Professional Documents
Culture Documents
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C.4. REMEDIES OF APPARENT VENDOR XVI. THE CONDOMINIUM ACT (RA 4726) 318
................................................................ 309 A. DEFINITION OF A CONDOMINIUM ......... 318
C.5. PERIOD OF REDEMPTION ............ 309 A.1. OTHER DEFINITIONS ...................... 318
C.6. EXERCISE OF THE RIGHT TO REDEEM B. TRANSFERS OR CONVEYANCES OF A
................................................................. 310 UNIT OR AN APARTMENT, OFFICE OR
C.7. HOW REDEMPTION IS EXERCISED 310 STORE, OR OTHER SPACE THEREIN
D. LEGAL REDEMPTION .............................. 310 [SECTION 5, RA 4726] ............................. 319
D.1. DEFINITION ..................................... 310 C. RIGHTS OF A CONDOMINIUM UNIT
D.2. MANNER ......................................... 310 OWNER (ASIDE FROM RIGHTS ARISING
D.3. PERIOD TO REDEEM ...................... 310 FROM OWNERSHIP) [SECTION 6] ......... 319
D.4. INSTANCES OF LEGAL REDEMPTION D. PARTITION BY SALE [SECTION 8]..... 319
.................................................................. 311 E. DECLARATION OF RESTRICTIONS BY
XV. THE LAW ON SALE OF SUBDIVISION OWNER OF PROJECT - PRECONDITION
AND CONDOMINIUM (PD 957) ................ 314 TO CONVEYANCE [SECTION 9]............. 320
A. DEFINITIONS ........................................... 314 F. ASSESSMENT IN ACCORDANCE WITH
A.1. DEFINITION OF "SALE" OR "SELL" 314 DECLARATION OF RESTRICTIONS
A.2. DEFINITION OF "BUY" OR [SECTION 20] ......................................... 320
"PURCHASE" .......................................... 314 G. HOW LIEN ENFORCED AFTER NON-
B. REQUIREMENTS FOR OWNERS AND PAYMENT OF ASSESSED FEES [SECTION
DEVELOPERS ............................................... 314 20] .......................................................... 320
B.1. REGISTRATION OF PROJECTS H. CONTENTS OF A DECLARATION OF
[SECTION 4, PD 957] .............................. 314 RESTRICTIONS [SECTION 9] ................. 320
B.2. REGISTRATION OF OWNER [SECTION I. INVOLUNTARY DISSOLUTION OF THE
4, PD 957] ............................................... 314 CONDOMINIUM CORPORATION [SECTION
B.3. LICENSE TO SELL [SECTION 5, PD 12] ........................................................... 320
957] ......................................................... 315 J.POWER OF ATTORNEY HELD BY
C. REQUIREMENT FOR DEALERS, CORPORATION IN CASE OF VOLUNTARY
BROKERS, AND SALESMEN (DBS) ....... 316 DISSOLUTION OF CONDOMINIUM
C.1. REGISTRATION ................................ 316 CORPORATION [SECTION 15] ............... 320
D. CHARACTERISTICS OF SALE OF A K. SALE, EXCHANGE, LEASE, OR
CONDOMINIUM OR SUBDIVISION UNIT AND DISPOSITION BY CORPORATION OF THE
SIMILAR CONTRACTS ................................. 316 COMMON AREAS [SECTION 16] ............ 321
D.1. REGISTRATION OF SALE, ETC L. STOCKHOLDER/MEMBER DEMANDING
[SECTION 17, PD 957] ............................. 316 PAYMENT FOR SHARES OR INTEREST
D.2. MORTGAGES ON UNIT OR LOT BY AKA APPRAISAL RIGHT [SECTION 17] ... 321
OWNER OR DEVELOPER [SECTION 18, PD M. REQUIREMENT FOR REGISTRATION
957] ......................................................... 317 OF CONVEYANCE WITH THE REGISTER
D.3. ADVERTISEMENTS BY THE OWNER OF DEEDS [SECTION 18]......................... 321
OR DEVELOPER [SECTION 19, PD 957] 317 N. REALTY TAX ON CONDOMINIUMS
D.4. NON-FORFEITURE OF PAYMENTS [SECTION 25] .......................................... 321
(SECTION 23, PD 957) ............................ 317 SUCCESSION ........................... 322
D.5. FAILURE TO PAY INSTALLMENTS I. GENERAL PROVISIONS......................... 323
[SECTION 24, PD 957] ............................ 317
A. DEFINITION ............................................. 323
D.6. ISSUANCE OF TITLE [SECTION 25, PD
B. OBJECT OF SUCCESSION AND
957] ......................................................... 317
TRANSMISSION .......................................... 323
D.7. REALTY TAX [SECTION 26, PD 957]
C. SUBJECTS OF SUCCESSION .................. 324
................................................................. 318
II. TESTAMENTARY SUCCESSION ......324
D.7. NO OTHER CHARGES [SECTION 27,
A. WILLS ...................................................... 324
PD 957] ................................................... 318
A.1. IN GENERAL .................................... 324
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H.7. RIGHT TO ASK FOR DISSOLUTION B.5. WHEN HOTEL-KEEPER NOT LIABLE
................................................................ 420 ................................................................ 428
I. DISSOLUTION .......................................... 420 B.6. HOTEL-KEEPER’S RIGHT TO
J. SETTLEMENT OF ACCOUNTS ................ 420 RETENTION ........................................... 428
J.1. ORDER OF PAYMENT ..................... 420 C. JUDICIAL DEPOSIT ................................. 428
J.2. SHARE IN THE PARTNERSHIP ASSETS C.1. NATURE AND PURPOSE ................ 428
................................................................ 420 C.2. DEPOSITARY OF SEQUESTERED
K. AMENDMENT OR CANCELLATION OF PROPERTY ............................................. 428
CERTIFICATE ................................................ 421 C.3. APPLICABLE LAW .......................... 429
K.1. CANCELLATION OF CERTIFICATE .. 421 III. GUARANTY AND SURETYSHIP.......... 429
K.2. AMENDMENT OF CERTIFICATE ..... 421 A. NATURE AND EXTENT OF GUARANTY. 429
K.3. REQUIREMENTS FOR AMENDMENT B. NATURE AND EXTENT OF SURETYSHIP
OR CANCELLATION ............................... 421 ..................................................................... 432
CREDIT TRANSACTIONS......... 422 C. EFFECT OF GUARANTY .......................... 433
I. LOAN ..................................................... 423 C.1. EFFECTS OF GUARANTY BETWEEN
THE GUARANTOR AND THE CREDITOR
CONTRACTS OF LOAN ............................... 423
................................................................ 433
CONTRACT OF LOAN VS. CONTRACT TO
C.2. EFFECTS OF GUARANTY BETWEEN
LOAN ........................................................... 423
THE DEBTOR AND THE GUARANTOR . 435
SIMPLE LOAN VS. BARTER ........................ 423
C.3. EFFECTS OF GUARANTY AS
COMMODATUM VS. MUTUUM .................. 423
BETWEEN CO-GUARANTORS .............. 436
A. COMMODATUM...................................... 423
D. EXTINGUISHMENT OF GUARANTY ....... 437
A.1. KINDS OF COMMODATUM ............ 424
E. LEGAL AND JUDICIAL BONDS ............... 437
A.2. PARTIES ......................................... 424
A.3. OBLIGATIONS OF THE BAILEE ..... 424 IV. PLEDGE ................................................ 437
A.4. OBLIGATIONS OF THE BAILOR .... 424 A. CHARACTERISTICS ................................ 438
A.5. LIABILITY FOR DETERIORATION .. 424 B. KINDS ...................................................... 438
A.6. RIGHT OF RETENTION .................. 424 LEGAL PLEDGE / PLEDGE BY OPERATION
B. MUTUUM ................................................ 425 OF LAW [ARTS. 2121-2122] .................... 438
B.1. OBLIGATIONS OF THE BORROWER C. ESSENTIAL REQUISITES ........................ 438
................................................................ 425 PROVISIONS APPLICABLE ONLY TO
B.2. INTEREST AND SUSPENSION OF PLEDGE .................................................. 439
USURY LAW ........................................... 425 D. REQUISITES FOR PERFECTION ............ 439
B.3. KINDS OF INTEREST ...................... 425 E. OBLIGATIONS OF PLEDGEE .................. 439
B.4. WHEN IS COMPOUND INTEREST F. RIGHTS OF PLEDGOR............................. 439
ALLOWED? ............................................ 425 G. FORECLOSURE ...................................... 440
B.5. REQUISITES FOR INTEREST TO BE G.1. REQUIREMENTS IN SALE OF THE
CHARGEABLE ........................................ 425 THING PLEDGED BY A CREDITOR, IF
B.6. ELEMENTS OF USURY .................. 426 CREDIT IS NOT PAID ON TIME ............. 440
II. DEPOSIT ............................................... 426 G.2. EFFECTS OF THE SALE OF THE
THING PLEDGED ................................... 440
A. VOLUNTARY DEPOSIT ............................427
H. PLEDGE AS DISTINGUISHED FROM
A.1. EXTINGUISHMENT ..........................427
CHATTEL MORTGAGE [ARTS. 2140, 1484] 440
A.2. OBLIGATIONS OF DEPOSITOR ......427
I. PACTUM COMMISSORIUM....................... 440
B. NECESSARY DEPOSIT .............................427
ELEMENTS .............................................. 441
B.1. KINDS OF NECESSARY DEPOSIT ...427
EFFECT ON PLEDGE .............................. 441
B.2. DEPOSIT BY TRAVELERS IN HOTELS
J. EQUITABLE MORTGAGE .......................... 441
AND INNS ...............................................427
ESSENTIAL REQUISITES ........................ 441
B.3. EXTENT OF LIABILITY UNDER
ART.1998 ............................................... 428 V. REAL MORTGAGE ................................ 441
B.4. WHEN HOTEL-KEEPER LIABLE .... 428 A. OBJECTS OF REAL MORTGAGE ............. 441
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B. CHARACTERISTICS ................................. 441 WHEN DEBT NOT YET DUE ................... 451
C. KINDS ....................................................... 441 RESPONSIBILITY OF TWO OR MORE
D. PRINCIPLE OF INDIVISIBILITY OF PAYEES ................................................... 451
PLEDGE/MORTGAGE ................................. 442 WHEN MONEY OR THING DELIVERED IS
E. ESSENTIAL REQUISITES COMMON TO OWNED BY THIRD PERSON .................. 451
PLEDGE AND MORTGAGE ......................... 442 LIABILITY OF PAYEE ............................... 451
F. FORECLOSURE OF MORTGAGE ............ 443 EXEMPTION FROM THE OBLIGATION TO
F.1. JUDICIAL FORECLOSURE .............. 443 RESTORE THE PAYMENT UNDULY MADE
F.2. EXTRAJUDICIAL FORECLOSURE .. 444 ................................................................ 452
F.4. NATURE OF POWER OF PRESUMPTION OF PAYMENT BY
FORECLOSURE BY EXTRAJUDICIAL SALE MISTAKE, DEFENSE .............................. 452
................................................................ 444 C. OTHER QUASI-CONTRACTS .................. 452
F.5. RIGHT OF MORTGAGEE TO RECOVER IX. CONCURRENCE AND PREFERENCE OF
DEFICIENCY ........................................... 445 CREDITS ................................................... 453
F.6. EFFECT OF INADEQUACY OF PRICE A. WHEN RULES ON PREFERENCE ARE
IN FORECLOSURE SALE ....................... 445 APPLICABLE ................................................ 453
G. WAIVER OF SECURITY BY CREDITOR .. 445 B. CLASSIFICATION OF CREDITS............... 453
H. REDEMPTION ......................................... 445 B.1. SPECIAL PREFERRED CREDITS ON
KINDS: .................................................... 445 SPECIFIC MOVABLE PROPERTY .......... 454
VI. ANTICHRESIS...................................... 446 B.2. SPECIAL PREFERRED CREDITS ON
A. CHARACTERISTICS ................................ 446 SPECIFIC IMMOVABLE PROPERTY AND
B. SPECIAL REQUISITES............................. 446 REAL RIGHTS......................................... 454
C. AS DISTINGUISHED FROM OTHER B.3. ORDINARY PREFERRED CREDITS 455
CONTRACTS................................................ 446 B.4. COMMON CREDITS ....................... 455
D. OBLIGATIONS OF ANTICHRETIC C. ORDER OF PREFERENCE OF CREDITS . 455
CREDITOR ................................................... 446 D. EXEMPT PROPERTY ............................... 456
E. REMEDIES OF CREDITOR IN CASE OF LAND, TITLES, & DEEDS ......... 457
NON-PAYMENT OF DEBT .......................... 447
I. TORRENS SYSTEM ............................... 458
VII. CHATTEL MORTGAGE ....................... 447
ELEMENTS OF A DEED: ........................ 458
A. CHARACTERISTICS ................................ 447
TYPES OF ESTATE: ................................ 458
B. OBLIGATIONS SECURED ....................... 447
A. LAWS IMPLEMENTING LAND
C. PROPERTIES COVERED ......................... 447
REGISTRATION ........................................... 459
D. VALIDITY OF CHATTEL MORTGAGE ..... 448
B. PURPOSES OF LAND REGISTRATION .. 459
E. FORMAL REQUISITES ............................ 448
C. ADMINISTRATION OF THE TORRENS
F. REGISTRATION OF CHATTEL MORTGAGE
SYSTEM ....................................................... 460
..................................................................... 448
CERTIFICATE OF TITLE .......................... 461
F.1. PERIOD ............................................ 448
D. EFFECT OF REGISTRATION UNDER THE
F.2. VENUE ............................................ 448
TORRENS SYSTEM ...................................... 461
F.3. EFFECT............................................ 448
II. THE REGALIAN DOCTRINE ................. 463
G. FORECLOSURE ...................................... 449
A. EFFECTS .................................................. 464
DISPOSITION OF PROCEEDS ............... 449
B. CONCEPT OF NATIVE TITLE, TIME
VIII. QUASI-CONTRACTS ......................... 449
IMMEMORIAL POSSESSION ...................... 464
A.1. OBLIGATIONS OF A GESTOR ........ 450
A.2. OBLIGATIONS OF THE OWNER OF
III. CITIZENSHIP REQUIREMENT ............ 465
A. INDIVIDUALS .................................... 465
THE PROPERTY OR BUSINESS ............ 450
B. CORPORATIONS .............................. 466
A.3. EFFECT OF RATIFICATION ............. 451
A.4. EXTINGUISHMENT OF IV. ORIGINAL REGISTRATION ................ 466
MANAGEMENT ....................................... 451 A. KINDS OF ORIGINAL REGISTRATION: .. 466
B. SOLUTIO INDEBITI (UNDUE PAYMENT) . 451 B. WHO MAY APPLY: .................................. 467
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CIVIL LAW
PERSONS & FAMILY
RELATIONS
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which have for their object public order, public incompatible or inconsistent with those of
policy and good customs shall not be rendered an earlier law.
ineffective by laws or judgments promulgated,
or by determinations or conventions agreed The fundament is that the legislature should
upon in a foreign country. (11a) be presumed to have known the existing laws
on the subject and not have enacted conflicting
E. WAIVER OF RIGHTS statutes. Hence, all doubts must be resolved
Art. 6. Rights may be waived, unless the waiver against any implied repeal, and all efforts
is contrary to law, public order, public policy, should be exerted in order to harmonize and
morals, or good customs, or prejudicial to a give effect to all laws on the subject. [Republic
third person with a right recognized by law. vs. Marcopper Mining (2000)]
(4a)
G. JUDICIAL DECISIONS
Waiver – the relinquishment of a known right Art. 8. Judicial decisions applying or
with both knowledge of its existence and an interpreting the laws or the Constitution shall
intention to relinquish it. [Portland v. Spillman] form a part of the legal system of the
Philippines. (n)
Exceptions:
(1) If the waiver is contrary to law, public Jurisprudence cannot be considered as an
order, public policy, morals or good independent source of law; it cannot create
customs law. (1 Camus 38 as cited in Tolentino)
(2) If the waiver prejudices a third person
(3) If the alleged rights do not yet exist The interpretation or construction placed by
(4) If the right is a natural right the courts establishes the contemporaneous
legislative intent of the law. The latter as so
F. REPEAL OF LAWS interpreted and construed would thus
Art. 7. Laws are repealed only by subsequent constitute a part of that law as of the date the
ones, and their violation or non-observance statute is enacted. It is only when a prior ruling
shall not be excused by disuse, or custom or of this Court finds itself later overruled, and a
practice to the contrary. different view is adopted, that the new doctrine
may have to be applied prospectively in favor
When the courts declared a law to be of parties who have relied on the old doctrine
inconsistent with the Constitution, the former and have acted in good faith in accordance
shall be void and the latter shall govern. therewith. [Pesca v Pesca (2001)]
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Policy on Last Day being a Legal Art. 16. Real property as well as personal
Holiday/Sunday property is subject to the law of the country
If the period arises by statute or orders where it is stipulated.
by the government, the last day will
However, intestate and testamentary rights and to the intrinsic validity of
successions, both with respect to the order of testamentary provisions, shall be regulated by
succession and to the amount of successional the national law of the person whose
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Proof that the fetus was alive upon separation Criminal liability ends with death BUT civil
is Complete respiration = test/sign of liability may be charged against the estate
independent life [People v. Tirol, (1981)].
Note: Article 43 provides a statutory
Intra-Uterine Life When Considered Born presumption when there is doubt on the order
7 months or more Alive upon delivery of death between persons who are called to
Less than 7 months Alive only after succeed each other (only).
completion of 24 hours
from delivery The statutory presumption of Article 43 was
not applied due to the presence of a credible
Personality of Conceived Child eyewitness as to who died first [Joaquin v.
(1) Limited = only for purposes FAVORABLE to Navarro, (1948)].
it.
Compare Art. 43 with Rule 131, Sec. 3 (jj),
(2) Conditional = it depends upon the child
presumption of Survivorship.
being born alive later.
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Effect on Crimes
(1) They cannot give consent to a contract (Art. (1) General rule: EXEMPTED from criminal
1327 (1)) liability
(2) A contract where one of the parties is a (2) Exception: Acted with discernment, and
minor is voidable(Art. 1390(1)) the minor is between 15 and 18 years of
(3) A contract is unenforceable when both of age.
the parties are minors (incapable of giving
II. INSANITY
consent) (Art. 1403(3))
Insanity includes many forms of mental
(4) Minority cannot be asserted by the other
disease, either inherited or acquired. A person
party in an action for annulment (Art. 1397)
may not be insane but only mentally deficient
(5) Not obliged to make restitution
(idiocy, imbecility, feeble-mindedness).
exceptinsofar as he has been benefited
(Art. 1399)
Effect on Contracts
(6) Minor has no right to demand the
(1) Incapacity to give consent to a contract
thing/price voluntarily returned by him
(Art. 1327(2))
(Art. 1426)
(2) Contracts entered into during lucid
(7) Minor has no right to recover voluntarily
intervals are valid (Art. 1328)
paid sum or delivered thing, if consumed in
(3) Restitution of benefits (Art. 1399)
good faith (Art. 1427)
(4) Voidable if one of the parties is insane (Art.
(8) Must pay reasonable amount for
1390)
necessaries delivered to him (Art. 1489)
(5) Unenforceable if both of the parties are
Estoppel works against minors who insane (Art. 1403 (3))
misrepresent their ages in a contract and are
compelled to comply with its terms. (active Effect on Crimes
misrepresentation done by minors). [Mercado General rule: EXEMPTED from criminal liability
vs Espiritu (1918)] Exception: Acted during lucid interval
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In the absence of proof that the defendant had (5) Unenforceable if both of the parties are
lost his reason or became demented a few deaf-mutes and does not know how to
moments prior to or during the perpetration of write
the crime, it is presumed that he was in a
normal condition of mind. It is improper to IV. PRODIGALITY
conclude that he acted unconsciously, in order INCOMPETENT INCLUDES PRODIGALS
to relieve him from responsibility on the (RULES OF COURT RULE 92, SEC 2)
ground of exceptional mental condition, unless Note: It is not the circumstance of prodigality,
his insanity and absence of will are proven. but the fact of being under guardianship that
[USA vs Vaguilar (1914)] restricts capacity to act.
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(5) Marriage certificate shall be signed by the (2) Priest, Rabbi, Imam or Minister of any
contracting parties and their witnesses and Church or Religious Sect. Must be:
attested by the solemnizing officer. (Art. 6) (a) Duly authorized by his church or
religious sect
Note: In a marriage in articulo mortis, when (b) Registered with the civil registrar
one or both parties are unable to sign the general
marriage certificate, it shall be sufficient for (c) Acting within the limits of the written
one of the witnesses to write the name of said authority granted to him by his church
party, which shall be attested by the or religious sect.
solemnizing officer. (Art. 6, par. 2) (d) At least one of the contracting parties
belongs to the solemnizing officer’s
Places where marriage SHALL be publicly church or religious sect. (Art. 7)
solemnized: (3) Ship Captain or Airplane Chief may
(1) Chambers of the judge or in open court solemnize a marriage in articulo mortis
(2) Church, chapel, or temple between passengers or crew members (Art.
