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CIVIL LAW TIPS


I. PERSONS AND FAMILY RELATIONS Stephanie
Rojas
(1) Memorize essential and formal requisites
Art. 2. No marriage shall be valid, unless these essential
requisites are present:
1) Legal capacity of the contracting parties who
must be a male and a female; and
2) Consent freely given in the presence of the
solemnizing officer. (53a)
(2) Strict standard
Definition of Strict and Standard test
The childs legitimacy may be impugned only under the
strict standards provided by law.
Art. 166. Legitimacy of a child may be impugned only on
the following grounds:
1) That it was physically impossible for the husband to
have sexual intercourse with his wife within the first
120 days of the 300 days which immediately
preceded the birth of the child because of:
a) the physical incapacity of the husband to have
sexual intercourse with his wife;
b) the fact that the husband and wife were living
separately in such a way that sexual intercourse
was not possible; or
c) serious illness of the husband, which absolutely
prevented sexual intercourse;
2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the
husband, except in the instance provided in the
second paragraph of Article 164; or
3) That in case of children conceived through artificial
insemination, the written authorization or ratification
of either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence. (255a)
Art. 167. The child shall be considered legitimate
although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress
Art. 76 possible areas for situation
Art. 76. In order that any MODIFICAION in the marriage
settlements may be VALID, it must be made BEFORE
the celebration of the marriage, subject to the provisions
of Articles 66, 67, 128, 135 and 136.

Whatever regime of property relation that spouses may


adopt is UNCHANGEABLE and CANNOT BE ALTERED,
once the marriage has been celebrated.
ONLY EXCEPTION: JUDICIAL SEPARATION DURING
MARRIAGE
Art. 66. The reconciliation referred to in the preceding
Articles shall have the following consequences:
1) The legal separation proceedings, if still pending,
shall thereby be terminated at whatever stage; and
2) The final decree of legal separation shall be set
aside, but the separation of property and any
forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to
revive their former property regime.
Art. 67. The agreement to revive the former property
regime referred to in the preceding Article shall be
executed under oath and shall specify:
1) The properties to be contributed anew to the
restored regime;
2) Those to be retained as separated properties of
each spouse; and
3) The names of all their known creditors, their
addresses and the amounts owing to each.
Art. 128. If a spouse without just cause abandons the
other or fails to comply with his or her obligation to the
family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, or for
authority to be the sole administrator of the conjugal
partnership property, subject to such precautionary
conditions as the court may impose.
SPOUSE: WHEN DEEMED ABANDONED
The obligations to the family mentioned in the
preceding paragraph refer to marital, parental
or property relations.
1) he or she has left the conjugal
dwelling without intention of returning;
2) who has left the conjugal dwelling for
a period of three months;
3) has failed within the same period to
give any information as to his or her
whereabouts shall be prima facie
presumed to have no intention of
returning to the conjugal dwelling.
ART 135 and 136: permit separations of
property either by petition of one spouse for
1). just cause
2). or by joint petition of spouse.
All creditors of the property regime shall be LISTED in
the petition and must be NOTIFIED in the petition
thereof.

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Art. 135. Any of the following shall be considered


sufficient cause for judicial separation of property:
1) That the spouse of the petitioner has been
sentenced to a penalty which carries with it civil
interdiction;
2) That the spouse of the petitioner has been judicially
declared an absentee;
3) That loss of parental authority of the spouse of
petitioner has been decreed by the court;
4) That the spouse of the petitioner has abandoned the
latter or failed to comply with his or her obligations to
the family as provided for in Article 101;
5) That the spouse granted the power of administration
in the marriage settlements has abused that power;
and
6) That at the time of the petition, the spouses have
been separated in fact for at least one year and
reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or
absent spouse shall be enough basis for the grant of the
decree of judicial separation of property.
Art. 136. The spouses may jointly file a verified petition
with the court for the voluntary dissolution of the
absolute community or the conjugal partnership of gains,
and for the separation of their common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of
the spouse, shall be listed in the petition and notified of
the filing thereof. The court shall take measures to
protect the creditors and other persons with pecuniary
interest.
Art. 84
Art. 84. If the future spouses agree upon a regime other
than the absolute community of property, they cannot
donate to each other in their marriage settlements more
than one-fifth of their present property. Any excess shall
be considered void.
Donations of future property shall be governed by the
provisions on testamentary succession and the
formalities of wills. (130a

(6) Art. 94 and 121


ONLY DIFFERENCE BETWEEN ART. 94(ACP) and
ART. 121(CPG):
(A)
Art. 94. (par. 9)

(9) Ante-nuptial debts of either spouse other


than those falling under paragraph (7) of this
Article, the support of illegitimate children of
either spouse, and liabilities incurred by either
spouse by reason of a crime or a quasi-delict,
in case of absence or insufficiency of the
exclusive property of the debtor-spouse, the
payment of which shall be considered as
advances to be deducted from the share of the
debtor-spouse
upon
liquidation
of
the
community; and
Art. 121. (par. 5)
(5) All taxes and expenses for mere preservation
made during the marriage upon the separate
property of either spouse;
NOTE: The phrase in art. 94, used by the
family is omitted.
(8) Memorize Art. 117
Art. 117. The following are conjugal partnership
properties:
1) Those acquired by onerous title during the
marriage at the expense of the common fund,
whether the acquisition be for the partnership, or
for only one of the spouses;
2) Those obtained from the labor, industry, work or
profession of either or both of the spouses;
3) The fruits, natural, industrial, or civil, due or
received during the marriage from the common
property, as well as the net fruits from the
exclusive property of each spouse;
4) The share of either spouse in the hidden
treasure which the law awards to the finder or
owner of the property where the treasure is
found;
5) Those acquired through occupation such as
fishing or hunting;
6) Livestock existing upon the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse; and
7) Those which are acquired by chance, such as
winnings from gambling or betting. However,
losses therefrom shall be borne exclusively by
the loser-spouse.
(10) Family home: a waivable defenses in
attachment/levy situation, must be raised at 1 st
opportunity; cannot be partitioned for at least 10 years
after the death of one of the spouse or if there is still a
minor living therein
Art. 159. The family home shall continue despite the
death of one or both spouses or of the unmarried head

