The law distinguishes between the right of a
parent to interest himself in the marital affairs
of his child and the absence of rights in a
stranger to intermeddle in such affairs.
However, such distinction between the liability
of parents and that of strangers is only in regard
to what will justify interference. A parent is
liable for alienation of affections resulting from
his own malicious conduct, as where he
wrongfully entices his son or daughter to leave
his or her spouse, but he is not liable unless he
acts maliciously, without justification and from
unworthy motives. He is not liable where he acts
and advises his child in good faith with respect
to his child's marital relations in the interest of
his child as he sees it, the marriage of his child
not terminating his right and liberty to interest
himself in, and be extremely solicitous for, his
child's welfare and happiness even where his
conduct and advice suggest or result in the
separation of the spouses or the obtaining of a
divorce or annulment, or where he acts under
mistake or misinformation, or where his advice
or interference are indiscreet or unfortunate,
although it has been held that the parent is
liable for consequences resulting from
recklessness. He may in good faith take his child
into his home and afford him or her protection
and support, so long as he has not maliciously
The above quoted provisions of the Law of

Civil Marriage and the Civil Code fix the
duties and obligations of the spouses. The
spouses must be faithful to, assist, and
support each other. The husband must live
with and protect his wife. The wife must
obey and live with her husband and follow
him when he changes his domicile or
residence, except when he removes to a
foreign country
Therefore, under the law and the doctrine of this

court, one of the husband's rights is to count on
his wife's assistance. This assistance comprises
the management of the home and the
performance of household duties, including the
care and education of the children and attention
to the husband upon whom primarily devolves
the duty of supporting the family of which he is
the head. When the wife's mission was
circumscribed to the home, it was not difficult to
assume, by virtue of the marriage alone, that
she performed all the said tasks and her
physical incapacity always redounded to the
husband's prejudice inasmuch as it deprived
him of her assistance. However, nowadays when
women, in their desire to be more useful to
society and to the nation, are demanding
greater civil rights and are aspiring to become
man's equal in all the activities of life,
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commercial and industrial, professional and

political, many of them spending their time
outside the home, engaged in their businesses,
industry, profession and within a short time, in
politics, and entrusting the care of their home to
a housekeeper, and their children, if not to a
nursemaid, to public or private institutions
which take charge of young children while their
mothers are at work, marriage has ceased to
create the presumption that a woman complies
with the duties to her husband and children,
which the law imposes upon her, and he who
seeks to collect indemnity for damages
resulting from deprivation of her domestic
services must prove such services.
CIVIL LAW
servants] services until there has been a

gradual shift of emphasis away from services
and toward a recognition of more intangible
elements in the domestic relations, such as
companionship and affection. [Prosser and
Keeton, p. 916]
INTRIGUING TO CAUSE ANOTHER TO BE
ALIENATED FROM HIS FRIENDS
A person who committed affirmative acts
intended to alienate the existing friendship of
one with his friends is liable for damages. A
man is a social being and for being so, he needs
friends to socialize with and to depend upon in
case of need. To alienate him wrongfully or with
malice from his friends is to cause him suffering
for which he is entitled to damages.
Furthermore, inasmuch as a wife's domestic

assistance and conjugal companionship are
purely personal and voluntary acts which
neither of the spouses may be compelled to
render, it is necessary for the party claiming
indemnity for the loss of such services to prove
that the person obliged to render them had
done so before he was injured and that he
would be willing to continue rendering them
had he not been prevented from so doing. [Lilius
vs. Manila Railroad Company (1934)]
ECONOMIC RELATIONS
TORTIOUS
CONTRACT
INTERFERENCE
WITH
Art 1314. Any third person who induces another to

violate his contract shall be liable for damages to
the other contracting party.
Everyone has a right to enjoy the fruits of his

enterprise. He has no right to be protected from
competition, but he has the right to be free from
malicious and wanton interference. If the injury
is a result of competition, it is a case of damnum
absque injuria, unless superior right by contract
is interfered with.
CRIMINAL CONVERSATION (ADULTERY)

Interference with the marital relations by
committing adultery with one of the spouses.
This is obvious enough in the case of rape but
also applies where the adulterous spouse
consented to or initiated the intercourse.
[Prosser and Keeton, p. 917]
Injunction is the proper remedy to prevent

wrongful interference with contracts by
strangers, where other legal remedies are
insufficient and the resulting injury is
irreparable. [Gilchrist vs. Cuddy (1915)]
SOCIAL RELATIONS
MEDDLING WITH OR DISTURBING FAMILY
RELATIONS
Bad faith/Malice is required to make the

defendant liable for DAMAGES in cases of
tortuous interference. [So Ping Bun vs. CA
(1999)]

(2)
Meddling with or disturbing the private
life or family relations of another;
Elements of interference:
(1) Existence of a valid contract;
(2) Knowledge of the third person of the
existence of such contract; and
(3) Interference without legal justification or
excuse.
Developed as an offshoot of the action for

enticing away a servant and depriving the
master of the proprietary interest in [the
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If there is no bad faith, there is no tortious

interference; actual knowledge of the contract is
not required so long as there are facts leading
one to investigate.
CIVIL LAW
Proper business interest provides a legal

justification to negate the presence of the third
element. [Lagon vs. CA (2005)]
competition under Art. 28 of the Civil Code

refers to unfair competition in agricultural,
commercial or industrial enterprises or in labor
through the use of force, intimidation, deceit,
machination or any other unjust, oppressive or
highhanded method. Unfair competition under
the Civil Code covers a broader area than Rep.
Act 166.
UNFAIR COMPETITION
POLITICAL RELATIONS
Art. 28. Unfair competition in agricultural,

highhanded method shall give rise to a right of
action by the person who thereby suffers damage.
VIOLATION OF RIGHT TO SUFFRAGE [ART.
32, CC)
Art 32. Any public officer or employee, or any

latter for damages:
(1) Freedom of religion
(2) Freedom of speech
(3) Freedom to write for the press or to maintain a
periodical publication
(4) Freedom from arbitrary or illegal detention
(5) Freedom of suffrage
(6) The right against deprivation of property
without due process of law
(7) The right to just compensation when property
is taken for public use
(8) The right to equal protection of the laws
(9) The right to be secure in ones person, house,
papers and effects against unreasonable
searches and seizures
(10) The liberty of abode and of changing the same
(11) The right to privacy of communication and
correspondence
(12) The right to become a member of associations
and societies for purposes not contrary to law
(13) The right to take part in a peaceable assembly
and petition the government for redress of
grievances
(14) The right to be free from involuntary servitude
in any form
(15) The right of the accused against excessive bail
(16) The right of the accused to be heard by
himself and counsel, to be informed of the
nature and the cause of the accusation
against him, to have a speedy and public trial,
to meet the witnesses face to face, to have
compulsory process to secure the attendance
of witnesses on is behalf;
(17) Freedom from being compelled to be a
witness against ones self, or from being
forced to confess his guilt, or from being
induced by a promise of immunity or reward
Free competition in agricultural, commercial or

industrial enterprises and in labor is essential in
a democracy and should be encouraged.
Monopolies, generally speaking, are prejudicial
to public interest. However, the right of free
competition is not unlimited.
Permissible competition
There is a privilege to interfere with prospects of

advantageous economic relations of others
when:
(1) The defendants purpose is justifiable, and
(2) He employs no means which may be
regarded as unfair.
Prohibited competition
In order to qualify as unfair, it must have 2
characteristics:
(1) It must involve an injury to a trade or rival;
and
(2) It must involve acts which are characterized
as contrary to good conscience, or
shocking to judicial sensibilities, or
otherwise unlawful.
Note:
Jarencio: Unfair competition dealt with in Art. 28
is different from the unfair competition under
Sec. 29 of RA 166. Unfair competition under
Sec. 29 of Rep. Act 166 consists in giving the
same general appearance to the goods
manufactured or dealt in or the services
rendered by one person as the goods or services
of another who has already acquired a public
goodwill for such goods or services. Unfair
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were not so tainted with malice, as long as there

is a violation of a constitutional right. Its precise
object is to put an end to official abuse, done on
the plea of good faith.
to make such confession, except when the

person confessing becomes a State witness.
(18) Freedom from excessive fines, or cruel and
unusual punishment, unless the same is
imposed or inflicted in accordance with a
statute which has not been judicially declared
unconstitutional;
(19) Freedom of access to the courts
Negligence
Art. 1173. The fault or negligence of the obligor
consists in the omission of that diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the
persons, of the time and of the place. When
negligence shows bad faith, the provisions of
Articles 1171 and 2201, paragraph 2, shall apply.
In any of the cases referred to in this article,

whether or not the defendants act or omission
constitutes a criminal offense, the aggrieved party
has a right to commence an entirely separate and
distinct civil action for damages, and for other
relief. Such civil action shall proceed
independently of any criminal prosecution (if the
latter be instituted) and may be proved by a
If the law or contract does not state the diligence

which is to be observed in the performance, that
which is expected of a good father of a family shall
be required.
The indemnity shall include moral damages.

Exemplary damages may also be adjudicated.
Elements:
(1) Legal duty
(2) Breach
(3) Causation
(4) Damages
The responsibility herein set forth is not

demandable from a judge unless his act or
omission constitutes a violation of the Penal code
or any other penal statute.
Negligence is the omission to do something

which a reasonable man, guided by those
considerations which ordinarily regulate the
conduct of human affairs, would do, or the
doing of something which a prudent and
reasonable man would not do. [Layugan vs. IAC
(1988)]
VIOLATION OF OTHER POLITICAL RIGHTS

(FREEDOM OF SPEECH, PRESS, ASSEMBLY
AND PETITION, ETC.)
Article 32 of the Civil Code holds any public
officer, employee or private individual civilly
liable for the violation of civil liberties, political
liberties and other basic rights under the
Constitution. The aggrieved party may recover
actual, moral and exemplary damages and
other relief. The civil action is separate and
distinct and shall proceed independently of a
criminal prosecution if one is instituted. Only a
preponderance of evidence is required. If the
violation of the civil or political rights constitutes
a crime and a criminal action is instituted the
civil action is also deemed instituted with the
criminal action unless the same is reserved.
[Jarencio]
TEST OF NEGLIGENCE
Did defendant, in doing the alleged negligent

act, use that reasonable care and caution which
an ordinarily prudent person would have used in
the same situation? If not, the person is guilty of
negligence. The law, in effect, adopts the
standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias
of the Roman law. [Philippine National Railways
vs. Brunty (2006)]
GOOD FATHER OF A FAMILY (BONUS

PATERFAMILIAS)
Cojuangco vs. CA (1999): The purpose of article

32 is to remind us that basic rights are
immutable. Thus, absence of bad faith or malice
is not a defense.
A standard man does not mean an ideal or

perfect man, but an ordinary member of the
community. He is usually spoken of as an
ordinarily reasonable, careful, and prudent man.
Vinzons-Chato vs. Fortune (2007): A public

officer may be sued under Art. 32 even if his acts
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harm to a bicyclist than vice versa. [Heirs of

Redentor Completo vs. Sgt. Albayda (2010)]
WHAT CONSTITUTES THE CONDUCT

OF A PRUDENT MAN IN A GIVEN
SITUATION?
Conduct determined in the light of human

experience and in view of the facts involved in
the particular case. Abstract speculations
cannot be of much value here; instead,
reasonable men govern their conduct by the
circumstances which are known before them.
They are not supposed to be omniscient of the
future. [Picart vs. Smith (1918)]
BANKS
The law imposes on banks high standards in

view of the fiduciary nature of banking. Section
2 of Republic Act No. 8791 (RA 8791), which
took effect on 13 June 2000, declares that the
State recognizes the fiduciary nature of banking
that requires high standards of integrity and
performance.
This fiduciary relationship means that the
banks obligation to observe high standards of
integrity and performance is deemed written
into every deposit agreement between a bank
and its depositor. The fiduciary nature of
banking requires banks to assume a degree of
diligence higher than that of a good father of a
family. [Consolidated Bank vs. CA (2003)]
STANDARD OF CARE
Test: Did the defendant in doing the alleged
negligent act use that reasonable care and
caution which an ordinarily prudent man would
have used in the same situation? If not, then he
is negligent. Negligence in a given case is not
determined by reference to the personal
judgment of the actor in the situation before
him, but is determined in the light of human
experience and the facts involved in the
particular case.
EXPERTS (IN GENERAL)
A pilot should have thorough knowledge of

general and local regulations and physical
conditions affecting the vessel in his charge and
the general and local regulations and physical
conditions affecting the vessel in his charge and
the waters for which he is licensed, such as a
particular harbor or river. He is not held to the
highest possible degree of skill and care but
must have and exercise the ordinary skill and
diligence demanded by the circumstances, and
usually shown by an expert in his profession.
Under extraordinary circumstances, a pilot must
exercise extraordinary care. [Far Eastern
Shipping vs. CA (1998)]
Conduct is said to be negligent when a prudent

man in the position of the tortfeasor would have
foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing
the conduct or guarding against its
consequences. [Picart vs. Smith (1918)]
Note: Only the KIND of injury needs to be
foreseen, NOT the actual specific injury.
STANDARD OF CARE NEEDED