(3) Office of the consul-general, consul, or 7, 31)
vice-consul (Art. 8) (4) A Military commander of a unit may
solemnize marriages in articulo mortis
Exceptions: between persons w/in the zone of military
Marriages performed in articulo mortis or operation. (Art. 7, 32)
in remote places. (Art. 29) (5) Consul-general, consul or vice-consul may
Where both parties request in writing solemnize marriages between Filipino
that marriage be solemnized at a place citizens abroad. (Art. 7, 10)
designated by them. (6) Municipal and City Mayors (LGC sec. 444-
455)
Non-compliance with this requirement does
not invalidate the marriage (premise: more Exceptions – Art. 35
witnesses = more people can notify officer of (1) Marriage is void when solemnized by any
impediments to marriage). person not legally authorized to perform
marriages unless either or both parties
2. AUTHORITY OF THE SOLEMNIZING believed in good faith that the solemnizing
OFFICER officer had legal authority to do so. (Art. 35
(2))
Who may solemnize marriage: (2) Absence & Irregularity of Authority of a
(1) Incumbent member of the Judiciary within solemnizing officer
his jurisdiction. (Art. 7)
Where a judge solemnizes a marriage outside
Absence Effect his jurisdiction, there is a resultant irregularity
1. Authority by VOID in the formal requisite laid down in Article 3,
church/sect which while it may not affect the validity of the
2. Registered w/ civil VOID marriage, may subject the officiating official to
registrar administrative liability. [Navarro v. Domagtoy
3. Acting w/in written IRREGULARITY (1996); Aranes v. Occiano (2002)]
authority
4. Either party belong IRREGULARITY
to that church/sect
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(4) The parties must execute an affidavit (6) That requirement as to parental advice was
stating that they have lived together for at complied with, when required
least five years [and are without legal (7) That parties have entered into marriage
impediment to marry each other]; and settlements, if any (Art. 22)
(5) The solemnizing officer must execute a
sworn statement that he had ascertained Note: Not an essential or formal requisite
the qualifications of the parties and that he without which the marriage will be void
had found no legal impediment to their (Madridejo v. de Leon (1930))
marriage.
(Borja-Manzano vs. Judge Sanchez (2001)) Best evidence that a marriage does exist.
[Tenebro v. CA (2004)]
4. MARRIAGE CERTIFICATE
D. LAW GOVERNING VALIDITY OF
Absence and irregularity of marriage license and
MARRIAGES ABROAD
contract
General rule in contracts
Republic v. CA and Castro (1994): There is a
As to form: Governed by the laws of the country
presumption of regularity of official acts, and
in which they were executed (NCC Art. 17)
the issuance of the Civil Registrar of a
As to substantive requirements: Laws relating
Certificate of Due Search and Inability to Find
to family rights and duties, or to the status,
the application for a marriage license
condition and legal capacity of persons,
certifies its inexistence, rendering the
prohibitive laws regarding the person, his or
marriage VOID.
her property, those which have for their object
public order, public policy and good customs
Moreno v. Bernabe (1995): Before a marriage
bind all Filipinos regardless of location. (NCC
can be solemnized, a valid marriage license
Art. 15, 17)
must be presented first, otherwise, it is VOID.
Marriages Celebrated Abroad
People v. Borromeo (1984): Non-existence of
GENERAL RULE: Marriages solemnized abroad
a marriage contract does not invalidate the
in accordance with the laws in force in that
marriage as long as all the requisites for its
country shall be valid in the Philippines. (Art
validity are properly complied with.
26, par.1)
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acquired during cohabitation and owned in without being lawfully married, nevertheless
common, without the consent of the other, there is between them an informal civil
until after the termination of their partnership which would entitle the parties to
cohabitation. an equal interest in property acquired by their
joint efforts [Lesaca vs Lesca (1952)]
When only one of the parties to a void marriage
is in good faith, the share of the party in bad Such form of co-ownership requires that the
faith in the co-ownership shall be forfeited in man and woman living together must not in
favor of their common children. In case of any way be incapacitated to contract
default of or waiver by any or all of the marriage. [Eugenio vs Velez (1990)]
common children or their descendants, each
vacant share shall belong to the respective The falsity of the affidavit cannot be
surviving descendants. In the absence of considered as a mere irregularity in the formal
descendants, such share shall belong to the requisites of marriage. The law dispenses with
innocent party. In all cases, the forfeiture shall the marriage license requirement for a man
take place upon termination of the and a woman who have lived together and
cohabitation. (144a) exclusively with each other as husband and
wife for a continuous and unbroken period of
Art. 148. In cases of cohabitation not falling at least five years before the marriage. The aim
under the preceding Article, only the properties of this provision is to avoid exposing the parties
acquired by both of the parties through their to humiliation, shame and embarrassment
actual joint contribution of money, property, or concomitant with the scandalous cohabitation
industry shall be owned by them in common in of persons outside a valid marriage due to the
proportion to their respective contributions. In publication of every applicant’s name for a
the absence of proof to the contrary, their marriage license. [De Castro vs De Castro
contributions and corresponding shares are (2008)]
presumed to be equal. The same rule and
presumption shall apply to joint deposits of F. VOID AND VOIDABLE MARRIAGES
money and evidences of credit. Presumption of Marriage
(1) Presumption in favor of a valid marriage
If one of the parties is validly married to (Art 220, CC)
another, his or her share in the co-ownership (2) The presumption that a man and a woman
shall accrue to the absolute community or deporting themselves as husband and wife
conjugal partnership existing in such valid have entered into a lawful contract of
marriage. If the party who acted in bad faith is marriage is satisfactory if uncontradicted.
not validly married to another, his or her shall (Sec. 3 (aa), Rule 131, ROC)
be forfeited in the manner provided in the last (3) In marriages of exceptional character, the
paragraph of the preceding Article. existence of the marriage is presumed,
even in the TOTAL ABSENCE of a marriage
The foregoing rules on forfeiture shall likewise license. (Vda. De Jacob v CA (1999))
apply even if both parties are in both faith. (4) If a marriage certificate is missing, and all
(144a) means HAVE NOT YET BEEN EXHAUSTED
to find it, then the marriage is presumed to
Though there is no technical marital exist (Sevilla v. Cardenas (2006))
partnership between person living maritally
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Absence of a marriage certificate is not proof of (1) Marriage where any party is below eighteen
absence of marriage. To prove the fact of years of age even with the consent of
marriage, the following would constitute parents or guardians
competent evidence: (1) the testimony of (2) Marriage solemnized by any person not
witnesses to matrimony; (2) documentary legally authorized to perform marriages
photos or videos of the wedding; (3) the unless such marriages were contracted
couple’s public cohabitation; and (4) birth and with either or both parties believing in
baptismal certificates of children born during good faith that the solemnizing officer had
the union. (Trinidad v CA (1998)) legal authority to do so.
Note: One’s belief in good faith that the
F. 1. VOID MARRIAGES solemnizing officer has the required
authority is a mistake of fact, and not of
Type of Void Marriages law.
(1) Absence of any formal/essential requisites (3) Marriage solemnized without a valid
(2) Bigamous and polygamous marriages marriage license, except in marriages
(3) Subsequent marriage, upon reappearance under exceptional circumstances
of spouse (4) Bigamous or polygamous marriages not
(4) Bad faith of both spouses falling under Article 41 (Art. 41: subsequent
(5) Psychologically Incapacitated spouse marriage by present spouse who obtained
(6) Void subsequent marriages a declaration of presumptive death for
(7) Incestuous Marriages absent spouse prior to the subsequent
(8) Non-compliance with recording marriage)
requirement after declaration of nullity (5) There is a mistake as to the identity of the
other contracting party
Art. 39. The action or defense for the (6) Subsequent marriages that are void under
declaration of absolute nullity shall not Article 53 (Non-compliance with Art. 52)
prescribe. However, in case of marriage
celebrated before the effectivity of this Code To be considered void on the ground of
and falling under Article 36, such action or absence of a marriage license, the law requires
defense shall prescribe in ten years after this that the absence of such marriage license must
Code shall taken effect. (As amended by be apparent on the marriage contract, or at the
Executive Order 227) (n) very least, supported by a certification from the
local civil registrar that no such marriage
a. Absence of Requisites license was issued to the parties. [Alcantara vs
Art. 4(1): The absence of any essential or Alcantara (2007)]
formal requisites shall render the marriage
void ab initio, except as stated in Article 35 (a). An action for nullity of marriage is
imprescriptible. [Republic vs Dayot (2008)]
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incapacity: gravity, antecedent, and incurability. (1) Between collateral blood relatives,
legitimate or illegitimate, up to the fourth
Tsoi v. CA, (1997): Refusal of husband to have civil degree.
sex was interpreted as psychological incapacity. (2) Between step-parents and step-children.
“A man who can but won’t is psychologically Note: Stepbrothers and stepsisters can
incapacitated” marry because marriages between
them are not among those enumerated
Marcos v. Marcos (2000): Psychological in Article 38.
incapacity maybe established by the totality of (3) Between parents-in-law and children-in-
the evidence presented. Personal medical law.
examination could be dispensed with. (4) Between adopting parent and adopted
child.
Republic v. San Jose (2007): There is no (5) Between the surviving spouse of the
requirement that the respondent be medically adopting parent and the adopted child.
examined first. (6) Between the surviving spouse of the
adopted child and the adopter.
Antonio v. Reyes, (2006): “Pathological liar” (7) Between an adopted child and a legitimate
considered as psychological incapacity, Molina child of the adopter.
guidelines met. (8) Between adopted children of the same
adopter.
Kalaw v. Fernandez (2015): In the task of (9) Between parties where one, with the
ascertaining the presence of psychological intention to marry the other, killed that
incapacity as a ground for the nullity of other person's spouse, or his or her own
marriage, the courts, which are concededly not spouse.
endowed with expertise in the field of
psychology, must of necessity rely on the Relationships outside of Art. 37 and 38 which
opinions of experts in order to inform are not impediments to marriage: brother-in-
themselves on the matter, and thus enable law with sister-in-law, stepbrother with
themselves to arrive at an intelligent and stepsister, guardian with ward, adopted with
judicious judgment. illegitimate child of the adopter, adopted son
of the husband with adopted daughter of the
f. Incestuous marriages wife, parties who have been convicted of
adultery
Article 37 (Incestuous):
(1) Between ascendants and descendants of
any degree, legitimate or illegitimate h. Non-compliance with recording requirement
(2) Between brothers and sisters, whether full after declaration of nullity
or half blood, legitimate or illegitimate Article 53 (Non-Recording):
Subsequent marriage of spouses, where the
g. Against Public Policy requirements of recording under Art. 52 have
not have been complied with, shall be null and
void.
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commenced after March 15, 2003. [Ablaza vs Art. 48 (2): In the cases referred to in the
Republic (2010)] preceding paragraph, no judgment shall be
based upon a stipulation of facts or confession
EXCEPTIONS: of judgment.
(1) Nullity of marriage cases commenced
before the effectivity of A.M. No. 02-11-10-SC Stipulation of Facts: An admission by both
(2) Marriages celebrated during the effectivity parties after agreeing to the existence of any of
of the Civil Code. [Carlos vs Sandoval (2008)] the grounds or facts that would constitute a
void/voidable marriage
However, the absence of a provision in the Civil
Code cannot be construed as a license for any Confession of judgment: The admission by one
person to institute a nullity of marriage party admitting his/her fault to cause the
case. Such person must appear to be the party invalidity of the marriage.
who stands to be benefited or injured by the
judgment in the suit, or the party entitled to Participation of the OSG
the avails of the suit. [Carlos vs Sandoval The obvious intent of the AM 02-11-10-SC was
(2008)] to require the OSG to appear as counsel for the
State in the capacity of a defensor vinculi (i.e.,
Procedure in attacking a void marriage
defender of the marital bond) to oppose
GENERAL RULE: Void Marriages may be
petitions for, and to appeal judgments in favor
attacked collaterally or directly.
of declarations of nullity of marriage under
Article 36 of the Family Code, thereby ensuring
EXCEPTION: A person in a void marriage must
that only the meritorious cases for the
first file for a declaration of nullity in order to
declaration of nullity of marriages based on
subsequently marry
psychological incapacity-those sufficiently
evidenced by gravity, incurability and juridical
Requisites for valid remarriage:
antecedence-would succeed. [Mendoza vs
Republic (2012)]
Art. 52. The judgment of annulment or of
absolute nullity of the marriage the partition
and distribution of the properties of the No Motion to Dismiss
spouses and the delivery of the children's AM 02-11-10-SC Sec.7 prohibits the filing of a
presumptive legitimes shall be recorded in the motion to dismiss in actions for annulment of
appropriate civil registry and registries of marriage. [Aurelio vs Aurelio (2011)]
property; otherwise the same shall not affect
third persons. (n) Effect of pendency of action for declaration of
nullity:
(1) The previous marriage should be judicially
(1) The court shall provide for the support of
declared void or annulled (final judgment)
the spouses,
(Terre v. Terre (1992), Atienza v. Brillantes
(2) The custody and support of the common
(1995));
children, giving paramount consideration
(2) Must comply with the requirements of Art.
to their moral and material welfare, their
52.
choice of parent with whom they wish to
remain.
Safeguard against collusion and No confession
(3) The court shall also provide for visitation
of judgment
rights of other parent. (Art. 49)
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crime involving MORAL BAR ACTION for annulment; The defect is not
TURPITUDE the disease, but the FRAUD which VITIATED
Concealment by wife at the time of CONSENT.
marriage, that she was pregnant by
another man Buccat v. Mangonon de Buccat, (1941): W gave
Concealment of STD regardless of birth 3 months after marriage, H filed for
nature existing at time of marriage annulment: concealment of non-virginity.
Concealment of drug addiction, Denied. Court held that it was unbelievable
habitual alcoholism, homosexuality, that husband could not have noticed when
lesbianism existing at time of wife had been at least 6 months pregnant
marriage prior to marriage.
(b) NO other misrepresentation or deceit
of CHARACTER, HEALTH, RANK, Aquino v. Delizo, (1960): The Supreme Court
FORTUNE OR CHASTITY shall granted annulment because the wife
constitute FRAUD. concealed the fact that she was 4 months
(c) Conviction of Crime: requisites are pregnant during the time of the marriage.
Moral turpitude Since Delizo was “naturally plump,” Aquino
Conviction could hardly be expected to know, by mere
(d) Concealment of Pregnancy looking, whether or not she was pregnant at
Fraud against very essence of the time of the marriage.
marriage; importance of procreation
of children; an assault to the Almelor v. RTC, (2008): It is the concealment
integrity of the union by introducing of homosexuality, and not homosexuality per
ALIEN BLOOD se, that vitiates the consent of the innocent
If husband knew of pregnancy, the party. Such concealment presupposes bad
marriage cannot be annulled on the faith and intent to defraud the other party in
ground of concealment giving consent to the marriage.
(e) May be ratified upon free cohabitation
after knowledge of fraud.
d. Force, intimidation, undue influence
Art. 45 STD Art. 46 STD (a) FORCE must be one as to prevent party
Ground for annulment The STD is a type of from acting as a free agent; will
fraud which is a destroyed by fear/compulsion
ground for annulment (b) INTIMIDATION must be one as to
Does not have to be Must be concealed compel the party by a reasonable/well-
concealed grounded fear of an imminent and
Must be serious and Need not be serious grave evil upon his person/properties
incurable nor incurable (c) DEGREE OF INTIMIDATION: age, sex,
The STD itself is the It is the concealment condition of person borne in mind
ground for annulment that gives rise to the (d) Threat or intimidation as not to act as
annulment FREE AGENT; i.e. threatened by armed
demonstrations (Tiongco v. Matig-a)
Effect of Cure to Fraud in Art. 46: (e) Committee added “undue influence”,
Recovery or rehabilitation from STD, drug maybe compelled to enter out of
addiction, and habitual alcoholism will NOT REVERENTIAL FEAR e.g., fear of
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Marriages Not Subject to Ratification/ Courts will only determine (1) whether the
Convalidation by cohabitation foreign judgment is inconsistent with an
(1) One spouse is incurably impotent (Art. 47 – overriding public policy in the Philippines; and
prescription: 5 years) (2) whether any alleging party is able to prove
(2) One spouse has an incurable STD (Art. 47 – an extrinsic ground to repel the foreign
prescription: 5 years) judgment, i.e. want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
Presence of Prosecutor mistake of law or fact. If there is neither
Art. 48: To prevent collusion between the inconsistency with public policy nor adequate
parties, fabrication or suppression of evidence, proof to repel the judgment, Philippine courts
the prosecuting attorney or fiscal shall appear should, by default, recognize the foreign
on behalf of the State. judgment as part of the comity of nations.
[Fujiki vs Marinay (2013)]
Corpuz v. Ochoterena, (2004): In a legal
separation or annulment case, the prosecuting G. THE LAW ON SEPARATION OF THE
attorney must first rule out collusion as a SPOUSES
condition sine qua non for further proceedings.
A certification by the prosecutor that he was SEPARATION IN FACT
present during the hearing and even cross-
examined the plaintiff does not suffice to Art. 239. When a husband and wife are
comply with the mandatory requirement. separated in fact, or one has abandoned the
other and one of them seeks judicial
Marriages dissolved by foreign judgment authorization for a transaction where the
consent of the other spouse is required by law
Aliens may obtain divorces abroad, which may but such consent is withheld or cannot be
be recognized in the Philippines, provided they obtained, a verified petition may be filed in
are valid according to their national law. The court alleging the foregoing facts.
marriage tie when thus severed as to one party,
ceases to bind either. [Van Dorn vs Romillo The petition shall attach the proposed deed, if
(1985)] any, embodying the transaction, and, if none,
shall describe in detail the said transaction and
A marriage between two Filipinos cannot be state the reason why the required consent
dissolved even by a divorce obtained abroad, thereto cannot be secured. In any case, the final
because of Articles 15 and 17 of the Civil Code. In deed duly executed by the parties shall be
mixed marriages involving a Filipino and a submitted to and approved by the court. (n)
foreigner, Article 26 of the Family Code allows
the former to contract a subsequent marriage in AGREEMENT TO SEPARATE
case the divorce is “validly obtained abroad by A notary public should not facilitate the
the alien spouse capacitating him or her to disintegration of a marriage and the family by
remarry.” A divorce obtained abroad by a encouraging the separation of the spouses
couple, who are both aliens, may be recognized and extrajudicially dissolving the conjugal
in the Philippines, provided it is consistent with partnership. [Espinosa vs Omana (2011)]
their respective national laws. [Garcia vs Recio
(2001)]
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One of the effects of irrevocable talaq, as well as Gandioco v. Peñaranda (1989): For sexual
other kinds of divorce, refers to severance of infidelity as a ground for legal separation,
matrimonial bond, entitling one to remarry. there is no need for a prior conviction for
[Zamoranos vs People (2011)] concubinage, because legal separation
only requires a preponderance of evidence,
as opposed to proof beyond reasonable
Note: The grounds for legal separation are doubt.
exclusive. (Article 55)
These must be filed within 5 years after Lapuz Sy v. Eufemio (1972): The death of
occurrence of cause (Article 57) one party in a legal separation case abates
(1) Repeated physical violence or grossly the action. This is because the death of
abusive conduct directed against the either spouse automatically dissolves the
petitioner, a common child, or a child of the marriage. An action for legal separation is
petitioner; also purely personal between the spouses.
(2) Physical violence or moral Pressure to
compel the petitioner to change religious or Dela Cruz. v. Dela Cruz (1968):
political affiliation; Abandonment is not mere physical
(3) Attempt of respondent to Corrupt or induce estrangement but also financial and moral
the petitioner, a common child, or a child of desertion. There must be an absolute
the petitioner, to engage in prostitution, or cessation of marital relations, duties, and
connivance in such corruption or rights with the intention of perpetual
inducement; separation.
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minor children of access to the woman's Araneta vs. Concepcion, (1956): Courts can
child/children. still resolve other issues, pending the waiting
period or cooling off period. In resolving
DEFENSES other issues, courts should try not to touch,
Grounds for denying legal separation (Article as much as possible, on the main issue (i.e.