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of the family for a period of ten years or for as long as


there is a minor beneficiary, and the heirs cannot
partition the same unless the court finds compelling
reasons therefor. This rule shall apply regardless of
whoever owns the property or constituted the family
home. (238a)
(11) Art. 172
Chapter 2. Proof of Filiation
Art. 172. The filiation of legitimate children is established
by any of the following:
1) The record of birth appearing in the civil register or a
final judgment; or
2) An admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be
proved by:
1) The open and continuous possession of the
status of a legitimate child; or
2) Any other means allowed by the Rules of Court
and special laws. (265a, 266a, 267a)
(12) Art 166
Art. 166. Legitimacy of a child may be impugned only on
the following grounds:
1) That it was physically impossible for the husband to
have sexual intercourse with his wife within the first
120 days of the 300 days which immediately
preceded the birth of the child because of:
a. the physical incapacity of the husband to
have sexual intercourse with his wife;
b. the fact that the husband and wife were
living separately in such a way that sexual
intercourse was not possible; or
c. serious illness of the husband, which
absolutely prevented sexual intercourse;
2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the
husband, except in the instance provided in the
second paragraph of Article 164; or
3) That in case of children conceived through artificial
insemination, the written authorization or ratification
of either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence. (255a)
Birth Certificate cannot be used as evidence in
filiations cases however; it can be admitted when it
is backed up with evidence aliunde
Deep pocket Rule (possible for definition)

Definition of Deep pocket rule


The legal doctrine of joint and several liability, also
known as the deep pocket rule, has resulted in a
system of inequity and injustice that has threatened
financial bankruptcy of local governments, other public
agencies, private individuals and businesses and has
resulted in higher prices for goods and services to public
and in higher taxes to the taxpayers.
(17) Adoption (foreigner and Filipino that are married
must adopt jointly)
Foreigner who is married to a Filipino citizen and seeks
to jointly adopt with his/her spouse a relative within the
4th degree of consanguinity or affinity of the Filipino
spouse. (Article 184, par C)
(18) Middle name of adopted
In the case of In the matter of the adoption of Stephanie
Garcia, the Court ruled that (1) There is no law
regulating the use of a middle name; and (2) being a
legitimate child by virtue of her adoption, it follows that
Stephanie is entitled to all the rights provided by law to a
legitimate child without discrimination of may kind,
including the right to bear the surname of her father and
her mother.
(19) Effects of a marriage in bad faith
The absolute community of property or the
conjugal partnership, as the case may be, shall
be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community
property or conjugal partnership property shall
be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse
by a previous marriage or in default of children,
the innocent spouse;
Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to
said donee are revoked by operation of law;
The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and
intestate
succession.
If both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void ab
initio and all donations by reason of marriage
and testamentary dispositions made by one in
favor of the other are revoked by operation of
law.
Summary of R.A. No. 6809

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RA 6809: An Act Lowering The Age OF Majority From


Twenty-One To Eighteen Years
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 and it
takes place by the attainment of majority. Majority
commences at the age of eighteen (18) years.

II. OBLIGATIONS AND CONTRACTS


Option Contract - This is a preparatory contract in
which one party grants to the other, for a fixed period
and under specified conditions, the power to decide
whether or not to enter into a principal contract. It must
be supported by an independent consideration, and the
grand must be exclusive. The offer may not be
withdrawn until after the expiration of the option period.
(Tolentino, Vol. IV; Art.1324, 1479 NCC)
Defective Contracts
(1) Rescissible Contracts a contract that has
caused economic damage to one of the parties
or to a 3rd person, and for equitable reasons may
be set aside even if valid. (Art. 1381, NCC)
(2) Voidable or Annullable Contracts there is a
want of capacity or a vice of consent in one of
the parties. Valid until set aside by a competent
court. (Art. 1390, NCC)
(3) Unenforceable Contracts cannot be enforced
by the courts unless the form prescribed by law
has been followed (i.e compliance with the
Statute of Frauds). (Art. 1403, NCC) (Read also
in consonance with the Form of Contracts. (Art.
1356, 1357 & 1358)
(4) Void or Inexistent Contracts An absolute nullity
and produces no legal effect, as if it had never
been executed or entered into. No action for
annulment necessary and cannot be ratified or
confirmed. (Art. 1409, NCC)

In Limitless Potentials, Inc. v. Quilala, the Court laid


down the requisites of a stipulation pour autrui:
1) there is a stipulation in favor of a third person;
2) the stipulation is a part, not the whole, of the
contract;
3) the contracting parties clearly and deliberately
conferred a favor to the third person the favor is
not an incidental benefit;
4) the favor is unconditional and uncompensated;
5) the third person communicated his or her
acceptance of the favor before its revocation;
and
6) the contracting parties do not represent, or are
not authorized by, the third party.
III. PROPERTY
ARTS.
448-449,
NCC.Rules
when
the
builder/planter/sower (BPS) builds, plants, or sows
on the land of another (LO):
Landowner (LO)
A. Good Faith
Option 1: To purchase whatever has been
built, planted or sown after paying indemnity
which includes necessary expenses, useful
expenses and luxurious expenses (if the LO
wants
to
appropriate
the
luxurious
improvements).

Option 2: To oblige the BP to buy the land or


the S to pay the proper rent unless the value
of the land is considerably more than that of
the building or trees.

To remove usefu
cause any injury
does not approp
can remove the s
principal thing (th
To purchase land
not considerably
trees.

If BPS cannot pa
require BPS to
planted or sown.