IN SPECIFIC CIRCUMSTANCES
OPERATORS OF MOTOR VEHICLES
Article 2185 is a recognition of the need to

segregate motorized vehicles into a separate
class because they are capable of greater
speeds and destruction, unlike non-motorized
vehicles which only depend on the exertion of
man. [Anonuevo vs. CA (2004)]
Operators of motor vehicles will have a higher
standard in his duty of care because of the
physical advantages of the car versus the
bicycle. The motor vehicle poses a greater
PAGE 430
When a person holds himself out as being

competent to do things requiring professional
skill, he will be held liable for negligence if he
fails to exhibit the care and skill of one ordinarily
skilled in the particular work which he attempts
to do. [Culion vs. Philippine Motors (1930)]
DOCTORS
Whether or not a physician has committed an
inexcusable lack of precaution in the treatment
of his patient is to be determined according to
the standard of care observed by other
members of the profession in good standing
under similar circumstances bearing in mind the
advanced state of the profession at the time of
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treatment of present state of medical science.
CIVIL LAW
and capacity only, and this is to be determined

in each case by the circumstances of the case.
[Taylor vs. Manila Railroad (1910)]
It is in this aspect of medical malpractice that

expert testimony is essential to establish not
only the standard of care of the profession but
also that the physicians conduct in the
treatment and care falls below such standard.
[Cruz vs. CA (1997)]
No contributory negligence can be imputed to

children below 9 years old. [Jarco Marketing vs.
CA (1999)]
The degree of care required to be exercised
must vary with the capacity of the person
endangered to care for himself. The standard
of conduct to which a child must conform for his
own protection is that degree of care ordinarily
exercised by children of the same age, capacity,
discretion, knowledge and experience under the
same or similar circumstances. [Ylarde vs.
Aquino (1988)]
PHARMACISTS
The profession of pharmacy, it has been said
again and again, is one demanding care and
skill. The responsibility of the druggist to use
care has been variously qualified as ordinary
care, care of a specially high degree, the
highest degree of care known to practical men.
Even under the first conservative expression,
ordinary care with reference to the business of
a druggistmust be held to signify the highest
practicable degree of prudence, thoughtfulness,
and vigilance, and most exact and reliable
safeguards consistent with the reasonable
conduct of the business in order that human life
may not constantly be exposed to the danger
flowing from the substitution of deadly poisons
for harmless medicine. [US vs. Pineda (1918)]
IN CASE OF INSANE PERSONS

Art. 2180. x x x Guardians are liable for damages
caused by the minors or incapacitated persons
who are under their authority and live in their
company x x x
Art. 2182. If the minor or insane person causing
damage has no parents or guardian, the minor or
insane person shall be answerable with his own
property in an action against him where a
guardian ad litem shall be appointed.
Cited the case of US vs. Pineda when imputing a

higher degree of diligence upon pharmacists.
[Mercury Drug vs. De Leon (2008)]
A lunatic or insane person who, in spite of his

irresponsibility on account of the deplorable
condition of his deranged mind, is still
reasonably and justly liable with his property for
the consequences of his acts. [US vs. Baggay
(1911)]
POSSESSOR
OF
EXTREMELY
DANGEROUS INSTRUMENTALITIES
Indeed, a higher degree of care is required of

someone who has in his possession or under his
control an instrumentality extremely dangerous
in character, such as dangerous weapons or
substances. Such person in possession or
control of dangerous instrumentalities has the
duty to take exceptional precautions to prevent
any injury being done thereby. Unlike the
ordinary affairs of life or business which involve
little or no risk, a business dealing with
dangerous weapons requires the exercise of a
higher degree of care. [Pacis vs. Morales (2010)]
EMERGENCY RULE
PERIL DOCTRINE
OR
SUDDEN
Valenzuela vs. CA (1996): An individual, who

suddenly finds himself in a situation of danger
and is required to act without much time to
consider the best means that may be adopted
to avoid the impending danger, is not guilty of
negligence if he fails to undertake what
subsequently and upon reflection may appear
to be a better solution, unless the emergency
was brought by his own negligence.
CHILDREN
The conduct of an infant of tender years is not

to be judged by the same rule, which governs
that of an adult. The care and caution
required of a child is according to his maturity
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UNREASONABLE RISK OR HARM
PRESUMPTION OF NEGLIGENCE
Art 1711.
Owners of enterprises and other
employers are obliged to pay compensation for the
death of or injuries to their laborers, workmen,
mechanics or other employees even though the
event may have been purely accidental or entirely
due to fortuitous cause, if the death or personal
injury arose out of and in the course of
employment. The employer is also liable for
compensation if the employee contracts any
illness or disease caused by such employment or
as a result of the nature of the employment. If the
mishap was due to the employees own notorious
negligence, or voluntary act, or drunkenness, the
employer shall not be liable for compensation.
When the employees lack of due care contributed
to his death or injury, the compensation shall be
equitably reduced.
Art. 2184. In motor vehicle mishaps, x x x [i]t is

disputably presumed that the driver was negligent,
if he had been found guilty of reckless driving or
violating traffic regulations at least twice within
the next preceding two months.
Art. 1712. If the death or injury is due to the

negligence of a fellow-worker, the latter and the
employer shall be solidarily liable for
compensation. If a fellow-workers intentional or
malicious act is the only cause of the death or
injury, the employer shall not be answerable,
unless it should be shown that the latter did not
exercise due diligence in the selection or
supervision of the plaintiffs fellow-worker.
Art. 1735. In all cases other than those mentioned

in Nos. 1, 2, 3, 4, and 5 of the preceding article
(calamity, act of public enemy in war, act of owner
of the goods, character of the goods, order of
competent public authority), if the goods are lost
destroyed or deteriorated, common carriers are
presumed to have been at fault or to have acted
negligently, unless they prove that they observed
extraordinary diligence as required under Art. 1733.
By jumping into the sea, the employee failed to

exercise even slight care and diligence and
displayed a reckless disregard of the safety of
his person. His death was caused by his
notorious negligence. Notorious negligence has
been held to be tantamount to gross negligence
which is want of even slight care and diligence.
[Amedo vs. Rio (1954)]
PRESUMED
NEGLIGENCE
NEGLIGENCE PER SE
Art. 2185. Unless there is proof to the contrary, it is

presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he
was violating any traffic regulation.
Art. 2188. There is prima facie presumption of
negligence if the death or injury results from his
possession of dangerous weapons or substances,
such as firearms and poison, except when the use
or possession thereof is indispensable in his
occupation or business.
OR
Violation of a statute or ordinance constitutes

negligence as a matter of law or negligence per
se because non-observance of what the law
provides as a suitable precaution is failure to
observe that care which an ordinarily prudent
man would observe.
EVIDENCE
When the standard of care is fixed by law,

failure to conform to such standard is
negligence, negligence per se or negligence in
and of itself, in the absence of a legal excuse.
[Teague vs. Fernandez (1973)]
QUANTUM OF PROOF IN QUASIDELICT VS. QUANTUM OF PROOF IN

BREACH OF CONTRACT
In quasi-delict, the negligence or fault should

be clearly established because it is the basis of
action, whereas in breach of contract, the action
can be prosecuted merely by proving the
existence of a contract and the fact that the
obligor [breached the contract e.g. in this case,
a common carrier failed to transport his
passenger safely to his destination. [Calalas vs.
CA (2000)]
RES IPSA LOQUITUR
The doctrine of res ipsa loquitur (the thing

speaks for itself) is a rule of evidence (not of
substantive law) peculiar to the law of
negligence.
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Elements:
Res ipsa loquitur is applicable when:
(1) The accident is of a kind which ordinarily
does not occur in the absence of someones
negligence;
(2) It is caused by an instrumentality within the
exclusive control of the defendant or
defendants; and
(3) The possibility of contributing conduct
which would make the plaintiff responsible
is eliminated. [Ramos vs. CA (1999)]
CIVIL LAW
DEFENSES
DUE DILIGENCE
Art. 2180. The obligation imposed by Article 2176
is demandable not only for ones own acts or
omissions, but also for those of persons for whom
one is responsible.
xxx
Par. 8. The responsibility treated of in this article
shall cease when the persons herein mentioned
prove that they observed all the diligence of a
good father of a family to prevent damage.
BASIS
The res ipsa loquitur doctrine is based in part
upon the theory that the defendant in charge of
the instrumentality which causes the injury
either knows the cause of the accident or has
the best opportunity of ascertaining it and that
the plaintiff has no such knowledge, and
therefore is compelled to allege negligence in
general terms and to rely upon the proof of the
happening of the accident in order to establish
negligence. [DM Consunji vs. CA (2001)]
The presumption of negligence on the part of

the master or employer, either in the selection
of servant/employee or in the supervision, when
an injury is caused by the negligence of a
servant/employee may be rebutted if the
employer shows to the satisfaction of the court
that in the selection and supervision, he has
exercised the care and diligence of a good
father of a family. [Ramos vs. PEPSI (1967)]
The defense of due diligence is plausible when
defendant has presented enough evidence to
overcome the presumption of negligence. It is
not enough that it is alleged. [Metro Manila vs.
CA (1993)]
EFFECT
The fact of the occurrence of an injury, taken
with the surrounding circumstances, raise a
presumption of negligence, or make out a
plaintiffs prima facie case, and present a
question of fact for defendant to meet with an
explanation.
ACTS OF PUBLIC OFFICERS

When what is involved is a duty owing to the
public in general, an individual cannot have a
cause of action against the public officer
although he may have been injured by the
action or inaction of the officer, except when the
individual suffers a particular or special injury.
[Vinzons-Chato vs. Fortune (2008)]
In medical malpractice cases, when the doctrine

of res ipsa loquitur is availed by the plaintiff, the
need for expert medical testimony is dispensed
with because the injury itself provides the proof
of negligence. The reason is that the general
rule on the necessity of expert testimony applies
only to such matters clearly within the domain
of medical science, and not to matters that are
within the common knowledge of mankind
which may be testified to by anyone familiar
with the facts. [Ramos vs. CA, supra]
ACCIDENT OR FORTUITOUS EVENT

Art. 1174. Except in cases expressly specified by the
law, or when it is otherwise declared by stipulation,
or when the nature of the obligation requires the
assumption of risk, no person shall be responsible
for those events which, could not be foreseen, or
which, though foreseen, were inevitable.
Note: For the res ipsa loquitur doctrine to apply,

it must appear that the injured party had no
knowledge as to the cause of the accident, or
that the party to be charged with negligence
has superior knowledge or opportunity for
explanation of the accident.
Elements:
The elements of caso fortuito are:
(1) The cause of the unforeseen and
unexpected occurrence, or of the failure of
the debtor to comply with his obligation,
must be independent of the human will;
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(2) It must be impossible to foresee the event

or if it can be foreseen, it must be
impossible to avoid;
(3) The occurrence must be such as to render it
impossible for the debtor to fulfill his
obligation in a normal manner; and
(4) The obligor must be free from any
participation in the aggravation of the injury
resulting to the creditor. [Juntilla vs.
Fontanar (1985)]
Compared to Article 19
One who made use of his own legal right does
no injury, thus, whatever damages are caused to
another should be borne solely by him under
the principle of damnum absque injuria. This
principle, however, does not apply when there is
an abuse in the exercise of a persons right.
[Amonoy vs. Gutierrez (2001)]
AUTHORITY OF LAW
Art. 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.
The robbery that happened to him cannot be

said to be the result of his imprudence and
negligence. This was undoubtedly a fortuitous
event covered by the said provisions, something
that could not have been reasonably foreseen
although it could have happened. [Hernandez
vs. COA (1984)]
DAMNUM ABSQUE INJURIA
Right to recover damages does not arise from

the mere fact that the plaintiff suffered losses.
To warrant the recovery of damages, there must
be both a right of action for a legal wrong
inflicted by the defendant, and damage
resulting to the plaintiff therefrom. Wrong
without damage, or damage without wrong,
does not constitute a cause of action, since
damages are merely part of the remedy allowed
for the injury caused by a breach or wrong.
[Custodio vs. CA (1996)]
Injury
Illegal
invasion of a
legal right
Damage
Loss,
hurt,
harm resulting
from the injury
Damages
Recompense
compensation
awarded
CIVIL LAW
Art. 11, RPC. The following do not incur any

criminal liability:
(5) Any person who acts in the fulfillment of a
duty or in the lawful exercise of a right or
office;
(8) Any person who acts in obedience to an order
issued by a superior for some lawful purpose;
ASSUMPTION OF RISK (VOLENTI NON FIT

INJURIA)
General rule: One who voluntarily assumed the
risk of injury from a known danger is barred
from recovery. A plaintiff who, by his conduct,
brought himself within the operation of the
maxim, volenti non fit injuria (that to which a
person assents is not presumed in law an
injury), cannot recover on the basis of the
defendants negligence.
or
One who knows, appreciates, and deliberately

exposes himself to a danger assumes the risk
thereof.
Damnum absque injuria: There can be damage

without injury in those instances in which the
loss or harm was not the result of a violation of
a legal duty.
Where the defense of assumption of risk is

based on this principle, it negates negligence or
liability on the part of the defendant, even
though his conduct would otherwise have
constituted actionable negligence, and without
regard to the fact that the plaintiff may have
acted with due care.
In order that the law will give redress for an act

causing damage, that act must be not only
hurtful, but wrongful. There must be damnum
et injuria. If, as may happen in many cases, a
person sustains actual damage, that is, harm or
loss to his person or property, without
sustaining any legal injury, that is, an act or
omission which the law does not deem an injury,
the damage is regarded as damnum absque
injuria.
The defense bars recovery without regard to

whether the plaintiffs conduct was reasonable,
because, in theory, the plaintiffs acceptance of
the risk has wiped out the defendants duty, and
as to the plaintiff the defendants negligence is
not a legal wrong.
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It is the caretaker's business to try to prevent the

animal from causing injury or damage to
anyone, including himself. It was a risk he
voluntarily assumed. [Afialda vs. Hisole (1958)]
CIVIL LAW
PRESCRIPTION [ART. 1144, 1146, AND 1150,

CC)
Art. 1144. The following actions must be brought
within ten years from the time the right of action
accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3)
Upon a judgment.
Requisites:
(1) That the plaintiff had actual knowledge of
the danger;
(2) That he understood and appreciated the
risk from the danger; and
(3) That he voluntarily exposed himself to such
risk.
Art. 1146. The following actions must be instituted

within four years:
(1) Upon an injury to the rights of the plaintiff;
(2) Upon a quasi-delict;
Exception:
A person is excused from the force of the rule
(volenti non fit injuria), that when he voluntarily
assents to a known danger he must abide by the
consequences, if an emergency is found to exist
or if the life or property of another is in peril or
when he seeks to rescue his endangered
property. [Ilocos Norte vs. CA (1989)]
However, when the action arises from or out of any

act, activity, or conduct of any public officer
involving the exercise of powers or authority
arising from Martial Law including the arrest,
detention and/or trial of the plaintiff, the same
must be brought within one (1) year.
Art. 1150. The time for prescription for all kinds of
actions, when there is no special provision which
ordains otherwise, shall be counted from the day
they may be brought.
LAST CLEAR CHANCE
(For an extended discussion on the doctrine, see

previous sections. Cases included below discuss Last
Clear Chance as a defense against negligence.)
Prescriptive periods:
4 years for QD
1 year for defamation
A negligent defendant is liable to a negligent

plaintiff, or even to a plaintiff who has been
grossly negligent in placing himself in peril, if
the defendant, aware of the plaintiffs peril, had
in fact a later opportunity than the plaintiff to
avoid the accident.
It is clear that the prescriptive period must be

counted from the time of the commission of an
act or omission violative of the right of the
plaintiff, which is the time when the cause of
action arises. [Kramer vs. CA (1989)]
Bustamante vs. CA (1991): Negligence of the

plaintiff does not preclude a recovery for the
negligence of the defendant where it appears
that the defendant, by exercising reasonable
care and prudence, might have avoided
injurious consequences to the plaintiff
notwithstanding the plaintiffs negligence.
Relations Back Doctrine (footnote 17 of Allied

