CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
MOST FREQUENTLY ASKED TOPICS IN CIVIL LAW
Source: U.P. Law Center
Persons and Family Relations
TOPIC: REQUIREMENTS FOR THE VALIDITY OF MARRIAGE
(1989, 1990, 1992, 1993, 1994, 1996, 1997, 1998, 1999,
2002)
I
What is the status of the following marriages and
why?
A. A marriage between two 19-year olds without
parental consent.
B. A marriage between two 21-year olds without
parental advice.
C. A marriage between two Filipino first cousins in
Spain where such marriage is valid.
D. A marriage between two Filipinos in Hong Kong
before a notary public.
E. A marriage solemnized by a town mayor three
towns away from his jurisdiction. (1999)
ANSWERS:
A. The marriage is voidable. The consent of the parties
to the marriage was defective. Being below 21 years old, the
consent of the parties is not full without the consent of their
parents. The consent of the parents of the parties to the
marriage is indispensable for its validity.
B. Between 21-year olds, the marriage is valid despite
the absence of parental advice, because such absence is
merely an irregularity affecting a formal requisite –i.e., the
marriage license—and does not affect the validity of the
marriage itself. This is without prejudice to the civil,
criminal, or administrative liability of the party responsible
therefore.
C. By reason of public policy, the marriage between
Filipino first cousins is void [Art. 38, par. (1), FC], and the
fact that it is considered a valid marriage in a foreign country
in this case, Spain—does not validate it, being an exception to
the general rule in Art. 26 of said Code which accords validity
to all marriages solemnized outside the Philippines x x x and
valid there as such.
D. It depends. If the marriage before the notary public
is valid under Hong Kong law, the marriage is valid in the
Philippines. Otherwise, the marriage that is invalid in Hong
Kong will be invalid in the Philippines.
E. Under the Local Government Code, a town mayor
may validly solemnize a marriage but said law is silent as to
the territorial limits for the exercise by a town mayor of such
authority. However, by analogy, with the authority of
members of the judiciary to solemnize a marriage, it would
seem that the mayor did not have the requisite authority to
solemnize a marriage outside of his territorial jurisdiction.
Hence, the marriage is void, unless it was contracted with
either or both parties believing in good faith that the mayor
had the legal authority to solemnize this particular marriage
[Art. 35, par. (2), FC].
ALTERNATIVE ANSWERS:
C. The marriage is void. Under Article 26 of the Family
Code, a marriage valid where celebrated is valid in the
Philippines except those marriages enumerated in said Article
which marriages will remain void even though valid where
solemnized. The marriage between first cousins is one of
those marriages enumerated therein, hence, it is void even
though valid in Spain where it was celebrated.
D. If the two Filipinos believed in good faith that the
Notary Public is authorized to solemnize marriage, then the
marriage is valid.
E. The marriage is valid. Under the Local Government
Code, the authority of a mayor to solemnize marriages is not
restricted within his municipality implying that he has the
authority even outside the territory thereof. Hence, the
marriage he solemnized outside his municipality is valid. And
even assuming that his authority is restricted within his
municipality, such marriage will, nevertheless, be valid
because solemnizing the marriage outside said municipality is
a mere irregularity applying by analogy the case of Navarro
vs. Domagtoy, 259 SCRA 129. In this case, the Supreme Court
held that the celebration by a judge of a marriage outside the
jurisdiction of his court is a mere irregularity that did not
affect the validity of the marriage notwithstanding Article 7
of the Family Code which provides that an incumbent
member of the judiciary is authorized to solemnize marriages
only within the court’s jurisdiction.
OTHER ALTERNATIVE ANSWERS:
C. By reason of Article 15 in relation to Article 38 of the
Civil Code, which applies to Filipinos wherever they are, the
marriage is void.
E. The marriage is void because the mayor has no
authority to solemnize marriage outside his jurisdiction.
II
On Valentine’s Day, 1996, Elias and Fely, both single
and 25 years of age, went to the city hall where they sought
out a fixer to help them obtain a quickie marriage. For a fee,
the fixer produced an ante-dated marriage license for them,
issued by the Civil Registrar of a small remote municipality.
He then brought them to a licensed minister in a restaurant
behind the city hall, and the latter solemnized their marriage
RED NOTES IN CIVIL LAW
right there and then.
A. Is their marriage valid, void, or voidable?
B. Would your answer be the same if it should turn
out that the marriage license was spurious?
Explain. (1996)
ANSWERS:
A. The marriage is valid. The irregularity in the
issuance of a valid license does not adversely affect the
validity of the marriage. The marriage license is valid
because it was in fact issued by a Civil Registrar (Arts. 3 and
4, FC).
35
B. No, the answer would not be the same. The marriage
would be void because of the absence of a formal requisite.
In such a case, there was actually no valid marriage license.

ALTERNATIVE ANSWER:
A. It depends. If both or one of the parties was a
member of the religious sect of the solemnizing officer, the
marriage is valid. If none of the parties is a member of the
sect and both of them were aware of the fact, the marriage
is void. They cannot claim good faith in believing that the
solemnizing officer was authorized because the scope of the
authority of the solemnizing officer is a matter of law. If,
however, one of the parties believed in good faith that the
other was a member of the sect, then the marriage is valid
under Article 35(2), FC. In that case, the party in good faith
is acting under a mistake of fact, not a mistake of law.
TOPIC: PROPERTY RELATIONS BETWEEN HUSBAND AND
WIFE (1989, 1992, 1994, 1995, 1998, 2000)
I ANSWERS:
In 1973, Mauricio, a Filipino pensioner of the U.S.
Government, contracted a bigamous marriage with Erlinda,
despite the fact that his first wife, Carol, was still living. In
1975, Mauricio and Erlinda jointly bought a parcel of
Riceland, with the title being placed jointly in their names.
Shortly thereafter, they purchased another property (a house
and lot) which was placed in her name alone as the buyer. In
1981, Mauricio died, and Carol promptly filed an action
against Erlinda to recover both the Riceland and the house
and lot, claiming them to be conjugal property of the first
marriage. Erlinda contends that she and the late Mauricio
were co-owners of the Riceland; and with respect to the
house and lot, she claims she is the exclusive owner.
Assuming she fails to prove that she had actually used her
own money in either purchase, how do you decide the case?
(1998)
ANSWER:
Carol’s action to recover both the Riceland and the
house and lot is well-founded. Both are conjugal property in
SAN BEDA COLLEGE OF
view of the failure of Erlinda, the wife in a bigamous
marriage, to prove that her own money was used in the
purchases made. The Supreme Court in a case applied Art.
148, Family Code, despite the fact that the husband’s death
took place prior to the effectivity of said law. However, even
under Art. 144, Civil Code, the same conclusion would have
been reached in view of the bigamous nature of the second
marriage.
ANOTHER ANSWER:
Under Art. 148 of the FC, which applies to bigamous
marriages, only the properties acquired by both parties
LAW
through their actual joint contribution of money, property or
industry shall be owned by them in common in proportion to
their respective contributions. Moreover, if one of the parties
is validly married to another, his share in the co-ownership
shall accrue to the absolute community/conjugal partnership
existing in such valid marriage.
Thus, in this case, since Erlinda failed to prove that
she used her own money to buy the Riceland and house and
lot, she cannot claim to be the co-owner of the Riceland nor
the exclusive owner of the house and lot. Such properties are
Mauricio’s. And since his share accrues to the conjugal
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San Beda College of Law
CIVIL LAW
partnership with carol, Carol can validly claim such
properties to the exclusion of Erlinda (Art. 144, Civil Code).
II
In 1970, Bob and Issa got married without executing
a marriage settlement. In 1975, Bob inherited from his father
a residential lot upon which, in 1981, he constructed a two-
room bungalow with savings from his own earnings. At that
time, the lot was worth P800,000 while the house, when
finished cost P600,000. In 1989, Bob died, survived only by his
wife, Issa and his mother, Sofia. Assuming that the relative
values of both assets remained at the same proportion:
A. State whether Sofia can rightfully claim that the
house and lot are not conjugal but exclusive
property of her deceased son.
B. Will your answer be the same if Bob died before
August 3, 1988? (1998)
A. Since Bob and Issa got married in 1970, then the law
that governs is the New Civil Code (Persons), in which case,
the property relations that should be applied as regards the
property of the spouses is the system of relative community
or conjugal partnership of gains (Art. 119, Civil Code). By
conjugal partnership of gains, the husband and wife place in
a common fund the fruits of their separate property and the
income from their work or industry (Article 142, Civil Code).
In this instance, the lot inherited by Bob in 1975 is his own
separate property, he having acquired the same by lucrative
title (Art. 148, par. 2, Civil Code). However, the house
constructed from his own savings in 1981 during the
subsistence of his marriage with Issa is conjugal property and
not exclusive property in accordance with the principle of
“reverse accession” provided for in Art. 158, Civil Code.
B. Yes, the answer would still be the same. Since Bob
and Issa contracted their marriage way back in 1970, then the
property relations that will govern is still the relative
community or conjugal partnership of gains (Art. 119, Civil
Code). It will not matter if Bob died before or after August 3,
1988 (effectivity of the Family Code), what matters is the
date when the marriage was contracted. As Bob and Issa
contracted their marriage way back in 1970, the property
relation that governs them is still the conjugal partnership of
gains. (Art. 158, Civil Code)
ALTERNATIVE ANSWERS:
A. Sofia, being her deceased son’s legal heir concurring
with his surviving spouse (Arts. 985, 986, and 997, Civil
Code), may rightfully claim that the house and lot are not
conjugal but belong to the hereditary estate of Bob, the
value of the land being more than the cost of the
improvement (Art. 120, FC).
B. If Bob died before August 3, 1988, which is the date
the Family Code took effect, the answer will not be the
same. Art. 158, Civil Code, would then apply. The land would
then be deemed conjugal, along with the house, since
conjugal funds were used in constructing it. The husband’s
estate would be entitled to reimbursement of the value of
the land from conjugal partnership funds.
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
III
For five years since 1989, Tony, a bank vice-
president, and Susan, an entertainer, live together as
husband and wife without the benefit of marriage although
they were capacitated to marry each other. Since Tony’s
salary was more than enough for their needs, Susan stopped
working and merely “kept the house”. During that period,
Tony was able to buy a lot and house in a plush subdivision.
However, after five years, Tony and Susan decided to
separate.
A. Who will be entitled to the house and lot?
B. Would it make any difference if Tony could not
marry Susan because he was previously married
to Alice from whom he is legally separated?
(2000)
ANSWERS:
A. Tony and Susan are entitled to the house and lot as
co-owners in equal shares. Under Article 147 of the Family
Code, when a man and a woman who are capacitated to
marry each other lived exclusively with each other as
husband and wife, the property acquired during their
cohabitation are presumed to have been obtained by their
joint efforts , work or industry and shall be owned by then in
equal shares. This is true even though the efforts of one of
them consisted merely in his or her care and maintenance of
the family and of the household.
B. Yes, it would make a difference. Under Article 148
of the Family Code, when the parties to the cohabitation
could not marry each other because of an impediment, only
those properties acquired by both of them through their
actual joint contribution of money, property, or industry shall
be owned by them in common in proportion to their
respective contributions. The efforts of one of the parties in
maintaining the family and household are not considered
adequate contribution in the acquisition of the properties.
Since Susan did not contribute to the acquisition of
the house and lot, she has no share therein. If Tony cohabited
with Susan after his legal separation from Alice, the house
and lot is his exclusive property. If he cohabited with Susan
before his legal separation from Alice, the house and lot
belongs to his community or partnership with Alice.
IV
Luis and Rizza, both 26 years of age and single, live
exclusively with each other as husband and wife without the
benefit of marriage. Luis is gainfully employed. Rizza is not
employed, stays at home, and takes charge of the household
chores.
After living together for a little over twenty years,
Luis was able to save from his salary earnings during that
period the amount of P200,000 presently deposited in a bank.
A house and lot worth P500,000 was recently purchased for
the same amount by the couple. Of the P500,000 used by the
common-law spouses to purchase the property, P200,000 had
come from the sale of palay harvested from the hacienda
owned by Luis and P300,000 from the rentals of a building
belonging to Rizza. In fine, the sum of P500,000 had been
part of the fruits received during the period of cohabitation
from their separate property. A car worth P100,000 being
used by the
common-law spouses, was donated just months ago to Rizza
by her parents.
Luis and Rizza now decide to terminate their
cohabitation, and they ask you to give them your legal advice
on the following:
A. How, under the law, should the bank deposit of
P200,000, the house and lot valued at P500,000
and the car worth P100,000 be allocated to
them?
B. What would your answer be (to the above
question) had Luis and Rizza been living
together all the time, i.e., since twenty years
ago, under a valid marriage? (1997)
ANSWERS:
A. Art. 147 of the FC provides in part that when a man
and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or
industry shall be governed by the rules of co-ownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to have
been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. A party who did not
participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the
acquisition thereof if the former’s efforts consisted in the
care and maintenance of the family and of the household.
Thus:
1) The wages and salaries of Luis in the amount of
P200,000 shall be divided equally between Luis
and Rizza.
2) The house and lot valued at P500,000 having
been acquired by both of them through work or
industry shall be divided between them in
proportion to their respective contribution, in
consonance with the rules on co-ownership.
Hence, Luis gets 2/5 while Rizza gets 3/5 of
P500,000.
3) The car worth P100,000 shall be exclusively
owned by Rizza, the same having been donated
to her by her parents.
B. The property relations between Luis and Rizza, their
RED NOTES IN CIVIL LAW
marriage having been celebrated 20 years ago (under the
Civil Code) shall be governed by the conjugal partnership of
gains, under which the husband and wife place in common
fund the proceeds, products, fruits and income from their
separate properties and those acquired by either or both
spouses through their efforts or by chance, and upon
dissolution of the marriage or of the partnership, the net
gains or benefits obtained by either or both spouse shall be
divided equally between them (Art. 142, Civil Code).
Thus:
1) The salary of Luis deposited in the bank in the
amount of P200,000 and the house and lot
valued at P500,000 shall be divided equally
between Luis and Rizza. 35
2) However, the car worth P100,000 donated to
Rizza by her parents shall be considered to her

own paraphernal property, having been acquired
by lucrative title (par.2, Art.148, Civil Code)
TOPIC: ADOPTION (1989, 1996, 1998, 2000, 2001)
I separation? Explain. (1996)
Sometime in 1990, Sarah, born a Filipino but by then
a naturalized American citizen, and her American husband
Tom, filed a petition in the RTC of Makati, for the adoption of
the minor child of her sister, a Filipina. Can the petition be
granted? (2000)
SUGGESTED ANSWER:
It depends. If Tom and Sarah have been residing in
the Philippines for at least 3 years prior to the effectivity of
RA 8552, the petition may be granted. Otherwise, the
petition cannot be granted because the American husband is
not qualified to adopt.
While the petition for adoption was filed in 1990, it
was considered refiled upon the effectivity of RA 8552, the
Domestic Adoption Act of 1998. This is the law applicable,
the petition being still pending with the lower court.
Under the Act, Sarah and Tom must adopt jointly
because they do not fall in any of the exceptions where one
of them may adopt alone. When husband and wife must adopt
jointly, the Supreme Court has held in a line of cases that
both of them must be qualified to adopt. While Sarah, an
alien, is qualified to adopt under Section 7(b)(i) of the Act for
being a former Filipino citizen who seeks to adopt a relative
within the 4th degree of consanguinity or affinity, Tom, an
alien is not qualified because he is neither a former Filipino
citizen nor married to a Filipino. One of them not being
qualified to adopt, their petition has to be denied. However,
if they have been residents of the Philippines three years
prior to the effectivity of the Act and continues to reside
here until the decree of adoption is entered, they are
qualified to adopt the nephew of Sarah under Section 7(b)
SAN BEDA COLLEGE OF
thereof, and the petition may be granted.
ALTERNATIVE ANSWER:
Since the petition was filed before the effectivity of
the Domestic Adoption Act of 1998, the Family Code is the
law applicable.
Under the FC, Sarah and Tom must adopt jointly
because they do not fall in any of the exceptions where one
may adopt alone. Under a long line of cases decided by the
Supreme Court, when husband and wife must adopt jointly,
both of them must be qualified to adopt. While Sarah is
qualified to adopt under Article 184(3)(a) for being a former
Filipino citizen who seeks to adopt a relative by
LAW
consanguinity, Tom is not. He is not a former Filipino citizen
and neither is he married to a Filipino. One of them not being
qualified to adopt, the petition must be denied.
TOPIC: DECLARATION OF NULLITY
ANNULMENT (grounds, declarations and effects)
(1991, 1993, 1995, 1996, 1997, 2002)
LEGAL SEPARATION (grounds and effects) (1989,
1994, 1996, 1997, 2002)
36
San Beda College of Law
CIVIL LAW
I
Bert and Baby were married to each other on
December 23, 1988. Six months later, she discovered that he
was a drug addict. Efforts to have him rehabilitated were
unsuccessful.
Can Baby ask for annulment of marriage, or legal
ANSWER:
No, Baby cannot ask for annulment of her marriage
or for legal separation because both these actions have
already prescribed.
While concealment of drug addiction existing at the
time of marriage constitutes fraud under Art. 46 of the FC
which makes the marriage voidable under Art. 45 of the FC,
the action must, however, be brought within 5 years from the
discovery thereof under Article 47(3), FC. Since the drug
addiction of Bert was discovered by Baby in June 1989, the
action had already prescribed in June of 1994.
Although drug addiction is a ground for legal
separation under Art. 55(5) and Art. 57 of the FC requires
that the action must be brought within 5 years from the
occurrence of the cause. Since Bert had been a drug addict
from the time of the celebration of the marriage, the action
for legal separation must have been brought not later than 23
December 1993. Hence, Baby cannot, now, bring action for
legal separation.
II
A. Give a brief definition or explanation of the term
"psychological incapacity" as a ground for the declaration of
nullity of a marriage.
B. If existing at the inception of marriage, would the
state of being of unsound mind or the concealment of drug
addiction, habitual alcoholism, homosexuality or lesbianism
be considered indicia of psychological incapacity? Explain.
C. If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage, would
these constitute grounds for a declaration of nullity or for
legal separation, or would they render the marriage voidable?
(2002)
ANSWERS:
A. "Psychological incapacity" is a mental disorder of the
most serious type showing the incapability of one or both
spouses to comply with the essential marital obligations of
love, respect, cohabitation, mutual help and support, trust
and commitment. It must be characterized by juridical
antecedence, gravity and incurability and its root causes must
be clinically identified or examined. (Santos v. CA, 240 SCRA
20 1995])
B. ln the case of Santos v. Court of Appeals, 240 SCRA
20 (1995), the Supreme Court held that being of unsound
mind, drug addiction, habituaI alcoholism, lesbianism or
homosexuality may be indicia of psychological incapacity,
depending on the degree of severity of the disorder.
However, the concealment of drug addiction, habitual
alcoholism, lesbianism or homosexuality is a ground for
annulment of marriage.
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
C. ln accordance with law, if drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only
during the marriage, they:
1) Will not constitute as grounds for declaration of
nullity (Art 36, Family Code);
2) Will constitute as grounds for legal separation
(Art. 55, FC); and
3) Will not constitute as grounds to render the
marriage voidable (Art. 45 and 46, FC).
III
Cadio and Corona contracted marriage on June 1, 1982. A few
days after the marriage, Corona discovered that Cadio was a
homosexual. As homosexuality was not a ground for legal
separation under the Civil Code, there was nothing that
Corona could do but bear with her problem. The couple,
however, started to live separately. With the enactment of
the Family Code, Corona decided to be legally separated from
Cadio based on the new ground of homosexuality. Corona
brought her action for legal separation on September 15,
1988. Will the action prosper? Give your reasons. (1989)
ANSWER:
Yes, the action will prosper because the “cause”
arose only on August 3, 1988, the effectivity of the Family
Code, and the action had not yet prescribed.
ALTERNATIVE ANSWER:
The action will prosper. The offense of
homosexuality as a continuing offense can be a ground for
legal separation. The prescriptive period of five years will
apply only when the offense has a fixed period of time and,
therefore, the date of its occurrence can be computed.
Property
TOPIC: USUFRUCT IN GENERAL, RIGHTS AND OBLIGATIONS
OF THE USUFRUCTUARY AND EXTINGUISHMENT OF THE
USUFRUCT (1989, 1995, 1996, 1997, 1998)
I having been acquired subsequent to the registration
On 1 January 1980, Minerva, the owner of a building,
granted Petronila a usufruct over the property until 01 June
1998 when Manuel, a son of Petronila, would have reached
his 30th birthday. Manuel, however, died on 1 June 1990 when
he was only 26 years old.
Minerva notified Petronila that the usufruct had
been extinguished by the death of Manuel and demanded that
the latter vacate the premises and deliver the same to the
former. Petronila refused to vacate the place on the ground
that the usufruct in her favor would expire only on 1 June
1998 when Manuel would have reached his 30th birthday and
that the death of Manuel did not extinguish the usufruct.
Whose contention should be accepted? (1997)
ANSWER:
Petronila’s contention is correct. Under Article 606
of the Civil Code, a usufruct granted for the time that may
elapse before a third person reaches a certain age shall
subsist for the number of years specified even if the third
person should die unless there is an express stipulation in the
contract that states otherwise. In the case at bar, there is no
express stipulation
that the consideration for the usufruct is the existence of
Petronila’s son. Thus, the general rule and not the exception
should apply in this case.
ALTERNATIVE ANSWER:
This is a usufruct which is clearly intended for the
benefit of Manuel until he reaches 30 years of age, with
Petronila serving only as a conduit, holding the property in
trust for his benefit. The death of Manuel at the age of 26,
therefore, terminated the usufruct.
TOPIC: RIGHT OF ACCESSION (1989, 1992, 2000, 2001)
I
Demetrio knew that a piece of land bordering the
beach belonged to Ernesto. However, since the latter was
studying in Europe and no one was taking care of the land,
Demetrio occupied the same and constructed thereon nipa
sheds with tables and benches which he rented out to people
who wanted to have a picnic by the beach. When Ernesto
returned, he demanded the return of the land. Demetrio
agreed to do so after he has removed the nipa sheds. Ernesto
refused to let Demetrio remove the nipa sheds on the ground
that these already belonged to him by right of accession. Who
is correct? (2000)
ANSWER:
Ernesto is correct. Demetrio is a builder in bad faith
because he knew beforehand that the land belonged to
Demetrio. Under Art. 449 of the NCC, one who builds on the
land of another loses what is built without right to indemnity.
Ernesto becomes the owner of the nipa sheds by right of
accession. Hence, Ernesto is well within his right in refusing
to allow the removal of the nipa sheds.
II
Subsequent to the original registration of a parcel of
land bordering a river, its area was increased by accession.
This additional area was not included in the technical
description appearing on the Torrens Certificate of Title
proceedings. May such additional area be acquired by third
persons thru prescription? Give your reasons. (1989)
ANSWER:
RED NOTES IN CIVIL LAW
The Land Registration Law provides that no title in
derogation of the registered owner may be acquired by
adverse possession or acquisitive prescription. Since the law
refers to registered lands, the accession mentioned in this
question may be acquired by a third person through adverse
possession or acquisitive prescription.
ALTERNATIVE ANSWER:
If the accession is man made, then it cannot be
considered as private property. It belongs to the public
domain, and, therefore, cannot be acquired by adverse
possession or acquisitive prescription.
35
TOPIC: BUILDER IN GOOD FAITH (1992, 1999, 2000, 2001)
I