Action to declare inexistence of contract does not


prescribe (Art. 1410, NCC).
Stipulations pour atrui
If a contract should contain some stipulation in favor of a
3rd person, he may demand its fulfillment provided he
communicated his acceptance to the obligor before its
revocation. A mere incidental benefit or interest of a
person is not sufficient. The contracting parties must
have clearly and deliberately conferred a favor upon a 3 rd
person. (2nd par. Art. 1311, NCC)

Builder/Planter/S
Good Faith
To receive inde
luxurious expens
luxurious improv
the land withou
payment of indem

If the value of la
the building or tre
the land. In such
LO does not choo

B. Good Faith
Option 1: To acquire whatever has been
built, planted or sown without paying
indemnity except necessary expenses for

Option 1.If BPS c


from the land.
Bad Faith
Loses whatever
without indemnity

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preservation of land and luxurious expenses


(should LO want to acquire luxurious
improvements) plus damages.

Entitled to reimbursement for necessary expenses for


EXCEPTION:
it is attached by the owner of the
preservation of land
but no rightWhen
of retention.
immovable in such a manner that it reveals the intention
to attach themfor
permanently
to the tenement
Not entitled to reimbursement
useful expenses
and
cannot remove even if removal will not cause injury.
Finder by chance of hidden treasure - Owner of hidden
treasure provided
he is not
an intruder to the land.
Not entitled to reimbursement
for luxurious
expenses
NCC438)
except when (Check
LO wants
to acquire luxurious
improvements (value of which will
GR: Hidden treasure belongs to the owner of the land,
time LO enters into
building, etc.
Entitled to remove luxurious improvements if it will not
A stranger
who
got permission to enter
cause injury and EXCEPTION:
LO does not want
to acquire
them.
found
hidden
he only owns
Option 2: To oblige the BP to buy land or S to Obliged to pay anothers
for land land
or and
proper
rent
and treasure,
pay
50% because land owner will get half a share also.
pay proper rent plus damages.
damages.
(Pursuant
to NCC438(2))
Option 3: To compel BPS to remove or Obliged to remove
or demolish
work done at his
demolish work done plus damages.
expense and pay damages.
EXCEPTION TO THE EXCEPTION: If there was an
C. Bad Faith
Good Faith
to the
share.
To acquire whatever has been built, planted If LO acquires agreement
whatever has
been
built,
or sown or by paying indemnity plus sown, BPS must be indemnified the
Another rule If the stranger entered without permission
damages.
damages.
of the land owner and found the hidden treasure, he gets
share. whatever has been
(If LO does notno acquire
planted or sown, BPS cannot insist on
Rosales case: owner is presumed to know the meters
land).
and bound of his property
he does
BPS can removeEXCEPTION:
whatever hasIf been
built,not know the location of the
property
sown regardless of whether or not it will cause injury
and will be entitled to damages.
ART. 449, NCC.- If attachment was made by a lessee:
D. Bad Faith
Bad Faith
100% owned by the lessor because a lessee can never
Same as A.
Same as A.
be a builder in good faith vs 1678 [if lessee made
improvements to the property: 50% reimbursement
NCC415(5) - Machinery Immovable by destination
should be made by the lessor. Reason: to prevent from
The machinery was placed by the land owner or a
improving out the lessor.
person authorized by the land owner. It becomes part of
the land, hence, also an immovable.
EXCEPTION: When lessee attached it The machinery
placed by the lessee is only considered movable
property because the lessee has to remove it after the
lease contract.
EXCEPTION TO THE EXCEPTION: If theres a contract
that owner will own the machinery attached Means that
lessee will not remove it anymore as the land owner will
own such machinery after the lease contract expired.
ART. 415, NCC.- Bodega Anything that is attached to
the land with permanence (immovable)
ART. 415 (C), NCC refers to paintings placed by the
owner
GR on paintings: Considered as movable property

ART. 494, NCC.


GR: Co-owners may partition the co-owned thing. May
even keep it undivided for a max. period of 10 year.
Extendable by new agreement BUT first agreement on
the 10 years must first expire. A donor or testator may
prohibit partition for a max period of 20 years.
A co-owner cant acquire the thing co-owned by
acquisitive prescription if the following requisites are not
present:
a) Such co-owner made unequivocal acts to
repudiate the co-ownership;
b) Such repudiation is made known to the other
co-owners;
c) There is clear and convincing evidence to
prove it;
d) The co-owner met the necessary years for
the prescription, which is 10 years.

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NCC495 says co-owners cant divide coowned thing if it is indivisible, like a car. But
NCC498 says co-owners may divide by
distributing proceeds after the thing is sold.

QUIETING OF TITLE
ART. 476, NCC. When theres a cloud on title to real
property or any interest on it (Remdial). Or when the
purpose is to prevent a cloud from being cast upon the
title to such property (Preventive).
Prescription to bring an action for quieting of title:
a. If plaintiff is in possession, period does not
prescribe;
b. If plaintiff is not in possession, period
prescribes (So it depends on the status of
the actual possessor, whether hes in good
[10 years] or bad faith [30 years])
PRINCIPLE OF TACKING POSSESSION (ART. 533,
NCC)
(1) NCC533 talks about possession thru succession
mortis causa and the acceptance of an heir is
important here so theres no interruption
between the heirs predecessor, and the heirs
possession.
- Example: Dad died on June 1, 2003. Son
accepted the inheritance on June 25, 2003.
Sons possession transmitted not on the day
he accepted (June 25) but on June 1, the
day his dad died.
- If heir refuses to accept - Deemed he never
possessed.
ART. 559, NCC. In the case of Edca Publishing vs.
Santos, petitioner owner sold books to B. B issued check
to petitioner for payment. B then sold the books to C.
Later on, the check issued by B to petitioner, bounced.
Can petitioner use NCC559 in recovering his books to
C?
Answer: NO. Edca was not unlawfully deprived because
there was payment made to him despite the fact that it
bounced. Edcas remedy is to rescind the contract to B
and file replevin for the return of the books. Contrast this
case to the case where a casino chip was paid; the
owner of the chips were forced by the guards of the
casino to return the chips. Here he was unlawfully
deprived. NCC559 is applicable in this case.
Art. 559: In a case where the owner A sold books to B. B
issued check to A for payment. B then sold the books to