56): adultery if that is the ground used). However,
Court must still receive evidence if just to
(1) Condonation by aggrieved party settle incidental issues of support and
(2) Consent by aggrieved party to the custody.
commission of the offense
(3) Connivance between parties in the Note: This provision of the Family Code
commission of the offense dictating a mandatory 6-month cooling-off
(4) Mutual guilt or Recrimination between period does not apply in cases where violence,
spouses in the commission of any ground as used in RA 9262 (Anti-Violence Against
for legal separation Women and their Children), is alleged. The case
(5) Collusion between parties to obtain decree should be heard as soon as possible by the
of legal separation court.
(6) Prescription of action for legal separation
(Art. 57: 5 years from occurrence of the CONFESSION OF JUDGMENT
cause of action) No decree of legal separation shall be based
(7) Reconciliation of parties during pendency of upon a stipulation of facts or a confession of
action (Art. 66 par.1) judgment (Art. 60, par. 1. FC).
(8) Death of either party during pendency of
action (Lapuz-Sy vs. Eufemio) Note: Art. 60 par. 1 applies only if the judgment
was based solely on the stipulation of facts or
WHEN TO FILE/TRY ACTIONS solely on the confession of judgment. Thus, if
An action for legal separation shall be filed other grounds were used, Art. 60 par. 1 is not
within five years from the time of the occurrence applicable. (Balane)
of the cause. (Art. 57)
Ocampo v Florenciano (1960): The prohibition
COOLING-OFF PERIOD AND RECONCILIATION on confession of judgment does not mean
EFFORTS that the Court will not grant petition if one
Action cannot be tried before six months have party admits to being guilty of the charges of
elapsed from the filing of the petition (Art. 58). adultery. The point of this provision is that
the Court should still admit evidence, not
Actions cannot be tried unless the court has decide just based on an admission of guilt.
attempted to reconcile the spouses, and Because what is prohibited is handing down
determined that despite such efforts, a decree of legal separation based solely on
reconciliation is highly improbable (Art. 59) a confession of judgment.
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(2) Administration of Community or Conjugal prescribes after 5 years from the decree of
Property – If there is no written agreement legal separation.
between the parties, the court shall (6) Innocent spouse may also revoke
designate one of them or a third person to designation of guilty spouse as beneficiary
administer the ACP or CPG. (Art. 61, par. 2) in an Insurance policy, even if such
stipulations are irrevocable. (Art. 64. FC, cf.
EFFECTS OF PENDENCY PD 612, sec. 11)
The Court shall provide for: (Art. 62, cf. Art. 49. (7) Obligation for Mutual support ceases, but
FC) the court may order the guilty spouse to
Support of spouses support the innocent spouse. (Art. 198)
Custody of children (8) The wife shall continue to use the Surname
The court shall give custody of children to of the husband even after the decree for
one of them, if there is no written legal separation. (Laperal v. Republic (1992))
agreement between the spouses.
Visitation rights of the other spouse RECONCILIATION
Should the spouses reconcile, they should file a
EFFECTS OF LEGAL SEPARATION corresponding joint manifestation under oath of
(1) The spouses can live separately (Art. 63) but such reconciliation, duly signed by them and
the marriage bonds are not severed. filed with the court in the same proceeding for
(2) The ACP or CPG shall be dissolved and legal separation. (Art. 65)
liquidated, and the share of the guilty
spouse shall be forfeited in favor the Effects of Reconciliation
common children, previous children, or (1) Proceedings for legal separation shall be
innocent spouse, in that order (Art. 63. cf. terminated at whatever stage. (Art. 66)
Art. 43, par. 2). (2) If there is a final decree of legal separation, it
(3) Custody of the minor children shall be shall be set aside. (Art. 66)
(3) The separation of property and forfeiture of
awarded to the innocent spouse (Art. 63, cf.
share of guilty spouse shall subsist, unless the
Art 213)
spouses agree to revive their former property
(4) Guilty spouse shall be disqualified from regime or to institute another property regime.
Inheriting from innocent spouse by intestate (Art. 66 cf. Art. 67)
succession. The provisions in favor of the (4) Joint custody of children is restored.
guilty party in the will of the innocent (5) The right to intestate succession by guilty
spouse shall also be revoked by operation of spouse from innocent spouse is restored.
law. (Art. 63) (6) The right to testamentary succession depends
(5) Donations in favor of the guilty spouse may on the will of the innocent spouse.
be revoked (Art. 64) but this action
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Grounds
Void Marriages Voidable Marriages Legal Separation
(1) One is a minor (10) Lack of parental (17) Repeated Physical Violence
(2) No authority to marry consent (18) Pressure to compel to change
(3) No valid marriage (11) Insanity religious/political affiliations
license (12) Fraud (19) Corruption / Inducement to engage in
(4) Bigamous and (13) Force, prostitution
polygamous Intimidation or (20) Final judgement with sentence of more
marriages (14) Undue Influence than 6 yrs.
(5) Mistake of identity (15) Impotence (21) Drug Addiction / Habitual Alcoholism
(6) Void subsequent (16) 6. Serious and (22) Homosexuality / Lesbianism
marriage Incurable STD (23) Bigamous marriage
(7) Psychological (24) Sexual Infidelity
incapacity (25) Attempts against the life of petitioner
(8) Incestuous Marriages (26) 10. Abandonment without just cause for
(9) 9. Marriages against more than 1 year
public policy
Effects of Affidavit of Reappearance, Judicial Declaration of Nullity, Annulment and Legal Separation
Void Marriages Terminated Marriage Voidable Legal Separation
(Art. 41) Marriages
Status of Marital ties
Severed Severed Severed Not Severed
Status of Marriage
Void ab initio Subsequent marriage Void Valid
is terminated (not
invalidated)
Status of Children born and conceived before termination
Illegitimate Legitimate Legitimate Legitimate
EXCEPT: Art. 36 and 35
conceived and born before
judgment (legitimate)
Custody of Children
Court Proceeding Court Proceeding Court Proceeding Innocent Spouse
Property Relations
1. Dissolution and Liquidation of properties
a. Guilty/Bad Faith spouse will forfeit his/her share from the Net Profits to the (in order):
i. Common children
ii. Children of the guilty spouse by previous marriage
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C. SUPPORT
A. LIVE TOGETHER From the conjugal property; If none, income or
GENERAL RULE: It is their obligation to do so the fruits of their separate properties; if none,
(cohabitation). It is also their obligation to from their separate properties (liable in
observe mutual love, respect and fidelity and proportion to their properties).
render mutual help and support. (Art. 68)
EXEMPTION: One spouse living abroad or In the case of a separation de facto, if it is
there are valid and compelling reasons proved that the husband and wife were still
(Art. 69 (2)) – at the discretion of the living together at the time of his death, it would
court. be safe to presume that she was dependent on
EXEMPTION TO EXEMPTION: the husband for support, unless it is shown that
Incompatibility with the solidarity of the she is capable of providing for herself. [SSS v.
family (Art. 69 (2)) Aguas (2006)]
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If BEFORE the objection, enforce resulting court for judicial separation of property
obligation against the separate property of the Art. 135 : Sufficient cause for judicial separation
spouse who has not obtained consent. (Art. 73) of property
Art. 136 : Voluntary dissolution of ACP or CPG by
the spouses
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Donor must be one of the betrothed or any third donee acted in bad faith.
person 4. Upon legal separation, if the donee is the
guilty spouse.
Donations excluded 5. If there is a resolutory condition, and it is not
Ordinary wedding gifts given after the complied with.
celebration of the marriage 6. When donee has committed an act of
Donations in favor of future spouses made ingratitude: [Art. 765, CC]
before marriage but not in consideration thereof a. An offense against person or property of
donor, or his wife or children under
Donations made in favor of persons other than
parental authority.
the spouses even if founded on the intended
b. An imputation to the donor of any
marriage
criminal offense, or any act involving
moral turpitude, even if proven, unless the
Who may donate crime is committed against the donee, his
Spouses to each other wife or children under his authority.
Parents of one or both spouses c. Refusing to support the donor, if he/she is
Third persons to either or both spouses legally required to do so.
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“moderate gifts” depends on the income class By the Nationality Rule [Art. 15], the rule that
of the spouses and a car could be considered a Absolute Community Property (ACP) is the
“moderate gift” that does not infringe the default mode of property relations absent any
prohibition of donation between spouses. marriage settlement applies to all Filipinos,
Nazareno v. Birog, (1947): A spouse cannot
regardless of the place of the marriage and
donate to persons which the other spouse may
inherit from as it constitutes an indirect their residence.
donation.
Exceptions:
Rules for donations between common-law (1) Where both spouses are aliens
spouses (2) As to the extrinsic validity of contracts
Matabuena v Cervantes, (1971): The donation affecting property not situated in the
between common-law spouses falls within the Philippines and executed in the country
provision prohibiting donations between
where the property is located
spouses during marriage.
Sumbad v. CA, (1999): The donation made by a (3) As to the extrinsic validity of contracts
man to a woman was held valid because no entered into in the Philippines but affecting
proof was shown that they were still living in a property situated in a foreign country whose
common-law relationship at the time of the laws require different formalities for its
donation. extrinsic validity
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Charges and Either spouse may, through a will, Art. 124, par. 2: Disposition or
Obligations dispose of his or her interest in the encumbrance of conjugal property
community property. [Art. 97] requires the following:
However, the will should refer only
to his or her share in the community
property.
Donation of one spouse without the Consent or approval by both spouses,
consent of the other is not allowed. or
[Art. 98]
Exceptions:
1. Moderate donations to
charity due to family
rejoicing or distress
2. Moderate gifts by each
spouse to the other due to
family rejoicing
Moderation depends on the family’s
socio-economic status.
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Dissolution of Terminates upon [Art. 99]: Terminates upon [Art. 126; cf. Art. 99]:
the regime 1. Death of either spouse – follow 1. Death
rules in Art. 103 2. Legal separation
2. Legal separation – follow rules in 3. Annulment or judicial declaration of
Arts. 63 and 64 nullity
3. Annulment or judicial declaration Judicial separation of property
of nullity – follow rules in Arts. 50
and 52
Judicial separation of property
during marriage – follow rules in
Arts. 134 to 138
Effect of de Rules on de facto separation [Art. Rules on de facto separation [Art. 127]
facto 100] De facto separation does not affect the
separation De facto separation does not affect CPG, except that:
the ACP, except that: 1. Spouse who leaves the conjugal
1. Spouse who leaves the conjugal home without just cause shall not be
home without just cause shall not entitled to support; however, he/she
be entitled to support; however, is still required to support the other
he/she is still required to support spouse and the family
the other spouse and the family 2. If consent is necessary for transaction
2. If consent is necessary for but is withheld or otherwise
transaction but is withheld or unobtainable, authorization may be
otherwise unobtainable, obtained from the court
authorization may be obtained 3. Support for family will be taken from
from the court the partnership property.
3. Support for family will be taken 4. If partnership property is insufficient,
from the ACP spouses shall be solidarily liable
4. If ACP is insufficient, spouses
shall be solidarily liable
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PROPERTY
Liquidation of If personal obligations of a 6. Indemnify loss/deterioration of
assets and spouse exceed his/her movables belonging to either
liabilities separate property, creditor spouse, even due to fortuitous
can go after the share of event, used for the benefit of
the spouse on the net the family
remainder of the ACP, 7. Net remainder of CPG shall
without prejudice to the constitute the profits which
provisions of law on shall be divided equally
forfeitures and delivery of between husband and wife
presumptive legitimes except when:
After covering all A different proportion
community obligations and or division was agreed
obligations of spouses, upon in the marriage
balance of separate settlements
properties shall be delivered There has been a
to respective spouses or voluntary waiver or
their heirs, and they will forfeiture of such share
also divide into two equal as provided in the FC
shares whatever is left of 8. Presumptive legitimes are
the community assets, delivered to common children
without prejudice to the 9. Conjugal dwelling goes to:
provisions of law on Spouse with whom
forfeitures and delivery of majority of common
presumptive legitimes children choose to
remain (below 7 y.o. =
deemed to have chosen
the mother)
Whoever the court chooses in case
of lack of majority
Rules in case of termination of marriage by death of one of the spouses [Art.
104]:
(1)The community property shall be liquidated in the same proceeding for the
settlement of the estate of the deceased spouse.
(2)If no such judicial settlement proceeding is instituted, surviving spouse
shall liquidate the community property either judicially or extra-judicially
within one year from the death of the deceased spouse.
a. If no liquidation is made within the period, any disposition or
encumbrance involving community property of the terminated marriage
shall be void.
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Separation of Property of the Spouses and Administration of Common Property by One Spouse During
the Marriage
Judicial separation of property may either be (1) voluntary or (2) for sufficient cause.
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SEPARATION OF PROPERTY
Agreed upon in the marriage settlements by the spouses
Mandatory under Arts. 103 & 130 (subsequent marriages contracted by a
When it applies surviving spouse without judicial settlement of previous property regime)
Default property regime when there is reconciliation between spouses after
judicial separation of property
Present or future property or both
Each spouse’s earnings from his or her own profession, business, or industry
What it
Natural, industrial or civil fruits of spouse’s separate properties
consists of
May be total or partial
If partial, property not considered separate is presumed to pertain to the ACP
Family expenses: Both spouses are liable in proportion to their income; if
Liabilities insufficient, based on the current value of their separate properties
Creditors for family expenses: Spouses solidarily liable
Spouses may own, dispose, possess, and administer separate estates without the
consent of the other
Administration of exclusive properties may be transferred between spouses
Ownership, when:
administration, One spouse becomes the other spouse’s guardian
enjoyment, and 1. One spouse is judicially declared an absentee
disposition 2. One spouse is given the penalty of civil
interdiction
3. One spouse becomes a fugitive
Conveyance between the spouses is allowed under Art. 1490, NCC.
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Villanueva v. CA (2004):
Transfer of certificate and tax declarations are not sufficient proof of joint contribution.
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Husband
Third Person Donor Macadangdang v. CA (1980): Mere proximate
Husband and third person separation between the spouses is not
donor sufficient physical separation to constitute as
(c) In case of donor sperm, husband and ground for impugning legitimacy.
wife must authorize/ratify
insemination in a written instrument Andal v. Macaraig (1951): Serious illness of the
Executed & signed by husband which absolutely prevented him
husband and wife before the from having sexual intercourse with his wife,
birth of the child. like if the husband was already in comatose or
in a vegetative state, or sick with syphilis in
Recorded in the civil registry
the tertiary stage so that copulation was not
together with the birth
possible. But tuberculosis, even in its most
certificate of the child.
crucial stage, does not preclude copulation
between the sick husband and his wife.
Dual consent is required whether the semen
used comes from the husband or a third
Jao v. CA (1987): Blood-type matching is an
person donor [Tolentino]
acceptable means of impugning legitimacy,
covered by Art. 166(2), under "biological or
De Castro v. Assidao-De Castro, (2008):
other scientific reasons." But this is only
Common children born before the annulment
conclusive of the fact of non-paternity.
are legitimate, and therefore entitled to
support from each of the spouses.
Benitez-Badua v. CA (1994): Only the man (and
his heirs in certain situations) can impugn the
Impugning Legitimacy
legitimacy of the child
Grounds for impugning legitimacy of a child
are [Art. 166]:
Legitimacy with regard to the mother:
(1) Physical impossibility for the husband to
(1) Child considered legitimate although [Art.
have sexual intercourse with his wife
167]:
within the first 120 days of the 300 days
(a) Mother may have declared against its
which immediately preceded the child's
legitimacy
birth due to:
(b) Mother may have been sentenced as
a. Physical incapacity of the husband to
an adulteress (also applies to wife
have sexual intercourse with his wife
who was raped)
b. Husband and wife were living
(2) If the marriage is terminated and the
separately as to make sexual
mother contracted another marriage
intercourse impossible
within 300 days after the termination of
c. Serious illness of the husband
the former marriage, the following rules
absolutely preventing sexual
shall govern in the absence of proof to the
intercourse
contrary [Art 168]:
(2) Other biological or scientific reasons,
(a) If born before 180 days after the
except Artificial Insemination
solemnization of the subsequent
(3) And in case of Artificial Insemination, the
marriage – child is considered
written consent of either parent was
conceived during the former marriage,
vitiated through fraud, violence, mistake,
provided it be born within 300 days
intimidation, or undue influence
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after termination of the former If the birth of the child has been concealed or
marriage was unknown to the husband, the above
(b) If born after 180 days following the periods shall be counted:
celebration of the subsequent (1) From the discovery or knowledge of the
marriage – child is considered birth of the child, or
conceived during such marriage, even (2) From the discovery or knowledge of its
if it be born within 300 days after the registration, whichever is earlier.
termination of the former marriage
GENERAL RULE: Only the husband can
Note: The legitimacy or illegitimacy of a child impugn the legitimacy of a child. If he does
born after 300 days following the termination not bring an action within the prescribed
of the marriage – burden of proof upon periods, he cannot file such action anymore
whoever alleges the status. [Art. 169] thereafter, and this is also true with his heirs.
If nobody asserts the legitimacy or EXCEPTION: That the heirs of the husband
illegitimacy of the child described in Art. 169, may file the action or continue the same
the child should be considered illegitimate within the periods prescribed in Art. 170 [Art.
unless legitimacy is proved. Legitimacy 171]:
cannot be presumed here since the birth was (a) If the husband died before the expiration
beyond the 300-day period of gestation. of the period fixed for bringing his action
While it goes against the policy of law to lean (b) If he should die after the filing of the
in favor of legitimacy, this interpretation is complaint without having desisted
better than the anomalous situation created therefrom
by Art. 169, which is a child without a status. (c) If the child was born after the death of the
[Tolentino] husband.
Action for Impugning Legitimacy [Arts. 170 Sayson v. CA (1992): Legitimacy can only be
and 171] attacked directly.
May be brought within 1, 2, or 3 years from the
knowledge of the birth, or the knowledge of B. PROOF OF FILIATION
registration of birth.
(1) Within 1 year if husband or any heirs Art. 172. The filiation of legitimate children is
reside in the same city or municipality established by any of the following:
where the child was born or his birth was (1) The record of birth appearing in the civil
recorded. register or a final judgment; or
(2) Within 2 years if the husband or all (2) An admission of legitimate filiation in a
heirs live in the Philippines but do not public document or a private handwritten
reside in the same city or municipality instrument and signed by the parent
where the child's birth took place or was concerned.
recorded
(3) Within 3 years if the husband or all In the absence of the foregoing evidence, the
heirs live outside the Philippines when the legitimate filiation shall be proved by:
child's birth took place or was recorded in (1) The open and continuous possession of the
the Philippines status of a legitimate child; or
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(2) Any other means allowed by the Rules of (c) To be entitled to the legitimate and other
Court and special laws. (265a, 266a, 267a) Successional rights granted to them by
the Civil Code
Legitimate children may establish their
filiation by any of the following [Art. 172]: C. ILLEGITIMATE CHILDREN
(1) Primary Evidence
Their record of birth appearing in the Art. 165. Children conceived and born outside
civil registry. a valid marriage are illegitimate, unless
An admission of his filiation by his otherwise provided in this Code. (n)
parent in a public document or a
private handwritten instrument and Who are illegitimate children
signed by said parent GENERAL RULE: Those conceived and born
(2) Secondary Evidence outside of a valid marriage. [Art. 165]
Proof of open and continuous
possession of status as legitimate EXCEPTIONS:
child (1) Children of marriages void under Art. 36
Any other means stated by the rules (psychological incapacity); and
of court or special laws (2) Under Art. 53 (subsequent marriages
Note: Only in the absence of primary evidence which did not comply with Art. 52).
can secondary evidence be admitted (Sempio-Dy)
Action for Claiming Filiation (Legitimate Art. 175. Illegitimate children may establish
Children) [Art. 173]: their illegitimate filiation in the same way and
(a) The child can bring the action during his on the same evidence as legitimate children.
or her lifetime
(b) If the child dies during minority or in a The action must be brought within the same
state of insanity, such action shall be period specified in Article 173, except when
transmitted to his heirs, who shall have a the action is based on the second paragraph
period of five years within which to of Article 172, in which case the action may be
institute the action. brought during the lifetime of the alleged
(c) The action commenced by the child shall parent. (289a)
survive notwithstanding the death of
either or both of the parties GENERAL RULE: Illegitimate children may
establish their illegitimate filiation in the
Rights of Legitimate Children [Art. 174]: same way and on the same evidence (primary
(a) To bear the Surnames of the father and or secondary) as legitimate children.
the mother, in conformity with the Action for Claiming Filiation [Art. 175]:
provisions of the Civil Code on surnames (a) For actions based on primary evidence,
(b) To receive support from their parents, the same periods stated in Art. 173 apply.
their ascendants, and in proper cases, (b) For actions based on secondary evidence,
their brothers and sisters, in conformity the action may only be brought during the
with the provisions of the Code on lifetime of the alleged parent.
Support
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Mendoza v. Melia (1966): Baptismal certificates by the parents and family of the child as
are given probative value only for births legitimate, constant attendance to the child's
before 1930. Birth certificates must be signed support and education, and giving the child
by the parents and sworn for it to be admitted the reputation of being a child of his parents.
as evidence.