Bartolome constructed a chapel on the land of Eric.
What are Bartolome’s rights if he were:
A. A possessor of the land in good faith?
B. A possessor of the land in bad faith?
C. A usufructuary of the land?
D. A lessee of the land? (1996)
ANSWERS:
A. A chapel is a useful improvement. Bartolome may
remove the chapel if it can be removed without
damage to the land, unless Eric chooses to acquire
the chapel. In the latter case, Bartolome has the
right to the reimbursement of the value of the
chapel with right of retention until he is reimbursed.
(Art. 448 in relation to Art. 546 and 547, NCC).
B. Bartolome, under Art. 449 of the NCC, loses
whatever he built, without any right to indemnity.
C. Bartolome has the right to remove the improvement
if it is possible to do so without causing damage to
the property (Art. 579, NCC). He may also set off the
improvement against any damages which the
property held in usufruct suffered because of his act
or the acts of his assignee. (Art. 580, NCC)
D. The owner of the land, as lessor, can acquire the
improvement by paying for one-half of its value.
Should the lessor refuse to reimburse said amount,
the lessee may remove the improvement, even
though the principal thing may suffer damage
thereby (Art. 1678, NCC).
ALTERNATIVE ANSWERS:
A. Assuming that Eric acted in good faith, Bartolome’s
rights will depend upon what option Eric chooses.
Eric, the owner of the land, may choose to acquire
the chapel, which is a useful expense or to sell the
land to the builder (Bartolome).
SAN BEDA COLLEGE OF
If Eric chooses to acquire the chapel, he has
the right to reimbursement for useful expenses, with
a right of retention until paid.
If Eric chooses to sell the land to
Bartolome, Bartolome may refuse to buy the land if
the value of the land is considerably more than the
value of the building, in which case, there will be a
forced lease between them.
B. It is the owner of the land who has the right to
acquire the chapel without paying indemnity, plus
damages, or to require Bartolome to remove the
chapel, plus damages or to require Bartolome to buy
the land, without any option to refuse to buy it.
LAW
(Arts. 449 and 458, NCC)
If Eric acted in bad faith, then his bad faith
cancels the bad faith of Bartolome, and both will be
taken to have acted in good faith. (Art. 453, NCC)
ADDITIONAL ANSWER:
A. If Eric acted in good faith, then Bartolome has the right
of absolute removal of the chapel, plus damages.
However, if Eric chooses to acquire the chapel, then
Bartolome has the right to reimbursement, plus
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CIVIL LAW
payment of damages, with right of retention (Art. 454 in
relation to Art. 447, NCC)
II
Mike built a house on his lot in Pasay City. Two years
later, a survey disclosed that a portion of the building
actually stood on the neighboring land of Jose, to the extent
of 40 square meters. Jose claims that Mike is a builder in bad
faith because he should know the boundaries of his lot, and
demands that the portion of the house which encroached on
his land should be destroyed or removed. Mike replies that he
is a builder in good faith and offers to buy the land occupied
by the building instead.
A. Is Mike a builder in good faith or bad faith? Why?
B. Whose preference should be followed? Why?
(2001)
ANSWERS:
A. Yes, Mike is a builder in good faith. There is no
showing that when he built his house, he knew that a portion
thereof encroached on Jose’s lot. Unless one is versed in the
science of surveying, he cannot determine the precise
boundaries or location of his property by merely examining is
title. In the absence of contrary proof, the law presumes that
the encroachment was done in good faith [Technogas Phils.
vs. CA, 268 SCRA 5, 15 (1997)]
B. None of the preferences should be followed. The
preference of Mike cannot prevail because under Art. 448 of
the CC, it is the owner of the land who has the option or
choice, not the builder. On the other hand, the option
belongs to Jose, he cannot demand that the portion of the
house encroaching on his land be destroyed or removed
because this is not one of the options given by law to the
owner of the land. The owner may choose between the
appropriation of what was built after payment of indemnity,
or to compel the builder to pay for the land of the value of
the land is not considerably more than that of the building.
Otherwise, the builder shall pay rent for the portion of the
land encroached.
ALTERNATIVE ANSWERS:
A. Mike cannot be considered a builder in good faith
because he built his house without first determining the
corners and boundaries of his lot to make sure that his
construction was within the perimeter of his property. He
could have done this with the help of a geodetic engineer as
an ordinary prudent and reasonable man would do under the
circumstances.
B. Jose’ s preference should be followed. He may have
the building removed at the expense of Mike, appropriate the
building as his own, oblige Mike to buy the land and ask for
damages in addition to any of the three options. (Arts. 449,
450, 451, CC)
TOPIC: EASEMENT (CONCEPT, KINDS, AND EFFECTS) ( 1993,
1995, 1996, 2000, 2001, 2002)
I
Lauro owns an agricultural land planted mostly with
fruit trees. Hernando owns an adjacent land devoted to his
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2005 CENTRALIZED BAR OPERATIONS
piggery business, which is two (2) meters higher in elevation.
Although Hernando has constructed a waste disposal lagoon
for his piggery, it is inadequate to contain the waste water
containing pig manure, and it often overflows and inundates
Lauro's plantation. This has increased the acidity of the soil in
the plantation, causing the trees to wither and die. Lauro
sues for damages caused to his plantation. Hernando invokes
his right to the benefit of a natural easement in favor of his
higher estate, which imposes upon the lower estate of Lauro
the obligation to receive the waters descending from the
higher estate. Is Hernando correct? (2002)
ANSWER:
Hernando is wrong. It is true that Lauro’s land is
burdened with the natural easement to accept or receive the
water which naturally and without interruption of man
descends from a higher estate to a lower estate. However,
Hernando has constructed a waste disposal lagoon for his
piggery and it is this waste water that flows downward to
Lauro's land. Hernando has, thus interrupted the flow of
water and has created and is maintaining a nuisance. Under
Art. 697 of the CC, abatement of a nuisance does not
preclude recovery of damages by Lauro even for the past
existence of a nuisance. The claim for damages may also be
premised on Art. 2191 (4) of the CC.
ALTERNATIVE ANSWER:
Hernando is not correct. Article 637 of the New Civil
Code provides that the owner of the higher estate cannot
make works which will increase the burden on the servient
estate. (Remman Enterprises, Inc. v. CA, 330 SCRA 145
[2000]). The owner of the higher estate may be compelled to
pay damages to the owner of the lower estate.
II
Emma bought a parcel of land from Equitable-PCI
Bank, which acquired the same from Felisa, the original
owner. Thereafter, Emma discovered that Felisa had granted
a right of way over the land in favor of the land of Georgina,
which had no outlet to a public highway, but the easement
was not annotated when the servient estate was registered
under the Torrens system. Emma then filed a complaint for
cancellation of the right of way, on the ground that it had
been extinguished by such failure to annotate. How would
you decide the controversy? (2001)
ANSWER:
The complaint for cancellation of easement of right
of way must fail. The failure to annotate the easement upon
the title of the servient estate is not among the grounds for
extinguishing an easement under Art. 631 of the Civil Code.
Under Art. 617, easements are inseparable from the estate to
which they actively or passively belong. Once it attaches, it
can only be extinguished under Art. 631, and they exist even
if they are not stated or annotated as an encumbrance on the
Torrens title of the servient estate. (II Tolentino 326, 1987
ed.)
ALTERNATIVE ANSWER:
Under Section 44, PD No. 1529, every registered
owner receiving a certificate of title pursuant to a decree of
registration, and every subsequent innocent purchaser for
value, shall hold the same free from all encumbrances except
those noted on said
certificate. This rule, however, admits of exceptions.
Under Act 496, as amended by Act No. 2011, and
Section 4, Act 3621, an easement if not registered shall
remain and shall be held to pass with the land until cut-off or
extinguished by the registration of the servient estate.
However, this provision has been suppressed in Section 44, PD
NO. 1529. In other words, the registration of the servient
estate did not operate to cut-off or extinguish the right of
way. Therefore, the complaint for the cancellation of the
right of way should be dismissed.
III
A. What is easement? Distinguish easement from
usufruct.
B. Can there be (1) an easement over a usufruct?
(2) a usufruct over an easement? (3) an
easement over another easement? Explain.
(1995)
ANSWERS:
A. An easement or servitude is an encumbrance
imposed upon an immovable for the benefit of another
immovable belonging to a different owner. (Art. 613, NCC)
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 (Art. 562, NCC). An easement or servitude
is an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different owner
(Art. 613, NCC).
B.
(1) There can be no easement over a usufruct. Since an
easement may be constituted only on a corporeal immovable
property, no easement may be constituted on a usufruct
which is not a corporeal right.
(2) There can be no usufruct over an easement. While a
usufruct may be created over a right, such right must have an
existence of its own independent of the property. A servitude
cannot be the object of a usufruct because it has no
existence independent of the property to which it attaches.
(3) There can be no easement over another easement for the
same reason as in (1). An easement, although it is a real right
RED NOTES IN CIVIL LAW
over an immovable, is not a corporeal right. There is a Roman
maxim which says that: There can be no servitude over
another servitude.
ALTERNATIVE ANSWERS:
A. Easement is an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to
a different owner in which case it is called real or predial
easement, or for the benefit of a community or group of
persons in which case it is known as a personal easement.
The distinctions between usufruct and easement are:
a. Usufruct includes all uses of the property and
for all purposes, including jus fruendi. Easement
is limited to a specific use. 35
b. Usufruct may be constituted on immovable or
movable property. Easement may be constituted
only on an immovable property.

c. Easement is not extinguished by the death of
the owner of the dominant estate while usufruct
is extinguished by the death of the usufructuary
unless a contrary intention appears.
d. An easement contemplates two (2) estates
belonging to two (2) different owners; a
usufruct contemplates only one property (real or
personal) whereby the usufructuary uses and
enjoys the property as well as its fruits, while
another owns the naked title during the period
of the usufruct.
e. A usufruct may be alienated separately from the
property to which it attaches, while an
easement cannot be alienated separately from
the property to which it attaches.
B. (2) There cannot be a usufruct over an easement since an
easement presupposes two (2) tenements belonging to
different persons and the right attaches to the tenement and
not to the owner. While a usufruct gives the usufructuary a
right to use, right to enjoy, right to the fruits, and right to
possess, an easement gives only a limited use of the servient
estate.
However, a usufruct can be constituted over a
property that has in its favor an easement or one burdened
with a servitude. The usufructuary will exercise the easement
during the period of the usufruct.
TOPIC: DONATION (1990, 1991, 1993, 1996, 1997, 1998,
1999, 2000)
I from Iloilo informing him that Jose had been killed in a road
Spouses Michael and Linda donated a 3-hectare
residential land to the City of Baguio on the condition that
the city government would build thereon a public park with a
boxing arena, the construction of which shall commence
SAN BEDA COLLEGE OF
within six (6) months from the date the parties ratify the
donation. The donee accepted the donation and the title to
the property was transferred in its name. Five years elapsed
but the public park with the boxing arena was never started.
Considering the failure of the donee to comply with the
condition of the donation, the donor-spouses sold the
property to Ferdinand who then sued to recover the land
from the city government.
Will the suit prosper? (1991)
ANSWER:
Ferdinand has no right to recover the land. It is true
that the donation was revocable because of breach of the
LAW
conditions. But until and unless the donation is revoked, it
remained valid. Hence, Spouses Michael and Linda had no
right to sell the land to Ferdinand. One cannot give what he
does not have. What the donors should have done first was to
have the donation annulled or revoked. And after that was
done, they could validly have disposed of the land in favor of
Ferdinand.
ALTERNATIVE ANSWER:
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CIVIL LAW
Until the contract of donation has been resolved or
rescinded under Article 1191 of the CC or revoked under
Article 764 of the CC, the donation stands effective and valid.
Accordingly, the sale made by the donor to Ferdinand cannot
be said to have conveyed title to Ferdinand, who, thereby,
has no cause of action for recovery of the land acting for and
in his behalf.
ANOTHER ALTERNATIVE ANSWER:
The donation is onerous. And being onerous, what
applies is the law on contracts, and not the law on donation
(De Luna vs. Abrigo, 81 SCRA 150). Accordingly, the
prescriptive period for the filing of such an action would be
the ordinary prescriptive period for contracts which may
either be six or ten depending upon whether it is verbal or
written. The filing of the case five years later is within the
prescriptive period and, therefore, the action can prosper.
ANOTHER ALTERNATIVE ANSWER:
The law on donation lays down a special prescriptive
period in the case of breach of condition, which is four years
from non-compliance thereof (Article 764 CC). Since the
action has prescribed, the suit will not prosper.
II
On July 27, 1997, Pedro mailed in Manila a letter to
his brother, Jose, a resident of Iloilo City, offering to donate
a vintage sports car which the latter had long been wanting
to buy from the former. On August 5, 1997, Jose called Pedro
by cellular phone to thank him for his generosity and to
inform him that he was sending by mail his letter of
acceptance. Pedro never received that letter because it was
never mailed. On August 14, 1997, Pedro received a telegram
accident the day before (August 13, 1997).
A. Is there a perfected donation?
B. Will your answer be the same if Jose did mail his
acceptance letter but it was received by Pedro
in Manila days after Jose’s death? (1998)
ANSWERS:
A. None. There is no perfected donation. Under Art.
748 of the CC, the donation of a movable may be made orally
or in writing. If the value of the personal property donated
exceeds P5,000, the donation and the acceptance shall be
made in writing. Assuming that the value of the thing
donated, a vintage sports car, exceeds P5,000, then the
donation and the acceptance must be in writing. In this
instance, the acceptance of Jose was not in writing,
therefore, the donation is void. Upon the other hand,
assuming that the sports car costs less than P5,000, then the
donation may be oral, but still, the simultaneous delivery of
the car is needed and there being none, the donation was
never perfected.
B. Yes, the answer is the same. If Jose’s mail
containing his acceptance of the donation was received by
Pedro after the former’s death, then the donation is still void
because under Article 734 of the CC, the donation is
perfected the moment the donor knows of the acceptance by
the donee. The death of Jose before Pedro could receive the
acceptance indicates that the donation was never perfected.
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
Under Article 746 acceptance must be made during the
lifetime of both the donor and the donee.
Wills and Succession
TOPIC: WILLS IN GENERAL (1989, 1993, 1995, 1996, 1998,
2000)
I
Manuel, a Filipino, and his American wife Eleanor,
executed a Joint Will in Boston, Massachusetts when they
were residing in said city. The law of Massachusetts allows
the execution of joint wills. Shortly thereafter, Eleanor died.
Can the said Will be probated in the Philippines for the
settlement of her estate? (2000)
ANSWER:
Yes, the will may be probated in the Philippines
insofar as the estate of Eleanor is concerned. While the Civil
Code prohibits the execution of joint wills here and abroad,
such prohibition applies only to Filipinos. Hence, the joint
will which is valid where executed is valid in the Philippines
but only with respect to Eleanor. Under Article 819, it is void
with respect to Manuel whose joint will remains void in the
Philippines despite being valid where executed.
TOPIC: INTESTATE SUCCESSION (1992, 1995, 1996, 1997,
1998, 1999, 2000, 2003)
I Lady Love and he cannot disregard the same, under the
A. Luis was survived by two legitimate children, two
illegitimate children, his parents, and two brothers. He left
an estate of P1 million. Who are the compulsory heirs of Luis,
how much is the legitime of each, and how much is the free
portion of his estate if any?
B. Suppose Luis, in the preceding question (a), died
intestate. Who are his intestate heirs, and how much is the
share of each in his estate? (2003)
ANSWERS:
A. The compulsory heirs are the two legitimate children
and the two illegitimate children. The parents are excluded
by the legitimate children, while the brothers are not
compulsory heirs at all.
Their respective legitimes are:
(1) The legitime of the two (2) legitimate children
is one-half (1/2) of the estate (P500,000) to be
divided between them equally, or P250,000
each .
(2) The legitime of each illegitimate child is one-
half (1/2) the legitime of each legitimate child
or P125,000.
Since the total legitimes of the compulsory heirs is
P750,000, the balance of P250,000 is the free portion.
B. The intestate heirs are the two (2) legitimate
children and the two (2) illegitimate children. In intestacy
the estate if the decedent is divided among the legitimate
and illegitimate children such that the share of each
illegitimate child is
one-half the share of each legitimate child.
Their shares are:
For each legitimate child - P333,333.33
For each illegitimate child - P166,666.66
(Art. 983, NCC; Art. 176, FC)
Obligations and Contracts
TOPIC: CONTRACTS IN GENERAL (concept, kinds,
requirements for validity and remedies) (1989, 1990,
1991, 1992, 1993, 1996, 1998, 2002)
I
Roland, a basketball star, was under contract for one
year to play-for-play exclusively for Lady Love, Inc. However,
even before the basketball season could open, he was offered
a more attractive pay plus fringe benefits by Sweet Taste,
Inc. Roland accepted the offer and transferred to Sweet
Taste. Lady Love sues Roland and Sweet Taste for breach of
contract. Defendants claim that the restriction to play for
Lady Love alone is void, hence, unenforceable, as it
constitutes an undue interference with the right of Roland to
enter into contracts and the impairment of his freedom to
play and enjoy basketball.
Can Roland be bound by the contract he entered into
with Lady Love or can he disregard the same? Is he liable at
all? How about Sweet Taste? Is it liable to Lady Love? (1991)
ANSWER:
Roland is bound by the contract he entered into with
principles of obligations and contracts. Obligations arising
from contracts have the force of law between the parties.
Yes, Roland is liable under the contract as far as
Lady Love is concerned.
He is liable for damages under Article 1170 of the CC
since he contravened the tenor of his obligation. Not being a
contracting party, Sweet Taste is not bound by the contract
but it can be held liable under Art. 1314. The basis of its
liability is not prescribed by contract but is founded on quasi-
delict, assuming that Sweet Taste knew of the contract. Art.
1314 of the CC provides that any third person who induces
another to violate his contract shall be liable for damages to
the other contracting party.
RED NOTES IN CIVIL LAW
ALTERNATIVE ANSWER:
It is assumed that Lady Love knew of the contract.
Neither Roland nor Sweet Taste would be liable,
because the restriction in the contract is violative of Article
1306 as being contrary to law, morals, good custom, public
order, or public policy.
II
Printado is engaged in the printing business. Suplico
supplies printing paper to Printado pursuant to an order
agreement under which Suplico binds himself to deliver the
same volume of paper every month for a period of 18 months,
with Printado in turn agreeing to pay within 35 60 days after
each delivery. Suplico has been faithfully delivering under the
order agreement for 10 months but thereafter stopped doing
so, because Printado has not made any payment at all.