C. Later on the check issued by B to A bounced. Can A


use Art. 559 in recovering his books to C?
Ans. NO. He was not unlawfully deprived because there
was payment made to him despite the fact that it
bounced. His remedy is to rescind the contract to B and
file replevin for the return of the books. Contrast this
case to the case where a casino chip was paid; the
owner of the chips were forced by the guards of the
casino to return the chips. Here, he was unlawfully
deprived. Art. 559 is applicable in this case.
EXTINGUISHMENT OF USUFRUCT (ART. 603, NCC)
a. Death of the usufructuary, unless a contrary
intention clearly appears;
b. Expiration of the period or fulfillment of a
resolutory condition provided in the title
creating the usufruct;
c. Merger of the usufruct and ownership in the
same person;
d. Renunciation of the usufructuary;
e. Total loss of the thing in usufruct;
f. Termination of the right of the person
constituting the usufruct;
g. Prescription
APPARENT v. NON-APPARENT
EASEMENTS;
CONTINUOUS v. DISCONTINUOUS EASEMENTS
(1) Apparent easement refers to those with a sign or
it is public.
(2) Non-apparent refers to those not public or
hidden easements.
(2) Continuous refers those to easements for light
and view.
(3) Discontinuous refers to those easements for
right of way because the use of the easement is
only when a person passes through it, hence,
only during intervals.
(4) Continuous and apparent easements can be
acquired by title or prescription of 10 years
(NCC620)
(5) Continuous and non-apparent, discontinuous
whether apparent or non-apparent, can only be
acquired by title (NCC622)
(6) By title means by juridical act or by law to create
the encumbrance such as law, donation,
succession or contact.
(7) Prescription means acquisitive prescription of 10
years (Not the general law on prescription) and
is counted depending from the type of
easement:

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a. Positive easement from day on which


dominant estate exercised the easement
upon the servient estate;
b. Negative easement By notarial
prohibition then the 10 year prescription
runs (Take note that to acquire this type
of easement, a notarial prohibition alone
is not enough, hence, notarial prohibition
and after the 10 years, easement is
acquired by dominant estate)
ROSALES v. CASTLEFORT (2005)
DOCTRINE: Under Art 448 of the NCC, the landowner
can choose between appropriating the building by paying
the proper indemnity or obliging the builder to pay the
price of the land, unless its value is considerably more
than that of the structures, in which case the builder in
good faith shall pay reasonable rent. If the parties cannot
come to terms over the conditions of the lease, the court
must fix the terms thereof. The choice belongs to the
owner of the land, a rule that accords with the principle
of accession.
Art. 559, NCC. The possession of movable property
acquired in good faith is equivalent to a title.
Nevertheless, one who has lost any movable or has
been unlawfully deprived thereof may recover it from the
person in possession of the same.
If the possessor of a movable lost or which the owner
has been unlawfully deprived, has acquired it in good
faith at a public sale, the owner cannot obtain its return
without reimbursing the price paid therefor.
ENUMERATION: TERMINATION OF EASEMENT (ART.
631, NCC)
ART. 631, NCC.Easements are extinguished:
(1) By merger in the same person of the ownership of
the dominant and servient estates;
(2) By nonuser for ten years; with respect to
discontinuous easements, this period shall be
computed from the day on which they ceased to
be used; and, with respect to continuous
easements, from the day on which an act contrary
to the same took place;
(3) When either or both of the estates fall into such
condition that the easement cannot be used; but it
shall revive if the subsequent condition of the
estates or either of them should again permit its
use, unless when the use becomes possible,
sufficient time for prescription has elapsed, in
accordance with the provisions of the preceding
number;

(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;
(6) By the redemption agreed upon between the
owners of the dominant and servient estates.
DONATION
ART. 734, NCC. Under Art. 734 of the New Civil Code
donation is perfected from the moment the donor knows
of the acceptance of the donee. The mere acceptance of
the donee does not result into a perfected contract of
donation such that the donor may validly give the thing to
somebody else before he acquire knowledge of the
acceptance of the donee. What is essential for the
perfection of the contract of donation is the donors
knowledge of the acceptance of the donee.
However in the case that the donation and acceptance
are in the same instrument and that such contains both
the signatures of the donor and the donee, the Supreme
Court held in the case of Laureta v. Mata that there is
already knowledge of acceptance such that the donation
is already perfected.
ART. 737, NCC. Under Art. 737 of the New Civil Code
the donors capacity shall be determined as of the time
of making of the donation. Paras and Tolentino are both
of the opinion that the making of the donation does not
refer to the execution of the instrument of the donation or
the giving of the thing. The making of the donation must
be taken to mean the perfection of the donation
otherwise Art. 737 would be incompatible with Art. 734
which states that donation is perfected from the moment
the donor knows of the acceptance of the donee.
ART. 748, NCC. Donation of Movable. Under Article
748, a donation of a movable may be made orally or in
writing. An oral donation requires the simultaneous
delivery of the thing or of the document representing the
right donated. If the value of the personal property
exceeds P5,000, the donation and the acceptance shall
be made in writing. If not complied with, the donation
shall be void.
ART. 749, NCC. Donation of an Immovable. Under
Article 749, the donation must be made in a public
document.
a. In the document, the property should be specified
and the value of the charges which the donee
must specify.

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b. The acceptance may be made in the same deed


or in a separate public document.
c. If the acceptance is made in a separate
instrument, the donor shall be notified. The
acceptance shall be noted in both instruments.
d. The donation, shall not take effect unless done
during the lifetime of the donor.
e. In Danquilan v. IAC, the Court held that a public
instrument is not necessary in cases of onerous
donation because they are governed by the rules
on contracts.