Banking case): That principle of law by which an
act done at one time is considered by a fiction of
law to have been done at some antecedent
period. [Allied Banking vs. CA (1989)]
WAIVER
This is a case of culpa contractual where neither

contributory negligence nor last clear chance
will exonerate defendant from liability.
[Consolidated Bank vs. CA (2003)]
Art. 6. Rights may be waived, unless the waiver is

contrary to law, public order, public policy, morals,
or good customs or prejudicial to a third person
with a right recognized by law.
Note: This means that Last Clear Chance is not

a defense in culpa contractual.
Art. 1171. Responsibility arising from fraud is

demandable in all obligations. Any waiver of an
action for future fraud is void.
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DOUBLE RECOVERY [ART. 2177, CC)
CIVIL LAW
The judgment of acquittal does not necessarily

extinguish the civil liability of the accused
EXCEPT:
(1) When it declares that the facts from which
the civil liability might arise did not exist;
(2) When it declares that the accused is not the
author of the crime;
(3) When the judgment expressly declares that
the liability is only civil in nature;
(4) Where the civil liability is not derived or
based on the criminal act of which the
accused was acquitted;
(5) Where the civil action has prescribed.
Art. 2177. Responsibility for fault or negligence

under the preceding article is entirely separate and
distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or
omission of the defendant.
Art. 100, RPC. Civil liability of a person guilty of
felony. Every person criminally liable for a felony
is also civilly liable.
Art. 2177 distinguishes 2 kinds of negligence:

(1) Civil and
(2) Criminal.
The same negligence causing damage may
produce liability arising from crime, if the act or
omission is punished by the RPC, or may create
an action for quasi-delict under the NCC.
No reservation is required in the criminal

case for the filing of civil action arising from
quasi-delict
Rule 111, Sec. 3, ROC. When civil action may
proceed independently. In the cases provided for
in Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may
be brought by the offended party. It shall proceed
independently of the criminal action and shall
require only a preponderance of evidence. In no
case, however, may the offended party recover
damages twice for the same act or omission
charged in the criminal action.
Actions available to victims of negligence

(1) An action to enforce the civil liability arising
from culpa criminal under Art. 100 of the
RPC
(2) An action for quasi-delict under Art. 21762194 of the NCC.
The only limitation is that the injured party
cannot recover twice for the same act or
omission.
Question
Effect of acquittal of the accused on his civil

liability
Art. 29. When the accused in a criminal
prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act
or omission may be instituted. Such action
requires only a preponderance of evidence. Upon
motion of the defendant, the court may require the
plaintiff to file a bond to answer for damages in
case the complaint should be found to be
malicious.
As a result of a collision between a

taxicab owned by A and another
taxicab owned by B, X, a passenger
of the first taxicab, was seriously
injured. X later filed a criminal
action against both drivers.
(a) Is it necessary for X to reserve
his right to institute a civil action
for damages against both
taxicab owners before he can
file a civil action for damages
against them? Why?
(b)
May both taxicab owners
raise the defense of due diligence in
the selection and supervision of their
drivers to be absolved from liability
for damages to X? Reason.
The acquittal of the accused in the criminal case

will not necessarily exonerate him from civil
liability.
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UP LAW BOC
Suggested
Answer
TORTS AND DAMAGES
a)
Special
Liability
Particular Cases
It depends. If the separate civil

action is to recover damages
arising from the criminal act,
reservation is necessary. If the
civil action against the taxicab
owners is based on culpa
contractual or on quasi-delict,
there is no need for reservation.
in
In some cases tort law imposes liability on

defendants who are neither negligent nor guilty
of intentional wrongdoing. Known as Strict
Liability, or liability without fault, this branch of
torts seeks to regulate those activities that are
useful and necessary but that create abnormally
dangerous risks to society.
(b) It depends. If the civil action is

based on quasi-delict, the
taxicab owners may raise the
defense of diligence of a good
father of a family in the
selection and supervision of the
driver; if the action against them
is based on culpa contractual or
civil liability arising from a crime,
they cannot raise the defense.
Alternative
Answer
CIVIL LAW
PRODUCTS LIABILITY
Art. 2187. Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar goods
shall be liable for death or injuries caused by any
noxious or harmful substances used, although no
contractual relation exists between them and the
consumers.
No such reservation is necessary.

Under Section 1 Rule 111 of the 2000
Rules on Criminal Procedure, what is
deemed instituted with the
criminal action is only the action to
recover civil liability arising from the
crime or ex delicto. All the other civil
actions under Articles 32, 33, 34,
2176 of the New Civil Code are no
longer deemed instituted, and may
be filed separately and prosecuted
independently even without any
reservation in the criminal action
(Section 3, Rule 111, 2000 Rules on
Criminal Procedure). The failure to
make a reservation of the criminal
action is not a waiver of the right to
file a separate and independent civil
action based on these articles of the
New Civil Code [Casupanan vs.
Laroya, G.R. No. 145391, August 26,
2002]
Under the foregoing provision, liability is not

made to depend upon fault or negligence of the
manufacturer or processor. The provision
likewise dispensed with any contractual relation
between the manufacturer and the consumer,
thereby clearly implying that liability is imposed
by law as a matter of PUBLIC POLICY.
Proof of negligence under this provision is not
necessary; as such, traditional contract and
warranty defenses as (1) lack of privity; (2) lack
of reliance on a warranty; (3) lack of notice to
the defendant of the breach of warranty; and (4)
disclaimer of implied warranties are
INAPPLICABLE.
Requisites of liability:
(1) Defendant is a manufacturer or possessor of
foodstuff, drinks, toilet articles and similar
goods;
(2) He used noxious or harmful substances in
the manufacture or processing of the
foodstuff, drinks or toilet articles consumed
or used by the plaintiff;
(3) Plaintiffs death or injury was caused by the
product so consumed or used; and
(4) The damages sustained and claimed by the
plaintiff and the amount thereof.
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UP LAW BOC
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BURDEN OF PROOF
formulas and handling and making up,

presentation or packing of their products, as well
as for the insufficient or inadequate information on
the use and hazards thereof.
The burden of proof that the product was in a

defective condition at the time it left the hands
of the manufacturer and particular seller is
upon the INJURED PLAINTIFF.
WHO MAY RECOVER
Although the article used the term consumer,

such term includes a user and purchaser of
the injuriously defective food product or toilet
article. The person who may recover NEED NOT
BE THE PURCHASER of the foodstuff or toilet
article.
CONSUMER ACT (RA

SECS. 92-107 [CH. 1])
CIVIL LAW
7394,
Article 4. Definition of Terms.

(n) Consumer means a natural person who is a
purchaser, lessee, recipient or prospective
purchaser, lessor or recipient of consumer
products, services or credit.
A product is defective when it does not offer the

safety rightfully expected of it, taking relevant
circumstances into consideration, including but
not limited to:
(a) presentation of product
(b) use and hazards reasonably expected of it;
(c) the time it was put into circulation.
A product is not considered defective because
another better quality product has been placed in
the market. The manufacturer, builder, producer or
importer shall not be held liable when it evidences:
(a) that it did not place the product on the
market;
(b) that although it did place the product on the
market such product has no defect;
(c) that the consumer or a third party is solely at
fault.
Article 98. Liability of Tradesman or Seller. The
tradesman/seller is likewise liable, pursuant to the
preceding article when:
(a) it is not possible to identify the manufacturer,
builder, producer or importer;
(b) the product is supplied, without clear
identification of the manufacturer, producer,
builder or importer;
(c) he does not adequately preserve perishable
goods. The party making payment to the
damaged party may exercise the right to
recover a part of the whole of the payment
made against the other responsible parties, in
accordance with their part or responsibility in
the cause of the damage effected.
(as) Manufacturer means any person who

manufactures, assembles or processes
consumer products, except that if the goods
are manufactured, assembled or processed for
another person who attaches his own brand
name to the consumer products, the latter
shall be deemed the manufacturer. In case of
imported products, the manufacturer's
representatives or, in his absence, the
importer, shall be deemed the manufacturer.
Article 92. Exemptions. If the concerned
department finds that for good or sufficient
reasons, full compliance with the labeling
requirements otherwise applicable under this Act
is impracticable or is not necessary for the
adequate protection of public health and safety, it
shall promulgate regulations exempting such
substances from these requirements to the extent
it deems consistent with the objective of
adequately safeguarding public health and safety,
and any hazardous substance which does not bear
a label in accordance with such regulations shall
be deemed mislabeled hazardous substance.
Article 99. Liability for Defective Services. The

service supplier is liable for redress, independently
of fault, for damages caused to consumers by
defects relating to the rendering of the services, as
well as for insufficient or inadequate information
on the fruition and hazards thereof.
The service is defective when it does not provide
the safety the consumer may rightfully expect of it,
taking
the
relevant
circumstances
into
consideration, including but not limited to:
(a) the manner in which it is provided;
(b) the result of hazards which may reasonably be
expected of it;
(c) the time when it was provided.
Article 97. Liability for the Defective Products. Any

Filipino or foreign manufacturer, producer, and
any importer, shall be liable for redress,
independently of fault, for damages caused to
consumers by defects resulting from design,
manufacture, construction, assembly and erection,
A service is not considered defective because of
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UP LAW BOC
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the use or introduction of new techniques.
CIVIL LAW
Article 101. Liability for Product Quantity

Imperfection. Suppliers are jointly liable for
imperfections in the quantity of the product when,
in due regard for variations inherent thereto, their
net content is less than that indicated on the
container, packaging, labeling or advertisement,
the consumer having powers to demand,
alternatively, at his own option:
(a) the proportionate price
(b) the supplementing of weight or measure
differential;
(c) the replacement of the product by another of
the same kind, mark or model, without said
imperfections;
(d) the immediate reimbursement of the amount
paid, with monetary updating without
prejudice to losses and damages if any.
The supplier of the services shall not be held liable

when it is proven:
(a) that there is no defect in the service rendered;
(b) that the consumer or third party is solely at
fault.
Article 100. Liability for Product and Service
Imperfection. The suppliers of durable or
nondurable consumer products are jointly liable
for imperfections in quality that render the
products unfit or inadequate for consumption for
which they are designed or decrease their value,
and for those resulting from inconsistency with the
information provided on the container, packaging,
labels or publicity messages/advertisement, with
due regard to the variations resulting from their
nature, the consumer being able to demand
replacement to the imperfect parts.
The provisions of the fifth paragraph of Article 99

shall apply to this Article.
If the imperfection is not corrected within thirty

(30) days, the consumer may alternatively demand
at his option:
(a) the replacement of the product by another of
the same kind, in a perfect state of use;
(b) the immediate reimbursement of the amount
paid, with monetary updating, without
prejudice to any losses and damages;
(c) a proportionate price reduction.
The immediate supplier shall be liable if the

instrument used for weighing or measuring is not
gauged in accordance with official standards.
Article 102. Liability for Service Quality Imperfection.
The service supplier is liable for any quality
imperfections that render the services improper for
consumption or decrease their value, and for those
resulting from inconsistency with the information
contained in the offer or advertisement, the
consumer being entitled to demand alternatively
at his option:
(a) the performance of the services, without any
additional cost and when applicable;
(b) the immediate reimbursement of the amount
paid, with monetary updating without
prejudice to losses and damages, if any;
(c) a proportionate price reduction.
The parties may agree to reduce or increase the

term specified in the immediately preceding
paragraph; but such shall not be less than seven
(7) nor more than one hundred and eighty (180)
days.
The consumer may make immediate use of the
alternatives under the second paragraph of this
Article when by virtue of the extent of the
imperfection, the replacement of the imperfect
parts may jeopardize the product quality or
characteristics, thus decreasing its value.
Reperformance of services may be entrusted to

duly qualified third parties, at the supplier's risk
and cost.
If the consumer opts for the alternative under subparagraph (a) of the second paragraph of this
Article, and replacement of the product is not
possible, it may be replaced by another of a
different kind, mark or model: Provided, That any
difference in price may result thereof shall be
supplemented or reimbursed by the party which
caused the damage, without prejudice to the
provisions of the second, third and fourth
paragraphs of this Article.
Improper services are those which prove to be

inadequate for purposes reasonably expected of
them and those that fail to meet the provisions of
this Act regulating service rendering.
Article 103. Repair Service Obligation. When
services are provided for the repair of any product,
the supplier shall be considered implicitly bound
to use adequate, new, original replacement parts,
or those that maintain the manufacturer's
technical
specifications
unless,
otherwise
authorized, as regards to the latter by the
consumer.
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CIVIL LAW
LIABILITY FOR NEGLIGENCE