Printado has also a standing contract with publisher Publico
for the printing of 10,000 volumes of school textbooks.
Suplico was aware of said printing contract. After printing
1,000 volumes, Printado also fails to perform under its
printing contract with Publico, Suplico sues Printado for the
value of the unpaid deliveries under their order agreement.
At the same time Publico sues Printado for damages for
breach of contract with respect to their own printing
agreement. In the suit filed by Suplico, Printado counters
that: a) Suplico cannot demand payment for deliveries made
under their order agreement until Suplico has completed
performance under said contact; b) Suplico should pay
damages for breach of contract; and c) Suplico should be
liable for Printado's breach of his contract with Publico
because the order agreement between Suplico and Printado
was for the benefit of Publico. Are the contentions of
Printado tenable? Explain your answer as to each contention.
(2002)
SUGGESTED ANSWER:
No, the contentions of Printado are untenable.
a) Printado having failed to pay for the printing paper
covered by the delivery invoices on time, Suplico has the
right to cease making further delivery. And the latter did not
violate the order agreement (Integrated Packaging Corp. v.
Court of Appeals, (333 SCRA 170, G.R. No. 115117, June 8,
2000.)
b) Suplico cannot be held liable for damages, for
breach of contract, as it was not he who violated the order
agreement, but Printado.
c) Suplico cannot be held liable for Printado's breach
of contract with Publico. He is not a party to the agreement
entered into by and between Printado and Publico. Theirs is
not a stipulation pour autrui. {Aforesaid] Such contracts could
not affect third persons like Suplico because of the basic civil
law principle of relativity of contracts which provides that
SAN BEDA COLLEGE OF
contracts can only bind the parties who entered into it, and it
cannot favor or prejudice a third person, even if he is aware
of such contract and has acted with knowledge thereof.
(Integrated Packaging Corp. v. CA, supra.)
TOPIC: EXTINGUISHMENT OF OBLIGATIONS (1989, 1992,
1994, 1998, 2000, 2001, 2002)
I If the notation was written by Arturo’s father, it
In 1978, Bobby borrowed P1,000,000 from Chito
payable in two years. The loan, which was evidenced by a
promissory note, was secured by a mortgage on real property.
LAW
No action was filed by Chito to collect the loan or to
foreclose the mortgage. But in 1991, Bobby, without
receiving any amount from Chito, executed another
promissory note which was worded exactly as the 1978
promissory note, except for the date thereof, which was the
date of its execution.
Can Chito demand payment on the 1991 promissory note in
1994? (1994)
ANSWER:
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Yes, Chito can demand payment on the 1991
promissory note in 1994. Although the 1978 promissory note
for P1 million payable two years or in 1980 became a natural
obligation after the lapse of ten (10) years, such natural
obligation can be a valid consideration of a novated
promissory note dated in 1991 and payable two years later or
in 1993.
All the elements of an implied real novation are
present:
a) an old valid obligation;
b) a new valid obligation;
c) capacity of the parties;
d) animus novandi or intention to novate; and
e) The old an new obligation should be incompatible with
each other on all material points (Art. 1292).
The two promissory notes cannot stand together,
hence, the period of prescription of ten (10) years has not yet
lapsed.
II
Arturo borrowed P500,000 from his father. After he
had paid P300,000, his father died. When the administrator of
his father’s estate requested payment of the balance of
P200,000, Arturo replied that the same had been condoned
by his father as evidenced by a notation at the back of his
check payment for the P300,000 reading: “In full payment of
the loan”. Will this be a valid defense in an action for
collection? (2000)
ANSWER:
It depends. If the notation “in full payment of the
loan” was written by Arturo’s father, there was an implied
condonation of the balance that discharges the obligation. In
such case, the notation is an act of the father from which
condonation may be inferred. The condonation being implied,
it need not comply with the formalities of a donation to be
effective. The defense of full payment will, therefore, be
valid.
When, however, the notation was written by Arturo
himself, it merely proves his intention in making that
payment but in no way does it bind his father (Yam vs. CA,
GR No. 104726, 11 February 1999). In such case, the notation
was not the act of his father from which condonation may be
inferred. There being no condonation at all, the defense of
full payment will not be valid.
ALTERNATIVE ANSWER:
amounted to an express condonation of the balance which
must comply with the formalities of a donation to be valid
under the 2nd par. Of Article 1270 of the NCC. Since the
amount of the balance is more than P5,000, the acceptance
by Arturo of the condonation must also be in writing under
Article 748. There being no acceptance in writing by Arturo,
the condonation is void and the obligation to pay the balance
subsists. The defense of full payment is, therefore, not valid.
In case the notation was not written by Arturo’s father, the
answer is the same as the answers above.
Sales and Lease
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
TOPIC: MACEDA LAW ( 1989, 1999, 2000)
I
What are the so-called “Maceda” and “Recto” laws
in connection with sales on installments? Give the most
important features of each law. (1999)
ANSWER:
The Maceda Law (R.A. 655) is applicable to sales of
immovable property on installments. The most important
features are (Rillo vs. CA, 247 SCRA 461):
1. After having paid installments for at least two years,
the buyer is entitled to a mandatory grace period of
one month for every year of installment payments
made, to pay the unpaid installments without
interest.
If the contract is cancelled, the seller shall refund to
the buyer the cash surrender value equivalent to 50% of the
total payments made, and after five years of installments, an
additional 5% every year but not to exceed 90% of the total
payments made.
2. In case the installments paid were less than 2 years,
the seller shall give the buyer a grace period of not
less than 60 days. If the buyer fails to pay the
installments due at the expiration of the grace
period, the seller may cancel the contract after 30
days from receipt by the buyer of the notice of
cancellation or demand for rescission by notarial
act.
The Recto Law (Art, 1484) refers to sale of movables
payable in installments and limiting the right of seller, in
case of default by the buyer, to one of three remedies:
(a) exact fulfillment;
(b) cancel the sale if two or more installments
have not been paid;
(c) foreclose the chattel mortgage on the
things sold also in case of default of two or
more installments, with no further action
against the purchaser.
II
Priscilla purchased a condominium unit in Makati
City from the Citiland Corporation for a price of P10 million,
payable P3 million down and the balance with interest
thereon at 14% per annum payable in sixty (60) equal monthly
installments of P198,333.33. They executed a Deed of
Conditional Sale in which it is stipulated that should the
vendee fail to pay three (3) successive installments, the sale
shall be deemed automatically rescinded without the
necessity of judicial action and all payments made by the
vendee shall be forfeited in favor of the vendor by way of
rental for the use and occupancy of the unit and as liquidated
damages. For 46 months, Priscilla paid the monthly
installments religiously, but on the 47 th and 48th months, she
failed to pay. On the 49th month, she tried to pay the
installments due but the vendor refused to receive the
payments tendered by her. The following month, the vendor
sent her a notice that it was rescinding the Deed of
Conditional Sale pursuant to the stipulation for automatic
rescission, and demanded that she vacate the premises. She
replied that the contract cannot be rescinded without judicial
demand or notarial act pursuant to Article 1592 of the Civil
Code.
A. Is Article
1592 applicable?
B. Can the vendor rescind the contract? (2000)
ANSWERS:
A. Article 1592 of the Civil Code does not apply to a
conditional sale. In Valarao vs. CA, 304 SCRA 155 the
Supreme Court held that Article 1592 applies only to a
contract of sale and not to a Deed of Conditional Sale
where the seller has reserved title to the property until
full payment of the purchase price. The law applicable
is the Maceda Law.
B. No, the vendor cannot rescind the contract under the
circumstances. Under the Maceda Law, which is the law
applicable, the seller on installment may not rescind the
contract till after the lapse of the mandatory grace
period of 30 days for every one year of installment
payments, and only after 30 days from notice of
cancellation or demand for rescission by a notarial act.
In this case, the refusal of the seller to accept payment
from the buyer on the 49th month was not justified
because the buyer was entitled to 60 days grace period
and the payment was tendered within that period.
Moreover, the notice of rescission served by the seller
on the buyer was not effective because the notice was
not by a notarial act. Besides, the seller may still pay
within 30 days from such notarial notice before
rescission may be effected. All these requirements for a
valid rescission were not complied with by the seller.
Hence, the rescission is invalid.
TOPIC: LEASE IN GENERAL AND THE RIGHTS AND
OBLIGATIONS OF THE LESSOR AND LESSEE (1990,
1993, 1996, 1997, 1999, 2001)
I
In a 20-year lease contract over a building, the
lessee is expressly granted a right of first refusal should the
lessor decide to sell both the land and building. However, the
lessor sold the property to a third person who knew about the
lease and in fact agreed to respect it. Consequently, the
lessee brings an action against both the lessor-seller and the
buyer (a) to rescind the sale and (b) to compel specific
performance of his right of first refusal in the sense that the
lessor should be ordered to execute a deed of absolute sale in
favor of the lessee at the same price. The defendants
RED NOTES IN CIVIL LAW
contend that the plaintiff can neither seek rescission of the
sale nor compel specific performance of a “mere” right of
first refusal. Decide the case. (1998)
ANSWER:
The action filed by the lessee, for both rescission of
the offending sale and specific performance of the right of
first refusal which was violated, should prosper. The ruling in
Equatorial Realty Development, Inc. vs. Mayfair theater, Inc.
(264 SCRA 483), a case with similar facts, sustains both rights
of actions because the buyer in the subsequent sale knew the
existence of right of first refusal, hence in bad faith.
35
ANOTHER ANSWER:
The action to rescind the sale and to compel the
right of first refusal will not prosper. (Ang Yu Asuncion vs.

CA, 238 SCRA 602). The Court ruled in a unanimous en banc
decision that the right of first refusal is not founded upon
contract but on a quasi-delictual relationship covered by the
principles of human relations and unjust enrichment (Art. 19,
et seq. Civil Code). Hence the only action that will prosper
according to the Supreme Court is an “action for damages in
a proper forum for the purpose.”
TOPIC: SUB LEASE (concept and effects) (1990, 1994,
1999, 2000)
I reserve ownership until he was fully paid.
A leased a parcel of land to B for a period of two
years. The lease contract did not contain any express
prohibition against the assignment of the leasehold or the
subleasing of the leased premises. During the third year of
the lease, B subleased the land to C. In turn, C, without A’s
consent, assigned the sublease to D. A then filed an action for
the rescission of the contract of lease on the ground that B
has violated the terms and conditions of the lease agreement.
If you were the judge, how would you decide the case,
particularly with respect to the validity of:
A. B’s sublease to C? and
B. C’s assignment of the sublease to D?
Explain your answers. (1990)
ANSWERS:
A. B’s sublease to C is valid. Although the original
period of two years for the lease contract has expired, the
lease continued with the acquiescence of the lessor during
the third year. Hence, there has been an implied renewal of
the contract of lease. Under Art. 1650 of the Civil Code, the
lessee may sublet the thing leased, in whole or in part, when
the contract of lease does not contain any express prohibition
(Arts. 1650, 1670, CC). A’s action for rescission should not
prosper on this ground.
SAN BEDA COLLEGE OF
B. C’s assignment of the sublease to D is not valid.
Under Art. 1649 of the CC, the lessee cannot assign the lease
without the consent of the lessor, unless there is a stipulation
to the contrary. There is no such stipulation in the contract.
If the law prohibits assignment of the lease without the
consent of the lessor, all the more would the assignment of a
sublease be prohibited without such consent. This is a
violation of the contract and is a valid ground for rescission
by A.
TOPIC: CONTRACT TO SELL (NATURE AND EFFECTS) (1997,
1999, 2001)
LAW
I
Arturo gave Richard a receipt which states:
“Receipt”
Received from Richard as down payment
For my 1995 Toyota Corolla with
Plate No. XYZ-123
--------------------------------------P50,000.00
36
San Beda College of Law
CIVIL LAW
Balance payable: 12/30/01
----------------------------P50,000.00
September 15, 2001.
(Sgd.) Arturo
Does this receipt evidence a contract to sell? Why?
(2001)
ANSWER:
It is a contract of sale because the seller did not
II
State the basic difference (only in their legal
effects) –
A. Between a contract to sell, on the one
hand, and a contract of sale, on the other;
B. Between a conditional sale, on the one
hand, and an absolute sale, on the other
hand. (1997)
ANSWERS:
A. In a contract of sale, ownership is transferred to the
buyer upon delivery of the object to him while in a
contract to sell, ownership is retained by the seller until
the purchase price is fully paid. In a contract to sell,
delivery of the object does not confer ownership upon
the buyer. In a contract of sale, there is only one
contract executed between the seller and the buyer,
while in a contract to sell, there are two contracts, first
the contract to sell (which is conditional or preparatory
sale) and a second, the final deed of sale or the
principal contract which is executed after full payment
of the purchase price.
B. A conditional sale is one where the vendor is granted
the right to unilaterally rescind the contract predicated
on the fulfillment or non-fulfillment, as the case may
be, of the prescribed condition. An absolute sale is one
where the title to the property is not reserved to the
vendor or if the vendor is not granted the right to
rescind the contract based on the fulfillment or non-
fulfillment, as the case may be, of the prescribed
condition.
Partnership, Agency and Trusts
TOPIC: CONCEPT OF PARTNERSHIP (1989, 1992, 1997,
2001)
I
W, X, Y and Z organized a general partnership with
W and X as industrial partners and Y and Z as capitalist
partners. Y contributed P50,000 and Z contributed P20,000 to
the common fund. By a unanimous vote of the partners, W
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
and X were appointed managing partners, without any
specification of their respective powers and duties.
A applied for the position of Secretary and B applied
for the position of Accountant of the partnership.
The hiring of A was decided upon by W and X, but
was opposed by Y and Z.
The hiring of B was decided upon by W and Z, but
was opposed by X and Y.
Who of the applicants should be hired by the
partnership? Explain and give your reasons. (1992)
ANSWER:
A should be hired as Secretary. The decision for the
hiring of A prevails because it is an act of administration
which can be performed by the duly appointed managing
partners, W and X.
B cannot be hired, because in case of a tie in the
decision of the managing partners, the deadlock must be
decided by the partners owning the controlling interest. In
this case, the opposition of X and Y prevails because Y owns
the controlling interest (Art. 1801, CC).
II
X used his savings from his salaries amounting to a
little more than P2,000 as capital in establishing a restaurant.
Y gave the amount of P4,000 to X as “financial assistance”
with the understanding that Y would be entitled to 22%
annual profits derived from the operation of the restaurant.
After the lapse of 22 years, Y filed a case demanding his
share in the said profits. X denied that there was a
partnership and raised the issue of prescription as y did not
assert his rights anytime within ten (10) years from the start
of the operation of the restaurant. Is Y a partner of X in the
business? Why? What is the nature of the right to demand
one’s share in the profits of a partnership? Does the right
prescribe? (1989)
ANSWER:
Yes, because there is an agreement to contribute to
a common fund and an intent to divide profits. It is founded
upon an express trust. It is imprescriptible unless repudiated.
ALTERNATIVE ANSWER:
No, Y is not a partner because the amount is
extended in the form of a financial assistance and therefore
it is a loan, and the mere sharing of profits does not establish
a partnership. The right is founded upon a contract of loan
whereby the borrower is bound to pay principal and interest
like all ordinary obligations. Yes, his right prescribes in six or
ten years depending upon whether the contract is oral or
written.
III
1. Can a husband and wife for a limited partnership to
engage in real estate business, with the wife being a
limited partner?
2. Can two corporations organize a general partnership
under the Civil Code of the Philippines?
3. Can a corporation and an individual form a general
partnership? (1994)
ALTERNATIVE
ANSWERS:
1. Yes, the Civil Code prohibits a husband and wife from
constituting a universal partnership. Since a limited
partnership is not a universal partnership, a husband
and wife may validly form one.
2. No. A corporation is managed by its board of directors.
If the corporation were to become a partner, co-
partners would have the power to make the corporation
party to transactions in an irregular manner since the
partners are not agents subject to the control of the
Board of Directors. But a corporation may enter into a
joint venture with another corporation as long as the
nature of the venture is in line with the business
authorized by its charter. (Tuason & Co., Inc. vs.
Bolano, 95 Phil 106)
3. No, for the same reasons given in the Answer to Number
2 above.
OTHER ALTERNATIVE ANSWERS:
1. Yes. While spouses cannot enter into a universal
partnership, they can enter into a limited partnership pr
be members thereof (CIR vs. Suter, et al., 27 SCRA 152).
2. As a general rule a corporation may not form a general
partnership with another corporation or an individual
because a corporation may not be bound by persons who
are neither directors nor officers of the corporation.
However, a corporation may form a general
partnership with another corporation or an individual
provided the following conditions are met:
(a) The Articles of Incorporation of the corporation
expressly allows the corporation to enter into
partnerships;
(b) The Articles of Partnership must provide that all
partners will manage the partnership, and they shall
be jointly and severally liable; and
(c) In case of foreign corporation, it must be licensed to
do business in the Philippines.
ANOTHER ALTERNATIVE ANSWER:
3. No. A corporation may not be a general partner because
the principle of mutual agency in general partnership
allowing the other general partner to bind the
corporation will violate the corporation law principle
that only the board of directors may bind the
corporation.
RED NOTES IN CIVIL LAW
TOPIC: CONTRACT OF AGENCY (1992, 1994, 1997, 1999,
2000, 2001)
I
Prime Realty Corporation appointed Nestor the
exclusive agent in the sale of lots of its newly developed
subdivision. Prime Realty told Nestor that he could not
collect or receive payments from the buyers. Nestor was able
to sell ten lots to Jesus and to collect the down payments for
said lots. He did not turn over the collections to Prime
Realty. Who shall bear the loss for Nestor’s defalcation,
Prime Realty or Jesus? (1994)
35
ALTERNATIVE ANSWER:
The general rule is that a person dealing with an
agent must inquire into the authority of that agent. In the