(2)
(3)

(4)
(5)

FORMS OF DONATION:
(1) ART. 728 Donation mortis causa. This
donation shall take effect upon the death of the
donor.
a. The donation must be in the form of a
will, with all the formalities for the validity
of wills.
b. If not in a valid will, the donation is void
and cannot transfer ownership.
c. Revocable upon the exclusive will of the
donor (any time, any cause).
(2) ART. 729 Donation intervivos. This donation
shall take effect independently of the donors
death.
a. The donation must be executed and
accepted with the formalities under Arts.
748 and 749 (except onerous donation
governed by rules of contracts).
b. Irrevocable
i. Revocable only under the
reasons provided in Article 760,
764 and 765.
(3) NOTE: In case of doubt, the conveyance should
be deemed a donation inter vivosrather than a
mortis causain order to avoid uncertainty as to
ownership of the property (Puig et. al v.
Peaflorida et. al)

(6)

some other person in his presence written, and


by his express direction;
Must be attested and subscribed by three or
more credible witnesses in the presence of the
testator and one another;
The testator or the person requested by him to
write his name and the witnesses shall sign each
and every page thereof, except the last, on the
left margin;
All the pages shall be numbered correlatively, in
letters, placed on the upper part of each page;
The attestation shall state:
a. Number of pages used upon which the
will is written;
b. The fact that the testator signed the will
and every page thereof, or caused some
other person to write his name, under
his express direction, in the presence of
the instrumental witnesses; and
c. That the latter witnessed and signed the
will and all the pages thereof in the
presence of the testator and of one
another.
Must be acknowledged before a notary public by
the testator and the witnesses. (Art. 806)

LIBERALITY
COMPLIANCE)

PRINCIPLE

(SUBSTANTIAL

The doctrine of liberal interpretation as applied to defects


and imperfections in the attestation clause is now
embodied in NCC 809. According to this article In the
absence of bad faith, forgery, or fraud, or undue and
improper pressure or influence, defects and
imperfections in the form of the attestation or in the
language used therein shall not render the will invalid if it
is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of Art.
805. However, the doctrine of liberal interpretation is
applicable only to two (2) kinds of defects of attestation
clauses 1st, defects and imperfections in the form of the
attestation; and 2nd, defects and imperfection in the
language used therein. (Jurado, 2009)

IV. SUCCESSION
TENDER CARE RULE
COMMON REQUIREMENTS FOR BOTH KINDS OF
WILLS (ART. 804, NCC)
(1) Must be in writing
(2) Executed in the language or dialect known to the
testator
SPECIAL REQUIREMENTS FOR AN ATTESTED WILL
(ART. 805, NCC)
(1) Must be subscribed in the end thereof by the
testator himself, or the testators name written by

If defect is not fatal to the will, tender care must be given


by the court to the will because a will is the voice of the
testator even after his death.
PRETERITION

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In order to invoke the remedy provided in NCC 854, the


compulsory heir claiming to have been preterited must
prove four essential requisites:
i) The preterited compulsory heir is totally omitted;
The preterited heir:
a) received nothing from the testator by
donations inter vivos which the law
considers as an advance legitime and
therefore creditable thereto;
b) received nothing from the testator by will
because he or she had been totally
omitted therefrom; and
c) Will receive nothing by way of intestate
succession
because
the
testator
disposed the entire estate by will.
ii) The omitted heir must be a compulsory heir;
iii)
The omitted compulsory heir must be an
heir in the direct line;
iv)
The omitted compulsory heir must
survive the testator.(Sebastian, 2015)
COLLATION
NCC 908 succinctly describes collation as a mere
notional process of adding back the values of all
donations inter vivos made by the testator to the value of
the net hereditary estate. By notional process, it means
that the donated property is not physically taken back
from the done, after all, the done acquired title thereto
under a valid donation. Accordingly, only the values of
the donations are brought back to the net hereditary
estate to ensure that the same are accounted for in the
determination of the legitime and in the partition of the
estate. (Sebastian, 2015)
ART. 1191 v. ART. 1381

As to party who may institute


action

a. Intrinsic Validity
Examples:
a. Non-impairment of legitime
b. Void donations under NCC 739
c. Preterition
b. Extrinsic Validity (Sebastian, 2015)
a. Notarial
i. A will must be in writing
ii. A will must be written in a
language or dialect known to the
testator
iii. The testator must sign at the
end of the will
iv. A will must be attested and
subscribed by three credible
witnesses
v. The testator and witnesses must
sign in the presence of one
another
vi. The testator and witnesses must
sign on the left margin of each
page
vii. Each page of the will must be
numbered correlatively
viii. The will must contain an
attestation clause
ix. The will must be acknowledged
before a notary public
b. Holographic
i. Entirely written
ii. Dated
iii. Signed by the hand of the
testator.
Must be written in a language known to the testator.

NCC 1191
V. AGENCY, TRUSTS AND PARTNERSHIP
(Resolution)
May be instituted only by a party to
TEST OF PARTNERSHIP
the contract.

1769, NCC provides the rules in determining


The only ground is failure of oneART.
of
a partnership exists:
the parties to comply with whatwhether
is
(1) Except as provided by article 1825, persons
incumbent upon him.
who are not partners as to each other are not
As to power of the courts
The law expressly declares that
partners as to third persons;
courts shall have the discretionary
(2) Co-ownership or co-possession does not of
power to grant an extension for
itself establish a partnership, whether such-coperformance provided there is a
owners or co-possessors do or do not share any
just cause.
profits made by the use of the property;
As to contracts which may be Only reciprocal contracts may be
(3) The sharing of gross returns does not of itself
rescinded or resolved
resolved.
establish a partnership, whether or not the
persons sharing them have a joint or common
REQUISITES OF A VALID WILL
As to causes

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right or interest in any property from which the


returns are derived;
(4) The receipt by a person of a share of the
profits of a business is prima facie evidence that
he is a partner in the business, but no such
inference shall be drawn if such profits were
received in payment:
a) As a debt by installments or otherwise;
b) As wages of an employee or rent to a
landlord;
c) As an annuity to a widow or
representative of a deceased partner;
d) As interest on a loan, though the amount
of payment vary with the profits of the
business;
e) As the consideration for the sale of a
goodwill of a business or other property
by installments or otherwise.
LIMITATIONS OF INDUSTRIAL,
MANAGING PARTNER