LIABILITY FOR NUISANCE
Article 104. Ignorance of Quality Imperfection. The

supplier's ignorance of the quality imperfections
due to inadequacy of the products and services
does not exempt him from any liability.
Negligence
Article 105. Legal Guarantee of Adequacy. The legal

guarantee of product or service adequacy does not
require an express instrument or contractual
exoneration of the supplier being forbidden.
Article 106. Prohibition in Contractual Stipulation.
The stipulation in a contract of a clause
preventing, exonerating or reducing the obligation
to indemnify for damages effected, as provided for
in this and in the preceding Articles, is hereby
prohibited, if there is more than one person
responsible for the cause of the damage, they shall
be jointly liable for the redress established in the
pertinent provisions of this Act. However, if the
damage is caused by a component or part
incorporated in the product or service, its
manufacturer, builder or importer and the person
who incorporated the component or part are
jointly liable.
NUISANCE
Basis
Liability
is
based on lack of
proper care and
diligence
Condition
of the act
Act complained
of is already
done
which
caused injury to
the plaintiff
Remedy
Action
damages
for
VS.
Nuisance
Liability
attaches
regardless
of
the
skill
exercised
to
avoid the injury
There
is
continuing harm
being suffered
by the aggrieved
party because of
the
maintenance of
the act or thing
which
constitutes the
nuisance
Abatement
NUISANCE PER SE
Art. 694. A nuisance is any act, omission,

establishment, business, condition of property, or
anything else which:
(1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or
morality; or
(4) Obstructs or interferes with the free passage
of any public highway or street, or any body of
water; or
(5)
Hinders or impairs the use of property.
It is recognized as a nuisance under any and all

circumstances because it constitutes a direct
menace to public health and safety and, for that
reason, may be abated summarily under the
undefined law of necessity.
To become a nuisance per se, the thing must, of
itself, because of its inherent qualities, without
complement, be productive of injury, or, by
reason of the matter of its use or exposure,
threaten or be dangerous to life or property.
Art. 696. Every successive owner or possessor of

property who fails or refuses to abate a nuisance in
that property started by a former owner or
possessor is liable therefor in the same manner as
the one who created it.
NUISANCE PER ACCIDENS
It becomes a nuisance depending upon certain

conditions and circumstances, and its existence
being a question of fact, it cannot be abated
without due hearing thereon in a tribunal
authorized to decide whether such a thing does
in law constitute a nuisance.
Art. 697. The abatement of a nuisance does not

preclude the right of any person injured to recover
damages for its past existence.
Art. 698. Lapse of time cannot legalize any
nuisance, whether public or private.
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PUBLIC NUISANCE
CIVIL LAW
assistance of the local police; and

(4) That the value of the destruction does not
exceed three thousand pesos.
Art. 695. Nuisance is either public or private. A

public nuisance affects a community or
neighborhood or any considerable number of
persons, although the extent of the annoyance,
danger or damage upon individuals may be
unequal. A private nuisance is one that is not
included in the foregoing definition.
PRIVATE NUISANCE
It is one which violates only private rights and

produces damage to but one or a few persons,
and cannot be said to be public.
A public nuisance is the doing of or the failure to

do something that injuriously affects safety,
health, or morals of the public, or works some
substantial annoyance, inconvenience or injury
to the public. It causes hurt, inconvenience, or
damage to the public generally, or such part of
the public as necessarily comes in contact with
it in the exercise of a public or common right.
Art. 705. The remedies against a private nuisance

are:
(2) Abatement, without judicial proceedings.
Art. 706. Any person injured by a private nuisance
may abate it by removing, or if necessary, by
destroying the thing which constitutes the
nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is
indispensable that the procedure for extrajudicial
abatement of a public nuisance by a private
person be followed.
Art. 699. The remedies against a public nuisance

are:
(1) A prosecution under the Penal Code or any
local ordinance: or
(3) Abatement, without judicial proceedings.
Art. 707. A private person or a public official

extrajudicially abating a nuisance shall be liable
for damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the
courts to be not a real nuisance.
Art. 700. The district health officer shall take care

that one or all of the remedies against a public
nuisance are availed of.
Art. 701. If a civil action is brought by reason of the
maintenance of a public nuisance, such action
shall be commenced by the city or municipal
mayor.
ATTRACTIVE NUISANCE
General rule: When people come to the lands or

premises of others for their own purposes,
without right or invitation, they must take the
lands as they see them.
Art. 702. The district health officer shall determine

whether or not abatement, without judicial
proceedings, is the best remedy against a public
nuisance.
Exception: Attractive Nuisance doctrine.

One who maintains on his premises dangerous
instrumentalities or appliances of a character
likely to attract children at play, and who fails to
exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable
to a child of tender years who is injured thereby,
even if the child is technically a trespasser in the
premises.
Art. 703. A private person may file an action on

account of a public nuisance, if it is specially
injurious to himself.
Art. 704. Any private person may abate a public
nuisance which is specially injurious to him by
removing, or if necessary, by destroying the thing
which constitutes the same, without committing a
breach of the peace, or doing unnecessary injury.
But it is necessary:
(1) That demand be first made upon the owner or
possessor of the property to abate the
nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the
district health officer and executed with the
The principle reason for the doctrine is that the

condition or appliance in question although its
danger is apparent to those of age, is so
enticing or alluring to children of tender years
as to induce them to approach, get on or use it,
and this attractiveness is an implied invitation to
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such children. [Hildago Enterprises vs. Balandan

(1952)]
CIVIL LAW

correspondence
grievances
in any form
unconstitutional;
It is doubtful whether contributory negligence

can properly be imputed to the deceased, owing
to his immature years and the natural curiosity
which a child would feel to do something out of
the ordinary, and the mere fact that the
deceased ignored the caution of a companion of
the age of 8 years does not, in our opinion, alter
the case.
Contributory negligence of a minor does not bar
recovery, where his immaturity and natural
curiosity impelled him to act to his injury; but
discretion shown by the child is the decisive
factor. [Del Rosario vs. Manila Electric Co. (1932)]
WHEN APPLICABLE/NOT APPLICABLE:
The danger to the child must be caused by the
attraction itself, or by something with which
the attraction brings the child in contact.
Protects a meddling child, but not a danger
which was created by the child himself.
Limited to latent dangers, and is no basis for
recovery where peril is obvious or patent.
Does not apply to natural dangers.
The age and maturity of the injured child and
the reason for the childs presence are
important considerations in the application of
the doctrine. [De Leon on Torts and Damages]

VIOLATION OF
CONSTITUTIONAL RIGHTS
VIOLATION OF CIVIL LIBERTIES
Art 32. Any public officer or employee, or any
latter for damages:

It is obvious that the purpose of the above codal

provision [Art. 32) is to provide a sanction to the
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deeply cherished rights and freedoms enshrined

in the Constitution. Its message is clear; no man
may seek to violate those sacred rights with
impunity. In times of great upheaval or of social
and political stress, when the temptation is
strongest to yieldborrowing the words of Chief
Justice Claudio Teehankeeto the law of force
rather than the force of law, it is necessary to
remind ourselves that certain basic rights and
liberties are immutable and cannot be sacrificed
to the transient needs or imperious demands of
the ruling power. The rule of law must prevail,
or else liberty will perish. [Aberca, et al. vs. Ver, et
al. (1988)]
VIOLATIONS OF RIGHTS COMMITTED

BY PUBLIC OFFICERS
Art. 27. Any person suffering material or moral loss
because a public servant or employee refuses or
neglects, without just cause, to perform his official
duty may file an action for damages and other
relief against the latter, without prejudice to any
disciplinary administrative action that may be
taken.
CIVIL LAW
duties of his office, and it is not necessary to

show that his failure to act was due to malice or
willfulness.
Art. 34. When a member of a city or municipal
police force refuses or fails to render aid or
protection to any person in case of danger to life or
property, such peace officer shall be primarily
liable for damages, and the city or municipality
shall be subsidiarily responsible therefor. The civil
action herein recognized shall be independent of
any criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Art. 34 covers a situation where:

(1) There is danger to the life or property of
person;
(2) A member of a city or municipal police force
who is present in the scene refused or failed
to render aid or protection to the person;
and
(3) Damages are caused whether to the person
and/or property of the victim.
Nature of liability
(1) Of the police officer Primary
(2) City or municipality Subsidiary
Art. 32, supra
DERELICTION OF DUTY
Requisites:
(1) Defendant is a public officer charged with a
performance of a duty in favor of the
plaintiff;
(2) He refused or neglected without just
cause to perform the duty;
(3) Plaintiff sustained material or moral loss as
a consequence of such non-performance;
(4) The amount of such damages, if material.
[Amaro vs. Samanguit]
The defense of having observed the diligence of

a good father of a family to prevent the damage
is not available to the city/municipality.
PROVINCES,
MUNICIPALITIES
CITIES,
AND
Art. 2189. Provinces, cities and municipalities shall

be liable for damages for the death of, or injuries
suffered by, any person by reason of the defective
condition of roads, streets, bridges, public
buildings, and other public works under their
control or supervision.
Coverage
Applies only to acts of nonfeasance or the
nonperformance of some acts which a person is
obliged or has responsibility to perform.
OWNERSHIP OF ROADS, ETC. IS NOT

REQUIRED
It is not necessary for the liability therein
established to attach that the defective roads or
streets belong to the province, city or
municipality. What said article requires is that
the province, city or municipality have either
control or supervision over said street or road.
[City of Manila vs. Teotico (1968)]
The duty of the public servant must be

ministerial in character. If the duty is
discretionary, he is not liable unless he acted in
a notoriously arbitrary manner.
Defense of good faith is not available
The reason of its unavailability is that an officer
is under constant obligation to discharge the
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public and third persons and as such is directly

and primarily responsible for the consequences
incident to its operation, so that in
contemplation of law, such owner/operator of
record is the employer of the driver, the actual
operator and employer being considered merely
as his agent.
OWNERS OF MOTOR VEHICLES

Art. 2184. In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who
was in the vehicle, could have, by the use of the
due diligence, prevented the misfortune. It is
disputably presumed that a driver was negligent, if
he had been found guilty of reckless driving or
violating traffic regulations at least twice within
the next preceding two months.
The registered owner of a motor vehicle is

primarily liable for the damage or injury caused
to another, but he has a right to be indemnified
by the real owner of the amount he was
required to pay (Tamayo vs. Aquino [1959]) This
rule applies both to private and to common
carriers with respect to their passengers.
If the owner was not in the motor vehicle, the

provisions of article 2180 are applicable.
Art. 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he
was violating any traffic regulation.
Note: If the owner was NOT inside the vehicle,

Art. 2180 applies.
Art. 2186. Every owner of a motor vehicle shall file

with the proper government office a bond
executed by a government-controlled corporation
or office, to answer for damages to third persons.
The amount of the bond and other terms shall be
fixed by the competent public official.
The presumption is AGAINST the owner of the

motor vehicle. He has the burden of proving due
diligence.
The owner is SOLIDARILY liable with the driver

for motor vehicle mishaps when:
(1) The owner was IN the vehicle at the time,
AND
(2) The owner could have, by the use of due
diligence, prevented the misfortune.
OWNER OF THE VEHICLE
Owner shall mean the actual legal owner of the
motor vehicle, in whose name such vehicle is
duly registered with the LTO.
Registration of motor vehicles is required not
because it is the operative act which transfers
ownership in vehicles, but because it is the
means by which the owner can be identified so
that if any accident occurs, or damage or injury
is caused in the operation of the vehicle,
responsibility can be fixed.
As held in Vargas vs. Langcay (1962), the
registered owner/operator of a passenger
vehicle is jointly and severally liable with the
driver for damages incurred by passengers or
third persons as a consequence of injuries or
death sustained in the operation of said
vehicles. Regardless of who the actual owner of
a vehicle is, the operator of record continues to
be the operator of the vehicle as regards the
PAGE 444
Thus, once a driver is proven negligent in

causing damage, the law presumes the vehicle
owner equally negligent and imposes upon the
latter the burden of proving proper selection
and supervision of employee as a defense.
Summary:
Owner PRESENT in the
Vehicle
Owner is liable if he
could have prevented
the mishap by the
exercise of due diligence.
Owner NOT PRESENT in

the Vehicle
Owner may be held
liable under Art. 2180,
par. 5.
Car owners are not held to a uniform and

inflexible standard of diligence as are
professional drivers. In many cases they refrain
from driving their own cars and instead hire
other persons to drive for them precisely
because they are not trained or endowed with
sufficient discernment to know the rules of
traffic or to appreciate the relative dangers
posed by the different situations that are
continually encountered on the road. What
would be a negligent omission under aforesaid
Article on the part of a car owner who is in the
prime of age and knows how to handle a motor
vehicle is not necessarily so on the part, say, of
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an old and infirm person who is not similarly

equipped.
The law does not require that a person must
possess a certain measure of skill or proficiency
either in the mechanics of driving or in the
observance of traffic rules before he may own a
motor vehicle. The test of his negligence, within
the meaning of Article 2184, is his omission to
do that which the evidence of his own senses
tells him he should do in order to avoid the
accident. And as far as perception is concerned,
absent a minimum level imposed by law, a
maneuver that appears to be fraught with
danger to one passenger may appear to be
entirely safe and commonplace to another.
Were the law to require a uniform standard of
perceptiveness, employment of professional
drivers by car owners who, by their very
inadequacies, have real need of drivers' services,
would be effectively proscribed. [Caedo vs. Yu
Khe Tai (1968)]
An owner of a vehicle cannot be held liable for
an accident involving the said vehicle if the
same was driven without his consent or
knowledge and by a person not employed by
him. [Duavit vs. CA (1989)]
PROPRIETOR
STRUCTURE
OF
BUILDING
OR
Art. 2190. The proprietor of a building or structure is

responsible for the damages resulting from its total
or partial collapse, if it should be due to the lack of
necessary repairs.
CIVIL LAW
Art. 2192. If damage referred to in the two preceding

articles should be the result of any defect in the
construction mentioned in article 1723, the third
person suffering damages may proceed only against
the engineer or architect or contractor in accordance
with said article, within the period therein fixed.
Ownership of a building imposes on the

proprietor thereof the duty to maintain it in
good condition at all times to the end that it
may not collapse either totally or partially as to
cause damage or injury to anothers person or
property.
This duty obtains whether the building is leased
or held in usufruct.
Considering, however, that the lessee or
usufructuary has direct and immediate control
of the building, the law imposes on him the duty
to notify the proprietor of such urgent or extraordinary repairs AND where the proprietors
failure to make the necessary repairs was due to
the failure of the lessee or usufructuary to notify
him, the proprietor is entitled to indemnification
for damages he may have been required to pay
to the parties.
The owner or proprietor of a place of public
amusement impliedly warrants that the
premises, appliances and amusement devices
are safe for the purpose for which they are
designed, the doctrine being subject to no other
exception or qualification than that he does not
contract against unknown defects not
discoverable by ordinary or reasonable means.
[Gotesco Investment Corp. vs. Chatto (1992)]
HEAD OF FAMILY
Art. 2191. Proprietors shall also be responsible for

damages caused:
(1) By the explosion of machinery which has not
been taken care of with due diligence, and the
inflammation of explosive substances which
have not been kept in a safe and adequate
place;
(2) By excessive smoke, which may be harmful to
persons or property;
(3) By the falling of trees situated at or near
highways or lanes, if not caused by force
majeure;
(4) By emanations from tubes, canals, sewers or
deposits of infectious matter, constructed
without precautions suitable to the place.
Art 2193. The head of a family that lives in a building

or a part thereof, is responsible for damages caused
by things thrown or falling from the same.
PURPOSE OF THE LAW