present case, if Jesus did not inquire into that authority, he is
liable for the loss due to Nestor’s defalcation unless Article
1900, CC governs, in which case the developer corporation
bears the loss.
Art. 1900 CC provides: “So far as third persons are
concerned, an act is deemed to have been performed within
the scope of the agent’s 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.
However, if Jesus made due inquiry and he was not
informed by the principal Prime Realty of the limits of
Nestor’s authority, Prime Realty shall bear the loss.
ANOTHER ALTERNATIVE ANSWER:
Considering that Prime Realty Corporation only
“told” Nestor that he could not receive or collect payments,
it appears that the limitation does not appear in his written
authority or power of attorney. In this case, insofar as Jesus,
who is a third person, is concerned, Nestor’s acts of
collecting payments is deemed to have been performed
within the scope of his authority (Article 1900, CC). Hence,
the principal is liable.
However, if Jesus was aware of the limitation of
Nestor’s power as an agent, and prime Realty Corporation
does not ratify the sale contract, then Jesus shall be liable
(Art. 1898, CC).
II
A. X appoints Y as his agent to sell his products in
Cebu City. Can Y appoint a sub-agent and if he
does, what are the effects of such appointment?
B. A granted B the exclusive right to sell his brand
of Maong pants in Isabela, the price for his
merchandise payable within 60 days from
delivery, and promising B a commission of 20%
on all sales. After the delivery of the
merchandise to B but before he could sell any of
SAN BEDA COLLEGE OF
them, B’s store in Isabela was completely
burned without his fault, together with all of A’s
pants. Must B pay A for his lost pants? Why?
(1999)
ANSWERS:
A. Yes, the agent may appoint a substitute or sub-agent
if the principal has not prohibited him from doing so, but he
shall be 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 without
designating the person, and the person appointed
was notoriously incompetent or insolvent;
LAW
B. The contract between A and B is a sale not an
agency to sell because the price is payable by B upon 60 days
from delivery even if B is unable to resell it. If B were an
agent, he is not bound to pay the price if he is unable to
resell it.
As a buyer, ownership passed to B upon delivery and,
under Art. 1504 of the CC, the things perishes with the
owner. Hence, B must still pay the price.
36
San Beda College of Law
CIVIL LAW
TOPIC: TRUST (1993, 1995, 1997, 1998)
I
In 1980, Maureen purchased two lots in a plush
subdivision registering Lot 1 in her name and Lot 2 in the
name of her brother Walter with the latter’s consent. The
idea was to circumvent a subdivision policy against the
acquisition of more than one lot by one buyer. Maureen
constructed a house on Lot 1 with an extension on Lot 2 to
serve as a guest house. In 1987, Walter who had suffered
serious business losses demanded that Maureen remove the
extension house since the lot on which the extension was
built was his property. In 1992, Maureen sued for the
reconveyance to her of Lot 2 asserting that a resulting trust
was created when she had the lot registered in Walter’s name
even if she paid the purchase price. Walter opposed the suit
arguing that assuming the existence of a resulting trust the
action of Maureen has already prescribed since ten years have
already elapsed from the registration of the title in his name.
Decide. Discuss fully. (1995)
ANSWER:
This is a case of an implied resulting trust. If Walter
claims to have acquired ownership of the land by prescription
of if he anchors his defense on extinctive prescription, the
ten year period must be reckoned from 1987 when he
demanded that Maureen remove the extension house on Lot 2
because such demand amounts to an express repudiation of
the trust and it was made known to Maureen. The action for
reconveyance filed in 1992 is not yet barred by prescription
(Spouses Huang vs. CA, Sept. 13, 1994).
Credit Transactions
TOPIC: MORTGAGE (1992, 1999, 2001) / PLEDGE (1994,
1996, 1999)
I
To secure a loan obtained from a rural bank, Purita assigned
her leasehold rights over a stall in the public market in favor
of the bank. The deed of assignment provides that in case of
default in the payment of the loan, the bank shall have the
right to sell Purita’s rights over the market stall as her
attorney-in-fact, and to apply the proceeds to the payment of
the loan.
A. Was the assignment of leasehold rights a
mortgage or a cession?
B. Assuming the assignment to be a mortgage, does
the provision giving the bank the power to sell
Purita’s rights constitute pactum commissorium
or not? Why? (2001)
ANSWERS:
A. The assignment was a mortgage, not a cession, of
the leasehold rights. A cession would have transferred
ownership to the bank. However, the grant of authority to
the bank to sell the leasehold rights in case of default is proof
that no such ownership was transferred and that a mere
encumbrance was constituted. There would have been no
need for such authority had there been a cession.
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
B. No, the clause in question is not a pactum
commissorium. It is pactum commissorium when default in
the payment of the loan automatically vests ownership of the
encumbered property in the bank. In the problem given, the
bank does not automatically become the owner of the
property upon default of the mortgagor. The bank has to sell
the property and apply the proceeds to the indebtedness.
II
A. Distinguish a contract of chattel mortgage from a
contract of pledge.
B. Are the right of redemption and the equity of redemption
given by law to a mortgagor the same? Explain.
C. X borrowed money from Y and gave a piece of land as
security by way of mortgage. It was expressly agreed
between the parties in the mortgage contract that upon
non-payment of the debt on time by X, the mortgaged
land would already belong to Y. If X defaulted in paying,
would Y now become the owner of the mortgaged land?
Why?
D. Suppose in the preceding question, the agreement
between X and Y was that if X failed to pay the mortgage
debt on time, the debt shall be paid with the land
mortgaged by X to Y. Would your answer be the same as
in the preceding question? Explain. (1999)
ANSWERS:
A. In a contract of chattel mortgage possession belongs
to the creditor, while in a contract of pledge possession
belongs to the debtor.
A chattel mortgage is a formal contract while a
pledge is a real contract.
A contract of chattel mortgage must be recorded in
a public instrument to bind third persons while a contract of
pledge must be in a public instrument containing description
of the thing pledged and the date thereof to bind third
persons.
B. The equity of redemption is different from the right
of redemption. Equity of redemption is the right of the
mortgagor after judgment in a judicial foreclosure to redeem
the property by paying to the court the amount of the
judgment debt before the sale or confirmation of the sale. On
the other hand, right of redemption is the right of the
mortgagor to redeem the property sold at an extra-judicial
foreclosure by paying to the buyer in the foreclosure sale the
amount paid by the buyer within one year from such sale.
C. No, Y could not become the owner of the land. The
stipulation is in the nature of pactum commissorium which is
prohibited by law. The property should be sold at public
auction and the proceeds thereof applied to the
indebtedness. Any excess shall be given to the mortgagor.
D. No, the answer would not be the same. This is a
valid stipulation and does not constitute pactum
commissorium. In pactum commissorium, the acquisition is
automatic without need of any further action. In the instant
problem another act is required to be performed, namely,
the conveyance of the property as payment (dacion en pago).
III
In 1982, Steve borrowed P400,000 from Danny,
collateralized by a pledge of shares of stock of Concepcion
Corporation worth
P800,000. In 1983, because of the economic crisis, the value
of the shares pledged fell to only P100,000. Can Danny
demand that Steve surrender the other shares worth
P700,000?
ALTERNATIVE ANSWER:
No. Bilateral contracts cannot be changed
unilaterally. A pledge is only a subsidiary contract, and Steve
is still indebted to Danny for the amount of P400,000 despite
the fall in the value of the stocks pledged.
ANOTHER ALTERNATIVE ANSWER:
No. Danny’s right as pledgee is to sell the pledged
shares at a public sale and keep the proceeds as collateral for
the loan. There is no showing that the fall in the value of the
pledged property was attributable to the pledger’s fault or
fraud. On the contrary, economic crisis was the culprit. Had
the pledgee been deceived as to the substance or quality of
the pledged shares of stock, he would have had the right to
claim another thing in their place or to the immediate
payment of the obligation. This is not the case here.
Torts and Damages
TOPIC: QUASI-DELICT (1990, 1991, 1996, 1998, 2002,
2003)
I
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.
(2003)
RED NOTES IN CIVIL LAW
ANSWERS:
A. 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.
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.
35
ALTERNATIVE ANSWER:
A. No, such reservation is not necessary. Under Section
1 of Rule 111 of the 2000 Rules of 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,
and 2176 of the NCC are no longer “deemed instituted”, and
may be filed separately and prosecuted independently even
without any reservation in the criminal action (sec. 3 Rule
111, Ibid.). The failure to make a reservation in the criminal
action is not a waiver of the right to file a separate and
independent civil action based on these articles of the NCC
(Casupanan vs. Laroya GR No. 145391, August 26, 2002).
TOPIC: LIABILITY OF THE EMPLOYER AND THE DRIVER IN
CASE OF ACCIDENT (1992, 2000, 2001, 2002)
I D. Can Raffy ask for temperate damages?
A van owned by Orlando and driven by Diego, while
negotiating a downhill slope of a city road, suddenly gained
speed, obviously beyond the authorized limit in the area, and
bumped a car in front of it, causing severe damage to the car
and serious injuries to its passengers. Orlando was not in the
car al the time of the incident. The car owner and the
injured passengers sued Orlando and Diego for damages
caused by Diego's negligence. In their defenses, Diego claims
that the downhill slope caused the van to gain speed and
that, as he stepped on the brakes to check the acceleration,
the brakes locked, causing the van to go even faster and
eventually to hit the car in front of it. Orlando and Diego
contend that the sudden malfunction of the van's brake
system is a fortuitous event and that, therefore, they are
exempt from any liability.
A. Is this contention tenable? Explain.
B. Explain the concept of vicarious liability in
quasi-delicts.
C. Does the presence of the owner inside the
vehicle causing damage to a third
party affect his liability for his driver's
SAN BEDA COLLEGE OF
negligence? Explain. (2002)
ANSWERS:
A. No. Mechanical defects of a motor vehicle do not
constitute fortuitous event, since the presence of such
defects would have been ready detected by diligent
maintenance check. The failure to maintain the vehicle in
safe running condition constitutes negligence.
B. The doctrine of vicarious liability is that which
renders a person liable for the negligence of others for whose
acts or omission the law makes him responsible on the theory
that they are under his control and supervision.
LAW
C. ln motor vehicle mishaps, the owner is made
solidarily liable with his driver if he (owner) was in the
vehicle and could have, by the use of due diligence,
prevented the mishap. (Caedo v. Yu Khe Thai, 26 SCRA 410
[1968]). However, this question has no factual basis in the
problem given, in view of the express given fact that "Orlando
was not in the car at the time of the time of the incident.”
36
San Beda College of Law
CIVIL LAW
TOPIC: DAMAGES (1992, 1993, 1994, 2002)
I
On January 5, 1992, Nonoy obtained a loan of P1 million from
his friend Raffy. The promissory note did not stipulate any
payment for interest. The note was due on January 5, 1993
but before this date the two became political enemies.
Nonoy, out of spite, deliberately defaulted in paying the
note, thus forcing Raffy to sue him.
A. What actual damages can Raffy recover?
B. Can Raffy ask for moral damages from Nonoy?
C. Can Raffy ask for nominal damages?
E. Can Raffy ask for attorney’s fees? (1994)
ANSWERS:
A. Raffy may recover the amount of the promissory
note of P1 million, together with interest at the legal rate
from the date of judicial and extrajudicial demand. In
addition, however, inasmuch as the debtor is in bad faith, he
is liable for all damages which may be reasonably attributed
to the non-performance of the obligation (Art. 2201(2), NCC).
B. Yes, under Art. 2220, NCC moral damages are
recoverable in case of breach of contract where the
defendant acted fraudulently or in bad faith.
C. Nominal damages may not be recoverable in this
case because Raffy may already be indemnified of his losses
with the award of actual and compensatory damages.
Nominal damages are adjudicated only 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 (Art. 2231, CC).
D. Raffy may ask for, but would most likely not be
awarded temperate damages, for the reason that his actual
damages may already be compensated upon proof thereof
with the promissory note. Temperate damages may be
awarded only when the court finds that some pecuniary loss
has been suffered but its amount cannot, from the nature of
the case, be proved with certainty (Art. 2224, CC).
E. Yes, under par. 2, Art. 2208 of the CC, considering
that Nonoy’s act or omission has compelled Raffy to litigate
to protect his interests. Furthermore, attorney’s fees may be
awarded by the court when it is just and equitable (Art.
2208(110), CC).
Land Titles and Deeds
TOPIC: PRESCRIPTION AND LACHES (1990, 1998, 2000,
2002, 2003)
I
Louie, before leaving the country to train as a chef
in a five-star hotel in New York, USA, entrusted to his first-
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
degree cousin Dewey an application for registration, under
the Land Registration Act, of a parcel of land located in
Bacolod City. A year later, Louie returned to the Philippines
and discovered that Dewey registered the land and obtained
an Original Certificate of Title over the property in his
(Dewey’s) name. Compounding the matter, Dewey sold the
land to Huey, an innocent purchaser for value. Louie
promptly filed an action for reconveyance of the parcel of
land against Huey.
A. Is the action pursued by Louie the
proper remedy?
B. Assuming that reconveyance is the
proper remedy, will the action
prosper if the case was filed
beyond one year, but within ten
years, from the entry of the decree
of registration?
ANSWERS:
A. An action for reconveyance against Huey is not the
proper remedy, because Huey is an innocent purchaser for
value. The proper recourse is for Louie to go after Dewey for
damages by reason of the fraudulent registration and
subsequent sale of the land. If Dewey is insolvent, Louie may
file a claim against the Assurance Fund (Heirs of Pedro Lopez
vs. De Castro 324 SCRA 591 [2000] citing Sps. Eduarte vs. CA,
323 Phil 462 [1996]).
B. Yes, the remedy will prosper because the action
prescribes in ten (10) years, not within one (1) year when a
petition for the reopening of the registration decree may be
filed. The action for reconveyance is distinct from the
petition to reopen the decree of registration (Grey Alba vs.
Dela Cruz, 17 Phil 49 [1910]). There is no need to reopen the
registration proceedings, but the property should just be
reconveyed to the real owner.
The action for reconveyance is based on implied or
constructive trust, which prescribes in ten (10) years from the
date of issuance of the original certificate of title. This rule
assumes that the defendant is in possession of the land.
Where it is the plaintiff who is in possession of the land, the
action for reconveyance would be in the nature of a suit for
quieting of title which action is imprescriptible (David vs.
Malay, 318 SCRA 711 [1999]).
II
In 1960, an unregistered parcel of land was
mortgaged by owner O to M, a family friend, as collateral for
a loan. O acted through his attorney in fact, son, S, who was
duly authorized by way of a special power of attorney,
wherein O declared that he was the absolute owner of the
land, that the tax declarations/receipts were all issued in his
name, and that he has been in open, continuous and adverse
possession in the concept of owner.
As O was unable to pay back the loan plus interest
for the past five (5) years, M had to foreclose the mortgage.
At the foreclosure sale, M was the highest bidder. Upon
issuance of the sheriff’s final deed of sale and registration in
January, 1966, the mortgage property was turned over to M’s
possession and control. M has since then developed the said
property. In 1967, O died, survived by sons S and P.
In 1977, after the tenth (10th) death anniversary of
his father O, son P filed a suit to annul the mortgage deed
and subsequent sale
of the property, etc., on the ground of fraud. He asserted
that the property in question was conjugal in nature actually
belonging, at the time of the mortgage, to O and his wife, W,
whose conjugal share went to their sons (S and P) and to O.
A. Is the suit filed by P barred by prescription?
Explain your answer.
B. After the issuance of the sheriff’s final deed of
sale in 1966 in this case, assuming that M
applied for registration under the Torrens
System and was issued a Torrens Title to the
said property in question, would that added fact
have any significant effect on your conclusion?
State your reason. (1990)
ANSWERS:
A. Under Art. 173, CC, the action is barred by
prescription because the wife had only ten (10) years from
the transaction and during the marriage to file a suit for the
annulment of the mortgage deed.
B. If M had secured a Torrens Title to the land, all the
more S and P could not recover because if at all their
remedies would be:
1. A Petition to Review the Decree of registration. This
can be availed of within one (1) year from the entry
thereof, but only upon the basis of “actual fraud.”
There is no showing that M committed actual fraud
in securing his title to the land; or
2. An action in personam against M for the
reconveyance of the title in their favor. Again, this
remedy is available within four (4) years from the
date of the discovery of the fraud but not later than
ten (10) years from the date of registration of the
title in the name of M.
ALTERNATIVE ANSWER:
A. The mortgage contract executed by O, if at all, is
only a voidable contract since it involves a conjugal
partnership property. The action to annul the same instituted
in 1977, or eleven years after the execution of the sheriff’s
final sale, has obviously prescribed because:
1. An action to annul a contract on the ground of fraud
must be brought within four (4) years from the date
of discovery of the fraud. Since this is in essence an
RED NOTES IN CIVIL LAW
action to recover ownership, it must be reckoned
from the date of execution of the contract or from
the registration of the alleged fraudulent document
with the assessor’s office for the purpose of
transferring the tax declaration, this being
unregistered land (Bael vs. IAC, GR No. L-74423
January 30, 1989, 169 SCRA 617).
2. If the action is to be treated as an action to recover
ownership of land, it would have prescribed just the
same because more than ten (10) years have already
elapsed since the date of the execution of the sale.
ANOTHER ALTERNATIVE ANSWER:
35
A. The action to recover has been barred by acquisitive
prescription in favor of M considering that M has possessed
the land under a claim of ownership for ten (10) years with a
just title.

TOPIC: TORRENS SYSTEM (1990, 1991, 1994, 1998, 2001)
I sale in 1966 in this case, assuming that M
Section 70 of PD 1529, concerning adverse claims on
registered land, provides a 30-day period of effectivity of an
adverse claim, counted from the date of its registration.
Suppose a notice of adverse claim based upon a contract to
sell was registered on March 1, 1997 at the instance of the
BUYER, but on June 1, 1997, or after the lapse of the 30-day
period, a notice of levy on execution in favor of a JUDGMENT
CREDITOR was also registered to enforce a final judgment for
money against the registered owner. Then, on June 15, 1997
there having been no formal cancellation of his notice of
adverse claim, the BUYER pays to the seller-owner the agreed
purchase price in full and registers the corresponding deed of
sale. Because the annotation of the notice of levy is carried
over to the new title in his name, the BUYER brings an action
against the JUDGMENT CREDITOR to cancel such annotation,
but the latter claims that his lien is superior because it was
annotated after the adverse claim of the BUYER had ipso
facto ceased to be effective. Will the suit prosper? (1998)
ANSWER:
The suit will prosper. While an adverse claim duly
annotated at the back of a title under Sec. 70 of PD 1529 is
good only for 30 days, cancellation thereof is still necessary
to render it ineffective, otherwise, the inscription thereof
will remain annotated as a lien on the property. While the
life of adverse claim is 30 days under PD 1529, it continuous
to be effective until it is cancelled by formal petition filed
with the Register of Deeds.
The cancellation of the notice of levy is justified
under Sec. 108 of PD 1529 considering that the levy on
execution cannot be enforced against the buyer whose
adverse claim against the registered owner was recorded
ahead of the notice of levy on execution.
SAN BEDA COLLEGE OF
II
In 1960, an unregistered parcel of land was
mortgaged by owner O to M, a family friend, as collateral for
a loan. O acted through his attorney in fact, son, S, who was
duly authorized by way of a special power of attorney,
wherein O declared that he was the absolute owner of the
land, that the tax declarations/receipts were all issued in his
name, and that he has been in open, continuous and adverse
possession in the concept of owner.
As O was unable to pay back the loan plus interest
for the past five (5) years, M had to foreclose the mortgage.
At the foreclosure sale, M was the highest bidder. Upon
LAW
issuance of the sheriff’s final deed of sale and registration in
January, 1966, the mortgage property was turned over to M’s
possession and control. M has since then developed the said
property. In 1967, O died, survived by sons S and P.
In 1977, after the tenth (10th) death anniversary of
his father O, son P filed a suit to annul the mortgage deed
and subsequent sale of the property, etc., on the ground of
fraud. He asserted that the property in question was conjugal
in nature actually belonging, at the time of the mortgage, to
O and his wife, W, whose conjugal share went to their sons (S
and P) and to O.
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CIVIL LAW
C. Is the suit filed by P barred by prescription?
Explain your answer.
D. After the issuance of the sheriff’s final deed of
applied for registration under the Torrens
System and was issued a Torrens Title to the
said property in question, would that added fact
have any significant effect on your conclusion?
State your reason. (1990)
ANSWERS:
A. Under Art. 173, CC, the action is barred by
prescription because the wife had only ten (10) years from
the transaction and during the marriage to file a suit for the
annulment of the mortgage deed.
B. If M had secured a Torrens Title to the land, all the
more S and P could not recover because if at all their
remedies would be:
3. A Petition to Review the Decree of registration. This
can be availed of within one (1) year from the entry
thereof, but only upon the basis of “actual fraud.”
There is no showing that M committed actual fraud
in securing his title to the land; or
4. An action in personam against M for the
reconveyance of the title in their favor. Again, this
remedy is available within four (4) years from the
date of the discovery of the fraud but not later than
ten (10) years from the date of registration of the
title in the name of M.
ALTERNATIVE ANSWER:
A. The mortgage contract executed by O, if at all, is
only a voidable contract since it involves a conjugal
partnership property. The action to annul the same instituted
in 1977, or eleven years after the execution of the sheriff’s
final sale, has obviously prescribed because:
3. An action to annul a contract on the ground of fraud
must be brought within four (4) years from the date
of discovery of the fraud. Since this is in essence an
action to recover ownership, it must be reckoned
from the date of execution of the contract or from
the registration of the alleged fraudulent document
with the assessor’s office for the purpose of
transferring the tax declaration, this being
unregistered land (Bael vs. IAC, GR No. L-74423
January 30, 1989, 169 SCRA 617).
4. If the action is to be treated as an action to recover
ownership of land, it would have prescribed just the
same because more than ten (10) years have already
elapsed since the date of the execution of the sale.
ANOTHER ALTERNATIVE ANSWER:
A. The action to recover has been barred by acquisitive
prescription in favor of M considering that M has possessed
the land under a claim of ownership for ten (10) years with a
just title.
Conflicts of Law
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
TOPIC: ARTICLE 17, NCC (1991, 1993, 2002) / DOCTRINE
OF FORUM NON CONVENIENS (DEFINITION) (1994,
2002)
I occurred outside the Philippines. Neither are both Coals
Felipe is a Filipino citizen. When he went to Sydney
for vacation, he met a former business associate, who
proposed to him a transaction which took him to Moscow.
Felipe brokered a contract between Sydney Coals Corp.
(Coals), an Australian firm, and Moscow Energy Corp.
(Energy), a Russian firm, for Coals to supply coal to Energy on
a monthly basis for three years. Both these firms were not
doing, and still do not do, business in the Philippines. Felipe
shuttled between Sydney and Moscow to close the contract.
He also executed in Sydney a commission contract with Coals
and in Moscow with Energy, under which contracts he was
guaranteed commissions by both firms based on a percentage
of deliveries for the three-year period, payable in Sydney and
in Moscow, respectively, through deposits in accounts that he
opened in the two cities. Both firms paid Felipe his
commission for four months, after which they stopped paying
him. Felipe learned from his contacts, who are residents of
Sydney and Moscow, that the two firms talked to each other
and decided to cut him off. He now files suit in Manila against
both Coals and Energy for specific performance.
A. Define or explain the principle of "lex loci
contractus."
B. Define or explain the rule of "forum non
conveniens."
C. Should the Philippine court assume
jurisdiction over the case? Explain. (2002)
ANSWERS:
A. Lex loci contractus may be understood in two senses, as
follows:
It is the law of the place where contracts, wills, and
other public instruments are executed and governs their
“forms and solemnities”, pursuant to the first paragraph
of Article 17 of the Civil Code; or It is the proper law of
the contract; i.e., the system of law intended to govern
the entire contract, including its essential requisites,
indicating the law of the place with which the contract
has its closest connection or where the main elements of
the contract converge. As illustrated by Zalamea v.
Court of Appeals (228 SCRA 23 [I1993]), it is the law of
the place where the airline ticket was issued, where the
passengers are nationals and residents of, and where the
defendant airline company maintained its office.
B. Forum non conveniens means that a court has
discretionary authority to decline jurisdiction over a
cause of action when it is of the view that the action
may be justly and effectively adjudicated elsewhere.
C. No, the Philippine courts cannot acquire jurisdiction over
the case of Felipe.
Firstly, under the rule of forum non conveniens, a
Philippine court or agency may assume jurisdiction over
the case if it chooses to do so provided: (1) that the
Philippine court is one to which the parties may
conveniently resort to; (2) that the Philippine court is in
a position to make an intelligent decision as to the law
and the facts; and (3) that the Philippine court has or is
likely to have
power to enforce its decision. 37 The conditions are
unavailing in the case at bar. The Philippine court is not
a convenient forum as all the incidents of the case
and Energy doing business inside the Philippines.
Secondly, the contracts were not perfected in the
Philippines. Under the principle of lex loci contractus,
the law of the place where the contract is made shall
apply.
Lastly, the Philippine court has no power to
determine the facts surrounding the execution of said
contracts. And even if a proper decision could be
reached, such would have no binding effect on Coals and
Energy as the court was not able to acquire jurisdiction
over the said corporations. (Manila Hotel Corp. v. NLRC,
343 SCRA 1,13-14 [2000])
ALTERNATIVE ANSWER:
A. Under the doctrine of lex loci contractus, as a general
rule, the law of the place where a contract is made or
entered into governs with respect to its nature and
validity, obligation and interpretation. This has been
said to be the rule even though the place where the
contract was made is different from the place where it
is to be performed, and particularly so, if the place of
the making and the place of performance are the same
(United Airline v. CA, G.R, No. 124110, April 20, 2001).
BAR TYPE QUESTIONS
Persons and Family Relations
QUESTION No.1: Four employees of Act Theater Inc. were
apprehended by the police officers for allegedly tampering
a water meter. On the basis of the foregoing, the
Metropolitan Waterworks and Sewerage System cut the
water service connection of Act Theater a few hours after
a notice to such effect was served upon the latter.
Did MWSS properly exercise its proprietary rights?
ANSWER: NO. Concededly, MWSS, as the owner of the utility
providing water supply to certain consumers including the
respondent, had the right to exclude any person from the
enjoyment and disposal thereof. However, the exercise of
RED NOTES IN CIVIL LAW
rights is not without limitations. Having the right should not
be confused with the manner by which such right is to be
exercised. Article 19 of the New Civil Code states that
“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. When a right is
exercised in a manner which discards these norms resulting in
damage to another, a legal wrong is committed for which
actor can be held accountable. In this case, MWSS failed to
act with justice and gave Theater Act what is due to it when
the former unceremoniously cut off the latter’s water service
connection. (Metropolitan Waterworks and Sewerage System
vs Act Theater Inc., GR No. 147076, June 17, 2004)
35
QUESTION No.2: The spouses Pahang obtained a loan from
Metrobank. The said loan was secured by a real estate
mortgage on a parcel of land owned by the spouses Pahang.