CAPITAL

AND

Industrial Partner
cannot engage in business for himself, unless
the partnership expressly permits him to do so;
and if he should do so, the capitalist partners
may either exclude him from the firm or avail
themselves of the benefits which he may have
obtained in violation of this provision, with a right
to damages in either case. (Art. 1789, NCC)
Not obliged to contribute additional share to the
capital in case of an imminent loss of the
business of the partnership, absent any
agreement to the contrary. (Art. 1791, NCC)
Shall not share in the losses of the partnership in
the absence of stipulation. (Article 1797, NCC)
Capitalist Partner
Cannot engage for their own account in any
operation which is of the same kind as the
partnership, unless there is a stipulation to the
contrary. (Art. 1808, NCC)
Managing Partner
Cannot execute acts of administration when
opposed by partners when acting in bad faith.
(Art. 1800, NCC)
When there are two or more managing partners,
in case it should have been stipulated that none
of the managing partners shall act without the
consent of the others, the concurrence of all
shall be necessary for the validity of the acts,
and the absence or disability of any one of them

cannot be alleged, unless there is imminent


danger of grave or irreparable injury to the
partnership. (Art. 1802, NCC)
DELECTUS PERSONAE
Mutual agency
No new partner shall be admitted to the
partnership without the consent of all the other
partners, as in the following articles in the Civil
Code:
Art. 1804 Every partner may associate another
person with him in his share, but the associate
shall not be admitted into the partnership without
the consent of all the other partners, even if the
partner having an associate should be a
manager.
Art. 1813. A conveyance by a partner of his
whole interest in the partnership does not of
itself dissolve the partnership, or, as against the
other partners in the absence of agreement,
entitle the assignee, during the continuance of
the partnership, to interfere in the management
or administration of the partnership business or
affairs, or to require any information or account
of partnership transactions, or to inspect the
partnership books; but it merely entitles the
assignee to receive in accordance with his
contract the profits to which the assigning
partner would otherwise be entitled. However, in
case of fraud in the management of the
partnership, the assignee may avail himself of
the usual remedies.
In case of a dissolution of the partnership, the
assignee is entitled to receive his assignor's
interest and may require an account from the
date only of the last account agreed to by all the
partners.
GROUNDS TO DISSOLVE PARTNERSHIP
(1) Without violating the agreement:
a. Termination of the definite term or
specific undertaking
b. Express will of any partner in good faith,
when there is no definite term and no
specified undertaking
c. Express will of all partners (except those
who have assigned their interests or
suffered them to be charged for their
separate debts) either before or after the

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(2)
(3)
(4)

(5)
(6)
(7)
(8)

termination of any specified term or


particular undertaking
d. Expulsion of any partner in good faith of
a member
Violation of the agreement
Unlawfulness of the business
Loss
a. Specific thing promised as contribution
is lost or perished before delivery
b. Loss of a specific thing contributed
before or after delivery, if only the use of
such is contributed
Note: The partnership shall not be
dissolved by the loss of the thing when it
occurs after the partnership has
acquired the ownership thereof.
Death of any of the partners
Insolvency of any partner or of the partnership
Civil interdiction of any partner
By decree of court under Art. 1831, NCC
a. a partner has been declared insane or of
unsound mind
b. a partner becomes in any other way
incapable of performing his part of the
partnership contract
c. a partner has been guilty of such
conduct as tends to affect prejudicially
the carrying on of the business
d. a partner wilfully or persistently commits
a breach of the partnership agreement
e. the business of the partnership can only
be carried on at a loss
f. other circumstances render a dissolution
equitable. (Art. 1830-1831, NCC)

PARTNERSHIP BY ESTOPPEL (Article 1825, NCC)


(1) Directly represents himself to anyone as a
partner in an existing partnership or in a existing partnership
(2) Indirectly represents himself by consenting to
another representing him as a partner in an
existing partnership or in a non-existing
partnership
LIABILITIES IN CASE OF ESTOPPEL
(1) When Partnership is Liable. If all actual partners
consented to the representation, then the liability
of the person who represented himself to be a
partner or who consented to such representation
and the actual partner is considered a
partnership liability.
(2) When Liability is PRO RATA. When there is no
existing partnership and all those represented as

partners consented to the representation, then


the liability of the person who represented
himself to be a partner and all who made and
consented to such representation, is joint or prorata.
(3) When Liability is SEPARATE. When there is no
existing partnership and not all but only some of
those represented as partners consented to the
representation, or none of the partnership in an
existing partnership consented to such
representation, then the liability will be separate
VI. SALES
CONTRACT OF SALE v. CONTRACT TO SELL
DEFINITION

CONDITION
TRANSFER OF OWNERSHIP

EFFECT OF FAILURE TO PAY

REMEDIES AVAILABLE
RESCISSION

CONTRACT OF SALE
By the contract of sale, one
the contracting parties obliga
himself
to
transfer
ownership of and to delive
determinate thing, and the ot
to pay therefor a price certain
money or its equivalent. (A
1458, NCC)

non-payment of the price is


negative resolutory condition
vendor has lost and can
recover the ownership of
land sold until and unless
contract of sale is itself resolv
and set aside.
the failure of the buyer to p
the purchase price will amo
to a breach of contract.
a. specific performance
b. rescission
c. damages
Rescission is available

RULES IN DOUBLE SALES


1. If it is a personal Property it shall go to
possessor in good faith;
2. If it is a Real Property order is as follows a. Registrant in good faith
b. Possessor in good faith
c. Person with the oldest title in good faith

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RECTO v. MACEDA LAW


Recto (Art. 1484-1486 of the Civil Code)
- To prevent abuse in the foreclosure
of chattel mortgages
-

If the a buyer of personal property


defaults by failing to pay 2 or more of
the
installments,
the
sellers
remedies
are:
(a)
specific
performance;
(b)
cancel
or
rescission; (c) foreclosure the
mortgage on the property bought (if
mortgaged)

Art. 1484 shall be applied to


contracts purporting to be leases of
personal property with option to buy,
when the lessor has deprived the
lessee of the possession or
enjoyment of the thing.