To relieve the injured party of the difficulty of
determining and proving who threw the thing or
what caused it to fall, or that either was due to
the fault or negligence of any particular
individual.
Lessee is considered as the head of the family. It
is enough that he lives in and has control over it.
[Dingcong vs. Kanaan (1941)]
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Strict Liability
CIVIL LAW
It is likewise immaterial that the animal was

tame and was merely provoked by the victim.
The law does not speak only of vicious animals
but covers even tame ones as long as they
cause injury.
POSSESSOR AND USER OF AN

ANIMAL
Art. 2183. The possessor of an animal or whoever
may make use of the same is responsible for the
damage which it may cause, although it may
escape or be lost. This responsibility shall cease
only in case the damage should come from force
majeure or from the fault of the person who has
suffered damage.
NUISANCE
Sangco: A person who creates or maintains a
nuisance is liable for the resulting injury to
others regardless of the degree of care or skill
exercised to avoid the injury. The creation or
maintenance of a nuisance is a violation of an
absolute duty.
APPLICABILITY OF PROVISION
Nuisance is a condition and not an act or failure

to act, so that if a wrongful condition exists, the
person responsible for its existence is
responsible for the resulting damages to others.
Since the law makes no distinction, this is

applicable to both wild (in case the wild animal
is kept) and domestic animals. It is enough that
defendant is the possessor, owner, or user of the
animal at the time it caused the damage
complained of, to hold him liable therefor.
CLASSES
(1) Nuisance per se; Nuisance per accidens

(2) Public nuisance; private nuisance
BASIS
Possession of the animal, not ownership, is

determinative of liability under Art. 2183. The
obligation imposed by said article is not based
on the negligence or on the presumed lack of
vigilance of the possessor or user of the animal
causing damage. It is based on natural equity
and on the principle of social interest that he
who possesses animals for his utility, pleasure,
or service, must answer for any damage which
such animal may cause. [Vestil vs. IAC (1989)]
POSSIBLE DEFENSES AGAINST THIS

LIABILITY
(1) Force Majeure
(2) Fault of person suffering damage
(3) Act of third persons
SCOPE OF PROVISION
Contention that the defendant could not be

expected to exercise remote control of the
animal is not acceptable. In fact, Art. 2183 holds
the possessor liable even if the animal should
escape or be lost and so be removed from his
control.
PAGE 446
A nuisance is, according to Blackstone, Any

thing that worketh hurt, inconvenience, or
damages. They arise from pursuing particular
trades or industries in populous neighborhoods;
from acts of public indecency, keeping
disorderly houses, and houses of ill fame,
gambling houses, etc. Nuisances have been
divided into two classes: Nuisances per se, and
nuisances per accidens. To the first belong those
which are unquestionably and under all
circumstances nuisances, such as gambling
houses, houses of ill fame, etc. The number of
such nuisances is necessarily limited, and by far
the greater number of nuisances are such
because of particular facts and circumstances
surrounding the otherwise harmless cause of
the nuisance. For this reason, it will readily be
seen that whether a particular thing is a
nuisance is generally a question of fact, to be
determined in the first instance before the term
nuisance can be applied to it. [Iloilo Ice and Cold
Storage Co. vs. Municipal Council (1913)]
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EASEMENT AGAINST NUISANCE
PRODUCTS LIABILITY (SUPRA)
Art. 682. Every building or piece of land is subject

to the easement which prohibits the proprietor or
possessor from committing nuisance through
noise, jarring, offensive odor, smoke, heat, dust,
water, glare and other causes.
Art 2187. Manufacturers and processors of

foodstuffs, drinks, toilet articles and similar goods
shall be liable for death or injuries caused by any
noxious or harmful substances used, although no
contractual relation exists between them and the
consumers.
Art. 683. Subject to zoning, health, police and

other laws and regulations, factories and shops
may be maintained provided the least possible
annoyance is caused to the neighborhood.
CONSUMER ACT
Consumer Act Provisions, supra
While it may be true that the pre-existing

contract between the parties may, as a general
rule, bar the applicability of the law on quasidelict, the liability may itself be deemed to arise
from quasi-delict if the act which breaks the
contract is also a quasi-delict. [Coca-Cola vs. CA
(1993)]
The provisions impose a prohibition upon

owners of buildings of land from committing
therein a nuisance or using such buildings or
lands in a manner as will constitute a nuisance.
It is based on the maxim sic utere tuo ut alienum
non laedas (so use your own as not to injure
anothers property).
The general rule is that everyone is bound to
bear the habitual or customary inconveniences
that result from the proximity of others, and so
long as this level is not surpassed, he may not
complain against them. But if the prejudice
exceeds the inconveniences that such proximity
habitually brings, the neighbor who causes such
disturbances is held responsible for the
resulting damage, being guilty of causing
nuisance.
While no previous adjudications on the specific
issue have been made in the Philippines, our
law of nuisances is of American origin, and a
review of authorities clearly indicates the rule to
be that the causing or maintenance of
disturbing noise or sound may constitute an
actionable nuisance.
There can be no doubt that commercial and
industrial activities which are lawful in
themselves may become nuisances if they are
so offensive to the senses that they render the
enjoyment of life and property uncomfortable. It
is no defense that skill and care have been
exercised and the most improved methods and
appliances employed to prevent such result.
[Velasco vs. Manila Electric Co. (1971)]
PAGE 447
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SUMMARY OF STRICT LIABILITY

Person Strictly Liable
For What
Possessor of an animal or
whoever makes use of
For the damage the animal may cause
them even if the animal is
lost or escaped
Owner of Motor Vehicle
Manufacturers and
processors of foodstuffs,
drinks, toilet articles and
similar goods
Defendant in possession
of dangerous weapons/
substances such as
firearms and poison
Provinces, Cities and
Municipalities
Proprietor of building/
structure
Engineer or Architect
Defenses/Exceptions
Force majeure
Fault of the person who
suffered damage
Motor vehicle mishaps
Solidary liability only if the

owner was in the vehicle and if
he could have prevented it thru
due diligence
If not in vehicle, apply Art.
2180 for his liability as
employer
Death and injuries caused by any noxious

or harmful substances used
Absence of contractual relation

NOT a defense
Death or injury results from such

possession
Possession or use thereof is

indispensable in his occupation
or business
The death or injuries suffered by any

person by reason of the defective
condition of roads, streets, bridges,
public buildings, and other public works
Total or partial collapse of building or
structure if due to lack of
necessary repairs
Explosion of machinery which has not
been taken cared of with due diligence,
and the inflammation of explosive
substances which have not been kept
in a safe and adequate place
By excessive smoke, which may be
harmful to persons or property
By falling of trees situated at or near
highways or lanes, if not caused by
force majeure
By emanations from tubes, canals,
sewers or deposits of infectious matter,
constructed without precautions
suitable to the place
If within 15 years from completion of
the structure, the same should
collapse by reason of:
o Defects in the plans or specifications;
or
o Defects in the ground.
PAGE 448
The defective public work is not

under the LGUs control or
supervision
Responsibility for collapse

should be due to the lack of
necessary repairs
Action not brought within 10

years from collapse
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Person Strictly Liable
Contractor
Head of the Family that

lives in a building or any
part thereof
TORTS AND DAMAGES
For What
If within the same period, the edifice
falls on account of:
o Defects in the construction;
o Used of materials of inferior quality
furnished by him; or
o Violation of the terms of the contract
AND he supervised the construction.
If within 15 years from the completion
of the structure, the edifice falls on
account of:
o Defects in the construction;
o Used of materials of inferior quality
furnished by him; or
o Violation of the terms of the contract
Liable for damages caused by things
thrown or falling from the same
PAGE 449
CIVIL LAW
Defenses/Exceptions
Action not brought within 10

years from collapse
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DAMAGES
(4) For deterring future violations: Exemplary or

corrective
Definition
DETERMINATION
Damages may be defined as the pecuniary

compensation, recompense, or satisfaction for
an injury sustained, or as otherwise expressed,
the pecuniary consequences which the law
imposes for the breach of some duty or the
violation of some right. [People vs. Ballesteros
(1998)]
INJURY VS.
DAMAGES
DAMAGE
VS.
(1) Conventional (or liquidated)

(2) Non-conventional, which may either be:
(a) Statutory (fixed by law, as in moratory
interest)
(b) Judicial (determined by the courts)
SPECIAL AND ORDINARY

GENERAL DAMAGES
Injury is the illegal invasion of a legal right.

Damage is the loss, hurt, or harm which results
from the injury. Damages are the recompense or
compensation awarded for the damage
suffered. [Custodio vs. CA (1996)]
Those which are the natural and necessary

result of the wrongful act or omission asserted
as the foundation of liability, and include those
which follow as a conclusion of law from the
statement of the facts of the injury.
The obligation to repair the damages exists

whether done intentionally or negligently and
whether or not punishable by law. [Ocena vs.
Icamina (1990)]
SPECIAL DAMAGES
Elements for recovery of damages:

(1) Right of action
(2) For a wrong inflicted by the defendant
(3) Damage resulting to the plaintiff
Classification
Damages that arise from the special

circumstance of the case, which, if properly
pleaded, may be added to the general damages
which the law presumes or implies from the
mere invasion of the plaintiffs rights. Special
damages are the natural, but NOT the
necessary result of an injury. These are not
implied by law.
Actual and Compensatory

Damages
Art. 2197. Damages may be:

(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
(5) Liquidated; or
(6) Exemplary or corrective.
Compensatory damages are damages in

satisfaction of, or in recompense for, loss or
injury sustained. The phrase actual damages
is sometimes used as synonymous with
compensatory damages.
ACCORDING TO PURPOSE
(1) For adequate reparation of the injury
(a) Compensatory (reparation of pecuniary
losses)
(b) Moral (reparation for non-pecuniary
losses: injury to feelings; physical
suffering, etc.)
(2) For vindication of the right violated:
Nominal
(3) For less than adequate reparation:
Moderate
PAGE 450
Requisites:
To seek recovery of actual damages, it is
necessary to prove the actual amount of loss
with a reasonable degree of certainty, premised
upon competent proof and on the best evidence
obtainable.[ Asilio, Jr. vs. People and Sps.
Bombasi (2011)]
When is a person entitled?
(1) When there is a pecuniary loss suffered by
him;
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The requirement of certainty does not prevent

the drawing of reasonable inferences from the
fact and circumstance in evidence.
Events which occur after the wrong
complained of may serve to render the
damage sufficiently certain.
The damages must be susceptible of
ascertainment in some manner other than by
mere speculation, conjecture or surmise and
by reference to some fairly definite standard,
such as market value, established experience
or direct inference from known circumstances.
(2) When he has alleged and prayed for such

relief [Manchester Devt Corp vs. CA, 1987];
(3) When he has duly proved it;
(4) When provided by law or by stipulation.
No proof of pecuniary loss is necessary for:
moral, nominal, temperate, liquidated or
exemplary damages. The assessment of such
damages is discretionary upon the court, except
liquidated ones. [Art. 2216]
ALLEGED AND PROVED WITH

CERTAINTY
Art. 2199. Except as provided by law or by
stipulation, one is entitled to an adequate
compensation only for such pecuniary loss
suffered by him as he has duly proved. Such
compensation is referred to as actual or
Where, however, it is reasonably certain that

injury consisting of failure to realize otherwise
reasonably expected profits had been incurred,
uncertainty as to the precise amount of such
unrealized profits will not prevent recovery or
the award of damages. [Talisay-Silay vs.
Associacion (1995)]
THE DAMAGES MUST BE PROVEN BY

COMPETENT EVIDENCE (ADMISSIBLE
OR PROBATIVE)
COMPONENTS
Actual damage covers the following:

(1) Value of loss; unrealized profit
(2) Attorneys fees and expenses of litigation
(3) Interest
It is necessary to prove with a reasonable degree

of certainty, premised upon competent proof
and on the best evidence obtainable by the
injured party, the actual amount of loss.
VALUE OF
PROFIT
Damages must be proved and cannot be

presumed. It must be established by clear
evidence. [Integrated Packaging Corp. vs. CA
(2000); Fuentes vs. CA (1996)]
LOSS;
UNREALIZED
Art. 2200. Indemnification for damages shall

comprehend not only the value of the loss
suffered, but also that of the profits which the
obligee failed to obtain.
Damages must be proved with reasonable

accuracy, even when not denied. [Valencia vs.
Tantoco (1956)]
In other words, indemnification for damages is

not limited to damnum emergens (actual loss)
but extends to lucrum cessans (a cession of gain
or amount of profit lost).
DEGREE OF CERTAINTY REQUIRED