For failure of the latter to settle their obligation,
Matrobank extrajudicially foreclosed the real estate
mortgage and the mortgaged property was sold to
Metrobank as the highest bidder.
Before the expiration of the one-year redemption
period, the spouses Pahang filed a complaint for annulment
of extrajudicial sale alleging that Metrobank bloated their
obligation to frustrate their chances of paying the loan.
After the expiration of the one-year redemption
period, Metrobank consolidated its ownership over the
foreclosed property and, thereafter, filed a petition for
Writ of Possession. This was opposed by the spouses
Pahang on the ground that the complaint filed by them is a
prejudicial question which warranted the suspension of the
proceedings before the court.
Is the complaint filed by the spouses Pahang a
prejudicial question to Metrobank’s petition for the
issuance of a Writ of Possession?
ANSWER: NO. A prejudicial question is one that arises in a
case the resolution of which is a logical antecedent of the
issue involved therein, and the cognizance of which pertains
to another tribunal. It generally comes into play in a
situation where a civil action and a criminal action are both
pending and there exists in the former an issue that must be
preemptively resolved before the criminal action may
proceed because howsoever the issue raised in the civil
action is resolved would be determinative juris et de jure of
the guilt or innocence of the accused in the criminal case.
The complaint of the petitioners for annulment of
extrajudicial sale is a civil action and the respondent’s
petition for the issuance of a writ of possession is but an
incident in the land registration case and, therefore no
prejudicial question can arise from the existence of the two
actions. (Spouses Pahang vs Vestil, GR No. 148595, July 12,
2004)
QUESTION No.3: Rodolfo and Marietta were married on
SAN BEDA COLLEGE OF
March 5, 1959. On December 6, 1992, Rodolfo left the
conjugal home and abandoned Marietta and their children.
In the meantime, Rodolfo, who was desirous of
contracting another marriage, filed a petition for the
declaration of the nullity of his marriage with Marrieta on
the ground of psychological incapacity. Fully aware that
Marrieta had already transferred to another residence,
Rodolfo still indicated in his petition that summons can be
served upon Marrieta in her previous address. As a
consequence of which, Marrieta did not receive any
summons and failed to file an answer. The court, upon
motion, declared Marrieta in default and allowed Rodolfo
to adduce evidence ex parte. The public prosecutor who
LAW
appeared for the state offered no objection to the motion
of Rodolfo. The court rendered a decision declaring the
marriage of Rodolfo and Marrieta void ab initio.
Was the grant of annulment of marriage by
default proper?
ANSWER: NO. The actuations of the trial court and the
public prosecutor are in defiance of Article 48 of the Family
Code. A grant of annulment of marriage or legal separation
by default is fraught with the danger of collusion. Hence, in
all cases for annulment, declaration of nullity of marriage
36
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CIVIL LAW
and legal separation, the prosecuting attorney or fiscal is
ordered to appear on behalf of the state for the purpose of
preventing any collusion between the parties and to take
care that their evidence is not fabricated or suppressed. If
the defendant-spouse fails to answer the complaint, the court
cannot declare him or her in default but instead, should order
the prosecuting attorney to determine if collusion exists
between the parties. The prosecuting attorney or fiscal may
oppose the application of legal separation or annulment
through the presentation of his own evidence, if in his
opinion, the proof adduced is dubious and fabricated.
(Ancheta vs Ancheta, GR No. 145370, March 4, 2004)
QUESTION No.4: Alfredo and Encarnacion were married on
January 8, 1960. During the subsistence of their marriage,
they acquired 100,000 shares of stock in Citycorp and
registered the same in the name of Alfredo.
On September 26, 1978, the Philippine Blooming
Mills Company, Inc (PBMCI)obtained a loan from Allied
Bank. As added security for the said loan, Alfredo, as the
Executive Vice President of PBMCI executed a continuing
guarantee with Allied Bank binding himself to jointly and
severally guarantee the payment of all the PBMCI
obligations owing to Allied Bank.
PBMCI failed to settle its obligation with Allied
Bank. Allied Bank filed an application for a writ of
preliminary attachment which was granted by the court.
As a consequence of which, the sheriff levied on
attachment the 100,000 shares of Citycom stocks in the
name of Alfredo.
Encarnacion, assisted by Alfredo, thereafter filed
a Motion to Set Aside the levy on attachment.
Should the Motion to Set Aside the levy on
execution be granted?
ANSWER: YES. Article 160 of the New Civil Code provides
that all the properties acquired during the marriage are
presumed to belong to the conjugal partnership, unless it be
proved that it pertains exclusively to the husband, or to the
wife. It is not even necessary to prove that the properties
were acquired with funds of the partnership. As long as the
properties were acquired by the parties during the marriage,
they are presumed to be conjugal in nature. In fact, even
when the manner in which the properties were acquired does
not appear, the presumption will still apply, and the
properties will still be considered conjugal.
In this case, the evidence adduced by Encarnacion is
that the 100,000 shares of stocks in Citycorp were issued and
registered in its corporate books in the name of Alfredo when
the said corporation was incorporated on May, 14, 1979. This
was done during the subsistence of the marriage of Alfredo
and Encarnacion. The shares of stock are thus presumed to
be the conjugal partnership property of Alfredo and
Encarnacion. The barefaced fact that the shares of stocks
were registered in the corporate books of Citycorp solely in
the name of Alfredo does not constitute proof that Alfredo,
not the conjugal partnership, owned the same. (Ching vs
Court of Appeals, GR No. 124642, February 23, 2004)
Note: Under the Family Code, Article 93, the presumption is
that property acquired during the marriage belong to the
community, unless it is proved that it is one of those exclused
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
therefrom. The presumption in Article 116 of the Family
Code will only arise if the future spouses agree in their
marriage settlements that the regime of conjugal partnership
of gains shall govern their property relations during the
marriage pursuant to Article 105 FC.
Property
QUESTION No.1: The spouses Pascua executed a Deed of
Absolute Sale over their property and the improvements
thereon in favor of the spouses Chua. On the basis of the
said deed, Transfer Certificate of Title No. 87610 over the
property was issued to the latter.
The spouses Chua thereafter demanded that the
spouses Apostol vacate the property but the latter
stubbornly refused to do so claiming, among others, that
they bought the said property and have been in possession
of the same in the concept of an owner though they were
not able to register the deed of sale.
The spouses Chua filed a complaint for unlawful
detainer against the spouses Apostol. The latter, on the
otherhand, filed a complaint for annulment of the deed of
sale and TCT and for reconveyance.
Can the spouses Apostol be dispossessed of the
property notwithstanding the fact that they are possessors
in the concept of owner?
ANSWER: YES. The subject property is registered under the
Torrens System in the names of the spouses Chua whose title
to the property is presumed legal and cannot be collaterally
attacked, much less in an action for unlawful detainer. It is
an accepted rule that a person who has a Torrens title over
the property is entitled to the possession thereof. In Javelosa
vs CA (265 SCRA 493), the Supreme Court declared that the
registered owners are entitled to the possession of the
property covered by the said title from the time such title
was issued in their favor. Moreover, the fact that the
respondents were never in prior physical possession of the
subject land is of no moment, as prior physical possession is
necessary only in forcible entry cases. (Spouses Apostol vs
Court of Appeals, GR No. 125375. June 17, 2004)
QUESTION No.2: Jose is the owner of a parcel of land
situated in San Agustin, Dasmarinas, Cavite. Sometime in
the middle of 1970, Paolo, the brother of Jose who was
then the president of Cavite Electric Cooperative, verbally
requested the latter to grant National Power Corporation
the right of way over a portion of the subject property and
to allow it to install wooden electrical posts and
transmission lines for the electrification of Puerto Azul.
Jose acceded to the said request but upon the condition
that the said installations would only be temporary in
nature.
Sometime in 1994 and thereafter in 1995, agents
of NPC entered the property of Jose and conducted
engineering surveys thereon for the purpose of erecting an
all-steel transmission line tower.
Jose thereupon filed an action for a sum of money
and damages alleging therein that contrary to their verbal
agreement, NPC continued to use his property for its
wooden electrical posts and transmission lines without
compensating him therefore.
Instead of filing
an answer, NPC filed a motion to dismiss on the ground
that it had already acquired by prescription the easement
of right-of-way over that portion of Jose’s property where
its posts and transmissions were established.
Has NPC acquired by prescription the easement of
right of way?
ANSWER: NO. Article 620 of the Civil Code reads:
“Continuous and apparent easements are acquired either by
virtue of a title or by prescription of then years.”
Prescription as a mode of acquisition requires the existence
of the following: (1) capacity to acquire by prescription; (2) a
thing capable of acquisition by prescription; (3) possession of
the thing under certain conditions; and (4) lapse of time
provided by law. Acquisitive prescription may either be
ordinary, in which case the possession must be in good faith
and with just title, or extraordinary, in which case there is
neither good faith nor just title. In either case, there has to
be possession which must be in the concept of an owner,
public, peaceful, and uninterrupted. As a corollary, Article
1119 of the NCC provides that: “Acts of possessory character
executed in virtue of license or by mere tolerance of the
owner shall not be available for the purposes of possession.
In the present case, the facts reveal that NPC’s
possession of that portion of Jose’s property where it erected
the wooden posts and transmission lines was merely upon the
tolerance of the latter. Accordingly, this permissive use by
NPC of that portion of the subject property, no matter how
long continued, will not create an easement of right of way
by prescription. (NPC vs. Spouses Campos Jr. GR no. 143643
June 27, 2003)
QUESTION No.3: Teresa owned a residential lot with the
certificate of title in her name. In 1960, she allowed
Rosendo to construct a house on the said lot and stay
therein without any rentals therefore. In 1966, she leased
the property to Bienvenido Santos and assigned her
leasehold rights to the Second Quezon City Development
Bank, to which she had an outstanding loan.
Teresa died in 1978. In deference to her wishes,
her heirs allowed Rosendo to stay in the property. Rosendo
died in 1995. The heirs of Teresa thereafter filed an
ejectment suit against the heirs of Rosendo after the later
refused to vacate the property despite repeated demands.
The heirs of Rosendo interposed the defense that
Teresa donated the parcel of land to Rosendo in 1976.
RED NOTES IN CIVIL LAW
They produced as evidence the photocopy of the deed of
donation. An examination of the deed reveals that the
same is notarized and appears to have complied with all
the requisites of donation. Hence, its validity, according
to the heirs of Rosendo, must be presumed.
It appears however, that the title to the property
remained with Teresa; that the Deed of Donation was not
registered in the Office of the Register of Deeds; nor was
the deed annotated in the certificate of title.
a) Do the heirs of Rosendo have the better right
of possession?
b) What are the essential elements of a valid
donation?
c) Is registration of the Deed 35 of Donation
necessary for its validity?
ANSWERS:

a) NO. The fundamental principle is that a certificate
of title serves as evidence of an indefeasible and
incontrovertible title to the property in favor of the
person whose name appears therein as the
registered owner. The registered owner has the
right to posses, enjoy and dispose of the property
without any limitations other than those imposed by
law.
Furthermore, the following facts and
circumstances engender veritable doubts as to
whether they have a better right of possession: the
fact that the title to the property remained with
Teresa, and that no new title had been issued in the
name of Rosendo because the deed was not
registered in the Office of the Register of Deeds; the
fact that the deed was not annotated at the dorsal
portion of the certificate of title; and the fact that
it was only after eighteen years, after the heirs of
Rosendo were sued for ejectment, that this defense
of donation came out for the first time.
b) The essential elements of donation are as follows:
(a) the essential reduction of the patrimony of the
donor; (b) the increase in the patrimony of the
donee; (c) the intent to do an act of liberality or
animus donandi. When applied to a donation of an
immovable property, the law further requires that
the donation be made in the same deed or in a
separate public instrument; in cases where the
acceptance is made in a separate instrument, it is
mandated that the donor be notified thereof in an
authentic form, to be noted in both instruments.
c) NO. In order that the donation of an immovable
property may be valid, it must be made in a public
document. Registration of the deed in the Office of
the Register of Deeds or in the Assessor’s Office is
not necessary for it to be considered valid and
official. Registration does not vest title; it is merely
evidence of such title over a particular parcel of
SAN BEDA COLLEGE OF
land. The necessity of registration comes into play
only when the rights of third persons are affected.
Obligations and Contracts
QUESTION No. 1: Concepcion and her sister, Nieves were
co-owners of a parcel of land. Nieves and her husband
Angel constructed on the said property a two-storey
commercial building. Concepcion thereafter acquired her
undivided share of the property by virtue of a court order
which had become final and executory. She then filed a
complaint for unlawful detainer against Nieves and Angel
LAW
which was decided by the MTC in her favor.
Concepcion subsequently executed a deed of
absolute sale covering her undivided share to Iluminada
who made a partial payment of the purchase price and
promised, pursuant to the contract, to pay the balance
upon delivery by Concepcion of the corresponding
certificate of title.
After the death of Concepcion, Iluminada filed a
complaint for the revival and execution of the decision of
the MTC in the unlawful detainer case. She alleged therein
that she is the successor in interest of Concepcion, and as
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CIVIL LAW
such, she acquired the right of action to enforce the
abovementioned decision of the MTC. Nieves and Angel,
on the otherhand, maintains that the complaint should be
dismissed because Concepcion had not yet paid the
balance of the purchase price of the property, and as such,
had not acquired title over the lot and the right to evict
them. This is so because they maintained that the deed of
absolute sale executed by Concepcion in favor of Iluminada
was an executory, and not an executed deed; hence, the
failure of Iluminada to pay the balance of purchase price
during the lifetime of Conception rendered the sale null
and void.
Iluminada, thereafter, consigned before the court,
after the lapse of 21 years from the execution of the deed
of absolute sale, the amount representing the balance of
the purchase price and filed a motion for the execution of
the decision of the MTC in the unlawful detainer case.
a) Did Iluminada’s failure to pay the balance of
the purchase price render the sale null and
void?
b) What is the effect of Iluminada’s act of
consigning the balance of the purchase price
before the court?
ANSWERS:
a) NO. In a perfected contract of sale of realty, the
right to rescind the said contract depends upon the
fulfillment or non-fulfillment of the prescribed
condition. The Supreme Court has held in a number
of cases that the non-payment of the purchase price
of property is a resolutory condition for which the
remedy is either rescission or specific performance
under Article 1191 of the New Civil Code. This is
true for reciprocal obligations where the obligation
is a resolutory condition of the other. The vendee is
entitled to retain the purchase price or a part of
the purchase price of realty if the vendor fails to
perform any essential obligation of the contract.
Such right is premised on the general principles of
reciprocal obligations.
Iluminada paid the downpayment of the
purchase price. By the terms of the contract, the
obligation of the vendee to pay the balance of the
purchase price ensued only upon the issuance of the
certificate of title by the Register of Deeds over the
property sold to and under the name of the vendee,
and delivery thereof by the vendor Concepcion to
the latter. Concepcion failed to secure a certificate
of title over the property. When she died, her
obligation to deliver the said title to the vendee
devolved upon her heirs, including Nieves. The said
heirs, including Nieves failed to do so, despite lapse
of eighteen years since Concepcion’s death.
b) The consignation by the vendee of the purchase
price of the property is sufficient to defeat the right
of the petitioners to demand for a rescission of the
said deed of absolute sale.
It bears stressing that when the vendee
consigned part of the purchase price with he Court
and secured title over the property in her name,
the heirs of Concepcion, including the petitioners,
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had not yet sent any notarial demand for the
rescission of the deed of absolute sale to the
vendee, or filed any action for the rescission of the
said deed with the appropriate court.
Although Iluminada consigned consigned
with the court an amount short of the purchase
price, it cannot be claimed that Concepcion was an
unpaid seller because under the deed of sale, she
was still obligated to transfer the property in the
name of the vendee, which she failed to do.
According to Article 1167 of the NCC: “If a person
obliged to do something fails to do it, the same
shall be executed at his cost. The same rule shall
be observed if he does it in contravention of the
tenor of the obligation. Furthermore, it may be
decreed that what has been poorly done be
undone.” (Gil vs Court of Appeals, GR No.127206.
September 12, 2003)
QUESTION No.2: Alfred, an Australian citizen, met
Ederlina, a Filipina who was working in Australia as a
masseuse. Ederlina is married to Klaus, a German citizen.
When the two became close, Alfred convinced Ederlina to
return to the Philippines and establish her own business
there with the former providing for the capital. While in
the Philippines, the two purchased a number of real estate
with the use of Alfred’s money though the deed of absolute
sale designated Ederlina as the vendee. Their relationship,
however, did not work out. As a consequence of which,
Alfred now demands that Ederlina execute the
corresponding deeds of transfer over the disputed
properties in his name so that he can sell the same at
public auction and recover the value of the same. It is his
contention that since it was his money which was used in
purchasing the properties, the same belongs to him as the
real vendee.
a) Will Alfred be allowed to recover the
properties on the basis of Article 1412 of the
Civil Code?
b) Will he be allowed to recover on the ground
that the agreement is not illegal per se
pursuant to Article 1416?
c) Will the denial of relief to Alfred not run
counter to Article 22 of the New Civil Code?
ANSWERS:
a) NO. A contract that violates the Constitution and
the law, is null and void and vests no rights and
creates no obligations. It produces no legal effect at
all. Alfred, being a party to an illegal contract
cannot come into a court of law and ask to have his
illegal objective carried out. One who looses his
money or property by knowingly engaging in a
contract or transaction which involves his own
moral turpitude may not maintain an action for his
losses. The law will not aid either party to an illegal
contract or agreement; it leaves the parties where it
finds them. Under Article 1412 of the New Civil
Code, the petitioner cannot have the subject
properties deeded to him or allow him to recover
the money he had spent for the purchase thereof.
Equity as a rule will follow the law and will not
permit that to be done indirectly, which, because of
public policy, cannot be done directly. Where the
wrong of
one party equals that of the other, the defendant is
in the stronger position… it signifies that in such
situation, neither a court of equity nor a court of
law will administer a remedy.
b) NO. Alfred cannot find solace in Article 1416 NCC
which reads: “When the agreement is not illegal per
se but is merely prohibited, and the prohibition by
the law is designated for the protection of the
plaintiff, he may, if public policy is thereby
enhanced , recover what he has paid or delivered.”
The provision applies only to those contracts which
are merely prohibited, in order to benefit private
interests. It does not apply to contracts void ab
initio. The sales of three parcels of land in favor of
Alfred who is a foreigner is illegal per se. The
transactions are void ab initio because they were
entered into in violation of the Constitution. To
allow Alfred to recover the properties or the money
used in the purchase of the same would be
subversive of public policy.
c) NO. The said provision is expressed in the maxim:
“Memo cum alterius deter detremento protest” (No
person should unjustly enrich himself at the expense
of another). An action for recovery of what has
been paid without just cause has been designated as
an accion in rem verso. The provision does not
apply if, as in this case, the action is proscribed by
the Constitution or by the application of the pari
delicto doctrine. It may be unfair and unjust to bar
Alfred from filing an accion in rem verso over the
subject properties, or from recovering the money he
paid for the sid properties, but as Lord Mansfield
stated in the early case of Holman vs Johnson: “the
objection that a contract is immoral or illegal as
between the plaintiff and the defendant, sounds at
all times very ill in the mouth of the defendant. It is
not for his sake that the objection is ever allowed;
but it is founded on general principles of policy,
which the defendant has the advantage of, contrary
to the real justice, as between him and the plaintiff.
(Frenzel vs Catito, GR No.143958, July 11, 2003)
QUESTION No.3: Angelica and her children were the
registered owners of 3 parcels of land. These properties
were tenanted and tilled by farmers. The said farmers
assigned their rights to the land in favor of Herminio in
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consideration of P50/ sqm to be payable when the legal
impediments to the sale of the said land ceased to exist.
Herminio demanded for the implementation of the
contract. The latter, however, desisted and informed
Herminio that they were rescinding the contract and they
will instead sell their rights to the Lacson’s who offered
him better terms.
Are the Lacson’s guilty of interference?
Answer: No. Under Art. 1314 of the NCC any third person
who induces another to violate his contract shall be liable for
damages to the other contracting party. It has been held that
the pleader has the burden of proving: 1) the existence of a
valid contract; 2) knowledge by the third person 35 of the
existence of the contract; and 3) interference by the third
person in the contractual relation without legal justification.