The 3rd Remedy from the previous


paragraph is also applies to the
buyer.

All remedies cant be invoked at the


same time

This does not apply to a straight sale


(single future downpayment)

If buyer p
the buyer
within a g

Maceda Law (RA 6552)


- Covers financing
MIRROR DOCTRINE
of sales of real property
which does not include: (a) industrial lots; (b)
commercial
Thebuildings
Mirror Doctrine
and lots; entails
(c) lands
that
under
a purchaser may be
the CARP
considered
Law
a purchaser in good faith when he has
examined the latest certificate of title.
- Applies to the purchaser of real property by
installment
EXCEPTION:
payments When
when there
the purchase
exist important facts that
becomeswould
cancelled
create suspicion
by a delinquency
in an otherwise
in reasonable man
payment.to go beyond the present title and to investigate those
that preceded it.
- If below 2 years. Entitled to grace period of 60
days butOne
not entitled
who purchases
to cash real
surrender
property
value.
which is in the actual
Payments
possession
made willof be
another
considered
should,rental
at least make some
unless unconscionable.
inquiry concerning the right of those in possession. The
actual possession by a person other than the vendor
- If more than
should,
two years.
at leastEntitled
put thetopurchaser
grace period
upon inquiry. He can
of 30 days;
scarcely,
and ifinhethestill
absence
failed to
of pay
suchwithin
inquiry, be regarded as
the gracea period,
bona fide
he will
purchaser
be entitled
as against
to cash such possessors.
surrender(Lucena
value vs.
equivalent
CA, G.R. No.
to 50%
77468,ofAugust
all 25, 1999)
payments made including the down payment.
He will also be entitled to 5% additional for
each year
LEASE
after v.
5 DEPOSIT
years payment but in no
case exceed Lease
90%.
Deposit
- May be of things, or
- A deposit is
- It provides the buyer with
a right
a refund as
of work
andtoservice
constituted
a requisite for cancellation
of contract due to
(Art. 1642)
from
the
delinquency when- theConsumable
buyer has paid
at least
good,
moment
two years. The refund
of total
cannot is
be 50%
a subject
person
payments; additionalmatter
5% per
after 5th
in ayear
contract
receives
a
year.
of lease except
thing belong
when
they
are
to
another,
- To qualify for this law,
the buyer
merely
to must
be have
with
already paid at leastexhibited
2 years of
or installments.
when
theobligation
The effects are:
they are accessory
of
safely
o
to the industrial
keeping
it
establishment (Art.
and
of
1645)
returning
It is characterized
thesame.
as:
- it is essential
- 1. Consensual;
that
the
- 2. Principal
depository is
o
- 3. Nominate
not the owner
- 4. Purpose is to
of the thing
allow enjoyment or
deposited
use of athing
- It may be
- 5. Subject matter
either judicial
must
be
within
or
thecommerce
of
extrajudicial
man
(voluntary or
- 6. Purpose to which
necessary)

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the thing will be


devoted should not
be immoral
7. Onerous (there
must be rent or
pricecertain)
8.
Period
is
Temporary
9. Period is either
definite
or
indefiniteIfno term
is fixed, we should
apply Art.1682 (for
rural leases) and
Art. 1687(for urban
leases)If the term is
fixed but indefinite,
the courtwill fix the
term under the law
onobligations and
contracts and
10. Lessor need not
be the owner

Generally
gratuitous
except when
there is a
stipulation to
the contrary,
when
depositary is
engaged
in
the business
of
storing
goods,
and
where
property
is
saved
w/o
knowledge of
the owner

To demand a right of way,


regulated in Article 649;

Cannot
be
prescription

extinguished

To bring an action to abate a


public or private nuisance.

Cannot
be
prescription

extinguished

Upon a written contract;

within ten years from the time


right of action accrues

Upon an obligation created by


law;

within ten years from the time


right of action accrues:

Upon a judgment.

within ten years from the time


right of action accrues:

Upon an oral contract

within six years

VII. PERIODS OF PRESCRIPTION

CAUSES

Action to recover movables

Real actions over immovable

A mortgage action

PRESCRIPTIVE PERIOD

eight years from the time


possession thereof is lost

the
Upon a quasi-contract.

within six years

Upon an injury to the rights of


the plaintiff;

within four years

Upon a quasi-delict

within four years

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

within one (1) year

after thirty years

after ten years

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For forcible entry and detainer

within one year:

NOTE: The prescription of actions is interrupted when they are f


written extrajudicial demand by the creditors, and when there is
debt by the debtor.

For defamation

within one year:

VIII. CREDIT TRANSACTIONSRIGHT OF FIRST REFUSAL v. OPTION TO BUY

All other actions whose


periods are not fixed in this
Code or in other laws

within five years from the time the


Nature
right of action accrues.
Object

All kinds of actions, when


there is no special provision
which ordains otherwise

Consideratio
Counted from the day they mayn be
brought.

Divisibility

Contract of a
Right of First
Refusal
Preparatory
juridical relation
Determinate or
may be made
determinate
Consideration of
the
lease
includes that of
for the Right of
First Refusal
Integral
and
indivisible part of
the contract of
lease;
inseparable
1. Identity
in terms
2. Identity
in
conditio
ns
to be offered to
the lessee and
to
all
prospective
buyers

Option Contract
Preparatory
Contract
Must
determinate

be

Consideration
distinct
from
contract price
May be separate
and distinct from
the
contract
of
lease

Actions which have for their


object the enforcement of
obligations to pay principal
with interest or annuity

Runs from the last payment of the


annuity or of the interest.

Actions to demand the


fulfillment
of
obligations
declared by a judgment

Commences from the time


judgment became final.