AS TO: FACT, CAUSE AND AMOUNT
OF DAMAGES
ATTORNEYS FEES AND EXPENSES

OF LITIGATION
Damages are not rendered uncertain just

because they cannot be calculated with
absolute
exactness
or
because
the
consequences of the wrong are not precisely
definite in pecuniary amount.
Art. 2208. In the absence of stipulation, attorney's

fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has
compelled the plaintiff to litigate with third
persons or to incur expenses to protect his
interest;
(3) In criminal cases of malicious prosecution
against the plaintiff;
The principle which will disallow recovery of

damages when their existence rests solely on
speculation applies both to the fact and cause
of damages.
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Even if expressly stipulated, attorneys fees are

subject to control by the Courts.
(4) In case of a clearly unfounded civil action or

proceeding against the plaintiff;
(5) Where the defendant acted in gross and
evident bad faith in refusing to satisfy the
plaintiff's plainly valid, just and demandable
claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of
household helpers, laborers and skilled
workers;
(8) In actions for indemnity under workmen's
compensation and employer's liability laws;
(9) In a separate civil action to recover civil
liability arising from a crime;
(10) When at least double judicial costs are
awarded;
(11) In any other case where the court deems it just
and equitable that attorney's fees and
expenses of litigation should be recovered.
INTEREST
Art. 2209. If the obligation consists in the payment
of a sum of money, and the debtor incurs in delay,
the indemnity for damages, there being no
stipulation to the contrary, shall be the payment of
the interest agreed upon, and in the absence of
stipulation, the legal interest, which is six per cent
per annum.
Art. 2210. Interest may, in the discretion of the
court, be allowed upon damages awarded for
breach of contract.
Art. 2211. In crimes and quasi-delicts, interest as a
part of the damages may, in a proper case, be
adjudicated in the discretion of the court.
In all cases, the attorney's fees and expenses of

litigation must be reasonable.
Art. 2212. Interest due shall earn legal interest

from the time it is judicially demanded, although
the obligation may be silent upon this point.
General rule: Attorneys fees and costs of

litigation are recoverable IF stipulated.
Art. 2213. Interest cannot be recovered upon

unliquidated claims or damages, except when the
demand can be established with reasonable
certainty.
Exceptions: If there is no stipulation, they are

recoverable only in the following cases:
(1) By reason of malice or bad faith
(a) When exemplary damages are awarded
(b) In case of a clearly unfounded civil
action
(c) Where defendant acted in gross and
evident bad faith
(d) When at least double judicial costs are
awarded
(2) By reason of plaintiffs indigence in
(a) Actions for legal support
(b) Actions for recovery of wages of
laborers, etc.
(c) Actions for workmens compensation
(3) By reason of crimes in
(a) Criminal cases of malicious prosecution
(b) Separate actions to recover civil liability
arising from crime
(4) By reason of equity
(a) Where the defendants act compelled
plaintiff to litigate with third persons
(b) Where the Court deems it just and
equitable
Interest accrues when:

(1) The obligation consists in the payment of a
sum of money
(2) Debtor incurs in delay
(3) There being no stipulation to the contrary
No interest may be recovered on unliquidated
(not fixed in amount) claims or damages, except
when the demand can be established with
reasonable certainty at the Courts discretion.
COMPOUNDING OF INTEREST
Interest due shall earn legal interest from the
time it is judicially demanded, although the
obligation may be silent on the point.
Note that interest due can earn only at 6%,
whether the rate of interest of the principal is
greater than 6%.
DETERMINATION OF LEGAL INTEREST
When an obligation, regardless of its source
(i.e., law, contracts, quasi-contracts, delicts or
quasi-delicts) is breached, the contravenor
can be held liable for damages.
Note: In all cases, attorneys fees and costs of

litigation must be reasonable.
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With regard particularly to an AWARD OF

INTEREST in the concept of actual and
compensatory damages, the RATE of interest,
as well as the ACCRUAL thereof, is imposed,
as follows [Eastern Shipping Lines vs. CA,
[1994] as modified by Nacar vs. Gallery Frames,
G.R. No. 189871, 2013]
BASE
(a) When the
obligation
is
breached, and it
consists in the
PAYMENT OF A
SUM OF MONEY,
i.e., a loan or
forbearance
of
money,
the
interest
due
should be:
(b) Furthermore, the
INTEREST
DUE
shall itself earn
(c) When an
obligation, NOT
constituting
a
loan
or
forbearance
of
money,
is
breached,
an
interest on the
AMOUNT
OF
DAMAGES
awarded may be
imposed at the
discretion of the
court.
RATE
(a)
That
which may
have been
stipulated in
writing.
(b) In the
absence of
stipulation,
the rate of
interest
shall be 6%
p.a. (legal
interest)
Legal
interest
6%
per
annum.
The actual base

for
the
computation of
legal
interest
shall be on the
amount
finally
adjudged.
(d) When the

JUDGMENT
of
the
court
awarding a sum
of
money
becomes
final
6%
per
annum
CIVIL LAW
BASE
and
executory,
whether or not
the case consists
in the payment of
a sum of money
RATE
ACCRUAL
forbearance
credit.
of
Note: The new rate of legal interest (6%) in

Nacar does not apply to judgments that have
become final and executory prior to July 1, 2013.
ACCRUAL
Start of Delay:
(1) Extrajudicial: Demand letter
(2) Judicial: Filing of complaint
(3) Award
To be computed
from default, i.e.,
from JUDICIAL or
EXTRAJUDICIAL
demand under and
subject to the
provisions
of
Article 1169 of the
Civil Code.
EXTENT OR SCOPE OF ACTUAL

DAMAGES
Source
From the time it is

JUDICIALLY
demanded.
If
claim
or
damages
are
LIQUIDATED, from
default, i.e., from
judicial
or
extrajudicial
demand. [Art. 1169,
Civil Code)
Art.
2201
If UNLIQUIDATED,
from the time the
demand can be
established
with
reasonable
certainty. Hence,
the interest shall
begin to run only
FROM THE DATE
THE JUDGMENT
OF THE COURT IS
MADE (at which
time
the
quantification
of
damages may be
deemed to have
been reasonably
ascertained).
From
FINALITY
UNTIL
ITS
SATISFACTION,
this period being
deemed to be an
equivalent to a
Art.
2202
Contracts
and
Quasicontracts
Crimes
and
Quasidelicts
Extent of Liability
If the obligor acted in GOOD
FAITH, he shall be liable for
natural
and
probable
consequences of the breach,
which the parties have foreseen
or could have reasonably
foreseen at the time the
obligation was constituted.
If the obligor acted with
FRAUD, BAD FAITH, MALICE or
WANTON ATTITUDE, he shall
be responsible for all damages
which may be reasonably
attributed to the breach.
Liability extends to all damages
which are the natural and
probable consequence of the
act or omission complained of.
WON the damage was foreseen
or could have been reasonably
foreseen by the defendant is
irrelevant.
IN
CONTRACTS
CONTRACTS
AND
QUASI-
Art. 2201. In contracts and quasi-contracts, the

damages for which the obligor who acted in good
faith is liable shall be those that are the natural
and probable consequences of the breach of the
obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the
obligation was constituted.
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UP LAW BOC
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CIVIL LAW
Contributory negligence of the plaintiff, in case

of quasi-delicts, shall reduce the damages to
which he may be entitled. However, in case of
crimes, there is no mitigation for contributory
negligence of the plaintiff.
In case of fraud, bad faith, malice or wanton

attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to
the non-performance of the obligation.
Art. 2214. In quasi-delicts, the contributory
negligence of the plaintiff shall reduce the
damages that he may recover.
EARNING
CAPACITY,
STANDING
Art. 2215. In contracts, quasi-contracts, and quasidelicts, the court may equitably mitigate the
damages under circumstances other than the case
referred to in the preceding article, as in the
following instances:
(1) That the plaintiff himself has contravened the
terms of the contract;
(2) That the plaintiff has derived some benefit as
a result of the contract;
(3) In cases where exemplary damages are to be
awarded, that the defendant acted upon the
advice of counsel;
(4) That the loss would have resulted in any
event;
(5)
That since the filing of the action, the
defendant has done his best to lessen the
plaintiff's loss or injury.
BUSINESS
Art. 2205. Damages may be recovered:

(1) For loss or impairment of earning capacity in
cases of temporary or permanent personal
injury;
(2)
For injury to the plaintiff's business
standing or commercial credit.
LOSS OR IMPAIRMENT OF EARNING

CAPACITY
The Court did not award actual damages
because it was found that plaintiffs
employment was lost even before the injury
upon which she was suing. The Court equated
loss of employment with loss of earning
capacity. [Gatchalian vs. Delim (1991)]
INJURY TO BUSINESS STANDING OR
COMMERCIAL CREDIT
Loss of goodwill should be proven with the
same standard of proof as other compensatory
damages. [Tanay Recreation Center vs. Fausto
(2005)]
The damages recoverable upon breach of

contract are, primarily, the ordinary, natural and
in a sense the necessary damages resulting
from the breach. Other damages, known as
special damages, are recoverable where it
appears that the particular conditions which
made such damages a probable consequence of
the breach were known to the delinquent party
at the time the contract was made. [Daywalt vs.
Recoletos et al. (1919)]
FORMULA FOR THE NET EARNING

CAPACITY [People vs. Aringue (1997)]
Net earning capacity = Life expectancy * (Gross
annual income Reasonable living expenses)
IN CRIMES AND QUASI-DELICTS
Where:
Life expectancy = 2/3 * (80 age of victim at
the time of death)
Art. 2202. In crimes and quasi-delicts, the

defendant shall be liable for all damages which
are the natural and probable consequences of the
act or omission complained of. It is not necessary
that such damages have been foreseen or could
have reasonably been foreseen by the defendant.
As a rule, documentary evidence should be

presented to substantiate the claim for loss of
earning capacity.
In case of crimes, damages are to be increased

or decreased according to aggravating or
mitigating circumstances present.
By way of exception, damages for loss of

earning capacity may be awarded despite the
absence of documentary evidence when: (1) the
deceased is self-employed and earning less
than the minimum wage under current labor
laws, in which case, judicial notice may be taken
of the fact that in the deceased's line of work, no
Interest, as part of damages, may be

adjudicated in a proper case, in the Courts
discretion.
PAGE 454
UP LAW BOC
TORTS AND DAMAGES
documentary evidence is available; or (2) the

deceased is employed as a daily wage worker
earning less than the minimum wage under
current labor laws. [Tan, et al. vs. OMC Carriers,
Inc. (2011)]
CIVIL LAW
Additional exception found in Pleyto vs. Lomboy

(2004):
DEATH BY CRIME OR QUASI-DELICT
Testimonial evidence suffices to establish a

basis for which the court can make a fair and
reasonable estimate of the loss of earning
capacity.
Art. 2206. The amount of damages for death

caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may
have been mitigating circumstances.
Note: Such an exception to documentary proof

requirement only exists as to the loss of earning
capacity.
IN RAPE CASES
In addition:
(1) The defendant shall be liable for the loss of
the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be
assessed and awarded by the court, unless the
deceased on account of permanent physical
disability not caused by the defendant, had no
earning capacity at the time of his death;
(2) If the deceased was obliged to give support
according to the provisions of article 291, the
recipient who is not an heir called to the
decedent's inheritance by the law of testate or
intestate succession, may demand support
from the person causing the death, for a
period not exceeding five years, the exact
duration to be fixed by the court;
(3)
The spouse, legitimate and illegitimate
descendants and ascendants of the deceased may
demand moral damages for mental anguish by
reason of the death of the deceased.
No statutory basis but in several cases the court

awards compensatory damages to victims of
rape.
Civil indemnity, in the nature of actual and
compensatory damages, is mandatory upon the
finding of the fact of rape. Awarded P50,000
for simple rape. [People vs. Astrologo (2007)]
When imposable penalty is death, then the civil
indemnity must be P75,000. [People vs. Apattad
(2011)]
The SC held that it could not be proven that the
age of the victim was such that it would support
a penalty of death. Thus, it imposed reclusion
perpetua instead. But SC said that this should
not affect the civil liability to be imposed, and
maintained the same at P75,000. [People vs.
Bartolini (2010]
CIVIL / DEATH INDEMNITY
In cases of rape with homicide, civil indemnity in

the amount of P100,000 should be awarded to
the heirs of the victim. [People vs. Pascual
(2009)]
Mere commission of the crime shall entitle the

heirs of the deceased to such damages.
But there has been inconsistency as to
whether indemnity is 50,000 or 75,000. [Prof.
Casis Book on Damages]
AS TO THE LOSS OF EARNING CAPACITY
General rule: shall be awarded in every case,
and that claimant shall present documentary
evidence to substantiate claim for damages.
Exceptions:
(1) If the deceased was self-employed and
earning less than the minimum wage; or
(2) The deceased was a daily wage worker
earning less than the minimum wage.
PAGE 455
UP LAW BOC
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Moral Damages
CIVIL LAW
Requisites:
(1) There must be an injury, whether physical,
mental or psychological, clearly sustained
by the claimant;
(2) There must be a culpable act or omission
factually established;
(3) The wrongful act or omission of the
defendant must be the proximate cause of
the injury sustained by the claimant; and
(4) The award of damages is predicated on any
of the cases stated in Art. 2219. [Villanueva
vs. Salvador (2006)]
Art. 2217. Moral damages include physical

suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury.
Though incapable of pecuniary computation,
moral damages may be recovered if they are the
proximate result of the defendant's wrongful act or
omission.
Art. 2218. In the adjudication of moral damages,
the sentimental value of property, real or personal,
may be considered.
Moral damages are emphatically not intended

to enrich a complainant at the expense of the
defendant. Its award is aimed at the restoration,
within the limits of the possible, of the spiritual
status quo ante, and it must be proportional to
the suffering inflicted. [Visayan Sawmill vs. CA
(1993)]
Mental suffering means distress or serious pain
as distinguished from annoyance, regret or
vexation.
Mental anguish is intense mental suffering.
Generally, damages for mental anguish are
limited to cases in which there has been a
personal physical injury or where the defendant
willfully, wantonly, recklessly, or intentionally
caused the mental anguish. [Bagumbayan Corp.
vs. IAC (1984)]
GENERAL
RECOVERY
PRINCIPLES
(1) Moral damages must somehow

proportional to the suffering inflicted.
OF
be
(2) In culpa contractual or breach of contract,

moral damages may be recovered when the
defendant acted in bad faith or was guilty of
gross negligence (amounting to bad faith)
or in wanton disregard of his contractual
obligation and, exceptionally, when the act
of breach of contract itself is constitutive of
tort resulting in physical injuries.
(3) By special rule in Article 1764, in relation to
Article 2206, moral damages may also be
awarded in case the death of a passenger
results from a breach of carriage.
(4) In culpa aquiliana or quasi-delict,
(a) when an act or omission causes physical
injuries, or
(b) where the defendant is guilty of
intentional tort, moral damages may
aptly be recovered. This rule also
applies to contracts when breached by
tort.
WHEN AWARDED
Awarded when injury consists of:

(a) Physical suffering
(b) Besmirched reputation
(c) Mental anguish
(d) Fright
(e) Moral shock
(f) Wounded feelings
(g) Social humiliation
(h) Serious anxiety
(i) Similar injury
Though incapable of pecuniary computation,
If such is the proximate result of defendants
act or omission.
(5) In culpa criminal, moral damages could be

lawfully due when the accused is found
guilty of physical injuries, lascivious acts,
adultery or concubinage, illegal or arbitrary
detention, illegal arrest, illegal search, or
defamation.
(6) Malicious prosecution can also give rise to a
claim for moral damages. The term
analogous cases, referred to in Article
PAGE 456
UP LAW BOC
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2219, following the ejusdem generis rule,

must be held similar to those expressly
enumerated by the law.
CIVIL LAW
physical suffering and mental anguish, which

can be experienced only by one having a
nervous system. The statement in People vs.
Manero and Mambulao Lumber Co. vs. PNB that
a corporation may recover moral damages if it
has a good reputation that is debased,
resulting in social humiliation is an obiter
dictum.
(7) Although the institution of a clearly

unfounded civil suit can at times be a legal
justification for an award of attorney's fees,
such filing, however, has almost invariably
been held not to be a ground for an award
of moral damages. [Expertravel & Tours vs.
CA,(1999]
While it is true that besmirched reputation is

included in moral damages, it cannot cause
mental anguish to a corporation, unlike in the
case of a natural person, for a corporation has
no reputation in the sense that an individual
has, and besides, it is inherently impossible for a
corporation to suffer mental anguish.
[NAPOCOR vs. Philipp Brothers (2001)]
(8) The burden rests on the person claiming

moral damages to show convincing
evidence for good faith is presumed. In a
case involving simple negligence, moral
damages cannot be recovered. [Villanueva
vs. Salvador, 2006]
Question
(9) Failure to use the precise legal terms or

sacramental phrases of mental anguish,
fright, serious anxiety, wounded feelings or
moral shock does not justify the denial of
the claim for damages. It is sufficient that
these exact terms have been pleaded in the
complaint and evidence has been adduced
[Miranda-Ribaya vs. Bautista (1980)]
(10) Even if the allegations regarding the
amount of damages in the complaint are
not specifically denied in the answer, such
damages are not deemed admitted.
[Raagas, et al. vs. Traya et al. (1968)]
(11) An appeal in a criminal case opens the
whole case for review and this 'includes the
review of the penalty, indemnity and
damages. Even if the offended party had
not appealed from said award, and the only
party who sought a review of the decision of
said court was the accused, the court can
increase damages awarded. [Sumalpong vs.
CA, 1997]
(12) It can only be awarded to natural persons.
Ortillo contracts Fabricato, Inc. to

supply and install tile materials in a
building he is donating to his
province. Ortillo pays 50% of the
contract price as per agreement. It is
also agreed that the balance would
be payable periodically after every
10% performance until completed.
After performing about 93% of the
contract, for which it has been paid
an additional 40% as per
agreement, Fabricato, Inc. did not
complete the project due to its
sudden cessation of operations.
Instead, Fabricato, Inc. demands
payment of the last 10% of the
contract despite its non-completion
of the project. Ortillo refuses to pay,
invoking the stipulation that
payment of the last amount of 10%
shall
be
upon
completion.
Fabricato, Inc. brings suit for the
entire 10% plus damages. Ortillo
counters with claims for (a) moral
damages for Fabricato, Inc.s
unfounded suit which has damaged
his reputation as a philanthropist
and respected businessman in his
community, and (b) attorneys fees.
(a) Does Ortillo have a legal basis for
his claim for moral damages?
ABS-CBN vs. CA (1999): The award of moral

damages cannot be granted in favor of a
corporation because, being an artificial person
and having existence only in legal
contemplation, it has no feelings, no emotions,
no senses, It cannot, therefore, experience
(b) How about his claim for

attorneys fees, having hired a lawyer
to defend him?
PAGE 457
UP LAW BOC
Suggested
Answer
TORTS AND DAMAGES
CIVIL LAW
because it is assumed that a rape victim has

actually suffered moral injuries entitling the
victim to such award. If without factual and legal
bases, no award of exemplary damages should
be allowed. [People vs. Calongui (2006)]
(a) There is no legal basis to

Ortillos claim for moral
damages. It does not fall under
the coverage of Article 2219 of
the New Civil Code.
Note: Recovery may be had by the offended

party and also by her parents.
(b) Ortillo is entitled to attorneys

fees
because
Fabricatos
complaint is a case of malicious
prosecution or a clearly
unfounded civil action [Art.
2208 [4] and [11], NCC).
IN ACTS REFERRED TO IN ARTS. 21,

26, 27, 28, 29, 32, 34 AND 35
WHEN RECOVERABLE
Art. 2219. Moral damages may be recovered in the
following and analogous cases:
(1) A criminal offense resulting in physical
injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious
acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26,
27, 28, 29, 30, 32, 34, and 35.

from his friends;
(4) Vexing or humiliating another on account of
his religious beliefs, lowly station in life, place of
birth, physical defect, or other personal condition.
The parents of the female seduced, abducted,

raped, or abused, referred to in No. 3 of this article,
may also recover moral damages.
Art. 27. Any person suffering material or moral loss

because a public servant or employee refuses or
neglects, without just cause, to perform his official
duty may file an action for damages and other
relief against the latter, without prejudice to any
disciplinary administrative action that may be
taken.
The spouse, descendants, ascendants, and

brothers and sisters may bring the action
mentioned in No. 9 of this article, in the order
named.
Art. 28. Unfair competition in agricultural,

highhanded method shall give rise to a right of
action by the person who thereby suffers damage.
Art. 2220. Willful injury to property may be a legal

ground for awarding moral damages if the court
should find that, under the circumstances, such
damages are justly due. The same rule applies to
breaches of contract where the defendant acted
fraudulently or in bad faith.
Art. 29. When the accused in a criminal

prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act
or omission may be instituted. Such action
requires only a preponderance of evidence. Upon
motion of the defendant, the court may require the
IN SEDUCTION, ABDUCTION, RAPE

AND OTHER LASCIVIOUS ACTS
Anent the award of damages, civil indemnity ex

delicto is mandatory upon finding of the fact of
rape while moral damages is awarded upon
such finding without need of further proof
PAGE 458
UP LAW BOC
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plaintiff to file a bond to answer for damages in

case the complaint should be found to be
malicious.
CIVIL LAW

unconstitutional;
If in a criminal case the judgment of acquittal is

based upon reasonable doubt, the court shall so
declare. In the absence of any declaration to that
effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that
ground.

Art. 32. Any public officer or employee, or any

latter for damages:
correspondence
grievances
in any form

Art. 34. When a member of a city or municipal
police force refuses or fails to render aid or
protection to any person in case of danger to life or
property, such peace officer shall be primarily
liable for damages, and the city or municipality
shall be subsidiarily responsible therefor. The civil
action herein recognized shall be independent of
any criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Art. 35. When a person, claiming to be injured by a
criminal offense, charges another with the same,
for which no independent civil action is granted in
this Code or any special law, but the justice of the
peace finds no reasonable grounds to believe that
a crime has been committed, or the prosecuting
attorney refuses or fails to institute criminal
proceedings, the complaint may bring a civil action
for damages against the alleged offender. Such
civil action may be supported by a preponderance
of evidence. Upon the defendant's motion, the
court may require the plaintiff to file a bond to
indemnify the defendant in case the complaint
should be found to be malicious.
If during the pendency of the civil action, an
information should be presented by the
prosecuting attorney, the civil action shall be
suspended until the termination of the criminal
proceedings.
Please refer to previous discussions on the

provisions.
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IN
CASES
PROSECUTION
TORTS AND DAMAGES
OF
CIVIL LAW
Nominal damages are incompatible with actual,

temperate and exemplary damages.
MALICIOUS
Moral damages cannot be recovered from a

person who has filed a complaint against
another in good faith, or without malice or bad
faith. If damage results from the filing of the
complaint, it is damnum absque injuria. [Mijares
vs. CA (1997)]
The adverse result of an action does not per se
make the act wrongful and subject the actor to
the payment of moral damages. The law could
not have meant to impose a penalty on the right
to litigate; such right is so precious that moral
damages may not be charged on those who
may exercise it erroneously. [Barreto vs. Arevalo
(1956)]
Nominal Damages
Nominal damages consist in damages awarded,

not for purposes of indemnifying the plaintiff for
any loss suffered, but for the vindication or
recognition of a right violated by the defendant.
Requisites and characteristics:
(1) Invasion or violation of any legal or property
right.
(2) No proof of loss is required.
(3) The award is to vindicate the right violated.
WHEN AWARDED
Nominal damages cannot co-exist with actual

or compensatory damages. [Armovit vs. CA
(1990)]
No moral or exemplary damages was awarded.
Nevertheless, when confronted with their failure
to deliver on the wedding day the wedding cake
ordered and paid for, petitioners gave the lame
excuse that delivery was probably delayed
because of the traffic, when in truth, no cake
could be delivered because the order slip got
lost. For such prevarication, petitioners must be
held liable for nominal damages for
insensitivity, inadvertence or inattention to their
customer's anxiety and need of the hour.
[Francisco vs. Ferrer (2001)]
Temperate Damages
Art. 2224. Temperate or moderate damages,
which are more than nominal but less than
compensatory damages, may be recovered when
the court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of
the case, be provided with certainty.
Art. 2225. Temperate damages
reasonable under the circumstances.
must
be
These damages are awarded for pecuniary loss,

in an amount that, from the nature of the case,
cannot be proved with certainty.
Art. 2221. Nominal damages are adjudicated in

order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose
of indemnifying the plaintiff for any loss suffered
by him.
Requisites:
(1) Actual existence of pecuniary loss.
(2) The nature and circumstances of the loss
prevents proof of the exact amount.
(3) They are more than nominal and less than
compensatory.
(4) Causal connection between the loss and the
defendants act or omission.
(5) Amount must be reasonable.
Art. 2222. The court may award nominal damages

in every obligation arising from any source
enumerated in article 1157, or in every case where
any property right has been invaded.
Art. 2223. The adjudication of nominal damages
shall preclude further contest upon the right
involved and all accessory questions, as between
the parties to the suit, or their respective heirs and
assigns.
One does not ask for nominal damages, and it is

in lieu of the actual, moral, temperate, or
liquidated damages.
PAGE 460
In cases where the resulting injury might be

continuing and possible future complications
directly arising from the injury, while certain to
occur are difficult to predict, temperate
damages can and should be awarded on top of
actual or compensatory damages; in such cases
there is no incompatibility between actual and
UP LAW BOC
TORTS AND DAMAGES
CIVIL LAW
temperate damages as they cover two distinct

phases. [Ramos vs. CA (2002)]
RULES GOVERNING BREACH OF

CONTRACT
Temperate damages are incompatible with

nominal damages hence, cannot be granted
concurrently. [Citytrust Bank vs. IAC (1994)]
Art. 2228. When the breach of the contract

committed by the defendant is not the one
contemplated by the parties in agreeing upon the
liquidated damages, the law shall determine the
measure of damages, and not the stipulation.
Temperate damages are included within the

context of compensatory damages.
The amount can be reduced if:

(1) It is unconscionable as determined by the
court
(2) There is partial or irregular performance.
There are cases where from the nature of the

case, definite proof of pecuniary loss cannot be
offered, although the court is convinced that
there has been such loss. For instance, injury to
one's commercial credit or to the goodwill of a
business firm is often hard to show certainty in
terms of money. (Note: In this case actual and
temperate damages were awarded. It is
postulated that the actual damages is for the
car while the temperate damages is for the lost
actual income not sufficiently proved.) [Pleno vs.
CA (1988)]
General rule: The penalty shall substitute the

indemnity for damages and the payment of the
interests in case of breach.
Exceptions:
(1) When there is a stipulation to the contrary.
(2) When the obligor is sued for refusal to pay
the agreed penalty.
(3) When the obligor is guilty of fraud.
Liquidated Damages
Exemplary or Corrective
Damages
Art. 2227. Liquidated damages, whether intended

as an indemnity or a penalty, shall be equitably
reduced if they are iniquitous or unconscionable.
Art. 2229. Exemplary or corrective damages are

imposed, by way of example or correction for the
public good, in addition to the moral, temperate,
liquidated or compensatory damages.
Liquidated damages are those damages agreed

upon by the parties to a contract to be paid in
case of breach thereof.
In common law, these damages were termed

punitive.
It differs from a penal clause in that in the latter

case the amount agreed to be paid may bear no
relation to the probable damages resulting from
the breach. Basically, a penalty is ad terrorem,
while
liquidated
damages
are
ad
reparationem.
However, the award of P1,000,000 exemplary

damages is also far too excessive and should
likewise be reduced to an equitable level.
Exemplary damages are imposed not to enrich
one party or impoverish another but to serve as
a deterrent against or as a negative incentive to
curb socially deleterious actions. [PNB vs. CA
(1996)]
Requisites and characteristics:

(1) Liquidated damages must be validly
stipulated.
(2) There is no need to prove the amount of
actual damages.
(3) Breach of the principal contract must be
proved.
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UP LAW BOC
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REQUISITES TO RECOVER EXEMPLARY

DAMAGES AND LIQUIDATED DAMAGES
AGREED UPON
The plaintiff must show that he/she is entitled
to moral, temperate or compensatory damages:
WHEN RECOVERABLE
IN CRIMINAL OFFENSES [ART. 2230)
Art. 2230. In criminal offenses, exemplary
damages as a part of the civil liability may be
imposed when the crime was committed with one
or more aggravating circumstances. Such
damages are separate and distinct from fines and
shall be paid to the offended party.
If arising from
Award of exemplary damages is part of the civil

liability, not of the penalty.
Damages are paid to the offended party
separately from the fines.
IN QUASI-DELICTS [ART. 2231)

Art. 2231. In quasi-delicts, exemplary damages
may be granted if the defendant acted with gross
negligence.
IN
CONTRACTS
AND
CONTRACTS [ART. 2232)
CIVIL LAW
Art.
2230
Crimes
Art.
2231
Quasi-delicts
Art.
2232
Contracts
and
Quasi- contracts
When exemplary
damages are granted
The
crime
was
committed with an
aggravating
circumstance/s
Defendant acted with
gross negligence
Defendant acted in a
wanton,
fraudulent,
reckless, oppressive, or
malevolent manner
GENERAL PRINCIPLES
(1) Exemplary damages cannot be awarded

alone: they must be awarded IN ADDITION
to moral, temperate, liquidated or
(2) The purpose of the award is to deter the
defendant (and others in a similar
condition) from a repetition of the acts for
which exemplary damages were awarded;
hence, they are not recoverable as a matter
of right.
(3) The defendant must be guilty of other
malice or else negligence above the
ordinary.
(4) Plaintiff is not required to prove the amount
of exemplary damages.
(a) But plaintiff must show that he is
entitled to moral, temperate, or
compensatory damage; that is,
substantial damages, not purely
nominal ones. This requirement applies
even if the contract stipulates liquidated
damages.
(b) The amount of exemplary damage need
not be pleaded in the complaint
because the same cannot be proved. It
is merely incidental or dependent upon
what the court may award as
QUASI-
Art. 2232. In contracts and quasi-contracts, the

court may award exemplary damages if the
defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner.
REQUISITES [ART.S. 2233 AND 2234)