Agustin v. CA (2005): DNA evidence can be
Baluyut v. Baluyut (1990): Unsigned birth used as proof of paternity.
certificates are not evidence of recognized
filiation. De Jesus v. Estate of Decedent Juan Gamboa
Dizon (2001): The due recognition of an
Acebedo v. Arquero (2003): Baptismal illegitimate child in a record of birth, a will, a
certificates are only conclusive of the statement before a court of record, or in any
sacrament administered, and cannot be used authentic writing, is in itself a consummated
as proof of filiation. act of acknowledgement of the child, and no
further court action is required.
Lim v. CA (1975): Marriage certificates cannot
be used as proof of filiation. Gono-Javier vs. Court of Appeals (1994): Mere
possession of status as an illegitimate child
Jison v. CA (1998): Rule 130, Sec. 40 is limited does not make a recognized illegitimate child
to objects commonly known as family but is only a ground for bringing an action to
possessions reflective of a family's reputation compel judicial recognition by the assumed
or tradition regarding pedigree like parent.
inscriptions on tombstones, monuments, or
coffin plates. Estate of Rogelio Ong v. Diaz (2007): DNA
evidence can still be used even after the death
Eceta v. Eceta (2004): Signature of the father of the parent.
on the birth certificate is considered as an
acknowledgement of paternity and mere Gotardo v. Buling (2012): There are four
presentation of a duly authenticated copy of significant procedural aspects of a traditional
such certificate will successfully establish paternity action that parties have to face:
filiation. a prima facie case, affirmative defenses,
presumption of legitimacy, and physical
Heirs of Rodolfo Bañas v. Heirs of Bibiano Bañas resemblance between the putative father and
(1985): "Su padre [Your father]" ending in a the child. A prima facie case exists if a woman
letter is only proof of paternal solicitude and declares — supported by corroborative proof
not of actual paternity. Signature on a report — that she had sexual relations with the
card under the entry of "Parent/Guardian" is putative father; at this point, the burden of
likewise inconclusive of open admission. evidence shifts to the putative father. Further,
the two affirmative defenses available to the
De Jesus v. Syquia (1933): By "open and putative father are: (1) incapability of sexual
continuous possession of the status of a relations with the mother due to either
legitimate child" is meant the enjoyment by physical absence or impotency, or (2) that the
the child of the position and privileges usually mother had sexual relations with other men at
attached to the status of a legitimate child, the time of conception.
like bearing the paternal surname, treatment
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Meanwhile, the lack of participation of the (c) Shall be entitled to Support in conformity
supposed father in the preparation of a with the Family Code
baptismal certificate renders this document (d) Legitime shall consist of one-half of the
incompetent to prove paternity. Baptismal legitime of a legitimate child.
certificates are per se inadmissible in evidence
as proof of filiation and they cannot be D. LEGITIMATED CHILDREN
admitted indirectly as circumstantial evidence
to prove the same Art. 177. Only children conceived and born
outside of wedlock of parents who, at the time
Art. 176. Illegitimate children shall use the of the conception of the former, were not
surname and shall be under the parental disqualified by any impediment to marry each
authority of their mother, and shall be entitled other may be legitimated. (269a)
to support in conformity with this Code. The
legitime of each illegitimate child shall GENERAL RULE: "Legitimated" children are
consist of one-half of the legitime of a illegitimate children who because of the
legitimate child. Except for this modification, subsequent marriage of their parents are, by
all other provisions in the Civil legal fiction, considered legitimate.
Code governing successional rights shall
remain in force.(287a) To be capable of legitimation:
(1) The child must have been conceived and
Rights of Illegitimate Children: born outside of wedlock; and
(a) Use the Surname and be under the (2) The parents, at the time of the child's
parental authority of the mother conception, were not disqualified by any
(b) However, may use the surname of their impediment to marry each other, or
father if disqualified only because either or both of
Their filiation has been expressly them were below 18 y.o. (Art. 177 as
recognized by the father through the amended by RA 9858)
record of birth appearing in the civil
register; or Procedure and Effects:
There is an admission in a public (a) Legitimation shall take place by a
document or private handwritten subsequent valid marriage between
instrument made by the father. the parents. The annulment of a
Provided, the father has the right to voidable marriage shall not affect the
institute an action before the regular legitimation. [Art. 178]
courts to prove non-filiation during his
lifetime [RA 9255]
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(2) Any person convicted of a crime of (3) When the surviving spouse AND
moral turpitude illegitimate children AND adopters concur,
they shall inherit on a 1/3-/1/3-1/3 basis
F. RIGHTS OF AN ADOPTED CHILD
(4) When only adopters survive, they shall
(a) Parental Authority inherit 100% of the estate
Except in cases where the biological
parent is the adopter’s spouse, all legal (5) When only collateral blood relatives
ties between biological parent and survive, ordinary rules of legal or intestate
adoptee shall be severed, and the same succession shall apply
shall then be vested on the adopters.
[Sec. 16] (d) Name
(b) Legitimacy An adopted child shall bear the surname of
The adoptee shall be considered the the adopter (CC, Art. 365).
legitimate son/daughter of the adopters
for all intents and purposes, and as such RA 8552 allows the change of first name
is entitled to all rights and obligations to be instituted in the same proceeding as
provided by law to legitimate children the adoption: “the decree of adoption shall
born to them without discrimination of state the name by which the child is to be
any kind. [Sec. 17] known”.
(c) Succession
In legal and intestate succession, the (e) Nationality
adopter and the adoptee shall have Adoption does not confer citizenship: Sec.
reciprocal rights of succession without 3, Art. 4 of the Constitution: Philippine
distinction from legitimate filiation. citizenship may be lost/acquired [only] in
However, if the adoptee and his/her the manner provided by law.
biological parents had left a will, the law
on testamentary succession shall govern. The right to confer citizenship belongs to
[Sec. 18] the State (political) and cannot be granted
by a citizen through adoption. Adoption
Art. 190 as amended. Rules on legal or creates a relationship between the adopter
intestate succession to the estate of the and adoptee, not between the State and
adoptee: the adoptee.
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Contractual support or that given by will except from the date of judicial or extra-
o The excess in amount beyond that judicial demand. [Art. 203]
required for legal support shall be Support pendente lite may be claimed in
subject to levy on attachment or accordance with the Rules of Court. [Art.
execution. [Art. 208] 203]
Payment shall be made within the first 5
Reason: The amount of support days of each corresponding month. When
agreed upon in the contract or given the recipient dies, his heirs shall not be
in the will can be more than what the obliged to return what he has received in
recipient needs (Sempio-Diy). advance. [Art. 203]
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Persons between ages twenty-one and A verified petition alleging the following facts
twenty-five, shall be obliged to ask their is required when [Art. 239]:
parents orguardian for advice upon the A husband and wife are separated in fact;
intended marriage. or,
No advice or unfavorable advice: marriage One has abandoned the other
license shall not be issued till after three
months following the completion of the Situation: Where one of them seeks judicial
publication of the application therefor authorization for a transaction where the
Sworn statement by the contracting consent of the other spouse is required by law
parties that advice has been sought, but such consent is withheld or cannot be
together with written advice if any or obtained
refusal to give advice: attached to the
application for the marriage license [Art. The petition shall:
15, FC] (1) Attach the proposed deed, if any,
embodying the transaction, if none, shall
Nothing in this Code shall be construed to describe in detail the said transaction and
derogate from the duty or responsibility of state the reason why the required consent
parents and guardians for children and wards thereto cannot be secured.
below twenty-one years of age mentioned in (2) The final deed duly executed by the
the second and third paragraphs of Article parties shall be submitted to and
2180 of the Civil Code. approved by the court.
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the last known address of the spouse Rules applicable for administering or
concerned. [Art. 242] encumbering separate property of spouse: The
petition for judicial authority to administer or
Procedure: encumber specific separate property of the
(1) A preliminary conference shall be abandoning spouse and to use the fruits or
conducted by the judge personally proceeds thereof for the support of the family
without the parties being assisted by shall also be governed by these rules. [Art.
counsel. 248]
(2) After the initial conference, if the court
deems it useful, the parties may be C. INCIDENTS INVOLVING
assisted by counsel at the succeeding PARENTAL AUTHORITY
conferences and hearings. [Art. 243]
(3) If the petition is not resolved at the initial Procedure
conference, said petition shall be (1) Such petitions shall be verified and filed
decided in a summary hearing. Basis of in the proper court of the place where the
summary hearing (at the sound child resides. [Art. 250]
discretion of the court): (2) Upon the filing of the petition, the court
• Affidavits shall notify the parents or, in their
• Documentary evidence absence or incapacity, the individuals,
• Oral testimonies at the court’s sound entities or institutions exercising
discretion. If testimony is needed, the parental authority over the child. [Art.
court shall specify the witnesses to be 251]
heard and the subject-matter of their
testimonies, directing the parties to Note:
present said witnesses. [Art. 246(a)] • Petitions filed under Articles 223, 225 and
235 of this Code involving parental
When appearance of spouses required: authority shall be verified. [Art. 249]
1. In case of non-appearance of the spouse • The rules in Chapter 2 hereof shall also
whose consent is sought, the court shall govern summary proceedings under this
inquire into the reasons for his failure to Chapter insofar as they are applicable [Art.
appear, and shall require such 253]
appearance, if possible. [Art. 244] • The foregoing rules in Chapter 2
2. If, despite all efforts, the attendance of the (Separation in Fact) and (Incidents
non-consenting spouse is not secured, the Involving Parental Authority) hereof shall
court may proceed ex parte and render likewise govern summary proceedings filed
judgment as the facts and circumstances Declaration of presumptive death [Art.
may warrant. In any case, the judge shall 41]
endeavor to protect the interests of the Delivery of presumptive legitime [Art.
non-appearing spouse. [Art. 245] 51]
Fixing of family domicile [Art. 69]
Nature of judgment: The judgment of the
Disagreements regarding one spouse’s
court shall be immediately final and
profession, occupation, business, or
executory. [Art 247]
activity [Art. 73]
Disposition or encumbrance of common
property in ACP where one spouse is
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Juvenile courts will be established, as far as (b) Her maiden first name and her
practicable, in every chartered city or large husband's surname or
municipality.[Art. 361, NCC] (c) Her husband's full name, but
prefixing a word indicating that she
Whenever a child is found delinquent by any is his wife, such as "Mrs."
court, the father, mother, or guardian may in The wife cannot claim an exclusive right to
a proper case be judicially admonished. [Art. use the husband’s surname. She can’t be
362, NCC] prevented from using it; but neither can
she restrain others from using it.
[Tolentino]
XIV. Surnames (2) In case of annulment of marriage, and the
wife is the guilty party, she shall resume
A. SURNAMES OF CHILDREN her maiden name and surname. If she is
the innocent spouse, she may resume her
(1) Legitimate and legitimated children shall
maiden name and surname. However, she
principally use the surname of the father.
may choose to continue employing her
[Art. 364]
former husband's surname, unless [Art.
(2) An adopted child shall bear the surname
371]:
of the adopter. [Art. 365]
(a) The court decrees otherwise, or
(3) A natural child acknowledged by both
(b) She or the former husband is married
parents shall principally use the surname
again to another person.
of the father. If recognized by only one of
(3) When legal separation has been granted,
the parents, a natural child shall employ
the wife shall continue using her name and
the surname of the recognizing parent.
surname employed before the legal
[Art 366]
separation. [Art. 372]
(4) Natural children by legal fiction shall
(4) A widow may use the deceased
principally employ the surname of the
husband's surname as though he were still
father [Art. 367]
living, in accordance with Article 370. [Art
(5) Illegitimate children referred to in Article
373]
287 shall bear the surname of the mother.
[Art 368]
(6) Children conceived before the decree C. CONFUSION AND CHANGE OF
annulling a voidable marriage shall NAMES
principally use the surname of the father. In case of identity of names and surnames,
[Art. 369] the younger person shall be obliged to use
such additional name or surname as will
avoid confusion. [Art. 374]
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the prior spouse had been absent for four • Only the deserted spouse can file or
consecutive years and the spouse present has institute a summary proceeding for the
a well founded belief that the absent spouse declaration of presumptive death of the
was already dead. In case of disappearance absentee. (Bienvenido case)
where there is danger of death under the
circumstances set forth in the provisions of • There must have been diligent efforts on
Article 391 of the Civil Code, an absence of the part of the deserted spouse to locate
only two years shall be sufficient. the absent spouse. These diligent efforts
correspond to the requirement of the law
General rule: Marriage contracted by any for a well-founded belief.
person during the subsistence of a previous
marriage is void. Exception to the Exception:
Art. 381. When a person disappears from his
Exceptions: The following subsequent domicile, his whereabouts being unknown,
marriage of the present spouse is valid: and without leaving an agent to administer
(1) Subsequent marriage due to ordinary his property, the judge, at the instance of an
interested party, a relative, or a friend, may
absence where: appoint a person to represent him in all that
(a) The prior spouse had been absent for may be necessary.
4 consecutive years; This same rule shall be observed when under
(b) The spouse present had a well- similar circumstances the power conferred by
founded belief that absent spouse is the absentee has expired.
dead; and
Art. 382. The appointment referred to in the
(c) Judicial declaration of presumptive
preceding article having been made, the
death was secured (no prejudice to judge shall take the necessary measures to
the effect of the reappearance of the safeguard the rights and interests of the
absent spouse). absentee and shall specify the powers,
(2) Subsequent marriage due to obligations and remuneration of his
extraordinary absence where: representative, regulating them, according to
(a) The prior spouse had been missing for the circumstances, by the rules concerning
guardians.
2 consecutive years;
(b) There is danger of death attendant to Art. 383. In the appointment of a
the disappearance [Art. 391, Civil representative, the spouse present shall be
Code]; preferred when there is no legal separation.
(c) The spouse present had a well- If the absentee left no spouse, or if the spouse
founded belief that the missing present is a minor, any competent person may
person is dead; and be appointed by the court.
(d) Judicial declaration of presumptive
death was secured (no prejudice to Requisites: The judge may appoint a person to
the effect of the reappearance of the represent absentee when:
absent spouse). (1) Person disappears from his domicile
(2) His whereabouts are unknown
Notes: (3) No agent to administer his property
• Institution of a summary proceeding is not (4) An interested party, a relative, or a
sufficient. There must also be a summary friend files the action
judgment. (Balane)
Who may be appointed as representative?
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(1) Spouse present shall be preferred (3) Relatives who may succeed by the law
when there is no legal separation of intestacy;
(2) If no spouse or spouse is (4) Those who may have some right over
incapacitated, any competent person the property of the absentee,
subordinated to the condition of his
B. DECLARATION OF ABSENCE, death.
[ARTS. 384-389]
C. ADMINISTRATION OF THE
Art. 384. Two years having elapsed without PROPERTY OF THE ABSENTEE,
any news about the absentee or since the [ARTS. 387-389]
receipt of the last news, and five years in case
the absentee has left a person in charge of the
administration of his property, his absence Art. 387. An administrator of the absentee's
may be declared. property shall be appointed in accordance
with Article 383.
Art. 385. The following may ask for the
declaration of absence: Art. 388. The wife who is appointed as an
1. The spouse present; administratrix of the husband's property
cannot alienate or encumber the husband's
2. The heirs instituted in a will, who may
property, or that of the conjugal partnership,
present an authentic copy of the same; without judicial authority.
3. The relatives who may succeed by the law
of intestacy; Art. 389. The administration shall cease in any
4. Those who may have over the property of of the following cases:
the absentee some right subordinated to 1. When the absentee appears personally or
the condition of his death. by means of an agent;
2. When the death of the absentee is proved
Art. 386. The judicial declaration of absence and his testate or intestate heirs appear;
shall not take effect until six months after its 3. When a third person appears, showing by a
publication in a newspaper of general proper document that he has acquired the
circulation. absentee's property by purchase or other
title.
When may absence be declared? In these cases the administrator shall cease in
• Two years without any news about the the performance of his office, and the
absentee property shall be at the disposal of those who
• Five years if the absentee left a person in may have a right thereto.
charge of administration of his property
• Declaration takes effect only after six
months after publication in a newspaper of Who may administer the property?
general circulation • Spouse present shall be preferred when
there is no legal separation
Who may ask for a declaration of absence? • If no spouse or spouse is incapacitated, any
(1) Spouse present competent person
(2) Heirs instituted in a will, who may
present an authentic copy of the When will the administration of property
same; cease?
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Art. 407. Acts, events and judicial decrees Art. 413. All other matters pertaining to the
concerning the civil status of persons shall be registration of civil status shall be governed
recorded in the civil register. by special laws.
Art. 409. In cases of legal separation, General rule: No entry in a civil register shall
adoption, naturalization and other judicial be changed or corrected without a judicial
orders mentioned in the preceding article, it
order
shall be the duty of the clerk of the court
which issued the decree to ascertain whether
the same has been registered, and if this has Exception: Clerical or typographical errors;
not been done, to send a copy of said decree Change of: first name or nickname, day and
to the civil registry of the city or municipality month in the date of birth, or sex of a person
where the court is functioning. This exception applies where it is patently
clear that there was a clerical or
Art. 410. The books making up the civil
register and all documents relating thereto typographical error or mistake in the entry,
shall be considered public documents and which can be corrected or changed by the
shall be prima facie evidence of the facts concerned city or municipal civil registrar or
therein contained. consul general in accordance with the
provisions of this Act and its implementing
Art. 411. Every civil registrar shall be civilly rules and regulations
responsible for any unauthorized alteration
made in any civil register, to any person
suffering damage thereby. However, the civil Note:
registrar may exempt himself from such • Clerical or typographical error refers to a
liability if he proves that he has taken every mistake committed in the performance of
reasonable precaution to prevent the clerical work in writing, copying,
unlawful alteration. transcribing or typing an entry in the civil
register that is harmless and innocuous
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(i.e. misspelled name, misspelled place of Citizens of the Philippines who are presently
birth, mistake in the entry of day and residing or domiciled in foreign countries may
month in the date of birth or the sex of the file their petition, in person, with the nearest
person or the like, which is visible to the Philippine Consulates.
eyes or obvious to the understanding, and
can be corrected or changed only by The petitions filed with the city or municipal
reference to other existing record or civil registrar or the consul general shall be
records) processed in accordance with this Act and its
• Before the amendment by RA 10172, no implementing rules and regulations.
correction must involve the change of sex,
nationality, age or status of the petitioner. All petitions for the clerical or typographical
After the amendment, change of sex can errors and/or change of first names or
now be subjected to correction without nicknames may be availed of only once.
judicial order under the rules of this Act.