Actions to demand accounting

Runs from the day the persons who


should render the same cease
Aninoption contract shall be granted to the offeree for a
their functions.
fixed period and at a determinate price. Lacking these

Action arising from the result


of the accounting

During which the obligee was


prevented by a fortuitous
event from enforcing his right

Requisites

the

1. Clear and
certainty
object
2. Clear and
certain
cause
or
considerati
on of the
contract

two essential requisites, what is involved is only the right


of first refusal.
(Tuazon v Del Rosario-Suarez,
December 8, 2010)
Runs from the date when said result
was recognized by agreement of the
FORMS OF CONTRACT:
interested parties.
(1) Trust- right to the beneficial enjoyment of the
property, the legal title to which is vested in
another; a fiduciary relationship that obliges the
not reckoned against him.
trustee to deal with the property for the benefit of
the beneficiary; may either be implied or
expressed

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(2) Implied Trust- comes into being by operation of


law.
(3) Express Trust or Direct Trust- created by the
intention of the trustor or of the parties
intentionally created by the direct and positive
acts of the settler or the trustor- by some deed,
or will or oral declaration; created not
necessarily by written words but by the direct
and positive acts of the parties. (PNB v Aznar,
May 30, 2011)

a) To bear surname of the parent recognizing him;


b) To receive support from such parent
c) To receive, in a proper case, his legitime.

WHO MAY IMPUGN

In the case of Nacar vs. Gallery (2013) the Court held


pursuant to BSP-MB Circular No. 799 that legal interest
for loan or forbearance of any money, goods, credits and
rate allowed in the absence of a stipulation in a loan
contract is 6% per annum, effective July 1, 2013.

The recognition in favor of a child who does not possess


all the conditions for legitimation or in which the
requirements of the law have not been fulfilled may be
impugned by those prejudiced by such recognition.

Is there pactum commissorium if the thing pledged


is money?
Yes.
Pursuant
to
Article
2088,
there
is
PactumCommissorium when money is pledged or
mortgaged for the payment of the principal obligation,
and when there is a stipulation for automatic
appropriation in case of non-payment. It must be shown
however that money was intended as a form of security.

Property Regime of Unions without Marriage

Recognition of illegitimate children


INSTANCES WHEN FATHER MUST RECOGNIZE
CHILD
MANNER OF RECOGNITION
General Rule: The action for the recognition of natural
children may be brought only during the lifetime of the
presumed parents,

Exceptions:
a) If the father or mother died during minority of child,
the child may file the action before the expiration of 4
years from attainment of majority.
b) If after death of father or mother, a document should
appear of which nothing had been heard and in
which either or both parents recognize the child. The
action should be filed within 4 years from finding of
the document.

RIGHTS OF RECOGNIZED NATURAL CHILD

Q: What is the property regime that applies to


persons without the benefit of marriage?
A: Under Art. 147, properties of unions where parties are
both capacitated without the benefit of marriage or under
a void marriage, shall be governed by rules on coownership. On the other hand, those properties of unions
where parties are under circumstances not covered by
Art. 147, shall be owned in common in proportion to
actual joint contribution, pursuant to Art. 148.
Q: Differentiate property regime of unions without
marriage.
Article 147
Applicability

When man and woman are


together, WITH capacity to
but without the benefit of ma
or under a void marriage

Ownership of Salaries and Wages Owned in equal shares


Share of Party in Bad Faith

Shall be
distributed
children

forfeited
to
the

Reserva Troncal
Q: What is the nature of ownership of the reservor?
A: The reservor has the legal title and dominion to the
reservable property but subject to the resolutory
condition that such title is extinguished if the reservor
predeceased the reservee. The reservor is a

and
co

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usufructuary of the reservable property. He may alienate


it subject to the reservation. The transferee gets the
revocable and conditional ownership of the reservor. The
transferees rights are revoked upon the survival of the
reservees at the time of the death of the reservor but
become indefeasible when the reservees predecease
the reservor. (Edroso vs Sablan)

loquitur is a maxim for the rule that the fact of the


occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or 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.

Q: When does the reservatario acquire the right


over the reservable property?
A: Upon the death of the reservista, the reservatario
nearest to the prepositus becomes, automatically and by
operation of law, the owner of the reservable property.
(Cano v. Director of Lands)

Requisites:
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.

Easement of right of way


What are the requisites for an easement of right of
way?
(a) the estate is surrounded by other immovables, and
it is without adequate outlet to a public highway;
(b) proper indemnity must be paid;
(c) the isolation is not due to the proprietors own acts;
and
(d) the right of way claim is at a point least prejudicial
to the servient estate
Who has the burden of proving the existence of a
valid claim of a right of way?
The burden of proving the existence of the prerequisites
to validly claim a compulsory right of way lies on the
owner of the dominant estate. [Floro v Llenado, 1995]
Can an easement of right of way be acquired by
prescription?
The easement of right of way, being discontinuous,
cannot, therefore, be acquired by prescription. The use
of a footpath or road may be apparent but it is not a
continuous easement because its use is at intervals and
depends upon the acts of man. It can be exercised only
if a man passes or puts his feet over somebody elses
land. [Abellana Sr. v CA, 1992]
Res ipsa loquitur

A Latin phrase which literally means the thing or the


transaction speaks for itself. The phrase res ipsa

Exemplary damages in delictual liability


To warrant the award of exemplary damages, "[t]he
wrongful act must be accompanied by bad faith, and an
award of damages would be allowed only if the guilty
party acted in a wanton, fraudulent, reckless or
malevolent manner."

Requirements of an award of exemplary damages are:


1) they may be imposed by way of example in
addition to compensatory damages, and only
after the claimant's right to them has been
established;
2) that they cannot be recovered as a matter of
right, their determination depending upon the
amount of compensatory damages that may be
awarded to the claimant;
3) the act must be accompanied by bad faith or
done in a wanton, fraudulent, oppressive or
malevolent manner." (Francisco vs. Ferrer, G.R.
No. 142029, February 28, 2001)

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