One who is not a party to a contract and who
interferes thereon is not necessarily an officious or malicious
intermeddler. Where there was no malice in the interference
of a contract, and the impulse behind one’s conduct lies in a
proper business interest rather than in wrongful motives, a
party cannot be a malicious interferer. Where the alleged
interferer is financially interested, and such interest
motivates his conduct, it cannot be said that he is an
officious or malicious intermeddler. Such is the case at bar.
(Tayag vs. LacsonGR # 134971 March 25, 2004)
Wills and Succession
QUESTION No.1: On September 20, 1953, Pastor Lim
married Rufina Luy. During the early part of their
marriage, Pastor established a number of family
corporations using their conjugal funds. Among these
corporations was Skyline International Corporation wherein
the spouses Lim were incorporators and employees. In
1971, Rufina filed a petition for legal separation on the
ground of infidelity against Pastor. The court granted the
same and upon motion ordered the sheriff to have the
properties of Skyline levied to answer for the award of
support granted to Rufina.
On August 21, 1987, Speed Distributing
Corporation was registered with SEC with Pastor as one of
the incorporators. Then on June 21, 1991, Leslim
Corporation was also registered with SEC with Pastor as the
majority shareholder.
On June 11, 1994, Pastor died intestate and was
survived by his wife who was thereafter appointed as
special administratrix of Pastor’s estate.
It appears that on two occasions, Leslim
Corporation sold to Speed Distributing Corp. parcels of
land. Upon knowing this, Rufina filed a complaint against
Speed for the nullification of the deed of sale executed by
Leslim in its favor. She alleged that the subject
SAN BEDA COLLEGE OF
properties, although registered in the name of those
entities, were acquired by Pastor during their marriage.
She further alleged that the sale was unauthorized since at
the time of its execution, her husband who was major
stockholder, was already dead and could no longer
manifest his approval over the same.
Can Rufina legally question the validity of the sale?
Answer: Yes. Rufina filed the complaint as one of the heirs of
Pastor, who died intestate. She was, in fact, the surviving
spouse of the deceased, a compulsory heir by operation of
law. The general rule under the law on succession is that
successional rights are transmitted from the moment of death
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of the decedent and compulsory heirs are called upon to
succeed by operation of law to the inheritance without the
need of further proceedings. Under Art. 776, NCC,
inheritance includes all the properties, rights and obligations
of a party, not extinguished by his death. Although Rufina
was appointed by the probate court as special administratrix
of the estate of Pastor, she had the right, apart from her
being a special administratrix, to file the complaint against
Speed for the nullification of the deed of absolute sale.
A prior settlement of the estate or even the
appointment of Rufina as administratrix, is not necessary for
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CIVIL LAW
any of Pastor’s heirs to acquire legal capacity to sue. As
successors who stepped into the shoes of their decedent upon
his death, they can commence any action originally
pertaining to the decedent. From the moment of Pastor’s
death, all his rights not extinguished by his death were
transmitted to his heirs. (Speed Distributing Corp. vs. CA, GR
No. 149351, March 17, 2004)
Sales and Lease
QUESTION No.1: Agricom leased its rubber plantation to
Pioneer Enterprises. As a consequence of which, Agricom
terminated its employees in the plantation and gave them
their separation pay.
While Pioneer was managing the plantation, some
of Agricom’s severed employees filed a complaint for
illegal dismissal against Agricom and Pioneer which was
decided by the labor arbiter in favor of the employees.
Some individuals fenced certain portions of the plantation,
went to the office of Pioneer bringing tax declarations and
claimed that they were the owners of the same.
Pioneer defaulted in its payment of the monthly
rental. Agricom thereafter filed a complaint for sum of
money with damages. In its answer, Pioneer maintained
that she had the right to suspend payment of the rentals
since Agricom failed to maintain her in peaceful and
adequate enjoyment of the leased property.
a) Does Agricom have the obligation to maintain
the lessee in peaceful and adequate
enjoyment of the property?
b) Granting that the above obligation exists, was
Agricom able to comply with the same?
ANSWERS:
a) YES. As lessor, the Agricom had the duty to
maintain Pioneer in the peaceful and adequate
enjoyment of the leased premises. Such duty was
made as part of the contract of lease entered into
by the parties. Even if it had not been so, the lessor
is still duty-bound under Article 1654(3) of the Civil
Code.
b) YES. The duty to maintain the lessee in the
peaceful and adequate enjoyment of the lease for
the duration of the contract mentioned in Article
1654 (3) is merely a warranty that the lessee shall
not be disturbed in his legal, and not physical,
possession. In the case at bar, no action to quiet
title was filed by any of the said claimants against
Pioneer during the time that it occupied the
premises. When Pioneer’s representative saw that a
portion of the leased premises was being fenced by
the claimants, it had all the right to sue the
intruders who had disturbed its physical possession
as provided in Article 1664 of the New Civil Code.
However, Pioneer did not file any suit against the
claimants. Patently, then, Pioneer had not been
disturbed in its legal possession of the property in
derogation of Article 1654 of the New Civil Code.
(Chua Tee Dee vs Court of Appeals, GR No.135721.
May 27, 2004)
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2005 CENTRALIZED BAR OPERATIONS
QUESTION No.2: Orlando obtained a loan from Philippine
Savings bank payable within a period of one year in
quarterly installments of P29,190.28. The said loan was
secured by a real estate mortgage covering Orlando’s
property.
On December 26, 1985, Orlando, as vendor, and
Rogelio as vendee executed a Deed of Sale with
Assumption of Mortgage over the said property. A month
later, Orlando executed a Contract to Sell involving the
same property in favor of Rogelio for P250,000.00. In the
said document, he obliged himself to execute a deed of
absolute sale over the property in favor of Rogelio upon
the full payment of the purchase price thereof. The
contract futher obliged Rogelio to pay the said amount to
PSB as part of the purchase price.
Rogelio paid the first, second and third quarterly
installments in Orlando’s name with PSB. However, on
November 27, 1986, Orlando was notified by PSB that his
loan would mature on December 24 of that year. Fearing
that Rogelio would not be able to pay the last installment,
Orlando was compelled to pay the same. Orlando sent a
notice to Rogelio that he was ready to execute the deed of
absolute sale and turn over the title to the property upon
latter’s remittance of the amount which Orlando paid to
PSB.
On December 24, 1986, Rogelio went to PSB to
pay the last installment and informed the latter that
Orlando had executed a deed of sale with assumption of
mortgage in his favor. PSB however refused to accept the
payment and informed Rogelio that it was not bound by the
said deed.
Rogelio thereafter filed a complaint for specific
performance against Orlando.
a) What is the nature of the contract entered
into between Orlando and Rogelio?
b) What is the effect of Rogelio’s failure in
paying the last installment to PSB?
c) What remedy, if any, is available to Rogelio?
ANSWERS:
a) CONTRACT TO SELL. It bears stressing that Orlando
and Rogelio executed two interrelated contracts,
vis: the Deed of Sale with Assumption of Mortgage
and the Contract to Sell. To determine the intention
of the parties, the two contracts must be read and
interpreted together. Under the two contracts,
Orlando bound and obliged himself to execute a
deed of absolute sale over the property and transfer
title thereon to Rogelio after the payment of the full
purchase price of the property, inclusive of the
quarterly installments due on the petitioner’s loan
with PSB.
Construing the contracts together, it is evident
that the parties executed a contract to sell and not
a contract of sale. It is well established that where
the seller promised to execute a deed of absolute
sale upon completion of payment of the purchase
price by the buyer, the agreement is contract to
sell.
b) In contracts to sell, where ownership is retained by
the seller until the payment of the price in full, such
payment is a positive suspensive condition , failure
of which is not really a breach but an event that
prevents the obligation of the vendor Orlando to
convey title
in accordance with Article 1184 of the Civil Code.
The non-fulfillment by Rogelio of his obligation to
pay, which is a suspensive condition to the obligation
of Orlando to sell and deliver the title to the
property, rendered the contract to sell ineffective
and without force and effect. The parties stand as if
the conditional obligation had never existed.
Article 1191 will not apply because it presupposes an
obligation already extant. There can be no
rescission of an obligation that is still non-existing,
the suspensive condition not having happened.
c) Rogelio may reinstate the contract to sell by paying
the amount paid by Orlando to PSB when the latter
settled the last installment, and Orlando may agree
thereto and accept Rogelio’s late payment. In this
case, Orlando had already decided before and after
Rogelio filed the complaint to accept the payment
and to execute the deed of absolute sale over the
property and cause the transfer of the title of the
subject property to Rogelio. (Rayos vs Court of
Appeals, GR No. 135528, July 14, 2004)
Partnership, Agency and Trusts
QUESTION No.1: The heirs of Tecson and Eleosida are the
owners of a parcel of land covered by TCT Nos. T-36766
and T-36745 respectively. The abovementioned owners
are represented by Mary.
On one occasion, Mary met Antonio and Aurelio
who offered to purchase the property, of which the former
agreed. Antonio and Aurelio thereafter demanded that a
deed of absolute sale be executed by Mary pursuant to
their verbal agreement. When the said demand reached
Mary, she sent a letter to Antonio and Aurelio informing
them that she is no longer selling the property as she was
encountering problems with the tenants thereon.
Antonio and Aurelio subsequently filed a complaint
for specific performance with damages against Mary and
the registered owners of the parcels of land grounded on
the alleged perfected contract of sale as evidenced by the
letter sent to them by Mary.
a) Was there a perfected contract of sale?
b) Was the letter sent by Grace a sufficient note
or memorandum of the perfected contract to remove the
same from the coverage of the statute of frauds?
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ANSWERS:
a) NO. There is no documentary evidence that the
respondent-owners authorized respondent Mary to
sell their properties to another. Article 1878 of the
New Civil Code provides that a special power of
attorney is necessary to enter into a contract by
which the ownership of an immovable is transmitted
or acquired either gratuitously or for a valuable
consideration, or to create or convey real rights over
immovable property, or for any other act of strict
dominion. Any sale of real property by one
purporting to be the agent of the registered owner
35 from the
without any authority therefore in writing
said owner is null and void. He declarations of the
agent alone are generally insufficient to establish
the fact or extent of her authority.

b) NO. Contrary to Antonio and Aurelio’s contention,
the letter sent by Grace is not a note or
memorandum within the context of Article 1403 (2)
of the New Civil Code because it does not contain
the following: (a) all the essential terms and
conditions of the sale of the properties; (b) an
accurate description of the property subject of the
sale; and (c) the names of the respondents-owners
of the properties. (Litonjua vs Fernandez, GR
No.148116. April 14, 2004)
Credit transactions
QUESTION No.1: The spouses Serrano obtained a loan from
GSIS secured by a real estate mortgage upon a house and
lot owned by the former.
The spouses Serrano executed on June 3, 1969 a
deed of absolute sale with partial assumption of mortgage
over the property in favor of the spouses Geli who
immediately took possession of the same. The spouses Geli
failed to settle their obligation. As a consequence of
which, GSIS filed a complaint for the rescission of the
deed of absolute sale with partial assumption of mortgage.
The court thereafter ordered the rescission of the said
deed.
The spouses Geli elevated the case to the Court of
Appeals. During the pendency of the appeal, GSIS
foreclosed the real estate mortgage over the property.
During the auction sale, the property was awarded to GSIS
as the highest bidder and a certificate of sale was issued to
it on August 30, 1986. Unknown to both the spouses
Serrano and the Court of Appeals, the spouses Geli paid the
redemption price on October 30, 1987 and a certificate of
redemption was executed by GSIS in their favor. The Court
of Appeals however dismissed the appeal and the same
became final and executory.
(optional) The spouses Geli thereafter filed a
SAN BEDA COLLEGE OF
petition for certiorari praying for the nullification of the
order of the trial court. They alleged that when they paid
the redemption price to the GSIS, their appeal of the
decision of the lower court was still pending before the CA.
Consequently, under the terms of the deed of absolute sale
with assumption of mortgage which was still standing at
that time, they were ipso facto subrogated to the rights of
the spouses Serrano as mortgagors of the property; hence,
they became owners of the property and were entitled to
the possession thereof.
Did the act of the spouses Geli in redeeming the
property and of GSIS in executing the certificate of
redemption in favor of the former operated to vest in them
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the ownership over the same?
ANSWER: NO. Before the lapse of the one year period, the
mortgagor-debtor remains the owner of the property. The
right acquired by the purchaser at public auction is merely
inchoate until the period of redemption has expired without
the right being exercised by the redemptioner. Such right
becomes absolute only after the expiration of the
redemption period without the right of redemption having
been exercised.
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CIVIL LAW
In this case, there is no showing that that the
sheriff’s certificate of sale in favor of the GSIS has been
registered in the Office of the register of Deed and if so,
when it was in fact registered in the said office. It cannot
thus be argued that when the spouses Geli paid the
redemption price in full payment of the account of the
spouses Serrano, the one year period to redeem the property
had by then lapsed. Hence, the spouses Serrano remained
the owners of the property. The GSIS never acquired title
over the property and could not have conveyed and
transferred ownership over the same when it executed the
certificate of redemption to and in the name of the spouses
Serrano. (Serrano vs Court of Appeals, GR No. 133883,
December 10, 2003)
QUESTION No.2: Franklin was asked by his friend Angeles
to help Arturo in incorporating his business by depositing a
certain amount of money in the bank account of Sterela
Marketing. Angeles assured Vives that he could withdraw
the said amount from the same account in a months time.
Relying on the aforementioned assurances and
representations, Franklin issued a check in the amount of
P200,000.00 in favor of Sterela Marketing.
Franklin thereafter went to Producer’s Bank to
verify if his money was still intact. He was however
informed that part of the money in the account had been
withdrawn by Arturo and that the remaining P90,000.00
could not be withdrawn since it had to answer for some
postdated checks issued by Arturo.
Arturo issued a postdated check in the amount of
P212,000.00 in favor of Franklin which was however
dishonored upon presentment. As a consequence of
which, Franklin filed an action for recovery of sum of
money.
a) Was the transaction between Franklin and
Arturo one of loan or commodatum?
b) Can a consumable thing be a subject of
commodatum?
ANSWER:
a) COMMODATUM. Franklin agreed to deposit his
money in the savings account of Sterela specifically
for the purpose of making it appear that the same
had sufficient capitalization for incorporation, with
the promise that the amount shall be returned
within thirty days. Franklin merely accommodated
Arturo by lending his money without consideration as
favor to his good friend Angeles. It was however
clear to the parties that the money will not be
removed from Sterela’s savings accountand would be
returned to Franklin after thirty days.
Arturo’s attemps to return to Franklin the
amount of P200,000.00 together with an additional
P12,000.00, allegedly representing interest on the
mutuum, did not convert the transaction from the
commodatum into a mutuum because such was not
the intent of the parties and because the additional
P12,000.00 corresponds to the fruits of the lending
of the P200,000.00. Article 1935 of the Civil Code
expressly states that “the bailee in commodatum
acquires the use if the thing loaned but not the
fruits. As such, it was only proper for Arturo to
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2005 CENTRALIZED BAR OPERATIONS
remit to Franklin the interest accruing to the latter’s
money deposited with Producer’s Bank.
b) YES. There are some instances where a
commodatum may have for its object a consumable
thing. Article 1936 of the New Civil Code provides
that “Consummable goods may be the subject of
commodatum if the purpose of the contract is not
the consumption of the object, as when it is merely
for distribution.” Thus, if 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 of
the Philippines vs CA, GR No.115324, February 19,
2003)
QUESTION No.3: Superlines Transportation Co. decided to
acquire five new buses from Diamond Motors. ICC Leasing
agreed to finance the purchase of the said buses in the
amount of P13 Million via a loan upon the condition that
the buses shall be used as security for the loan. Superlines
however defaulted in the payment of its obligation to ICC.
As a consequence of which, ICC extrajudicially foreclosed
the chattel mortgage. During the auction sale, ICC
offered a bid of P7 Million for the motor vehicles and was
declared the winning bidder, resulting in the deficiency of
P6 Million from the total amount of the loan.
a) Is Article 1484 (3) of the Civil Code applicable in
the present case?
b) Is Superlines still liable for the P6 Million
deficiency?
ANSWERS:
a) NO. Article 1484 (3) of the New Civil Code is
inapplicable to the instant transaction between the
parties. It was Diamond Motors and not ICC which
sold the subject buses to Superlines. No evidence
had been presented by Superlines to show that ICC
bought the said buses from Diamond Motors
Corporation under a special arrangement and that
ICC sold the buses to Superlines. Article 1484 (3) is
applicable only where there is vendor-vendee
relationship between the parties and since ICC did
not sell the buses to Superlines, the latter cannot
invoke the said law.
b) YES. Applying the Chattel Mortgage Law, it is
settled that if in an extra-judicial foreclosure of a
chattel mortgage a deficiency exists, an
independent civil action may be instituted for the
recovery of the said deficiency. To deny the
mortgagee the right to maintain an action to
recover the deficiency after foreclosure of the
chattel mortgage would be to overlook the fact that
the chattel mortgage is only given as security and
not as payment for the debt in case of failure of
payment. Both the Chattel Mortgage Law and Act
3135 governing extra-judicial foreclosure of real
estate mortgage, do not contain any provision,
expressly or impliedly, precluding the mortgagee
from recovering deficiency of the principal
obligation. (Superlines Transportation Company vs
ICC Leasing and Financing Corporation, GR No.
150673, February 28, 2003)
Torts and Damages
QUESTION No.1: Errol was found guilty beyond reasonable
doubt by the RTC of Romblon for the murder, qualified by
abuse of superior strength, of Alejandro. The court
sentenced him to suffer the penalty of reclusion perpetua
and ordered him to pay the heirs of Alejandro the
following: a) P50,000.00 as civil indemnity; b) actual
damages based on the testimony that the heirs incurred
burial and other expenses as a consequence of Alejandro’s
death; and c) P25,000.00 as exemplary damages.
a) Was the court correct in awarding
P50,000.00 as civil indemnity?
b) Was the court correct in awarding actual
damages?
c) Was the court correct in awarding exemplary
damages?
ANSWERS:
a) YES. Conformably to recent jurisprudence, the
amount of P50,000.00 for civil indemnity should be
sustained. Artcile 2206 of the Civil Code provides
that when death occurs as a result of a crime, the
heirs of the deceased are entitled to be indemnified
without need of any proof thereof.
b) NO. While there was testimony that the heirs
incurred burial and other expenses resulting from
the death of Alejandro, no competent evidence was
presented to prove his claim. Under Artile 2199 of
the Civil Code, a party is entitled to compensation
only for such pecuniary loss suffered by him as he
has duly proved. Only substantiated an proven
expenses, or those that appear to have been
genuinely incurred in connection with the death ,
wake or burial of the victim will be recognized.
However, under Article 2224 of the same
Code, temperate 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 proved with certainty. In the present
case, the heirs of Alejandro clearly incurred funeral
and burial expenses. Hence, the award of
temperate damages is justified.
c) YES. Given the attendance of the qualifying
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circumstance of abuse of superior strength, the
award of exemplary damages in the amount of
P25,000.00 to the heirs of the victim in accordance
with Article 2230 of the Civil Code, is in order.
(People vs Lachica, GR No.131915. September 3,
2003)
QUESTION No.2: Zamboanga Development Corporation
(ZDC) obtained from United Coconut Planters Bank (UCPB)
in which the spouses Teofilo Ramos, Sr. and Amelita Ramos
acted as sureties. Teofilo Sr. was the Executive Officer of
the Iglesia ni Cristo. For failure of ZDC to settle its
obligation, UCPB filed a complaint (Civil Case 16453) for a
35
sum of money against it and the sureties. Judgment was
rendered in favor of UCPB. A writ of execution was
thereafter issued which contained the name Teofilo
Ramos.