• Civil Register refers to the various registry Grounds
books and related certificates and Who may file the petition and where?
documents kept in the archives of the local (1) Any person having direct personal interest
civil registry offices, Philippine Consulates in the correction of a clerical or
and of the Office of the Civil Registrar typographical error in an entry and/or
General. change of first name or nickname in the
civil register
Sec. 3. Who May File the Petition and Where. – (2) Verified petition with the local civil registry
Any person having direct and personal office of the city or municipality
interest in the correction of a clerical or (a) where the record being sought to be
typographical error in an entry and/or change corrected or changed is kept
of first name or nickname in the civil register (b) where the interested party is presently
may file, in person, a verified petition with the residing or domiciled, if it will be
local civil registry office of the city or impractical to submit in the place where
municipality where the record being sought to record is kept (i.e. when party has
be corrected or changed is kept. migrated to another place in the country)
(c) nearest Philippine Consulates, if the
In case the petitioner has already migrated to petitioner is presently residing or
another place in the country and it would not domiciled in foreign countries
be practical for such party, in terms of
transportation expenses, time and effort to Note:
appear in person before the local civil All petitions for the clerical or typographical
registrar keeping the documents to be errors and/or change of first names or
corrected or changed, the petition may be nicknames may be availed of only once.
filed, in person, with the local civil registrar of
the place where the interested party is Sec. 4. Grounds for Change of First Name or
presently residing or domiciled. The two (2) Nickname. – The petition for change of first
local civil registrars concerned will then name or nickname may be allowed in any of
communicate to facilitate the processing of the following cases:
the petition. (1) The petitioner finds the first name or
nickname to be ridiculous, tainted with
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the following entries in the civil register may Sec. 7. Order. - After hearing, the court may
be cancelled or corrected: (a) births; (b) either dismiss the petition or issue an order
marriages; (c) deaths; (d) legal separations; granting the cancellation or correction prayed
(e) judgments of annulments of marriage; (f) for. In either case, a certified copy of the
judgments declaring marriages void from the judgment shall be served upon the civil
beginning; (g) legitimations; (h) adoptions; (i) registrar concerned who shall annotate the
acknowledgments of natural children; (j) same in his record.
naturalization (k) election, loss or recovery of
citizenship (l) civil interdiction; (m) judicial Who may file petition? - Any person interested
determination of filiation; (n) voluntary in any act, event, order or decree concerning
emancipation of a minor; and (o) changes of the civil status of persons which has been
name. recorded in the civil register
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CIVIL LAW
PROPERTY
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I. Property – All things which are, or may be, (4) Statues, reliefs, paintings or other objects
the object of appropriation. [NCC 414] for use or ornamentation, placed in
buildings or on lands by the owner of the
immovable in such a manner that it
I. Characteristics reveals the intention to attach them
permanently to the tenements;
(1) Utility – capacity to satisfy human wants (5) Machinery, receptacles, instruments or
(2) Substantivity and Individuality – separate implements intended by the owner of the
and autonomous existence tenement for an industry or works which
(3) Susceptibility of being appropriated – may be carried on in a building or on a
piece of land, and which tend directly to
what cannot be appropriated because of meet the needs of the said industry or
their distance, depth, or immensity cannot works;
be considered ‘things’ (i.e. stars, ocean) (6) Animal houses, pigeon-houses, beehives,
fish ponds or breeding places of similar
nature, in case their owner has placed
II. Classification them or preserves them with the intention
A. HIDDEN TREASURE to have them permanently attached to the
land, and forming a permanent part of it;
Hidden treasure –any hidden and unknown
the animals in these places are included;
deposit of money jewels aor other precious (7) Fertilizer actually used on a piece of land;
objects, the lawful ownership of which does (8) Mines, quarries, and slag dumps, while
not appear. [NCC 439] the matter thereof forms part of the bed,
and waters either running or stagnant;
Owner of the land, building or other property (9) Docks and structures which, though
on which the hidden treasure was found, also floating, are intended by their nature and
owns it, subject to: object to remain at a fixed place on a river,
lake, or coast;
(a) Right of a finder by chance who is not
(10) Contracts for public works, and
a trespasser/intruder: ½ of treasure servitudes and other real rights over
(b) Right of a usufructuary who finds immovable property.
treasure: ½ of treasure
(c) Right of State to acquire things of CATEGORIES OF IMMOVABLES
interest to science or the arts [NCC (a) By nature
438] (b) By incorporation
(c) By destination
B. BASED ON MOBILITY (d) By analogy
[IMMOVABLE OR MOVABLE]
Immovables by Nature: cannot be moved from
place to place; their intrinsic qualities have no
B. 1. REAL OR IMMOVABLE PROPERTY
utility except in a fixed place. (pars. 1 & 8)
NCC 415.
(1) Land, buildings, roads and constructions
of all kinds adhered to the soil;
(1) Par. 5
(2) Trees, plants, and growing fruits, while
they are attached to the land or form an (a) Building - their adherence to the land
integral part of an immovable; must be permanent and substantial.
(3) Everything attached to an immovable in a (b) Buildings have been considered as
fixed manner, in such a way that it cannot immovables, despite:
be separated therefrom without breaking
the material or deterioration of the object;
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(i) Treatment by the parties e.g. they separation will be substantial e.g.
constitute a separate mortgage wells, sewers, aqueducts and railways
on the building and the land (i) Whether attached by the owner
[Punzalan v. Lacsamana] himself or some other person
(ii) Separate Ownership i.e. a
building on rented land is still (3) Par. 7
considered an immovable. Actually used (it has been spread over the
[Tolentino] land)
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NCC 419. Property is part of either the public (2) Those intended for some public service:
dominion or private ownership. may be used only by authorized persons
but exists for the benefit of all. e.g.
Churches and other consecrated objects are fortresses, unleased mines and civil
buildings.
considered outside the commerce of man;
they are considered neither public nor private (3) Those for the development of the national
property. wealth. Includes natural resources such as
minerals, coal, oil and forest.
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E.2. NON-FUNGIBLES
(1) Things that cannot be substituted for G.4. BY REASON OF THEIR
another; SUSCEPTIBILITY TO DIVISION
(2) If the parties agreed that the same thing (1) Divisible
be returned, it is not fungible. Those which can be divided physically or
juridically without injury to their nature
F. BASED ON THE CONSTITUTION e.g.: piece of land or an inheritance.
[ARTICLE XII, SEC 3] (2) Indivisible
(1) Public Agricultural Land; Those which cannot be divided without
destroying their nature or rendering
(2) Mineral Land;
impossible the fulfillment of the juridical
(3) Timber Land; relation of which they are object.
(4) National Parks.
G.5. BY REASON OF DESIGNATION
G. OTHER CLASSIFICATIONS (1) Generic
G.1. BY THEIR PHYSICAL EXISTENCE That which indicates its homogenous
(1) Corporeal nature, but not the individual such as a
All property the existence of which can be horse, house, dress, without indicating it.
determined by the senses. (res qui tangi (2) Specific
possunt) That which indicates the specie or its
(2) Incorporeal nature and the individual, such as “the
(a) Things having abstract existence, white horse of X”.
created by man and representing
value. G.6. EXISTENCE IN POINT OF TIME
(b) Includes rights over incorporeal (1) Present
things, credits, and real rights other Those which exist in actuality, either
than ownership over corporeal things. physical or legal, such as, the erected
building.
G.2. BY THEIR AUTONOMY OR (2) Future
DEPENDENCE Those which do not exist in actuality, but
(1) Principal whose existence can reasonably be
Those to which other things are expected with more or less probability,
considered dependent or subordinated, such as ungathered fruits.
such as the land on which a house is built.
(2) Accessory
Those which are dependent upon or III. Ownership
subordinated to the principal. They are
destined to complete, enhance or A. DEFINITION AND CONCEPT
ornament another property. Independent right of exclusive enjoyment
and control of a thing.
G.3. BY SUSCEPTIBILITY TO Has the purpose of deriving all advantages
DETERIORATION required by the reasonable needs of the
(1) Deteriorable owner/holder of right and promotion of
Those that deteriorate through use or by general welfare.
time. A complete subjection to an owner’s will.
(2) Non-deteriorable.
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Personal action
All other actions.
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SUMMARY OF ACTIONS
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General Rule: To the owner of the principal (3) Civil – easily prorated for under NCC 544
belongs the natural, industrial and civil fruit. they are deemed to accrue daily and belong
to the possessor in good faith in that
proportion.
Exceptions: Notes:
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partition, owned in common by such heirs, his own name with third persons are governed
subject to the payment of debts of the by the provisions relating to co-ownership.
deceased.
For as long as the estate is left undivided the E. RIGHTS OF CO-OWNERS
heirs will be considered co-owners of the E.1. RIGHT TO SHARE IN THE BENEFITS
inheritance. AS WELL AS THE CHARGES [NCC 485]
If one of the heirs dies, his heirs will in turn Proportional to their interests;
be co-owners of the surviving original heirs. Stipulation to the contrary is void;
Portion belonging to the co-owners is
D.4. TESTAMENTARY DISPOSITION OR presumed equal.
DONATION INTER VIVOS
(1) When a donation is made to several persons E.2. RIGHT TO USE THE THING OWNED
jointly, it is understood to be in equal IN COMMON [NCC 486]
shares, and there shall be no right of Limitations
accretion among them, unless the donor That he use the thing in accordance with the
has otherwise provided. [NCC 753] purpose for which it is intended.
(2) A donor or testator may prohibit partition
for a period which shall not exceed 20 That he uses it in such a way as to not injure
years. the interest of the co-ownership or prevent
the other co-owners from using it.
D.5. BY FORTUITOUS EVENT OR BY
CHANCE RIGHT TO BRING AN ORDER IN
(1) Co-ownership between owners of 2 things EJECTMENT [NCC 487]
that are mixed by chance or by will of the
owners: RIGHT TO COMPEL OTHER CO-OWNERS
[NCC 472] Each owner shall acquire a TO CONTRIBUTE TO THE EXPENSES OF
right proportional to the part belonging to PRESERVATION AND TO THE TAXES
him, bearing in mind the value of the [NCC 488]
things mixed or confused.
(1) Any one of the other co-owners may
(2) Hidden Treasure [NCC 438] exempt himself by renouncing so much of
When the discovery is made on the property his undivided interest as may be
of another, or of the State or any of its equivalent to his share of the expenses
subdivisions, and by chance, one-half shall and taxes.
be allowed to the finder. (2) No waiver if it is prejudicial to the co-
ownership
D.6. BY OCCUPANCY
Harvesting and Fishing: Co-ownership by two RIGHT TO REPAIR [NCC 489]
or more persons who have seized a res nullius (1) Repairs for preservation may be made at
thing the will of one of the co-owners but he
must first notify his co-owners.
(2) Expenses to improve or embellish, decided
D.7. BY ASSOCIATIONS AND SOCIETIES upon by a majority.
WITH SECRET ARTICLES
Articles are kept secret among the members
and any one of the members may contract in
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necessity of such repairs and the Registration under the Torrens system is
reasonableness of the expenses. constructive notice of title but it not sufficient
notice of the act of repudiation. [Adille v CA]
Exception: If proven that had there been a
notification, they could have hired another G.4. PARTITION OR DIVISION
who would charge less or that they know of Procedure for Partition
a store that sells the needed material at a Governing rule: Rule 69 of the Rules of
cheaper price Court.
The reimbursement will be limited to the How: By agreement of parties or by judicial
amount that should have been spent had decree.
he notified the others, and the difference Form: Oral or Written (Statute of Frauds
shall be borne by him alone. does not operate here because it is not a
conveyance of property but a mere
(2) Decisions by the majority must be segregation or designation of which parts
followed. belong to whom)
The Rules of Court do not preclude
G. TERMINATION OR agreements or settlements.
EXTINGUISHMENT
G.1. TOTAL DESTRUCTION OF THING OR Action for Partition will determine:
LOSS OF THE PROPERTY CO-OWNED (1) Whether or not the plaintiff is indeed a co-
owner of the property
Is there still co-ownership if a building is
destroyed? Yes, over the land and the debris. (2) How the property will be divided between
the plaintiff and defendant.
G.2. MERGER OF ALL INTERESTS IN ONE
PERSON Effects
(1) Confers exclusive ownership of the
G.3. ACQUISITIVE PRESCRIPTION property adjudicated to a co-heir.
By whom (2) Co-heirs shall be reciprocally bound to
(1) A third person. [NCC 1106] warrant the title to and the quality of each
(2) A co-owner against the other co-owners. property adjudicated.
(3) Reciprocal obligation of warranty shall be
Requisites for acquisitive prescription against proportionate to the respective hereditary
co-owners [Adille v CA (1988)]: shares of co-heirs.
(1) A co-owner repudiates the co-ownership; (4) An action to enforce warranty must be
(2) The act of repudiation is clearly made brought within 10 years from the date the
known to other co-owners; right accrues.
(3) The evidence thereon is clear and (5) The co-heirs shall not be liable for the
conclusive; and subsequent insolvency of the debtor of
(4) The co-owner has been in possession thru the estate.
open, continuous, exclusive and notorious
possession of the property for the period Unless partition is effected, each heir cannot
required by law. claim sole ownership over a definite portion of
the land. Heirs become the undivided owner
Note: there is a presumption that possession of of the whole estate. Until said partition, he
a co-owner is NOT adverse cannot alienate a specific part of the estate.
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Until then, they can only sell their successional The holding of a thing or the enjoyment of a
rights. [Carvaria v. CA] right. [NCC 523]
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(b) Implied from the acts of the possessor. NAME AND POSSESSION IN THE NAME
(c) May be contradicted and rebutted by OF ANOTHER [NCC 524]
evidence – to prove that the person (1) In one’s own name – the fact of possession
who is in possession does not in fact and the right to such possession is found
exercise power or control and does not in the same person.
intend to do so. (2) In the name of another – the one in actual
C. DEGREES OF POSSESSION possession is without any right of his own,
(1) Mere holding or possession without title but is merely an instrument of another in
and in violation of the right of the owner the exercise of the latter’s possession.
(a) possession of a thief or usurper of land Kinds of possession in the name of another
(b) Here, both the possessor and the (1) Necessary – arises by operation of law
public know that the possession is e.g. representatives who exercise
wrongful. possession in behalf of a conceived child,
juridical persons, persons not sui juris and
(2) Possession with juridical title but not that the conjugal partnership
of ownership
(a) e.g. possession of a tenant, depository (2) Voluntary – effected through the mutual
agent, bailee trustee, lessee, consent of the parties
antichretic creditor. (a) e.g. agents or administrators
(b) This possession is peaceably acquired. appointed by the owner or possessor.
(c) This degree of possession will never (b) Third person may also voluntary
ripen into full ownership as long as exercise possession in the name of
there is no repudiation of concept another, but it does not become
under which property is held. effective unless ratified by the person
in whose name it is exercised.
(3) Possession with just title or title sufficient
to transfer ownership, but not from the D.2. POSSESSION IN THE CONCEPT OF
true owner AN OWNER, AND POSSESSION IN THE
(a) e.g. possession of a vendee from a CONCEPT OF A HOLDER WITH THE
vendor who pretends to be the owner. OWNERSHIP BELONGING TO ANOTHER
(b) This degree of possession ripens into [NCC 525]
full ownership by lapse of time. (1) Possession in Concept of Holder
(a) One who possesses as a mere holder,
(4) Possession with a just title from the true not in the concept of owner,
owner acknowledges in another a superior
(a) This is possession that springs from right which he believes to be
ownership. ownership, whether his belief be right
or wrong.
(b) e.g. tenant, usufructuary, borrower in
commodatum.
D. CASES OF POSSESSION
(2) Possession in Concept of Owner
D.1. POSSESSION FOR ONESELF, OR (a) May be exercised by the owner
POSSESSION EXERCISED IN ONE’S OWN himself or one who claims to be so.
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(b) When a person claims to be the owner (c) The belief of a possessor that he is the
of a thing, whether he believes so or owner of the thing must be based
not, acting as an owner, and upon the title or mode of acquisition,
performing acts of ownership, and he is such as a sale, a donation, inheritance
or may be considered as the owner by or other means of transmitting
those who witness his exercise of ownership; for without this, there can
proprietary rights, then he is in the be no real, well-grounded belief of
possession of an owner. This is the kind one’s ownership.
of possession that ripens into (d) Error in the application of the law, in
ownership under Article 540, when the legal solutions that arise from
such possession is public, peaceful and such application, in the appreciation
uninterrupted. [see Art. 1118]. of legal consequence of certain acts,
and in the interpretation of doubtful
Effects of Possession in Concept of an Owner provisions or doctrines, may properly
(1) Converted into ownership by the lapse of serve as basis for good faith.
time necessary for prescription. (e) A misconception of the law, no matter
(2) Possessor can bring all actions necessary how honest cannot have the effect of
to protect his possession, availing himself making one a possessor in good faith
of any action which an owner can bring, when he does not hold a title valid in
except accion reivindicatoria which is form or a deed sufficient in terms to
substituted by accion publiciana. transfer property.
(3) He can ask for the inscription of possession
in the registry of property. (2) Possessor in bad faith – one who knows
(4) Upon recovering possession from one who his title is defective.
has unlawfully deprived him of it, he can (a) Only personal knowledge of the flaw
demand fruits and damages. in the title or mode of acquisition can
(5) He can do on the thing possessed make him a possessor in bad faith for
everything that the law authorizes an bad faith is not transmissible from
owner to do; he can exercise the right of one person to another.
pre-emption and is entitled to the (b) Mistake upon a doubtful or difficult
indemnity in case of appropriation. question of law as a basis of good
faith.
D.3. POSSESSION IN GOOD FAITH AND (c) Mistake or ignorance of the law, by
POSSESSION IN BAD FAITH [NCC 526] itself, cannot become the basis of
(1) Possessor in good faith – one who is good faith. What makes the error or
unaware that there exists a flaw in the title ignorance a basis of good faith is the
or mode og acquisition which invalidates presence of an apparent “doubt” or
his acquisition. “difficulty” in the law. In other words,
(a) Good faith – consists in the possessor’s the law is complex, ambiguous, or
belief that the person from whom he vague such that it is open to two or
received a thing was the owner of the more interpretations.
same and could convey his title. (d) When the ignorance of the law is
(b) It implies freedom from knowledge and gross and inexcusable, as when a
circumstances which ought to put a person of average intelligence would
person on inquiry. know the law, such ignorance cannot
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be the basis of good faith. Otherwise, (2) By subjection to the action of one’s will
the intendment of Article 3 which (a) This mode refers more to the right of
states that, “Ignorance of the law possession than to possession as a
excuses no one from compliance fact. The “action of our will” must be
therewith,” will be defeated. juridical, in the sense that it must be
according to law.
What Things May be Possessed [NCC 530] (b) It includes:
Only things and rights which are susceptible of (i) Tradicion symbolica – by
being appropriated may be the object of
delivering some object or symbol
possession.
placing the thing under the
What May Not Be Possessed by Private Persons control of the transferee.
(1) Res Communes (ii) Tradicion longa manu – by the
(2) Property of Public Dominion transferor pointing out to the
(3) Right under discontinuous and/or non- transferee the things that are
apparent easement being transferred.
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Note: Permissive use merely tolerated by the (2) If there are two or more possessors, the
possessor cannot affect possession and cannot one longer in possession;
be the basis of acquisitive prescription. (3) If the dates of possession are the same,
Possession to constitute the foundation of the one who presents a title; or
prescriptive right must be possession under (4) If all conditions are equal, the thing shall
claim of title; it must be adverse. [Cuaycong v. be placed in judicial deposit pending
Benedicto] determination of possession or ownership
through proper proceedings.
F.2. ACTS EXECUTED
CLANDESTINELY AND WITHOUT THE G. EFFECTS OF POSSESSION
KNOWLEDGE OF THE POSSESSOR G.1. RIGHTS OF A POSSESSOR IN GOOD
[NCC 1108] FAITH
Possession has to be in the concept of an (1) Right to be protected and respencted in
owner, public, peaceful and uninterrupted. possession; (NCC 539)
(2) Right to bring action to restore
F.3. ACTS OF VIOLENCE AS LONG possession;
AS THE POSSESSOR OBJECTS (3) Right to the fruits already received;
(NCC. 544)
THERETO (I.E. FILES A CASE)
(4) Right to a share in pending fruits and the
[NCC 536] production, gathering, and preservation
(1) Possession cannot be acquired through of such; (NCC. 545)
force or intimidation. (5) Right to necessary expenses; (NCC. 546)
(6) Right to retain the thing until reimbursed;
Includes forcibly taking away the property (NCC. 546)
from another and also when one occupied (7) Right to remove useful improvements
the property in the property in the absence removable without damage to the
of another, and repels the latter upon his principal thing or to refund its value;
return. (upon election by the owner) (NCC. 547)
(8) Right to recover removable ornaments.
(2) Effect on Possession (NCC. 548)
Acts mentioned do not constitute true
possession. They do not interrupt the G.2. OBLIGATIONS OF A POSSESSOR IN
period of prescription nor affect the rights GOOD FAITH
to the fruits. (1) Pay in proportion to the charges,
expenses of cultivation and the net
RULES TO SOLVE CONFLICTS OF proceeds upon cessation of good faith;
POSSESSION [NCC 538] (NCC 545)
General Rule: Possession cannot be recognized (2) Costs of litigation; (NCC 550)
in two different personalities, except in cases of (3) Liability to the deterioration/loss of a
co-possession by co-possessors without thing possessed if acted through
conflict of claims of interest.
fraudulent intent/negligence. (NCC 552)
In case of conflicting possession – preference is
given to: G.3. RIGHTS OF A POSSESSOR IN BAD
(1) Present possessor or actual possessor; FAITH
(1) Right to be respected in possession;
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(4) Acts of possessory character done by virtue (3) Civil fruits are deemed to accrue daily and
of a license or mere tolerance by the real belong to the possessor in good faith in
owner are not sufficient and will not confer that proportion.
title by prescription or adverse possession.
(5) The following cannot acquire title by Provision is based on the following reasons of
prescription: equity:
(a) Lessees, trustees, pledges, tenants on The fruits received are generally used for
shares or planters and all those who the consumption and livelihood of the
hold in the name or representation of possessor, and his life and expenses may
another; have been regulated in view of such fruits.
(b) Mere holders placed in possession of The owner has been negligent in not
the property by the owner, such as discovering or contesting the possession of
agents, employees; the possessor; it would be unjust after the
(c) Those holding in a fiduciary character, possessor has been thus allowed to rely on
like receivers, attorneys, depositaries the efficacy of the title, to require him to
and antichretic creditors; return the fruits he has received on the basis
(d) Co-owner, with regard to common of that title.
property; Except: When he holds the Between the owner, who has abandoned his
same adversely against all of them property and left it unproductive, and the
with notice to them of the exclusive possessor, who has contributed to the social
claim of ownership. wealth, by the fruits he has produced, the
(i) Possession of real property law leans toward the latter.
presumes possession of the
movables therein (NCC 542); RIGHT OF THE POSSESSOR IN GOOD
(ii) Each co-owner is deemed to have FAITH
exclusive possession of the part Only limited to the fruits of the thing. He must
which may be allotted to him upon restore the fruits received from the time such
the division, for the entire period good faith ceased. He has no rights to the
during which the co-possession objects which do not constitute fruits.
lasted.