Art. 2234. While the amount of the exemplary
damages need not be proved, the plaintiff must
show that he is entitled to moral, temperate or
compensatory damages before the court may
consider the question of whether or not exemplary
damages should be awarded. In case liquidated
damages have been agreed upon, although no
proof of loss is necessary in order that such
liquidated damages may be recovered,
nevertheless, before the court may consider the
question of granting exemplary in addition to the
liquidated damages, the plaintiff must show that
he would be entitled to moral, temperate or
compensatory damages were it not for the
stipulation for liquidated damages.
Art. 2235. A stipulation whereby exemplary
damages are renounced in advance shall be null
and void.
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UP LAW BOC
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DAMAGES IN CASE OF DEATH

CAUSED BY CRIMES AND
QUASI-DELICTS
(3)
Art. 2206. The amount of damages for death

caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may
have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of
the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be
assessed and awarded by the court, unless the
deceased on account of permanent physical
disability not caused by the defendant, had no
earning capacity at the time of his death;
(2) If the deceased was obliged to give support
according to the provisions of article 291, the
recipient who is not an heir called to the
decedent's inheritance by the law of testate or
intestate succession, may demand support
from the person causing the death, for a
period not exceeding five years, the exact
duration to be fixed by the court;
(3)
The spouse, legitimate and illegitimate
descendants and ascendants of the deceased may
demand moral damages for mental anguish by
reason of the death of the deceased.
(4)
(5)
(6)
(7)
IN DEATH CAUSED BY BREACH OF

CONDUCT BY A COMMON CRIME
When death occurs as a result of a crime, the

heirs of the deceased are entitled to the
following items of damages:
(1) As indemnity for the death of the victim of
the offense P12,000.00, without the need
of any evidence or proof of damages, and
even though there may have been
mitigating circumstances attending the
commission of the offense.
(2) As indemnity for loss of earning capacity of
the deceased an amount to be fixed by
the Court according to the circumstances of
the deceased related to his actual income at
the time of death and his probable life
expectancy, the said indemnity to be
assessed and awarded by the court as a
matter of duty, unless the deceased had no
earning capacity at said time on account of
permanent disability not caused by the
accused. If the deceased was obliged to give
support, under Art. 291, Civil Code, the
recipient who is not an heir, may demand
CIVIL LAW
support from the accused for not more than

five years, the exact duration to be fixed by
the court.
As moral damages for mental anguish,
an amount to be fixed by the court. This
may be recovered even by the illegitimate
descendants and ascendants of the
deceased.
As exemplary damages, when the crime is
attended by one or more aggravating
circumstances, an amount to be fixed in
the discretion of the court, the same to be
considered separate from fines.
As attorney's fees and expresses of
litigation, the actual amount thereof, (but
only when a separate civil action to recover
civil liability has been filed or when
exemplary damages are awarded).
Interests in the proper cases.
It must be emphasized that the indemnities
for loss of earning capacity of the deceased
and for moral damages are recoverable
separately from and in addition to the fixed
sum of P12,000.00 corresponding to the
indemnity for the sole fact of death, and
that these damages may, however, be
respectively increased or lessened according
to the mitigating or aggravating
circumstances, except items 1 and 4 above,
for obvious reasons. [Heirs of Raymundo
Castro vs. Bustos (1969)]
At present, the SC allows civil indemnity of

P50,000 in cases of homicide (De Villa vs.
People [2012]) and P75,000 in cases of muder
[People vs. Camat [2012)]
Graduation of Damages
DUTY OF THE INJURED PARTY
Art. 2203. The party suffering loss or injury must
exercise the diligence of a good father of a family
to minimize the damages resulting from the act or
omission in question.
Article 2203 of the Civil Code exhorts parties

suffering from loss or injury to exercise the
diligence of a good father of a family to
minimize the damages resulting from the act or
omission in question. One who is injured then by
PAGE 463
UP LAW BOC
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the wrongful or negligent act of another should

exercise reasonable care and diligence to
minimize the resulting damage. Anyway, he can
recover from the wrongdoer money lost in
reasonable efforts to preserve the property
injured and for injuries incurred in attempting to
prevent damage to it. [Lim and Gunnaban vs. CA
(2002)]
BURDEN OF PROOF
The DEFENDANT has the burden of proof to

establish that the victim, by the exercise of the
diligence of a good father of a family, could
have mitigated the damages. In the absence of
such proof, the amount of damages cannot be
reduced.
Note: The victim is required only to take such
steps as an ordinary prudent man would

reasonably adopt for his own interest.
CIVIL LAW
from liability, but it led to the reduction of

damages awarded to the plaintiff.) [Rakes vs.
Atlantic (1907)]
In determining the question of contributory
negligence in performing such actthat is to
say, whether the passenger acted prudently or
recklesslythe age, sex, and physical condition
of the passenger are circumstances necessarily
affecting the safety of the passenger, and
should be considered. [Cangco vs. Manila
Railroad Co. (1918)]
PLAINTIFFS NEGLIGENCE
Even if Manila Electric is negligent, in order that
it may be held liable, its negligence must be the
proximate and direct cause of the accident.
[Manila Electric vs. Remonquillo (1956)]
Both of the parties contributed to the proximate
cause; hence, they cannot recover from one
another. [Bernardo vs. Legaspi (1914)]
RULES
IN CONTRACTS, QUASI-CONTRACTS
AND QUASI-DELICTS
IN CRIMES
Art. 2204. In crimes, the damages to be
adjudicated may be respectively increased or
lessened according to the aggravating or
mitigating circumstances.
Art. 2215 In contracts, quasi-contracts, and quasidelicts, the court may equitably mitigate the
damages under circumstances other than the case
referred to in the preceding article, as in the
following instances:
(1) That the plaintiff himself has contravened the
terms of the contract;
(2) That the plaintiff has derived some benefit as
a result of the contract;
(3) In cases where exemplary damages are to be
awarded, that the defendant acted upon the
advice of counsel;
event;
(5)
That since the filing of the action, the
defendant has done his best to lessen the
plaintiff's loss or injury.
IN QUASI-DELICTS
Art. 2214. In quasi-delicts, the contributory
negligence of the plaintiff shall reduce the
damages that he may recover.
CONTRIBUTORY NEGLIGENCE
The alleged contributory negligence of the
victim, if any, does not exonerate the accused in
criminal cases committed through reckless
imprudence, since one cannot allege the
negligence of another to evade the effects of his
own negligence. [Genobiagon vs. CA (1989)]
GROUNDS FOR MITIGATION OF

DAMAGES
If so, the disobedience of the plaintiff in placing

himself in danger contributed in some degree to
the injury as a proximate, although not as its
primary cause.
FOR CONTRACTS
(1) Violation of terms of the contract by the

plaintiff himself;
(2) Obtention or enjoyment of benefit under the
contract by the plaintiff himself;
(Supreme Court in this case cited numerous

foreign precedents, mostly leaning towards the
doctrine that contributory negligence on the
part of the plaintiff did not exonerate defendant
PAGE 464
UP LAW BOC
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(3) Defendant acted upon advice of counsel in

cases where exemplary damages are to be
awarded such as under Articles 2230, 2231,
and 2232;
(4) Defendant has done his best to lessen the
plaintiffs injury or loss.
CIVIL LAW
(1) In cases where exemplary damages are to

be awarded such as in Art. 2232;
(2) Defendant has done his best to lessen the
plaintiffs injury or loss.
(d) the incapacitated party if the interest of

justice so demands [Art. 1415, Civil Code);
(e) the party for whose protection the
prohibition by law is intended if the
agreement is not illegal per se but merely
prohibited and if public policy would be
enhanced by permitting recovery [Art. 1416,
Civil Code); and
(f) the party for whose benefit the law has been
intended such as in price ceiling laws [Art.
1417, Civil Code) and labor laws [Art.s. 14181419, Civil Code).
FOR QUASI-DELICTS:
LIQUIDATED DAMAGES
FOR QUASI-CONTRACTS

event because of the negligence or omission
of another, and where such negligence or
omission is the immediate and proximate
cause of the damage or injury;
(2)
Defendant has done his best to lessen
the plaintiffs injury or loss.
RULE WHEN CONTRACTING PARTIES

ARE IN PARI DELICTO
Generally, parties to a void agreement cannot

expect the aid of the law; the courts leave them
as they are, because they are deemed in pari
delicto or in equal fault. In pari delicto is a
universal doctrine which holds that no action
arises, in equity or at law, from an illegal
contract; no suit can be maintained for its
specific performance, or to recover the property
agreed to be sold or delivered, or the money
agreed to be paid, or damages for its violation;
and where the parties are in pari delicto, no
affirmative relief of any kind will be given to one
against the other.
Art. 2227. Liquidated damages, whether intended

as an indemnity or a penalty, shall be equitably
reduced if they are iniquitous or unconscionable.
COMPROMISE
Art. 2031. The courts may mitigate the damages to
be paid by the losing party who has shown a
sincere desire for a compromise.
Miscellaneous Rules
DAMAGES THAT CANNOT COEXIST
NOMINAL WITH OTHER DAMAGES
involved and all accessory questions, as between
the parties to the suit, or their respective heirs and
assigns.
The propriety of the damages awarded has not

been questioned, Nevertheless, it is patent upon
the record that the award of P10,000 by way of
nominal damages is untenable as a matter of
law, since nominal damages cannot co-exist
with compensatory damages. The purpose of
nominal damages is to vindicate or recognize a
right that has been violated, in order to preclude
further contest thereon; and not for the
purpose of indemnifying the Plaintiff for any
loss suffered by him [Art.icles 2221, 2223, new
Civil Code.) Since the court below has already
awarded compensatory and exemplary
damages that are in themselves a judicial
This rule, however, is subject to exceptions that

permit the return of that which may have been
given under a void contract to:
(a) the innocent party [Art.s. 1411-1412, Civil
Code);
(b) the debtor who pays usurious interest [Art.
1413, Civil Code);
(c) the party repudiating the void contract
before the illegal purpose is accomplished
or before damage is caused to a third
person and if public interest is subserved by
allowing recovery [Art. 1414, Civil Code);
PAGE 465
UP LAW BOC
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recognition that Plaintiffs right was violated,

the award of nominal damages is unnecessary
and improper. Anyway, ten thousand pesos
cannot, in common sense, be deemed
nominal. [Vda. De Medina vs. Cresencia (1956)]
ACTUAL AND LIQUIDATED

Art. 2226. Liquidated damages are those agreed
upon by the parties to a contract, to be paid in
case of breach thereof.
DAMAGES
EXIST
THAT
MUST
CO-
EXEMPLARY
WITH
MORAL,
TEMPERATE,
LIQUIDATED
OR
COMPENSATORY
There is no basis for awarding exemplary
damages either, because this species of
damages is only allowed in addition to moral,
temperate, liquidated, or compensatory
damages, none of which have been allowed in
this case, for reasons herein before discussed.
[Francisco vs. GSIS (1963)]
There was, therefore, no legal basis for the
award of exemplary damages since the private
respondent was not entitled to moral,
temperate, or compensatory damages and
there was no agreement on stipulated
damages. [Scott Consultants & Resource
Development Corp. vs. CA (1995)]
DAMAGES THAT MUST STAND

ALONE
NOMINAL DAMAGES
involved and all accessory questions, as between the
parties to the suit, or their respective heirs and
assigns.
PAGE 466
CIVIL LAW

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TABLE OF CONTENT

PERSONS AND FAMILY RELATIONS

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

PERSONS AND FAMILY

Property Relations of the Spouses .. 34

The Family ....................................... 50

Human Relations ............................. 10

Paternity and Filiation...................... 52

Persons and Personality .................. 10

WHAT IT COMPRISES .................................63

Legal Separation .............................. 29

Parental Authority ...........................65

GENERAL PROVISIONS ............................. 65

Rights and Obligations Between

PERSONS AND FAMILY RELATIONS

HIDDEN TREASURE .............................. 83

Summary Judicial Proceedings in the

Retroactive Effect ............................. 73

DEFINITION AND CONCEPT ...................... 90

RELATIVES DUTY AND THE RIGHT TO

Use of Surnames .............................. 74

Quieting of Title .............................. 101

SURNAMES OF CHILDREN .............................74

Co-ownership ................................. 103

Civil Registrar ................................... 78

DEFINITION .............................................. 103

ART. 407-413 ..............................................78

PERSONS AND FAMILY RELATIONS

NO PRESCRIPTION APPLICABLE ............. 157

Possession ...................................... 108

Usufruct ........................................... 119

Obligations ...................................... 161

Easement ........................................ 129

Quasi-Contracts ............................ 204

SOLUTIO INDEBITI ............................ 205

Modes of Acquiring Ownership .... 144

DEFINITION OF SALES ........................... 208

Prescription ..................................... 156

Parties to a Contract of Sale........... 211

PERSONS AND FAMILY RELATIONS

Subject Matter .................................213

Remedies of an Unpaid Seller...... 230

Obligations of the Seller to Transfer

Performance of Contract ............... 232

REQUISITES OF A VALID SUBJECT MATTER

DEFINITION OF UNPAID SELLER ............ 230

DELIVERY OF THING SOLD....................... 232

OBLIGATIONS OF THE VENDOR IN

Breach of Contract .........................239

PREPARATORY ........................................ 218

GENERAL REMEDIES ...............................239

Transfer of Ownership ....................222

Extinguishment of Sale................. 245

Formation of Contract of Sale ........ 218

CAUSES ................................................... 245

OBLIGATIONS OF THE VENDOR: .............222

Risk of Loss ....................................... 27

The Law on Sale of Subdivision and

The Condominium Act (RA 4726) 255

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

DEFINITION ............................................. 228

General Provisions......................... 260

DEFINITION ............................................. 260

Testamentary Succession .............. 261