In the process of implementing the above writ,
UCPB was informed by one of its appraisers that they have
located a house and lot covered by TCT 275167 owned by
Teofilo C. Ramos, President and Chairman of the Borad of
Directors of the Ramdustrial Corporation, and married to
Rebecca Ramos.
Meanwhile, Ramdustrial Corp. who was in need of
money to participate in a bidding project of San Miguel
Corporation, applied for a loan with UCPB using the house
and lot owned by Teofilo C. Ramos as collateral therefore.
Much to their surprise, they were informed by UCPB that it
had to hold in abeyance any action on its loan application
because a notice of levy was annotated on the title of the
property belonging to Teofilo C. Ramos. As a consequence
of which, Teofilo C. Ramos has to rush to the hospital due
to hypertension problems and Ramdustrial Corporation
forfeited its chances to participate in the bidding. Teofilo
C. Ramos thereafter filed a complaint praying that
judgment be rendered ordering UCPB to pay moral and
exemplary damages on account of its negligence.
a) Was UCPB negligent?
b) Is the award of moral damages proper?
c) Is the award of exemplary damages proper?
ANSWERS:
a) YES. In determining whether or not the petitioner
acted negligently, the constant test is: “Did the
defendant in doing the negligent act use that
reasonable care and caution which an ordinary
prudent person would have used in the same
situation? If not, then he is guilty of negligence.”
UCPB has access to more facilities in
confirming the identity of their judgment debtors. It
should have acted more cautiously, especially since
some uncertainty had been reported by the
appraiser whom it had tasked to make verifications.
It appears that UCPB treated the uncertainty as a
flimsy matter. It placed more importance on the
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information regarding the marketability and market
value of the property, utterly disregarding the
identity of the registered owner thereof.
Furthermore, the name of the judgment
debtor in Civil Case 16453 was Teofilo Ramos, Sr..
The name of the owner of the property covered by
TCT 275167 was Teofilo C. Ramos. It behoved upon
UCPB to ascertain whether Teofilo Ramos Sr. in Civil
Case 16453 was the same person who appeared as
the owner of the property covered by the said title.
If the petitioner had done so, it should have surely
discovered that the respondent was not the surety
and the judgment debtor in Civil Case 16453. UCPB
LAW
failed to do so, and merely assumed that the
respondent and the judgment debtor Teofilo Ramos
Sr. were one and the same person.
b) YES. For the award of moral damages to be granted,
the following must exist: (1) there must be an injury
clearly sustained by the claimant, whether physical,
mental, or psychological; (2) there must be a
culpable act or omission factually established; (3)
the wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the
claimant; and (4) the award for damages is
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predicated on any of the cases stated in Article 2219
of the Civil Code.
In the case at bar, all the four requisites
are present. First, Teofilo C. Ramos sustained
injuries in that his physical health and cardio-
vascular ailment were aggravated; his fear that his
one and only property would be foreclosed, hounded
him endlessly; and his reputation as mortgagor has
been tarnished. Second, the annotation of the
notice of levy on the TCT of Teofilo C. Ramos was
wrongful, arising as it did from UCPB’s negligent act
of allowing the levy without verifying the identity of
its judgment debtor. Third, such wrongful levy was
the proximate cause of Teofilo’s misery. Fourth, the
award for damages is predicated on article 2219 of
the Civil Code, particularly No. 10 thereof (Acts and
actions referred to in Article 21, 26, 27, 28, 29, 30,
32, 34, and 35).
c) NO. Teofilo C. Ramos failed to show that UCPB
acted with malice and bad faith. It is a requisite in
the grant of exemplary damages that the act of the
offender must be accompanied by bad faith or done
in wanton, fraudulent, or malevolent manner.
QUESTION No. 3: The RTC of Malolos, Bulacan, convicted
Trinidad, Sampaga, and Corona of murder and was
sentenced accordingly. As to the civil liability of the
accused, the trial court awarded, among others, the sum of
P500,000 for loss of earning capacity of the victim based
solely on the testimony of Josephine, the victim’s
daughter.
Was the award proper?
Answer: No. The award of P500,000 to the heirs of the
victim for the latter’s unearned income is barren of factual
basis. The prosecution was mandated to adduce documentary
evidence to prove the same. The bare testimony of Josephine
is not sufficient basis for the award.
Compensation for lost income is in the nature of
damages, and requires adequate proof thereof. For loss of
income due to death, there must be unbiased proof of the
deceased’s average income as well as proof of average
expenses. The award for lost income refers to the net income
of the deceased; that is the total income less average
expenses. No proof of the victim’s average expenses was
adduced in evidence; as such, there can be no reliable
estimate of lost earnings. Indeed, the award of the trial court
was based merely on speculation and surmises. (People vs.
Sampaga, GR No. 139823, March 12, 2004)
Land Titles and Deeds
QUESTION No.1: Angel filed a petition for registration of a
parcel of land on June 22, 1994 claiming that he has been
in actual, open, continuous and notorious possession, in
the concept of an owner over the same. It appears that he
likewise filed a foreshore lease application over the same
land in 1977. During the trial, the court ordered the LRA
and the CENRO to file with it a report on the status of the
subject land. The court thereafter rendered a decision on
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May 3 1995 granting the petition. The said decision
became final and executory.
The Office of the Solicitor general subsequently
filed a petition for annulment of the above judgment on
the ground that based on the report of the LRA which was
received by it on June 22, 1995, the land applied for is
foreshore land.
a) What is the nature and classification of
foreshore land?
b) Will the action of the Republic through the
OSG prosper?
ANSWERS:
a) NO. Foreshore land is that strip of land that lies
between the high and low water marks and is
alternatively wet and dry to the flow of the tide. It
is that part of the land adjacent to the sea, which is
alternatively covered and left dry by the ordinary
flow of tides. It is part of the alienable land of the
public domain and may be disposed of only by lease
and not otherwise. Foreshore land remains part of
the public domain and is outside the commerce of
man. It is not capable of private appropriation.
b) YES. Even if the decision of the RTC has become
final and executory, the action for annulment of
judgment should be sustained since it is impressed
with public interest. The State has to protect its
interests and cannot be bound by, or estopped from,
the mistakes or negligent acts of its officials or
agents, mush more, non-suited as a result thereof.
Furthermore, Angel had in fact filed a
foreshore lease application in 1977 and paid the
corresponding fees thereon. There is therefore
doubt to Angel’s claim that he had been in actual,
open, notorious, and continuous possession in the
concept of an owner.(Republic vs Court of Appeals,
GR No. 126316, June 25, 2004)
QUESTION No.2: On December 27, 1976, Francisco filed a
petition for registration of the three parcels of land. He
alleged therein that there were hardly any big trees in the
subject property and that he and his predecessors-in-
interest even planted bananas, cassava, coconut trees and
camotes on the same. He further alleged that he had been
in actual, open, notorious and continuous possession of the
property in the concept of owner.
The application was opposed by the Director of
Lands on the ground that the subject property was forest
land and was only reclassified as alienable and disposable
only on April 16, 1973.
a) Should the petition for registration be
granted?
b) Is the absence of big trees conclusive as
regards to the classification of a parcel of land
as not belonging to forest land?
ANSWERS:
a) NO. Under Section 6 of Commonwealth Act No.141,
the classification and reclassification of public lands
into alienable or disposable, mineral or forest land
is the prerogative of the Executive Department.
The rule on the confirmation of imperfect title does
not apply unless and until the land classified as
forest land is released in an official proclamation to
that effect so that it may form part of the
disposable
agricultural lands of the public domain. Francisco
failed to adduce in evidence any certification from
the Bureau of Lands or the Bureau of Forestry to the
effect that the property is alienable or disposable.
Furthermore, since the property was reclassified as
alienable and disposable only on April 16, 1973 and
Francisco filed his application only on December 27,
1976, he irrefragably failed to prove his possession
of the property for the requisite thirty (30)-year
period.
b) NO. A forested area classified as forest land of the
public domain does not lose such classification
simply because loggers or settlers may have
stripped it of its forest cover. Parcels of land
classified as forest land may actually be covered
with grass or planted to crops by Kaingin cultivators
or other farmers. “Forest Lands” do not have to be
in the mountains or in out of the way places.
Swampy areas covered by mangrove trees, nipa
palms and other trees growing in brackish or sea
water may also be classified as forest land. The
classification is descriptive of its legal nature or
status and does not have to be descriptive of what
the land actually looks like. (Zarate vs Director of
Lands, GR No. 131501, July 14, 2004)
QUESTION No.3: The spouses Zulueta obtained from GSIS
various loans secured by real estate mortgages over parcels
of land. The spouses Zulueta failed to pay their loans
which prompted GSIS to foreclose the real estate
mortgages. During the auction sale, some of the
mortgaged properties were awarded to GSIS. However,
some lots which were covered by the mortgaged titles
were expressly excluded from the auction since those that
were sold were sufficient to pay for all the mortgage debts.
This notwithstanding, GSIS included the excluded lots
when it executed on November 25, 1975 an Affidavit of
Consolidation of Ownership on the basis of which,
certificates of title over the same were issued in the name
of GSIS.
Zulueta thereafter transferred his rights over the
excluded lots to Eduardo in 1989 who consequently
demanded from GSIS the return of the said excluded lots.
Eduardo then filed on May 7, 1990 a complaint for
reconveyance of real estate against the GSIS.
a) Can GSIS legally claim ownership over the
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excluded properties on the basis of the
certificates of title over the same which were
issued in its name?
b) Has the action for reconveyance prescribed?
ANSWERS:
a) NO. Even if titles over the lots had been issued in
the name of the GSIS, still it could not legally claim
ownership and absolute dominion over them because
indefeasibility of title under the Torrens system does
not attach to titles secured by fraud or
misrepresentation. The fraud committed by GSIS in
the form of concealment of the existence of said lots
and failure to return the same to the35real owners
after their exclusion from the foreclosure sale made
GSIS holders in bad faith. It is well settled that a
holder in bad faith of a certificate of title is not

entitled to the protection of the law for the law
cannot be used as a shield for fraud.
b) NO. Article 1456 of the Civil Code provides: If the
property is acquired through mistake or fraud, the
person obtaining it is, by force of law, considered a
trustee of an implied trust for the benefit of the
person from whom the property comes. An action
for reconveyance based on implied or constructive
trust prescribes in ten years from the alleged
fraudulent registration or date of issuance of the
certificate of title over the property.
The general rule that the discovery of fraud
is deemed to have taken place upon the registration
of real property because it is “considered a
constructive notice to all persons” does not apply in
this case. The case in point is Samonte vs Court of
Appeals where the Supreme Court reckoned the
prescriptive period for the filing of the action based
on implied trust from the actual discovery of the
fraud. Santiago came know of GSIS’ fraudulent acts
only in 1989 and the complaint was filed in 1990.
Following the Court’s pronouncement in Samonte,
the institution of the action for reconveyance was
thus well within the prescriptive period. (GSIS vs
Santiago, GR No. 155206, October 28, 2003)
QUESTION No. 4: In August 1950, the Republic of the
Philippines filed an application with the cadastral court
claiming ownership over certain properties which covered
Lot 4329. Guillermo filed an answer claiming therein a
right over Lot 4329. Guillermo died during the pendency
of the case.
Gregorio, who claimed to be the only son of
Guillermo, substituted the latter, and to him, Lot 4329 was
adjudicated by the court. The decision became final and
executory. On July 8, 1985, OCT No. 0-6,151 was issued
in the name of Gregorio.
Sometime thereafter, the brothers and sisters of
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Guillermo filed a complaint for recovery of possession with
damages against Gregorio, alleging that Guillermo died
single and without issue and that Gregorio obtained title to
the property through fraud deceit and gross
misrepresentation. They prayed that Gregorio’s title be
cancelled and the property be reconveyed to them. After
the trial, the court declared that Gregorio has not
sufficiently proved that he is the son of Guillermo but
ruled that he has the right of possession of the disputed
property.
Is Gregorio entitled to the possession of the
disputed property?
LAW
ANSWER: YES. Gregorio was able to obtain a title in his
name over the questioned property after the cadastral
proceedings instituted by the Republic. This Torrens title is
now a conclusive evidence of his ownership of the subject
land. After the expiration of the one-year period from the
issuance of the decree of registration, the said certificate of
title became incontrovertible. In fine, whether or not his
title was obtained fraudulently is beyond the competence of
the Supreme Court to determine. The issue should have been
raised during the proceeding before the cadastral court. A
Torrens title cannot be collaterally attacked, the issue on the
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CIVIL LAW
validity of title, i.e. whether or not it was fraudulently issued
can only be raised in an action expressly instituted for that
purpose. The prayer for the cancellation of Gregorio’s title
and the reconveyance of the same to brothers and sisters of
Guillermo is legally impossible. To sustain the said action
would be inconsistent with the rule that the act of
registration is the operative act that conveys a parcel of land
to its registered owner under the Torrens system.
What we are emphasizing is that, although Gregorio
has not sufficiently proved his filiation to the late Guillermo,
the fact that he has a legal title over the subject land
entitles him to possession thereof, pending the final
determination of the validity of the title issued to him in an
appropriate proceeding.
DOCTRINES OF SELECTED LANDMARK CASES IN CIVIL LAW
Persons and Family Relations
WAIVER OF RIGHTS
A stipulation requiring the recipient of a
scholarship grant to waive his right to transfer to another
school, unless he refunds the equivalent of his scholarship
in cash is null and void. The school concerned obviously
understands scholarship awards as a business scheme
designed to increase the business potential of an
educational institution. Thus, conceived, it is not only
inconsistent with sound policy, but also with good morals.
(Cui vs. Arellano University)
ACTS CONTRA BONUS MORES
Applying Art. 21, the Supreme Court ruled that a
married man had seduced a girl through an ingenious and
tricky scheme, i.e. on the pretext of teaching her how to
pray the rosary, to the extent of making her fall in love
with him. Verily, he has committed an injury to the girl’s
family in a manner contrary to morals, good customs and
public policy. (Pe vs Pe)
However, the Supreme Court denied the award of
moral damages based on the fact that for one year, from
1958-1959, the plaintiff, a woman of adult age, maintained
intimate sexual relations with defendant, with repeated
acts of intercourse. Such conduct is incompatible with the
idea of seduction. Plainly, there is here voluntariness and
mutual passion; for had the plaintiff been deceived, had
she surrendered exclusively because of the deceit, artful
persuasions and wiles of defendant, she would not have
again yielded to his embraces, much less for one year
without exacting early fulfillment of the alleged promises
of marriage and would have cut short all sexual relations
upon finding that defendant did not intend to fulfill his
promises. Hence, no case is made under Art. 21 of Civil
Code. (Tanjanco vs CA)
While a breach of promise to marry is not actionable,
it has been held that to formally set a wedding and go
through and spend for all the wedding preparation and
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2005 CENTRALIZED BAR OPERATIONS
publicity, only to walk out of it when the matrimony was
about to be solemnized is a different matter. This palpably
and unjustifiably contrary to good customs for which the
defendant must be held answerable for damages in
accordance with Art. 21 of the Civil Code. (Wassmer vs.
Velez)
The obligation of cohabitation of husband and wife is
not enforceable by contempt proceedings. In private
relations, physical coercion is barred under the the old
maxim – “Nemo potest preciso cogi ad factum.” However,
the refusal of the wife to perform her wifely duties, her
denial of consortium and her desertion of her husband
would certainly constitute a willful infliction of injury upon
her husband’s feelings in a manner which is contrary to
morals, good customs and public policy for which Arts. 21
and 2210 (10) of the CC authorize an award for moral
damages. (Tenchavez vs. Escano)
NATIONALITY
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, 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, which may be recognized in the Philippines, provided
they are valid according to their national law.
Hence, an American National who had divorced a
Filipina wife cannot justifiably maintain that under our laws,
the Filipina, despite the divorce, has to be considered still
married to him and still subject to a wife’s obligation. A
Filipina should not be discriminated against in her own
country if the ends of justice are to be served. She should not
be obliged to live with him, to support him, or to observed
respect and fidelity to the ex-husband, and the latter should
not continue to be one of her heirs with possible write to
conjugal properties. (Van Dorn vs. Romillo, L-68470, Oct. 8,
1985)
The decree of divorce obtained by a German
national and its legal effects may be recognized in the
Philippines insofar as the foreigner is concerned in view of
the nationality principle in our civil law on the matter of
status of persons. The said German national can no longer be
considered as the offended party in case his former wife
actually has carnal knowledge with another, because in
divorcing her, he already implicitly authorized the woman to
have sexual relations with others. (Pilapil vs. Ibay-Somera,
GRN 80116, June 30, 1980)
PREJUDICIAL QUESTION
A prejudicial question is one which arises in a case
the resolution of which is a logical antecedent of the issue
involved therein. It must appear not only that the civil case
involves facts upon which the criminal action is based, but
also that the resolution of the issues raised in the civil action
would necessarily be determinative of the criminal case.
Rules of Court, Rule 111, Sec. 5. Elements of prejudicial
question. - The two (2) essential elements of a prejudicial
question are: (a) the civil action involves an issue similar or
intimately related to the issue raised in the criminal action;
and (b) the resolution of such issue determines whether or
not the criminal
action may proceed.
He who contracts a second marriage before the
judicial declaration of nullity of the first marriage assumes
the risk of being prosecuted for bigamy, and in such a case
the criminal case may not be suspended on the ground of the
pendency of a civil case for declaration of nullity. Otherwise,
all that an adventurous bigamist has to do is to disregard
Article 40 of the Family Code, contract a subsequent
marriage and escape a bigamy charge by simply claiming that
the first marriage is void and that the subsequent marriage is
equally void for lack of a prior judicial declaration of nullity
of the first. A party may even enter into a marriage aware of
the absence of a requisite - usually the marriage license - and
thereafter contract a subsequent marriage without obtaining
a declaration of nullity of the first on the assumption that the
first marriage is void. Such scenario would render nugatory
the provisions on bigamy. (Bobis vs. Bobis, GRN 138509, July
31, 2000)
JURIDICAL PERSONALITY
The Roman Catholic Church is a corporation by
prescription, with acknowledged juridical personality,
inasmuch as it is an institution which antedated, by almost
a thousand years, any other personality in Europe, and
which existed when Grecian eloquence still flourished in
Antioch and when idols where still worshipped in the
temple of Mecca. (Barlin vs. Ramirez)
The estate of a deceased person should be
considered an artificial or juridical person for the purposes
of the settlement and distribution of his estate which, of
course, include the exercise during the judicial
administration thereof of those rights and the fulfillment of
those obligations of his which survived after his death.
(Limjoco vs. Intestate Estate of Pedro Fragrante)
Parents of an unborn fetus cannot sue damages on
its behalf. A husband of a woman who voluntarily procured
her abortion could not recover damages from the physician
who caused the same. Since an action for pecuniary damages
on account of personal injury or death pertains primarily to
the injured, no such right of action could derivatively accrue
to the parents or heirs of an unborn child. In fact, even if the
cause of action did accrue on behalf of the unborn child, the
same was extinguished by its pre-natal death, since no
RED NOTES IN CIVIL LAW
transmission can take place from one that lacked juridical
personality. It is no answer to invoke the provisional
personality of a conceived child under Article 40 of the Civil
Code because the same Article expressly limits such
provisional personality by imposing the condition that the
child should be subsequently born alive.
This is not to say that the parents are not entitled to
collect any damages at all. But such damages must be those
inflicted directly upon them, as distinguished from the injury
or violation of the rights of the deceased, his right to life and
physical integrity. Because the parents can not expect either
help, support or services from an unborn child, they would
normally be limited to moral damages for the illegal arrest of
the normal development of the spes hominis 35 that was the
foetus, i.e., on account of distress and anguish attendant to
its loss, and the disappointment of their parental
expectations (Civil Code, Art. 2217), as well as to exemplary