(6) Interruption in the possession of the whole Legal interruption of possession in good faith
or a part of a thing possessed in common Takes place when an action is filed against
shall be to the prejudice of all the him—from the time he learns of the
possessors. (NCC 543) complaint, from the time he is summoned to
the trial.
G.6. ENTITLEMENT TO FRUITS –
POSSESSOR IN GOOD/BAD FAITH [NCC Effect of cessation of good faith (NCC 545)
544, 549] (a) If at the time the good faith ceases,
(1) Possessor in good faith is entitled to the there should be any natural or
fruits received before the possession is industrial fruits, the possessor shall
legally interrupted. have a right to a part of the expenses
(2) Natural and industrial fruits are considered of cultivation, and to a part of the net
received from the time they are gathered or harvest, both in proportion to the time
severed. of the possession.
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(b) The charges divided on the same basis surrounding an estate, an irrigation
by the two possessors. system, planting in an uncultivated land,
“Charges” – Those which are a fishpond, an elevator in the building,
incurred, not on the thing itself but electric lighting system
because of it (e.g. taxes, (2) They are reimbursed only to the possessor
contributions in favor of the in GF as a compensation or reward for
government) him. A possessor in BF cannot recover
(c) The owner of the thing may give the such expenses.
possessor in good faith the right to (3) If the useful improvements can be
finish the cultivation and gathering of removed without damage to the principal
the growing fruits, as an indemnity for thing, the possessor in good faith may
his part of the expenses of cultivation remove them, unless the person who
and the net proceeds. recovers the possession refunds the
The possessor in good faith who refuses expenses or pays the increase in value
to accept this concession shall lose the which the thing may have acquired by
right to be indemnified in any other reason thereof.
manner.
D.3. EXPENSES FOR LUXURY
When fruits are insufficient (1) They do not affect the existence or the
There should only be reimbursement of substance of the thing itself, but only the
expenses; but each possessor should suffer a comfort, convenience or enjoyment of the
proportionate reduction due to the possessor.
insufficiency of the harvest. (2) They are not the subject of
reimbursement, because the law does not
D. REIMBURSEMENT FOR EXPENSES compensate personal whims or caprices,
– POSSESSOR IN GOOD/BAD FAITH e.g. Opening of a garden, placing
[NCC 546-552] fountains and statues in it, adorning the
D.1. NECESSARY EXPENSES ceilings with paintings, and the walls with
(1) Imposed by the thing itself for its reliefs.
preservation and have no relation to the
desire or purpose of the possessor. Useful Expenses Expenses for Luxury
(2) They are the “cost of living” for the thing Those which Those which merely
and must be reimbursed to the one who increased the income embellished the
paid them, irrespective of GF or BF. derived from the thing thing
(a) Only the possessor in GF may retain
Result: Increase in the
the thing until he has been reimbursed
products, either
therefor.
absolutely, or because
(3) The expenses are not considered Result: Benefit or
of greater facilities for
improvements; they do not increase the advantage is only
producing them
value of the thing, but merely prevent for the convenience
them from becoming useless. of definite
Includes expenses
possessors
resulting in real
D.2. USEFUL EXPENSES
benefit or advantage
(1) Incurred to give greater utility or
to the thing
productivity to the thing, e.g. Wall
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THAN ONE YEAR; REAL RIGHT OF care of man; they are under the ownership
POSSESSION NOT LOST AFTER 10 of man, and do not become res nullius
YEARS – SUBJECT TO NCC 537 unless they are abandoned.
(1) Acts merely tolerated, and those executed
clandestinely and without the knowledge VIII. Usufruct
of the possessor of a thing, or by violence,
Usufruct gives a right to enjoy the property of
do not affect possession.
another with the obligation of preserving its
(2) Possession that is lost here refers only to
form and substance, unless the title
possession as a fact (de facto), not the
constituting it or the law otherwise provides.
legal right of possession (de jure). It is the
[NCC 562]
possession that the new possessor
acquires.
A. OBJECTS OF USUFRUCT
(3) Real right of possession is lost only after 10
(1) Independent Rights
years.
A servitude which is dependent on the
(4) After 1 year, the actions for forcible entry
tenement to which it attaches cannot be
and unlawful detainer can no longer be
the object of usufruct.
brought. But accion publiciana may still be
instituted to recover possession de jure.
(2) Things
(a) Non-consumable things.
(b) Consumable things, but only as to
H. RULES FOR LOSS OF MOVABLES their value if appraised, or on an equal
(1) The possession of movables is not deemed quantity and quality if they were not
lost so long as they remain under the appraised.
control of the possessor, even though for
the time being he may not know their (3) Unproductive things
whereabouts. (NCC 556) e.g. sterile or absolutely unproductive land,
(2) Control – judicial control or right, or that or things for mere pleasure, such as
the thing remains in one’s patrimony. promenades, statues or paintings, even if
(3) Wild animals are possessed only while they they do not produce any utility.
are under one's control. (NCC 560)
(a) Domesticated or tamed animals – if B. CHARACTERISTICS
they retain the habit of returning to the (1) It is a real right;
premises of the possessor. (2) Of temporary duration;
(3) The purpose is to derive all advantages
I. KINDS OF ANIMALS from the thing due to normal exploitation.
(1) Wild— those which live naturally
independent of man. B.1. NATURAL CHARACTERISTICS
(2) Domesticated— those which, being wild by (1) Includes only the right to use (jus utendi)
nature, have become accustomed to and the right to the fruits (jus fruendi).
recognize the authority of man. When they (2) Usufructuary must preserve the form or
observe this custom, they are placed in the substance of the thing.
same category as domestic and when they (a) Preservation is a natural requisite, not
lose it, they are considered as wild. essential because the title constituting
(3) Domestic or Tame— those which are born it or the law may provide otherwise.
and reared ordinarily under the control and
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(b) Reasons for preserving form and (i) If the usufructuary is authorized to
substance alienate the thing in case of
(i) To prevent extraordinary necessity, it is the usufructuary
exploitation; who determines the question of
(ii) To prevent abuse, which is necessity.
frequent;
(iii) To prevent impairment. C.2. BY PERSON ENJOYING THE RIGHT
(c) Exception: In an abnormal usufruct, OF USUFRUCT
alteration is allowed. (1) Simple: only one usufructuary enjoys the
(3) Usufruct is extinguished by the death of property.
the usufructuary. (2) Multiple: several usufructuaries enjoy the
(a) Natural because a contrary intention property.
may prevail. (a) Simultaneous: at the same time.
(b) Successive: one after the other.
C. CLASSIFICATION
C.1. BY ORIGIN Limitations On Successive Usufruct
(1) Voluntary: created by the will of private (1) If usufruct is by donation, ALL donees
persons must be alive. [NCC 756]
(a) By act inter vivos – such as contracts (2) Fiduciary or first heir and the second heir
and donations: must be alive at the time of the death of
(i) By alienation of the usufruct; the testator. [NCC 863]
(ii) By retention of the usufruct; (3) If by testamentary succession, there must
(iii) Where a usufruct is constituted be only 2 successive usufructuaries, and
inter vivos and for valuable both must be alive or at least already
consideration, the contract is conceived at the time of the testator’s
unenforceable unless in writing. death. [NCC 869]
(b) By act mortis causa – such as
testament. C.3. BY OBJECT OF USUFRUCT
Usufruct may be constituted on the whole or a
(2) Legal: as provided by law. part of the fruits of the thing or on a right,
Usufruct of parents over the property of provided it is not strictly personal or
unemancipated children. (now limited to intransmissible. [NCC 564]
the collective daily needs of the family)
[(FC 26)] RIGHTS
(1) Must not be strictly personal or
(3) Mixed: created both by law and the acts of intransmissible.
persons. (2) Usufruct over a real right is by itself a real
(a) The rights and duties of the right.
usufructuary provided by law may be (a) Right to receive present or future
modified or eliminated by the parties. support cannot be the object of the
(b) The title constituting the usufruct may usufruct.
validly authorize the usufructuary to
alienate the thing itself held in THINGS
usufruct.
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(1) Normal: involves non-consummable things the donor, if the clause does not contain any
where the form and substance are declaration to the contrary, the former is
preserved. understood to be liable to pay only the debts
(2) Abnormal or irregular: when the usufruct which appear to have been previously
includes things which cannot be used contracted. In no case shall the donee be
without being consumed. responsible for the debts exceeding the value
of the property donated, unless a contrary
(a) The usufructuary has right to make use
intention clearly appears.
of them under the obligation of paying
their appraised value at the
NCC 759: There being no stipulation
termination of the usufruct, if they regarding the payment of debts, the donee
were appraised when delivered. shall be responsible therefor only when the
(b) If they were not appraised, he has the donation has been made in fraud of creditors.
right to return the same quantity and
quality, or pay their current price at the The donation is always presumed to be in
time the usufruct ceases. [NCC 574] fraud of creditors, when at the time thereof
the donor did not reserve sufficient property
(c) In reality, the usufruct is not upon the
to pay his debts prior to the donation.
consumable things themselves, but
upon the sum representing their value
C.5. BY THE TERMS OF THE USUFRUCT
or upon a quantity of things of the
(1) Pure: no terms or conditions.
same kind and quality.
(2) Conditional: either suspensive or
(d) The usufructuary, in effect, becomes
resolutory.
the owner of the things in usufruct,
(3) With a term or period
while the grantor becomes a mere
(a) Ex die: from a certain day.
creditor entitled to the return of the
(b) In diem: up to a certain day.
value or of the things of the same
(c) Ex die in diem: from a certain day up
quantity and quality (as if converted
to a certain day.
into a simple loan).
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(3) Not exempt from execution and can be possessor and the
sold at public auction. usufructuary
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General rule: The usufructuary may lease the (a) As corollary to the right of the
thing to another but this shall terminate upon usufructuary to all the rent, to choose
the expiration of the usufruct, saving leases of the tenant, and to fix the amount of
rural lands, which shall be considered as
the rent, she necessarily has the right
subsisting during the agricultural year.
to choose herself as the tenant
Exceptions thereof; and, as long as the
(1) Legal usufructs cannot be leased. obligations she had assumed towards
(2) Caucion juratoria (lease would show that the owner are fulfilled. [Fabie v.
the usufructuary does not need the Gutierrez David (1945)]
property badly) (6) A lease executed by the owner before the
creation of the usufruct is not
Effect of the transfer of right: extinguished by such usufruct.
(1) The transfer or lease of the usufruct does
NOT terminate the relation of the Limitations on the Right to Lease the Property
usufructuary with the owner. (1) Usufructuary cannot alienate a thing in
(2) Death of the transferee does not terminate usufruct:
the usufruct but it terminates upon the (a) Cannot alienate or dispose of the
death of the usufructuary who made the objects included in the usufruct;
transfer. (b) Cannot renounce a servitude;
(c) Cannot mortgage or pledge a thing.
RULES AS TO LEASE (d) EXCEPT:
(3) The property in usufruct may be leased (i) When the right of usufruct is
even without the consent of the owner. converted into the right of
(4) The lease should be for the same period as ownership;
the usufruct. (ii) When the things are consumable;
(a) EXCEPT: leases of rural lands (NCC 574);
continues for the remainder of the (iii) When the things by their nature
agricultural year. are intended for sale, such as the
(b) A lease executed by the usufructuary merchandise in a commercial
before the termination of the usufruct establishment; and
and subsisting after the termination of (iv) When the things, whatever their
the usufruct must be respected, but nature, are delivered under
the rents for the remaining period will appraisal as equivalent to their
belong to the owner. sale.
(c) If the usufructuary has leased the lands (2) Future crops may be sold but such sale
or tenements given in usufruct, and the would be void if not ratified by the owner.
usufruct should expire before the (a) The buyer’s remedy is to recover from
the usufructuary.
termination of the lease, he or his heirs
(3) Only voluntary usufruct can be alienated.
and successors shall receive only the
(4) The usufructuary-lessor is liable for the
proportionate share of the rent that
act of the substitute.
must be paid by the lessee.
(a) A usufructuary who alienates or
[NCC, 568] leases his right of usufruct shall
(5) It is the usufructuary and not the naked answer for any damage which the
owner who has the right to choose the things in usufruct may suffer through
tenant.
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the fault or negligence of the person D.2. RIGHTS AS TO THE LEGAL RIGHT
who substitutes him. [NCC, 590] OF USUFRUCT ITSELF
RIGHT TO IMPROVE THE THING, BUT
RIGHT TO MORTGAGE RIGHT OF
IMPROVEMENT INURES TO THE
USUFRUCT
BENEFIT OF THE NAKED OWNER (1) The usufructuary may alienate his right of
(1) Usufructuary is not entitled to usufruct, even by a gratuitous title; but all
reimbursement. the contracts he may enter into as such
(2) Whenever the usufructuary can remove the usufructuary shall terminate upon the
improvements without injury to the expiration of the usufruct. [NCC. 572]
property in usufruct, he has the right to do (2) Does not include parental usufruct
so, and the owner cannot prevent him from because of personal and family
doing so even upon payment of their value. considerations.
(3) This right does not involve an obligation –
if the usufructuary does not wish to RIGHT TO ALIENATE THE USUFRUCT
exercise it, he cannot be compelled by the EXCEPT IN PURELY PERSONAL
owner to remove the improvements.
USUFRUCTS OR WHEN TITLE
(4) This right to remove improvements can be
CONSTITUTING IT PROHIBITS THE
enforced only against the owner, not
against a purchaser in good faith to whom SAME
a clean title has been issued. Parental usufruct is inalienable.
(5) Usufructuary may set off the improvements
D.3. OBLIGATIONS AT THE BEGINNING
against any damage to the property.
OF THE USUFRUCT OR BEFORE
(a) The improvements should have
increased the value of the property, EXERCISING THE USUFRUCT
and that the damages are imputable to (1) To make, after notice to the owner or his
the usufructuary. legitimate representative, an inventory of
(b) Increase in value and the amount of all the property, which shall contain an
damages are set off against each appraisal of the movables and a
other. description of the condition of the
(c) If the damages exceed the increase in immovables; and
value, the difference should be paid by (2) To give security, binding himself to fulfill
the usufructuary as indemnity. the obligations imposed upon him in
(d) If the increase in value exceeds the accordance with this Chapter.
damages, and the improvements are of
Note: These requirements are NOT conditions
such nature that they can be removed
precedent to the commencement of the right
without injury to the thing in usufruct,
of the usufruct but merely to the entry upon
the settlement of the difference must
the possession and enjoyment of the property.
be agreed upon by the parties.
(e) If the improvements cannot be
TO MAKE AN INVENTORY
removed without injury, the excess in
(1) Requisites
value accrues to the owner.
(a) Immovables must be described; and
(6) Registration of improvements – to protect
(b) Movables must be appraised because
usufructuary against 3rd persons
they are easily lost or deteriorated.
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(2) Concurrence of the owner in the making of (iii) Approval of the court; and
the inventory. (iv) Sworn promise.
(3) Expenses for the making of the inventory (b) A usufructuary under this can neither
are borne by the usufructuary. alienate his right nor lease the property,
(4) The inventory may be in a private for that would mean that he does not
document, except when immovables are need the dwelling or the implements
involved. (a public instrument is prescribed and furniture.
to affect 3rd persons) (4) Effect of filing a bond
(5) Failure to make an inventory does not (a) Retroactivity: upon giving the security,
affect the rights of the usufructuary to the usufructuary will be entitled to all
enjoy the property and its fruits. the benefits accruing since the time
(a) A prima facie presumption arises that when he should have begun to receive
the property was received by the them.
usufructuary in good condition. (5) Effect of failure to give bond: [NCC 586]
(b) Even if he is already in possession, he (a) The owner may demand that the
may still be required to make an immovable properties be placed
inventory. under administration;
(6) Exception to the requirement of inventory (i) That the movable properties be
(a) When no one will be injured, the sold;
usufructuary may be excused from this (ii) That the public bonds,
obligation. instruments of credit payable to
order or to bearer be converted
TO GIVE A BOND FOR THE FAITHFUL into registered certificates or
PERFORMANCE OF DUTIES AS deposited in a bank or public
USUFRUCTUARY institution; and
(1) Any kind of sufficient security is allowed, (iii) That the capital or sums in cash
e.g. cash, personal bond, mortgage. and the proceeds of the sale of
(2) No bond is required in the following: the movable property be invested
(a) No prejudice would result; [Art. 585] in safe securities.
(b) Usufruct is reserved by a donor; [Art. (b) The owner may, until the usufructuary
584] gives security, retain in his possession
(i) Gratitude on the donee’s part the property in usufruct as
demands that the donor be administrator, subject to the
excused from filing the bond. obligation to deliver to the
(c) Title constituting usufruct excused usufructuary the net proceeds, after
usufructuary. deducting the sums, which may be
(3) A usufructuary may take possession under agreed upon or judicially allowed him
a caucion juratoria (bond by oath) [Art. 587] for such administration.
(a) It is only by way of exception that a
caucion juratoria is allowed, and only D.4. DURING THE USUFRUCT
under the special circumstances: (1) To take care of the thing like a good father
(i) Proper court petition; of a family;
(ii) Necessity for delivery of furniture, (2) To undertake ordinary repairs;
implements or house included in (3) To notify owner of need to undertake
the usufruct; extraordinary repairs;
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(i) The naked owner failed to make To deliver the thing in usufruct to the owner in
them; and the condition in which he has received it, after
(ii) The repair is needed for undertaking ordinary repairs.
preservation.
(b) The usufructuary that has made the Exception: Abnormal usufruct – A thing of the
extraordinary repairs necessary for same kind, quantity and quality is returned; if
preservation is entitled to recover from with appraised value, must return value
the owner the increase in value, which appraised.
the tenement acquired by reason of
such works. E. SPECIAL CASES OF USUFRUCT
(c) Usufructuary may retain until he is E.1. USUFRUCT OVER A PENSION OR A
paid. PERIODICAL INCOME [NCC 570]
(1) Each payment due shall be considered as
TO PAY FOR ANNUAL CHARGES AND the proceeds or fruits of such right.
TAXES ON THE FRUITS (2) The usufruct shall be distributed as civil
It is well settled that a real tax, being a burden fruits.
upon the capital, should be paid by the owner
of the land and not by a usufructuary. There is E.2. USUFRUCT OF PROPERTY OWNED
no merit in the contention of distinguishing IN COMMON [NCC 582]
public lands into alienable and indisposable. All (1) The usufructuary takes the place of the
properties owned by the government, without owner as to:
any distinction, are exempt from taxation. (a) Management;
[Board of Assessment Appeals of Zamboanga (b) Fruits; and
del Sur v. Samar Mining Company, Inc.(1971)] (c) Interest.
(2) Effect of partition:
TO NOTIFY OWNER OF ANY ACT (a) The right of the usufructuary is not
DETRIMENTAL TO OWNERSHIP affected by the division of the property
(NCC 601) in usufruct among the co-owners.
(b) After partition, the usufruct is
TO SHOULDER THE COSTS OF transferred to the part allotted to the
LITIGATION REGARDING THE co-owner.
USUFRUCT (NCC 602)
E.4. USUFRUCT CONSTITUTED ON A
TO ANSWER FOR FAULT OR FLOCK OR HERD OF LIVESTOCK
NEGLIGENCE OF THE ALIENEE, LESSEE [NCC 591]
OR AGENT OF THE USUFRUCTUARY (1) On sterile stock: same rules on
(NCC 590) consumable property govern. (i.e.
The usufructuary is made liable for the acts of replacement upon termination)
the substitute. While the substitute answers to (2) On fruitful stock:
the usufructuary, the usufructuary answers to (a) Must replace ordinary losses of the
the naked owner. stock with the young if:
(i) Some animals die from natural
D.5. AT THE TIME OF THE TERMINATION causes; or
OF THE USUFRUCT (ii) Some animals are lost due to
rapacity of beasts of prey.
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G.7. PRESCRIPTION
(1) Adverse possession against the owner or IX. Easement
the usufructuary. (1) An encumbrance imposed upon an
(2) It is not the non-use which extinguishes the immovable for the benefit of another
usufruct by prescription, but the use by a immovable belonging to a different
3rd person. owner. [NCC. 613]
(3) There can be no prescription as long as the (2) A real right which burdens a thing with a
usufructuary receives the rents from the prestation of determinate servitudes for
lease of the property, or he enjoys the price the exclusive enjoyment of one who is
of the sale of his right. NOT an owner of a tenement.
(3) A real right by virtue of which the owner
H. CONDITIONS NOT AFFECTING has to ABSTAIN from doing or ALLOW
USUFRUCT somebody else to do something to his
property for the benefit of another.
H.1. EXPRORPIATION OF THING IN Dominant Estate – the immovable in favor of
USUFRUCT [NCC 609] which the easement is established.
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(b) Action in rem: an action against the patendo), but not in the right to demand
thing itself, instead of against the that the owner of the servient do
person. something (servitus in faciendo) except if
such act is an accessory obligation to a
(2) It is a right enjoyed over another property praedial servitude (obligation propter rem)
(jus in re aliena) – it cannot exist in one’s Servient owner merely allows something
property (nulli res sua servit) to be done to his estate.
When the dominant and the servient
estates have the same owner, the Exceptions: Praedial servitudes
easement is extinguished. Separate (a) Right to place beams in an adjoining
ownership is a prerequisite to an wall to support a structure.
easement. (b) Right to use another’s wall to support
a building.
(3) It is a right constituted over an immovable
by nature (land and buildings), not over (7) It is inherent or inseparable from estate to
movable properties. [NCC 613] which they actively or passively belong
Immovable: used in its common and not in (NCC 617)
the legal sense, meaning only property (a) Easements are merely accessory to
immovable BY NATURE can have the tenements, and a “quality
easements. thereof.” They cannot exist without
tenements.
(4) It limits the servient owner’s right of (b) Easements exist even if they are not
ownership for the benefit of the dominant expressly stated or annotated as an
estate. encumbrance on the titles.
(a) Right of limited use but no right to (8) It is intransmissible – it cannot be
possess the servient estate. alienated separately from the tenement
(b) There exists a limitation on ownership: affected or benefited
the dominant owner is allowed to enjoy Any alienation of the property covered
or use part of the servient estate, or carries with it the servitudes affecting said
imposes on the owner a restriction as property. But this affects only the portion
to his enjoyment of his own property. of the tenement with the easement,
(i) Being an abnormal limitation of meaning the portions unaffected can be
ownership, it cannot be presumed. alienated without the servitude.
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branches, but the real essence of the easement, commenced to exercise it upon
easement is the obligation NOT TO the servient estate.
ALLOW the branches of the tree to (2) In negative easements, from the day on
extend beyond the land. which the owner of the dominant estate
(3) Servitus servitutes esse non potes: There can forbade, by an instrument acknowledged
be no servitude over another servitude. before a notary public, the owner of the
(4) A servitude must be exercised civiliter – in a servient estate from executing an act
way least burdensome to the owner of the which would be lawful without the
land. easement.
(5) A servitude must have a perpetual cause
D.4. DETERMINES HOW EASEMENT IS
D. RELEVANCE OF CLASSIFICATIONS LOST BY PRESCRIPTION [NCC 631 (2)]
D.1. DETERMINES WHAT EASEMENTS By nonuser for 10 years:
CAN BE ACQUIRED BY PRESCRIPTION (1) With respect to discontinuous easements,
Continuous and apparent easements may be this period shall be computed from the
acquired by prescription of 10 years [NCC. 620] day on which they ceased to be used.
(2) With respect to continuous easements,
D.2. DETERMINES WHAT EASEMENTS from the day on which an act contrary to
CAN BE ACQUIRED BY TITLE the same took place.
(1) Continuous nonapparent easements, and
discontinuous ones, whether apparent or E. CREATION
not, may be acquired only by virtue of a
title. [NCC. 622] E.1. BY TITLE
(2) The existence of an apparent sign of (1) Continuous and apparent easements may
easement between two estates, be acquired by virtue of a title. [NCC 620]
(2) Continuous nonapparent easements, and
established or maintained by the owner of discontinuous ones, whether apparent or
both, shall be considered, as a title in order not, are acquired only by virtue of a title.
that the easement may continue actively [NCC 622]
and passively. (3) The absence of a document or proof
showing the origin of an easement which
Unless: At the time the ownership of the cannot be acquired by prescription may
be cured by a deed of recognition by the
two estates is divided, the contrary should
owner of the servient estate or by a final
be provided in the title of conveyance of judgment. [NCC 623]
either of them, or the sign aforesaid should (4) The existence of an apparent sign of
be removed before the execution of the easement between two estates,
deed. This provision shall also apply in established or maintained by the owner of
case of the division of a thing owned in both, shall be considered as a title in
common by two or more persons. order that the easement may continue
actively and passively.
[NCC. 624]
Unless: at the time the ownership of the
D.3. DETERMINES HOW TO COMPUTE two estates is divided, the contrary should
THE PRESCRIPTIVE PERIOD [NCC 621] be provided in the title of conveyance of
(1) In positive easements, from the day on either of them, or the sign aforesaid
which the owner of the dominant estate, or should be removed before the execution
of the deed. This provision shall also
the person who may have made use of the
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apply in case of the division of a thing (b) By the provisions of Chapter 2, title
owned in common by two or more persons. VII, Book II.
[NCC 624]
F. VOLUNTARY EASEMENTS
E.2. BY LAW (LEGAL EASEMENTS)
(1) Every owner of a tenement or piece of
(1) Easements imposed by law have for their
land may establish thereon the
object either public use or the interest of
easements which he may deem suitable,
private persons. [NCC 634]
and in the manner and form which he may
(2) These easements may be modified by
deem best. [NCC 688]
agreement of the interested parties,
(2) The owner of a thing, the usufruct of
whenever the law does not prohibit it or no
which belongs to another, may impose,
injury is suffered by a third person.
without the consent of the usufructuary,
[NCC 636]
any servitudes which will not injure the
right of usufruct. [NCC 689]
E.3. BY WILL OF THE OWNERS
(3) Whenever the naked ownership belongs
(VOLUNTARY EASEMENTS)
to one person and the beneficial
Every owner of a tenement or a piece of land
ownership to another, no perpetual
may establish the easements that he may
voluntary easement may be established
deem suitable and best. [NCC 688]
thereon without the consent of both
owners. [NCC 690]
Note: If an owner constitutes an easement over
(4) Consent of all co-owners is required to
his own property and makes such easement
impose an easement on an undivided
available to the general public, said owner may
tenement. [NCC 691]
not arbitrarily discriminate against certain
persons by not letting them use the easement.
[Negros Sugar Company v Hidalgo (1936)] H. RIGHTS AND OBLIGATIONS OF
E.4. BY PRESCRIPTION
OWNERS OF DOMINANT AND
Continuous and apparent easements may be SERVIENT ESTATES
acquired by prescription of 10 years. [NCC 620]
H.1. RIGHTS OF DOMINANT ESTATE
G. LEGAL EASEMENTS OWNER
G.1. LAW GOVERNING LEGAL (1) To use the easement and exercise all
rights necessary for it [NCC 625, 626]
EASEMENTS
(a) The owner of the dominant estate is
(1) For public easements
granted the right to use the principal
(a) Special laws and regulations relating
easement, and all accessory
thereto. (ex: PD 1067 and PD 705)
servitudes.
(b) By the provisions of Chapter 2, Title VII,
(b) Example: Easement of drawing water
Book II, NCC.
carries with it the easement of right of
way to the place where water is
(2) For private legal easements
drawn.
(a) By agreement of the interested parties
(c) Limitation: Only for the original
whenever the law does not prohibit it
immovable and the original purpose.
and no injury is suffered by a 3rd
person.
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(2) In a right of way, to ask for change in width (a) The contribution is in proportion to
of easement sufficient for needs [NCC 651] the benefits which each may derive
from the work.
(3) To renounce totally the easement, if he (b) Anyone who does not wish to
desires to be exempt from contributing to contribute may exempt himself by
the expenses. renouncing the easement for the
benefit of the others.
The needs of the dominant property ultimately (c) If the owner of the servient estate
determine the width of the passage. And these should make use of the easement in
needs may vary from time to time. any manner whatsoever, he shall also
[Encarnacion v. Court of Appeals] be obliged to contribute to the
expenses in the proportion stated,
H.2. OBLIGATIONS OF DOMINANT saving an agreement to the contrary.
ESTATE OWNER
(1) To use the easement for the benefit of (5) To do at his expense all necessary works
immovable and in the manner originally for the use and preservation of the
established [NCC 626] easement [NCC 627]
If established for a particular purpose, the The necessity of the works determines
easement cannot be used for a different extent of such works.
one. However, if established in a general
way, without specific purpose, the H.3. RIGHTS OF THE SERVIENT ESTATE
easement can be used for all the needs of OWNER
the dominant estate. (1) To retain ownership and use of his
property
(2) To notify the owner of the servient estate (a) The owner of the servient estate
before making repairs and to make repairs retains the ownership of the portion
in a manner least inconvenient to the on which the easement is established,
servient estate [NCC 627(2)] and may use the same in such a
manner as not to affect the exercise of
(3) Not to alter the easement or render it more the easement. [NCC 630]
burdensome (b) The servient owner must respect the
(a) The owner of the dominant estate may use of the servitude, but retains
make repairs at his expense, but he ownership and use of the same, in a
cannot alter the easement or make it manner not affecting the easement.
more burdensome. [NCC 627]
(b) Making the easement more (2) To change the place and manner of the
burdensome means widening the use of the easement [NCC 629]
easement. [Valderrama v. North Negros General rule: The owner of the servient
Sugar Co. (1925)] estate cannot impair the use of the
servitude.
(4) To contribute to expenses of works Exceptions:
necessary for use and preservation of (a) By reason of either:
servitude, if there are several dominant (i) The place/manner originally
estates, unless he renounces his interest assigned, the use of such
[NCC 628]
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(a) Even if there is access, it is difficult or hand, the longest distance may be free
dangerous to use, or grossly of obstructions and the easiest or
insufficient; most convenient to pass
(b) Mere inconvenience in the use of an through. [Quimen v. CA (1996)]
outlet does not render the easement a (b) The fact that LGV had other means of
necessity; egress to the public highway cannot
(c) An adequate outlet is one that is extinguish the said easement, being
sufficient for the purpose and needs of voluntary and not compulsory. The
the dominant owner, and can be free ingress and egress along
established at a reasonable expense; Mangyan Road created by the
(d) Does not necessarily have to be by land voluntary agreement between the
– an outlet through a navigable river if parties is thus legally demandable
suitable to the needs of the tenement with the corresponding duty on the
is sufficient; servient estate not to obstruct the
(3) The isolation of the immovable is NOT due same. [La Vista Association v. CA]
to the dominant owner’s own acts e.g. if he (3) The width of the easement of right of way
constructs building to others obstructing shall be that which is sufficient for the
the old way; and needs of the dominant estate, and may
(4) There is payment of indemnity; accordingly be changed from time to
(a) If right of way is permanent and time. [NCC 651]
continuous for the needs of the
dominant estate = value of the land + Obligations In Permanent And Temporary
amount of damage caused to the Easements Of Right Of Way
servient estate; Temporary
Permanent right of way
(b) If right of way is limited to necessary right of way
passage for cultivation of the estate Indemnity
and for gathering crops, without
Consists of the damages and Consists of
permanent way = damage caused by
the value of the land. the damages
encumbrance.
only.
Rules for establishing Right of Way
(1) Must be established at the point least Necessary repairs
prejudicial to the servient estate. Dominant owner to spend on Servient
[NCC 650] such. owner to
(2) Insofar as consistent with the first rule, spend on
where the distance from the dominant such.
estate to a public highway is shortest.
(a) The criterion of least prejudice to the Share in taxes
servient estate must prevail over the The dominant owner shall Servient
criterion of shortest distance although reimburse a proportionate owner to
this is a matter of judicial share of taxes to the spend on
appreciation. While shortest distance proprietor of the servient such.
may ordinarily imply least prejudice, it estate.
is not always so as when there are
permanent structures obstructing the
shortest distance; while on the other
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the dividing line such that it occupies a (3) In fences, walls and live hedges dividing
portion of both estates on equal parts. rural lands.
(2) A party wall is a special form of co-
ownership (a kind of compulsory co- Note: A title or an exterior sign, or any other
ownership). proof showing that the entire wall in
(a) Each owner owns part of the wall but it controversy belongs exclusively to one of the
adjoining property-owners may rebut these
cannot be separated from the other presumptions.
portions belonging to the others. A
party wall has a special characteristic When Existence Of An Exterior Sign Is
that makes it more of an easement as Presumed [NCC 660]
it is called by law. (1) Whenever in the dividing wall of buildings
(b) An owner may use a party wall to the there is a window or opening.
extent of the ½ portion on his property. (2) Whenever one side is straight and plumb
on all its facement, and on the other, it
Co-Ownership Party Wall has similar conditions on the upper part,
but the lower part slants or projects
Before division of Shares of the co- outward.
shares, a co-owner owners cannot be (3) Whenever the entire wall is built within
cannot point to any physically segregated the boundaries of one of the estates.
definite portion of the but they can be (4) Whenever the dividing wall bears the
property as belonging physically identified. burden of the binding beams, floors and
to him. roof frame of one of the buildings, but not
None of the co-owners There is no such those of the others.
may use the limitation (5) Whenever the dividing wall between
community property courtyards, gardens, and tenements is
for his exclusive constructed in such a way that the coping
benefit because he sheds the water upon only one of the
would be invading the estates.
rights of the others. (6) Whenever the dividing wall, being built of
In a co-ownership, Any owner may free masonry, has stepping stones, which at
partial renunciation is himself from certain intervals project from the surface
allowed. contributing to the on one side only, but not on the other.
cost of repairs and (7) Whenever lands enclosed by fences or live
construction of a party hedges adjoin others that are not
wall by renouncing all enclosed.
his rights thereto.
Note: The deposit of earth or debris on one
side alone is an exterior sign that the owner of
When Existence Of Easement Of Party Wall Is that side is the owner of the ditch or drain.
Presumed The presumption is an addition to those
(1) In dividing walls of adjoining buildings up enumerated in NCC 660.
to the point of common elevation.
(2) In dividing walls of gardens or yards
situated in cities, or towns, or in rural Right Of Owners Of A Party Wall
communities. (1) Generally, part-owners may use the wall
in proportion to their respective interests,
provided that:
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(a) The right to use by the other party is (e) Bear the increased expenses for
not interfered with; preservation
(b) The consent by the other owner is
needed if a party wants to open a I.10. EASEMENT OF LIGHT AND VIEW
window; and Definition
(c) The condition of the building is (1) Easement of light (jus luminum) is the
determined by experts. right to admit light from the neighboring
(2) To increase the height of the wall. estate by virtue of the opening of a
He does this at his expense, including the window or the making of certain
thickening of the wall on his land. openings.
He shall indemnify the other party for (2) Easement of view (jus prospectus) is the
any damages. right to make openings or windows, to
(3) To acquire a half-interest in any increase in enjoy the view through the estate of
height or thickness of the wall, paying a another and the power to prevent all
proportionate share in the cost of the work constructions or works which would
and the value of the land covered. obstruct such view or make the same
difficult.
Note that the value of the land must be
(a) Necessarily includes the easement of
appraised at the time of acquisition.
light.
(4) To renounce his part ownership of a party
(b) It is possible to have light only without
wall if he desires to demolish his building
a view.
supported by the wall.
He shall bear all the expenses of repairs Nature
and work necessary to prevent any (1) Positive: Opening a window through a
damage which the demolition may cause party wall
to the party wall. (a) When a part owner of a party wall
opens a window therein, such act
Obligations Of Owners Of A Party Wall implies the exercise of the right of
(1) To contribute proportionately to the repair
ownership by the use of the entire
and maintenance of the party wall unless
thickness of the wall.
he renounces his part-ownership.
(b) The easement is created only after the
(a) This includes the renunciation of the
lapse of the prescriptive period.
share in the wall + the land
(2) Negative: Formal prohibition upon the
(b) He cannot renounce his part if his
owner of the adjoining land or tenement.
building is being supported by the
Formal means that the prohibition has
party wall
been notarized [Cortes v Yu-Tibo (1903)]
(2) If he raises the height of the wall, he must:
(a) When a person opens a window on his
(a) Bear the cost of maintenance of the
own building, he is exercising his right
additions;
of ownership on his property, which
(b) Bear the cost of construction, if the
does not establish an easement.
wall cannot support the additional
(b) Coexistent is the right of the owner of
height;
the adjacent property to build on his
(c) Give additional land, if necessary to
own land, even if such structures
thicken the wall;
cover the window.
(d) Pay for damages, if necessary, even if
(c) If the adjacent owner does not build
temporary; and
structures to obstruct the window,
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such is considered mere tolerance and (iii) The dividing line between the two
NOT a waiver of the right to build. properties in cases of oblique
(d) An easement is created only when the views.
owner opens up a window and
subsequently prohibits or restrains the Effect If Distances Are Not Complied With
adjacent owner from doing anything (1) Windows are considered unlawful
that may tend to cut off or interrupt the openings and may be ordered by the
light and the prescriptive period has Court to be closed.
lapsed. (2) Even if the adjoining owner does not
object to the construction of such
Rules And Restrictions On Openings And structures at first, he cannot be held to be
Structures in estoppel, unless the 10-year period of
Openings for light acquisitive prescription has passed.
(1) When the wall is 2 meters or more away
from another’s tenement: Note:
(a) An owner may build any kind of (1) In buildings separated by a public way or
opening without restriction. alley, not less than 3 meters wide, the
(2) When the wall is contiguous (less than 2 distances required (2 m, 60 cm) do not
meters) to another’s tenement: apply.
(a) Openings are made at the height of the (2) If an easement is acquired to have direct
ceiling joists (horizontal beams) or views, balconies or belvederes, the owner
immediately under the ceiling; of the servient estate must not build at
(b) Size: 30 cm square; less than 3 meters from the boundary line
(c) With iron grating imbedded in the wall; of the two tenements.
(d) With a wire screen. (a) The distances may be stipulated by
the parties, but should not be less
Openings for view than what is prescribed by the law (2
(1) The following structures cannot be built meters and 60 cm).
without following the prescribed distances:
(a) Window, apertures, balconies and Notes on the Acquisition of the Easement
other projections with a direct view (1) Period of acquisitive prescription will only
upon or towards an adjoining land start to run from the time the owner
must have a distance of 2 meters asserting the servitude has forbidden the
between the wall and the contiguous owner of the adjoining tenement from
property. doing something he could lawfully do.
(b) For structures with a side or oblique (2) THUS, although the action to compel the
view (at an angle from the boundary closure might have prescribed, the owner
line), there should be a distance of 60 of the adjoining estate may still build on
centimeters. his own land a structure that might
(c) Measured from: obstruct the view.
(i) The outer line of the wall if the
openings do not project.
(ii) The outer line of the openings if
they project.
I.11. INTERMEDIATE DISTANCES
[NCC 677]
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NCC 677, in effect, establishes an easement in (1) The proprietor is prohibited from making
favor of the State. The general prohibition is dangerous excavations upon his land as
dictated by the demands of national security. to deprive any adjacent land or building of
sufficient lateral or subjacent support.
The following must comply with the (2) Easement of lateral and subjacent
regulations or customs of the place: support is deemed essential to the
(1) Construction of aqueduct, well, sewer, etc. stability of buildings.
(NCC 678) (3) Support is lateral when a vertical plane
Constructions, which by reason of their divides the supported and supporting
nature or products are dangerous or lands.
noxious. (4) Support is subjacent when the supported
land is above the supporting land.
(2) Planting of trees (NCC 679)
(a) No trees shall be planted near a J. MODES OF ACQUIRING
tenement or piece of land belonging to EASEMENT
another except at the distance
J.1. BY TITLE
authorized by the ordinances or
A juridical act which gives rise to the servitude
customs of the place.
(e.g. law, donations, contracts or wills)
(b) In the absence of regulations:
(i) At least 2 meters from the dividing
(1) If the easement has been acquired but no
line of the estates if tall trees are
proof of existence of easement available,
planted.
and the easement is one that cannot be
(ii) At least 50 centimeters if shrubs or
acquired by prescription, the defect may
small trees are planted.
be cured by:
(c) In case of violation, a landowner shall
(a) Deed of recognition by owner of
have the right to demand the
servient estate: By an affidavit or a
uprooting of the plant even if it has
formal deed acknowledging the
grown spontaneously.
servitude; or
(b) By final judgment: Owner of the
BRANCHES, ROOTS AND FRUITS
dominant estate must file a case in
(1) If the branches of any tree should extend
Court to have the easement declared
over a neighboring estate, tenement,
by proving its existence through other
garden or yard, the owner of the latter
evidence.
shall have the right to demand that they be
cut-off.