damages, if the circumstances should warrant them (Art.
2230). (Geluz vs. Court of Appeals, 2 SCRA 801)
CIVIL PERSONALITY
Even if the spouse present has a well-founded belief
that the absent spouse was already dead, a summary
proceeding for the declaration of presumptive death is
necessary in order to contract a subsequent marriage, a
mandatory requirement which has been precisely
incorporated into the Family Code to discourage subsequent
marriages where it is not proven that the previous marriage
has been dissolved or a missing spouse is factually or
presumptively dead, in accordance with pertinent provisions
of law. (Navarro vs. Domagtoy, GRN MTJ-96-1088, July 19,
1996)
The fact that the Judge who solemnized the
marriage did not sign the marriage contracts or certificates of
those marriages he solemnized without a marriage license,
there were no dates placed in the marriage contracts to show
when they were solemnized; the contracting parties were not
furnished their marriage contracts and the Local Civil
Registrar was not being sent any copy of the marriage
contract, will not absolve him from liability. By solemnizing
alone a marriage without a marriage license he as the
solemnizing officer is the one responsible for the irregularity
in not complying with the formal requisites of marriage and
under Article 4(3) of the Family Code of the Philippines, he
shall be civilly, criminally and administratively liable. (Cosca
vs. Judge Palaypayon, 55 SCAD 759)
DOMICILE AND RESIDENCE
Domicile In Article 50 of the NCC was construed in
Ong vs Republic as an individual’s “permanent home”; a
place to which whenever absent for business or pleasure, one
intends to return and depends on facts and circumstances in
SAN BEDA COLLEGE OF
the sense that they disclose intent. Domicile includes the
twin elements of the “fact of residing” and the animus
manendi.
Residence implies the factual relationship of an
individual to a certain place. The essential distinction
between residence and domicile in law is that the former
involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place
for purposes such as pleasure, business or health. If a
person’s intent be to remain, it becomes his domicile. It is
thus normal for an individual to have different residences in
various places. However, a person can only have a single
domicile unless he successfully abandons his domicile in favor
LAW
of another domicile of choice. (Romualdez-Marcos vs.
Commission on Elections, 248 SCRA 300)
REQUISITES OF MARRIAGE
A marriage under a license is not invalidated by the
fact that the license was wrongfully or fraudulently obtained
without prejudice to the prosecution of the parties and the
solemnizing officer does not have to investigate whether or
not the license has been properly issued. (People vs. Belen)
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The absence of any formal requisites of marriage
shall generally render the marriage void ab initio; and while
an irregularity in the formal requisites shall not affect the
validity of the marriage, the party responsible for their
irregularity shall be civilly, criminally, administratively liable.
(Cosca vs. Judge Palaypayon, 55 SCAD 759)
In order to classify a marriage in articulo mortis, the
law does not require that the party who is at point of death
must die immediately after the celebration of the marriage.
All that is necessary is that the parties, including the person
solemnizing the marriage must be convinced that there was
imminent danger of death (Loria vs. Felix, GRN L-9005, June
20, 1958)
VOID AND VOIDABLE MARRIAGES
The senseless and protracted refusal of one of the
parties of sexual cooperation for the procreation of children
is equivalent to psychological incapacity. Absence of finding
as to the one who refused to have sex is immaterial because
the action to declare a marriage void may be filed by either
party, even the psychologically incapacitated one. (Chi Ming
Tsoi vs. Court of Appeals, 266 SCRA 324)
Working on the assumption that Pepito and Norma
have lived together as husband and wife for five years
without the benefit of marriage, that five-year period should
be computed on the basis of a cohabitation as "husband and
wife" where the only missing factor is the special contract of
marriage to validate the union.
In other words, the five-year common-law
cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had
it not been for the absence of the marriage. This 5-year
period should be the years immediately before the day of the
marriage and it should be a period of cohabitation
characterized by exclusivity – meaning no third party was
involved at any time within the 5 years and continuity – that
is unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction as to
whether the parties were capacitated to marry each other
during the entire five years, then the law would be
sanctioning immorality and encouraging parties to have
common law relationships and placing them on the same
footing with those who lived faithfully with their spouse.
(Ninal vs. Bayadog, GR No. 133778, March 14, 2000)
For Article 34 of the Family Code on legal
ratification of marital cohabitation to apply, the following
requisites must concur:
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
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2005 CENTRALIZED BAR OPERATIONS
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
(Manzano vs. Sanchez G.R. No. MTJ-00-1329,
March 08, 2001)
Under the Family Code, there must be a judicial
declaration of the nullity of a previous marriage before a
party thereto can enter into a second marriage. Article 40 of
the Family Code is applicable to remarriages entered into
after the effectivity of the Family Code regardless of the date
of the first marriage. Said Article is given retroactive effect
insofar as it does not prejudice vested or acquired rights in
accordance with the New Civil Code and other laws. (Atienza
vs. Brillantes, 243 SCRA 32)
A distinction should be made between the case of a
woman who was already 3 or 4 months pregnant at the time
of marriage and one who is already 6 or 7 months pregnant.
In the former, concealment is possible and consequently, the
marriage can be annulled by reason of fraud. In the latter
concealment is not possible. According to medical
authorities, even on the 5th month of pregnancy, the
enlargement of a woman's abdomen is still below the
umbilicus, that is to say, the enlargement is limited to the
lower part of the abdomen so that it is hardly noticeable and
may, if noticed, be attributed only to fat formation on the
lower part of the abdomen. It is only on the 6th month of
pregnancy that the enlargement of the woman's abdomen
reaches a height above the umbilicus, making the roundness
of the abdomen more general and apparent. If, as claimed by
plaintiff, defendant is "naturally plump", he could hardly be
expected to know, merely by looking, whether or not she was
pregnant at the time of their marriage, more so because she
must have attempted to conceal the true state of affairs.
(Aquino vs. Delizo, G.R. No. L-15853, July 27, 1960)
LEGAL SEPARATION
An action for legal separation which involves nothing
more than the bed-and board separation of the spouses is
purely personal. Being personal in character, it follows that
the death of one party to the action causes the death of the
action itself. (Lapuz Sy vs. Eufemio, 43 SCRA 177)
The mere circumstance that defendant told the
Fiscal that she "liked also" to be legally separated from her
husband, is no obstacle to the successful prosecution of the
action.
Confession of judgment usually happens when the
defendant appears in court and confesses the right of
plaintiff to judgment or files a pleading expressly agreeing to
the plaintiffs demand. Here there was only an extrajudicial
admission and NOT a confession of judgment. Yet, even
supposing that the above statement of defendant constituted
practically a confession of judgment, inasmuch as there is
evidence of the adultery independently of such statement,
the decree may and should be granted, since it would not be
based on her confession, but upon evidence presented by the
plaintiff. What the law prohibits is a judgment based
exclusively or mainly on defendant's confession. If a
confession defeats the action ipso facto, any defendant who
opposes the
separation will immediately confess judgment, purposely to
prevent the giving of the decree. (Ocampo vs. Florenciano, L-
13553, February 23, 1960)
JUDICIAL OF DECLARATION OF NULLITY
For purposes of remarriage, the only legally
acceptable basis for declaring a previous marriage an
absolute nullity is a final judgment declaring such previous
marriage void, whereas, for purposes other than
remarriage, other evidence is acceptable. (Domingo vs.
CA)
Parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must be
submitted to the judgment of the competent courts and
only when the nullity of the marriage is so declared can it
be held as void, and so long as there is no such declaration,
the presumption is that the marriage exists for all intents
and purposes. Therefore, he who cohabits with a woman
not his wife, before the judicial declaration of nullity of
the marriage, assumes the risk of being prosecuted for
concubinage. (Beltran vs. People, June 20, 2000)
CUSTODY OF MINOR CHILDREN
In all cases involving the custody, care, education
and property of children, the latter's welfare is paramount.
The provision that no mother shall be separated from a child
under seven (7) years of age, will not apply where the Court
finds compelling reasons to rule otherwise. One compelling
reason to separate a child from the mother is when she has a
common-law (or “live-in”) relationship with another man.
Such a scenario will not afford the minor child that desirable
atmosphere where she can grow and develop into an upright
and moral-minded person. In all controversies regarding the
custody of minors, the foremost consideration is the moral,
physical and social welfare of the child concerned, taking
into account the resources and moral as well as social
standing of the contending parents. (Cervantes vs. Fajardo,
GRN 79955, January 27, 1989)
In ascertaining the welfare and best interests of the
child, courts are mandated by the Family Code to take into
RED NOTES IN CIVIL LAW
account all relevant considerations. If a child is under seven
years of age, the law presumes that the mother is the best
custodian. The presumption is strong but it is not conclusive.
It can be overcome by "compelling reasons." If a child is over
seven, his choice is paramount but, again, the court is not
bound by that choice. In its discretion, the court may find the
chosen parent unfit and award custody to the other parent,
or even to a third party as it deems fit under the
circumstances. (Espiritu vs. CA, GRN 115640, March 15, 1995)
PROPERTY RELATIONS
The provisions of the Family Code highlight the
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underlying concern of the law for the conservation of the
conjugal partnership; for the husband’s duty is to protect and
safeguard, if not augment, not to dissipate it. This is the
underlying reason why the Family Code clarifies that the

obligations entered into by one of the souses must be those
that redound to the benefit of the family and that the
measure of the partnership’s liability is to “the extent that
the family is benefited.” In the case at bar, while the
husband is solidarily liable with AIDC, such liability under the
Family Code is restricted by Article 122(1) so that debts fro
which the husband is liable may not be charged against the
conjugal partnership. (Ayala Investment and Development
Corp. vs. CA, 286 SCRA 272)
In donations propter nuptias the marriage is really a
consideration, but not in the sense of being necessary to give
birth to the obligation, which makes the fact that the
marriage did not take place a cause for the revocation of
such donations, thus taking it for granted that there may be a
valid donation propter nuptias even without marriage, since
that which has not existed cannot be revoked. The marriage
in a donation propter nuptias is rather a resolutory condition
which, as such presupposes the existence of the obligation
which may be resolved or revoked, and not a condition
necessary for the birth of the obligation. (Solis vs. Barroso,
GRN 27939, October 30, 1928)
The words in Article 161 of the New Civil Code "all
debts and obligations contracted by the husband for the
benefit of the conjugal partnership "do not require that
actual profit or benefit must accrue to the conjugal
partnership from the husband's transaction," but it suffices
that the transaction should be one that normally would
produce such benefit for the partnership." (G-Tractors vs. CA,
GRN 57402, February 28, 1985)
Under Article 128 of the Family Code, the aggrieved
spouse may petition for judicial separation of property either
on the ground of abandonment without just cause or on the
ground of failure to comply with obligations to the family.
Abandonment implies a departure by one spouse without the
intent to return, followed by prolonged absence without just
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cause, and without, in the meantime, providing in the least
for ones family although able to do so. There must be
absolute cessation of marital relations, duties and rights,
with the intention of perpetual separation. (Pastora-Jo vs.
CA, 216 SCRA 692)
PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
The donation made between parties guilty of
adultery at the time of the donation is void. Article 87 of FC
provides that the prohibition against donations between
spouses now applies to donations between persons living
together husband and wife without a valid marriage, for
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otherwise the condition of those who incurred guilt would run
out to be better than those in the legal union.
The property relation cannot be considered to be
governed by the law on co-ownership for failure of spouse to
prove that she contributed money to the purchase price of
the real property. It should belong to conjugal partnership.
Under article 148 of FC, only the properties acquired
by both of the parties through their actual joint contribution
of money, property, or industry shall be owned by them in
common in proportion to their respective contributions.
Actual contribution is required in Article 148 of FC, in
36
San Beda College of Law
CIVIL LAW
contrast Art 147 of FC, which states that efforts in the care
and maintenance of the family are regarded as contribution
to the acquisition of common property by one who has no
salary or income or work or industry. If actual contribution of
the party is not proved, there will be no co ownership and no
presumption of equal shares. (Agapay vs Palang, 85 SCAD
145)
Under Article 148 of the Family Code, a man and a
woman who are not legally capacitated to marry each other,
but who nonetheless live together conjugally, may be
deemed co-owners of a property acquired during the
cohabitation only upon proof that each made an actual
contribution to its acquisition. Hence, mere cohabitation
without proof of contribution will not result in a co-
ownership. (Tumlos vs. Fernandez, GRN 137650, April 12,
2000)
FAMILY HOME
Under Article 162 of the Family Code, it is provided
that “the provisions of this Chapter shall also govern existing
family residences insofar as said provisions are applicable.” It
does not mean that Articles 152 and 153 of the Family Code
have retroactive effect such that all existing family
residences are deemed to have been constituted as family
homes at the time of their occupation prior to the effectivity
of the Family Code and are exempt from execution for the
payment of obligations incurred before the effectivity of the
Family Code. Article 162 simply means that all existing family
residences at the time of the effectivity of the Family Code,
are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the Family
Code. Article 162 does not state that provisions of chapter 2,
Title V have a retroactive effect. (Manacop vs. Court of
Appeals 277 SCRA 64)
PATERNITY AND FILIATION
Husband died on January 1, 1948. The boy whose
legitimacy is in question was born on June 17, 1943. That boy
is presumed to be the legitimate son of said husband and his
wife, he having been born within three hundred days
following the dissolution of the marriage. That presumption
can only be rebutted by proof that it was physically
impossible for the husband to have had access to his wife
during the first 120 days of the 300 next preceding the birth
of the child. The fact that the wife has committed adultery
cannot overcome this presumption. The fact that the husband
was seriously sick is not sufficient to overcome the
presumption of legitimacy. Just because tuberculosis is
advanced in a man does not necessarily mean that he is
incapable of sexual intercourse. There are cases where
persons suffering from tuberculosis can do the carnal act
even in the most crucial stage of health because then they
seemed to be more inclined to sexual intercourse. (Andal vs.
Macaraig, 89 PHIL 165)
According to Article 167 of the Family Code, the child
shall still be legitimate, although the mother may have
declared against his legitimacy. This law likewise applies to
 CIVIL LAW
2005 CENTRALIZED BAR OPERATIONS
such instances where the mother may have been sentenced
as an adulteress. There are three reasons for this provision:
1. In a fit of anger, or to arouse jealousy in the husband,
the wife may have made this declaration;
2. The child should not be under the mercy of the passion
of the parents. Thus, the husband whose honor has been
offended, being aware of his wife’s adultery, may have
obtained from the latter by means of coercion, a
confession against the legitimacy of the child, which, in
reality, may only be a confession of guilt. Or the wife out
of vengeance or spite, may declare the child as not her
husband’s although the statement is false.
3. Where the woman cohabits during the same period with
two men, nobody can determine who is really the father
of the child
The modern rule is that, in order to overthrow the
presumption of legitimacy, it must be shown beyond
reasonable doubt that there was no access as could have
enabled the husband to be the father of the child. Sexual
intercourse is to be presumed where personal access is not
disproved, unless such presumption is rebutted by evidence
to the contrary; where sexual intercourse is presumed or
proved, the husband must be taken to be the father of the
child. (Macadangdang vs. CA, 100 SCRA 79)
Blood grouping test can establish conclusively that
the man is not the father of the child but not necessarily that
a man is the father of a particular child. It may have some
probative value if the blood type and the combination in the
child is rare. Thus, it is now up to the discretion of the judge
whether to admit the results. (Jao vs. CA, 152 SCRA 359)
PROOF OF FILIATION
To be sufficient recognition, the birth certificate
must be signed by the father and mother jointly, or by the
mother alone if the father refuses, otherwise, she may be
penalized. And if the alleged father did nothing in the birth
certificate, the placing of his name by the mother, or doctor
or registry is incompetent evidence of paternity of the child.
If the birth certificate is not signed by the alleged father, it
cannot be taken as record of birth to prove recognition of the
child, nor can said birth certificate be taken as a recognition
in a public instrument.
While baptismal certificates may be considered
public documents, they are evidence only to prove the
administration of the sacraments on the dates specified, but
not the veracity of the statements or declarations made
therein with respect to the baptized person’s kinsfolk. (Reyes
vs. CA, GRN 39537, March 19, 1985)
“Continuous” does not mean that the concession of
status shall continue forever but only that it shall not be of
intermittent character while it continues. The possession of
such status means that the father has treated the child as his
own, directly and not through others, spontaneously and
without concealment though without publicity. There must
be a showing of the permanent intention of the supposed
father to consider the child as his own, by continuous and
clear manifestation of paternal affection and care. (Mendoza
vs. CA, 201 SCRA 675)
The
paternal affection and care must not be attributed to pure
charity. “Such acts must be of such a nature that they
reveal not only the conviction of paternity, but also the
apparent desire to have and treat the child as such in all
relations in society and in life, not accidentally, but
continuously.” (Jison vs. CA)
The SC in Lim vs. CA, ruled that petitioner was the
father of his illegitimate children because the evidences
convincingly show this. Hence, it was the petitioner who
paid the bills for the hospitalization of the mother when
she gave birth. He was the one who caused the registration
of the name of the child using his surname in the birth
certificate. He also wrote handwritten letters to the
mother and the child stating his promise “to be a loving
and caring husband and father to both of you.” There were
also pictures of the petitioner on various occasions
cuddling the child.
LEGITIMATION
Natural children by legal fiction cannot be
legitimated. Under Article 269, NCC, only natural children
can be legitimated. Children born outside of wedlock of
parents who, at the time of the conception of the former,
were not disqualified by any impediment to marry each
other, are natural children. Since the children were born
when there was a valid subsisting marriage of their father
with another woman, they cannot be natural. Legitimation is
a right granted by law only to natural children who, because
their parents could have legally married at the time they
were conceived, cannot be substantially differentiated from
legitimate children once their parents do marry after their
birth. This is because said parents can marry any time, there
being no legal impediment preventing them from validly
contracting marriage. The situation obtaining respecting
legitimate children and legitimated natural children is
certainly distinct from that respecting adulterous children
because the parents of adulterous children are admittedly
incapacitated to marry each other at the time said children
were conceived. It may easily be said, thus, that to interpret
the law as allowing adulterous children to be put on equal
footing with the legitimate children, would be putting a
premium on adulterous relationships, which is frowned upon
by the society itself. (De Santos vs. Judge Angeles, 66 SCAD
510)
RED NOTES IN CIVIL LAW
ADOPTION
The fact that a dual relationship will result (sister-
brother, by nature; parent and child, by fiction of law) is
immaterial. After all, such double relationship may occur in
other cases, e.g. persons who are already related by blood or
affinity may still marry, as long as the relationship does not
fall under the cases where a marriage is prohibited by law.
(Santos vs. Republic, 21 SCRA 379)
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 San Beda College of Law
CIVIL LAW

If the wife commits adultery, she loses the right to

If an alien adopts a Filipino child, our Civil Code be supported. So if the wife claims support and the husband
cannot confer on the child the nationality of the adopter. sets up adultery as a defense, he should be allowed to
This would be a matter of foreign law. (Chin Leng vs. Galang, introduce preliminary evidence as to why support should not
104 PHIL 1058) be granted. (Mangoma vs. Macadaeg and Bautista, 90 PHIL
508)
Where the petition for adoption was granted after
the child had shot and killed a girl, the SC did not consider
the retroactive effect to the decree of adoption so as to
PARENTAL AUTHORITY
impose a liability upon the adopting parents accruing at
the time when the adopting parents had no actual or
Parental authority and responsibility are inalienable
physical custody over the adopted child. Retroactive effect
may perhaps be given to the granting of the petition for and may not be transferred or renounced except in cases
authorized by law. The right attached to parental authority,
adoption where such is essential to permit the accrual of
some benefit or advantage in favor of the adopted child. being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and
To hold that parental authority had been retroactively
lodged in the adopting parents so as to burden them with surrender to a children's home or an orphan institution. When
liability for a tortious act that they could not have foreseen a parent entrusts the custody of a minor to another, such as a
and which they could have prevented would be unfair and friend or godfather, even in a document, what is given is
merely temporary custody and it does not constitute a
unconscionable. (Tamargo vs. CA 209 S 518)
renunciation of parental authority. Even if a definite
renunciation of parental authority is manifest, the law still
It was months after the effectivity of R.A. No.
disallows the same. The father and mother, being the natural
8552 that herein petitioner filed an action to revoke the
guardians of unemancipated children, are duty-bound and
decree of adoption granted in 1975. By then, the new law,
entitled to keep them in their custody and company. (Sagala-
had already abrogated and repealed the right of an adopter
Eslao vs. CA, 266 SCRA 317)
under the Civil Code and the Family Code to rescind a
decree of adoption. Consistently with its earlier
pronouncements, the Court should now hold that the
action for rescission of the adoption decree, having been
initiated by petitioner after R.A. No. 8552 had come into
force, no longer could be pursued.
It is still noteworthy, however, that an adopter,
while barred from severing the legal ties of adoption, can
always for valid reasons cause the forfeiture of certain
benefits otherwise accruing to an undeserving child. For
instance, upon the grounds recognized by law, an adopter
may deny to an adopted child his legitime and, by a will
and testament, may freely exclude him from having a
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share in the disposable portion of his estate. (Lahom v.

Sibulo, G.R. No. 143989, July 14, 2003)

SUPPORT

The wife, who is forced to leave the conjugal abode

by her husband without fault on her part, may maintain an
action against the husband for separate maintenance when
she has no other remedy notwithstanding the provisions of
Article 149 of the Civil Code giving the person who is obliged
to furnish support the option to satisfy it either by paying a
fixed pension or by receiving and maintaining in his own
home the one having the right to the same. Article 152 of the
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Civil Code gives the instances when the obligation to give

support shall cease. The failure of the wife to live with her
husband is not one of them. A husband cannot, by his own
wrongful act, relieve himself from the duty to support his
wife imposed by law; and where a husband by wrongful,
illegal and unbearable conduct, drives his wife from the
domicile fixed by him, he cannot take advantage of her
departure to abrogate the law applicable to the marital
relations and repudiate his duties thereunder. (Goitia vs.
Campos Rueda)

36