(2) The existence of an apparent sign is
(2) If it be the roots of a neighboring tree,
considered as title.
which should penetrate into the land of
Illustration: The presence of 4 windows
another, the latter may cut them off
was considered an apparent sign that
himself within his property.
created a negative easement of light and
(3) Fruits naturally falling upon adjacent land
view (altius non tollendi) i.e. not to build a
belong to the owner of said land.
structure that will cover the windows.
[Amor v. Florentino (1943)].
I.12. LATERAL AND SUBJACENT
SUPPORT J.2. BY PRESCRIPTION
Requisites
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(1) The easement must be continuous and (1) Owner of dominant estate does not
apparent; exercise right over easement.
(2) The easement must have existed for 10 (2) This is inaction, and not outright
years; and renunciation.
(3) There is NO NEED for good faith or just (3) This is due to the voluntary abstention by
title. the dominant owner, and not due to a
fortuitous event.
Note (4) Computation of the period:
Mere passage which was permitted and is (a) Discontinuous easements: counted
under an implied license cannot be a basis of from the day they ceased to be used.
prescription [Archbishop of Manila v Roxas (b) Continuous easements: counted from
(1912)] the day an act adverse to the exercise
of the easement took place.
K. EXTINGUISHMENT OF (i) E.g. in an easement of light and
EASEMENTS view, the erection of works
(1) By merger in the same person of the obstructing the servitude would
ownership of the dominant and servient commence the period of
estates; prescription.
(2) By non-user for ten years; (5) The use by a co-owner of the dominant
(3) When either or both of the estates fall into estate bars prescription with respect to
such condition that the easement cannot the others.
be used; (6) Non-user cannot extinguish servitudes
(4) By the expiration of the term or the not yet exercised. [Francisco v Paez
fulfillment of the condition, if the easement (1930)]
is temporary or conditional;
(5) By the renunciation of the owner of the K.3. BY IMPOSSIBILITY OF USE
dominant estate; or (1) Impossibility referred to must render the
(6) By the redemption agreed upon between entire easement unusable for all time.
the owners of the dominant and servient (2) Impossibility of using the easement due to
estates. the condition of the tenements (e.g.
flooding) only suspends the servitude until
K.1. MERGER it can be used again.
Must be absolute, perfect and definite, and not (3) Except: If the suspension exceeds 10 years,
merely temporary. the easement is deemed extinguished by
(1) Absolute: Ownership of the property must non-user.
be absolute, thus not applicable to lease,
usufruct, etc. K.4. EXPIRATION OF THE TERM OR
(2) Perfect: Merger must not be subject to a FULFILLMENT OF RESOLUTORY
condition. CONDITION
(3) If the merger is temporary, there is at most Applicable only to voluntary easements.
a suspension of the easement, but no
extinguishment. K.5. RENUNCIATION OF THE OWNER
OF THE DOMINANT ESTATE
K.2. BY A NON-USER FOR 10 YEARS Must be specific, clear, express (distinguished
from non-user).
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One which violates only private rights He who creates a nuisance is liable for the
and produces damages to but one or a resulting damages and his liability continues
few specific persons. as long as the nuisance continues.
(1) There must be a breach of some duty on
(3) Mixed the part of the person sought to be held
liable for damages resulting from a
D. DOCTRINE OF ATTRACTIVE nuisance before an action will lie against
NUISANCE him.
One who maintains on his premises dangerous (2) No one is to be held liable for a nuisance
instrumentalities or appliances of a character which he cannot himself physically abate
likely to attract children in play, and who fails to without legal action against another for
exercise ordinary care to prevent children from that purpose.
playing therewith or resorting thereto, is liable (3) Where several persons, acting
to a child of tender years who is injured independently, cause damage by acts
thereby, even if the child is technically a which constitute a nuisance, each is liable
trespasser in the premises. [Jarco Marketing for the damage which he has caused or for
Corp. v. CA (1999)] his proportionate share of the entire
damage.
Basis of liability – The attractiveness is an
invitation to children. Safeguards to prevent E.3. LIABILITY OF TRANSFEREES
danger must therefore be set up. The grantee of land upon which there exists a
nuisance created by his predecessors in title is
Note: A swimming pool or water tank is not an NOT responsible therefore merely because he
attractive nuisance, for while it is attractive, it becomes the owner of the premises, or merely
cannot be a nuisance, being merely an because he permits it to remain.
imitation of the work of nature. [Hidalgo
Enterprises v. Balandan (1952)] He shall be liable if he knowingly continues
the nuisance. Generally, he is not liable for
E. LIABILITY IN CASE OF NUISANCE continuing it in its original form, unless he has
E.1 WHO ARE LIABLE been notified of its existence and requested to
Every successive owner or possessor of remove it, or has actual knowledge that it is a
property who fails or refuses to abate a nuisance and injurious to the rights of others.
nuisance in that property started by a former
owner or possessor is liable therefor in the If the transferee cannot physically abate the
same manner as the one who created it. nuisance without legal action against another
(NCC. 696) person, then he shall not be liable for such
nuisance.
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(1) The right must be exercised only in cases of (2) To enjoin the sale or destruction of the
urgent or extreme necessity. The thing property;
alleged to be a nuisance must be existing (3) An action for the proceeds of its sale and
at the time that it was alleged to be a damages if it has been sold; or
nuisance. (4) To enjoin private parties from proceeding
(2) A summary abatement must be resorted to to abate a supposed nuisance.
within a reasonable time after knowledge
of the nuisance is acquired or should have
been acquired by the person entitled to
XI. Modes of Acquiring
abate. Ownership
(3) The person who has the right to abate
(1) Occupation
must give reasonable notice of his
(2) By operation of Law
intention to do so, and allow thereafter a
(3) Donation
reasonable time to enable the other to
(4) Tradition
abate the nuisance himself.
(5) Intellectual Property
(4) The means employed must be reasonable
(6) Prescription
and for any unnecessary damage or force,
(7) Succession
the actor will be liable. The right to abate is
not greater than the necessity of the case Mode is a specific cause which produces
and is limited to the removal of only so dominion and other real rights as a result of
much of the objectionable thing as actually the co-existence of special status of things,
causes the nuisance. capacity and intention of persons and
(5) The property must not be destroyed unless fulfillment of the requisites of law.
it is absolutely necessary to do so.
Title is every juridical right which gives a
F.2. PRIVATE NUISANCE
means to the acquisition of real rights but in
Remedies
itself is insufficient to produce them.
The remedies against a private nuisance are:
(1) A civil action; or
(2) Extrajudicial abatement. It is not by contract but by delivery that the
(a) The procedure for extrajudicial ownership of property is transferred (Non
abatement of a public nuisance by a nudis pactis, dominia rerum transferentur).
private person will also be followed. Contracts only constitute titles or rights to
(b) The person extrajudicially abating a transfer or acquisition of ownership, while
nuisance liable for damages if: delivery is the mode of accomplishing the
(i) If he causes unnecessary injury; or same.
(ii) If an alleged nuisance is later
declared by the courts to be not a Mode Title
real nuisance. Directly and Serves merely to give
immediately the occasion for its
Remedies of the property owner produces a real right. acquisition or
A person whose property is seized or destroyed
existence.
as a nuisance may resort to the courts to
determine whether or not it was in fact a Cause Means
nuisance. Proximate cause Remote cause
(1) An action for replevin;
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Whoever finds a movable, which is not (1) Bilateral contract creating unilateral
treasure, must return it to its previous obligations on the donor’s part.
possessor. (2) Requires CONSENT of BOTH donor and
If unknown, the finder shall immediately donee though it produces obligations only
deposit it with the mayor of the city or on the side of the DONOR, unless it is an
municipality where the finding has taken place. onerous donation.
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persons living together as husband and wife Inter vivos Mortis causa
without a valid marriage.
premature and
Exception: Moderate gifts which the spouses ineffective because there
may give each other on the occasion of any can be no contract
family rejoicing. regarding future
inheritance.
As to transfer of ownership for right of
(3) Donation Mortis Causa [NCC 728] disposition
(a) It only becomes effective upon the
death of the donor.
Ownership is
(b) The donor’s death ahead of the donee
immediately Upon acceptance by the
is a suspensive condition for the
transferred. donee, but the effect of
existence of the donation.
Delivery of such retroacts to the
Characteristics: possession is time of death of the
(a) The transferor retains ownership and allowed after donor.
control of the property while alive; death.
(b) The transfer is revocable at will before As to revocation
his death; and
Irrevocable – may Revocable upon the
(c) The transfer will be VOID if the
be revoked only for exclusive will of the
transferor should survive the
the reasons donor.
transferee.
provided in CC
Inter Vivos v. Mortis Causa 760, 764, 765.
Inter vivos Mortis causa As to reduction or suppression
As to formalities When it is When it is excessive or
excessive or inofficious, it is reduced
Executed and Must be in the form of a
inofficious, being first, or even suppressed.
accepted with will, with all the
preferred, it is
formalities formalities for the validity
reduced only after
prescribed by CC. of wills.
the donations
As to effectivity mortis causa had
Effective during the been reduced or
Effective after the death exhausted.
lifetime of the
of the donor.
donor.
Notes
As to acceptance
The NATURE of the act, whether it’s one of
Acceptance must be disposition or of execution, is
made after the death of CONTROLLING to determine whether the
Acceptance must
the donor, the donation donation is mortis causa or inter vivos.
be made during
being effective only after What is important is the TIME of TRANSFER
the lifetime of the
the death of donor. of ownership even if transfer of property
donor.
Acceptance during the donated may be subject to a condition or a
donor’s lifetime is term.
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Whether the donation is inter vivos or mortis (1) Must be made in a public instrument
causa depends on whether the donor specifying the donated property and the
intended to transfer ownership over the burdens assumed by the donee.
properties upon the execution of the deed. (2) The acceptance must be either:
[Gestopa v. CA (2002)] (a) In the same instrument; or
(b) In another public instrument notified
C.2. AS TO CAUSE OR CONSIDERATION to the donor in authentic form and
(1) Simple - made out of pure liberality or noted in both deeds.
because of the merits of the donee. (3) Exceptions:
(2) Remuneratory - made for services already (a) Donations propter nuptias – need no
rendered to the donor. express acceptance.
(3) Onerous - imposes a BURDEN inferior in (b) Onerous donations – form governed
value to property donated. by the rules of contracts.
(a) Improper - burden EQUAL in value to
property donated D.2. PERFECTION
(b) Sub-modo or modal - imposes a Acceptance
prestation upon donee as to how (1) Donation is perfected upon the donor’s
property donated will be applied. learning of the acceptance.
(c) Mixed donations – e.g. sale for price (2) Acceptance may be made during the
lower than value of property. lifetime of both donor and donee.
(3) A document merely correcting the deed of
C.3. AS TO EFFECTIVITY OR donation does not constitute a new deed
EXTINGUISHMENT of donation so there is no need for a new
(1) Pure – donation is without conditions or acceptance (Osorio v Osorio [1921])
periods
Who May Accept
(2) Conditional – donation is subject to
Donee: must accept personally or through an
suspensive or resolutory conditions.
authorized person with special power for the
(3) With a term
purpose. [NCC 745]
D. FORMALITIES REQUIRED Note:
D.1. HOW MADE AND ACCEPTED A joint donation (donation to two or more
Movable properties [NCC 748] persons) could not be accepted by a done,
(1) The donation of a movable may be made independently of the other donee/s. (Genato v
orally or in writing. Lorenzo [1968])
(2) Oral donation: requires the simultaneous
delivery of the thing or of the document Time Of Acceptance
representing the right donated. Acceptance must be done during the lifetime
(3) If the value of the movable donated of the donor and the donee.
exceeds P5,000, the donation and the
acceptance should be in writing, otherwise,
the donation is void.
D.3. QUALIFICATIONS OF DONORS AND
Immovable properties [NCC 749] DONEES
Who May Give Donations
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All persons who may contract and dispose of lead a corrupt or immoral life, or
their property may make a donation. [NCC 735] attempted against their virtue;
(b) Any person who has been convicted of
Note: an attempt against the life of the
(1) Donor’s capacity shall be determined as of testator, his or her spouse,
the time of the making of the donation. descendants, or ascendants;
[NCC 737] (c) Any person who has accused the
(2) Capacity to donate is required for testator of a crime for which the law
donations inter vivos and NOT in donations prescribes imprisonment for six years
mortis causa. or more, if the accusation has been
(3) Donor’s capacity is determined as of the found groundless;
time of the donation. Subsequent (d) Any heir of full age who, having
incapacity is immaterial. knowledge of the violent death of the
testator, should fail to report it to an
Who May Receive Donations officer of the law within a month,
(1) All who are not specially disqualified by
unless the authorities have already
law. (NCC 738) taken action; this prohibition shall not
(2) Minors and others who cannot enter into a apply to cases wherein, according to
contract: acceptance may be made
law, there is no obligation to make an
through their parents or legal accusation;
representatives. [NCC 741]
(e) Any person convicted of adultery or
(3) Donations made to conceived and unborn concubinage with the spouse of the
children: those who would legally
testator;
represent them if they were already born
(f) Any person who by fraud, violence,
may accept the donations. [NCC 737] intimidation, or undue influence
should cause the testator to make a
Who May Not Give or Receive Donations
(1) By reason of public policy (NCC 739) will or to change one already made;
(a) Those made between persons guilty of (g) Any person who by the same means
adultery or concubinage at the time of prevents another from making a will,
the donation; or from revoking one already made, or
(b) Those made between persons guilty of who supplants, conceals, or alters the
the same criminal offense if the latter’s will;
donation is made in consideration (h) Any person who falsifies or forges a
thereof; or supposed will of the decedent.
(c) Those made to a public officer, his
NCC 1027:
spouse, descendants, and/or (a) The priest who heard the confession
ascendants by reason of the office. of the testator during his last illness,
or the minister of the gospel who
(2) By reason of the donee’s unworthiness [NCC
extended spiritual aid to him during
1032 and 1027 except (d)]
the same period;
(b) The relatives of such priest or minister
of the gospel within the fourth degree,
NCC 1032:
the church, order, chapter,
(a) Parents who have abandoned their
community, organization, or
children or induced their daughters to
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institution to which such priest or (b) When the donation to husband and
minister may belong; wife is joint with the right of accretion
(c) A guardian with respect to UNLESS the donor provides
testamentary dispositions given by a otherwise.
ward in his favor before the final (7) Donations by a person to his non-heirs
accounts of the guardianship have are collationable. (Liguez v CA)
been approved, even if the testator (8) Donations made to one’s heirs must
should die after the approval thereof; expressly prohibit collation to be
nevertheless, any provision made by exempted from collation. (De Roma v CA
the ward in favor of the guardian when [1987])
the latter is his ascendant, descendant,
brother, sister, or spouse, shall be E.2. SPECIAL PROVISIONS
valid; (1) Reservation by donor of power to dispose
(d) Any physician, surgeon, nurse, health (in whole or in part) or to encumber
officer or druggist who took care of the property donated [NCC 755]
testator during his last illness; or The donor may reserve the right to
(e) Individuals, associations and dispose of some things donated, or of
corporations not permitted by law to some amount, which shall be a charge
inherit. thereon.
But if he should die without having made
(3) By reason of prejudice to creditors or heirs use of this right, the property or amount
(voidable) reserved shall belong to the donee.
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F.3. THOSE MADE TO A PUBLIC OFFICER Extent of revocation: only to the extent of the
OR HIS WIFE, DESCENDANTS AND presumptive legitime of the child.
ASCENDANTS, BY REASON OF HIS (a) Insufficient means of support
OFFICE (b) In fraud of creditors
(c) Prescription – 4 years from either:
F.4. THOSE MADE TO PERSONS (i) Birth of first legitimate child;
INCAPACITATED TO SUCCEED BY WILL. (ii) Legitimation, adoption,
recognition of first child;
[NCC. 1027]
(iii) Judicial declaration of filiation; or
G. REVOCATION V. REDUCTION
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Notes:
(1) Founded on moral duty: one who received
a donation must be grateful to his
benefactor.
(2) Conviction is NOT necessary.
(3) Time to file action for revocation – within
1yr from knowledge of the offense.
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If exceeds: inofficious
Donations made to several persons jointly
No accretion – one donee does not get the share Exception: those given to husband and wife,
of the other donees who did not accept (Article except when the donor otherwise provides
753)
Donor
Who are allowed: All persons who may contract (of Who are not allowed:
legal age) and dispose of their property [NCC 735] (1) Guardians and trustees with respect to the
property entrusted to them [NCC 736]
Donor’s capacity is determined at the time of the (2) Made between person who are guilty of
making of donation [NCC 737] adultery or concubinage [NCC 739]
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Revocation/Reduction
Time of Action Transmissibility Effect Liability (Fruits)
Birth, appearance, adoption
Within 4 years from Transmitted to children Property is returned Fruits returned from the
birth, legitimation and and descendants upon If the property has been filing of the complaint
adoption the death of donor sold, its value at the
time of donation shall
be returned.
If the property was
mortgaged, the donor
may redeem the
mortgage, with right to
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(b) Extraordinary: acquisition of ownership and ownership and other of rights, whether real
other real rights without need of title or of real rights or personal
good faith or any other condition.
Vests the property and Vests the property and
Prescription where possession in good faith raise a new title in the raise a new title in the
converted into possession in bad faith: occupant occupant
Ordinary Results in the Merely results in the
(1) Movable properties - 4 years acquisition of loss of a real or
(2) Immovable properties - 10 years ownership or other personal right, or bars
real rights in a person the cause of action to
Extraordinary: as well as the loss of enforce said right
(1) Movable properties - 8 years said ownership or real
(2) Immovable properties - 30 years rights in another
Can be proven under Should be
As a mode of acquisition, prescription requires the general issue affirmatively pleaded
existence of following: without its being and proved to bar the
(1) Capacity of the claimant to acquire by affirmatively pleaded action or claim of the
prescription; adverse party
(2) A thing capable of acquisition by
prescription;
NO PRESCRIPTION APPLICABLE
(3) Adverse possession of the thing under
certain conditions; and
BY OFFENDER
(4) Lapse of time provided by law.
The offender can never acquire, through
The following are only required in ordinary prescription, movable properties possessed
prescriptions: through a crime.
(1) Good faith of the possessor; and
REGISTERED LANDS
(2) Proof of just title
PD 1529 (AMENDING AND CODIFYING THE
LAWS RELATIVE TO REGISTRATION OF
Note:
PROPERTY AND FOR OTHER PURPOSES)
For extraordinary prescription, only first 4 are
No title to registered land in derogation of the
required
title of the registered owner shall be acquired
Possession has to be in the concept of an by prescription or adverse possession.
owner, public, peaceful, and uninterrupted.
RIGHTS NOT EXTINGUISHED BY
EXTINCTIVE PRESCRIPTION PRESCRIPTION [NCC 1143]
The loss or extinguishment of property rights (1) To demand a right of way, regulated by
or actions through the possession by another NCC 649;
of a thing for the period provided by law or (2) To bring an action to abate a public or
through failure to bring the necessary action to private nuisance.
enforce one’s right within the period fixed by
law. ACTION TO QUIET TITLE IF PLAINTIFF IS IN
POSSESSION
Acquisitive Prescription Extinctive Prescription (1) When plaintiff is in possession of the
property: the action to quiet title does not
Requires positive Requires inaction of
prescribe.
action of the possessor the owner out of
(2) The reason is that the owner of the property
(a claimant) who is not possession or neglect
or right may wait until his possession is
the of one with a right to
disturbed or his title is assailed before
Owner bring his action
taking steps to vindicate his right.
Applicable to Applicable to all kinds
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TO RECOVER MOVABLE PROPERTIES (4) Actions that Prescribe in 4 Years [NCC 1145]
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(a) Upon an injury to the rights of the starts anew the prescriptive period [The
plaintiff Overseas Bank of Manila v. Geraldez, (1979)]
(b) Upon a quasi-delict
BUT when the action arises from any act of Not all acts of acknowledgement of a debt
any public officer involving the exercise of interrupt prescription. To produce such
powers arising from Martial Law including effect, the acknowledgment must be
the arrest, detention and/or trial of the “written”, so that the payment, if not
plaintiff, the same must be brought within coupled with the communication signed by
1 year. the payor would interrupt the running of
the period of prescription [PNB v. Osete
(5) Actions that Prescribe in One Year or Less (1968)]
[NCC 1147]
(a) For forcible entry or unlawful detainer
(b) For defamation
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CIVIL LAW
OBLIGATIONS
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Art 1426 and 1427 Distinguished law, but one of the intestate heirs, after the
1426 1427 settlement of the debts of the deceased,
Presupposes a prior No prior annulment pays a legacy in compliance with a clause in
annulment is involved the defective will, the payment is effective
Refers to any object Refers to money or and irrevocable.
fungible things
Consumption in Requires Requisites under Art 1430
good faith is not consumption in good (1) There is a will providing for a legacy
required faith (2) The will is declared void because it was
not executed in accordance with the
Art. 1428. When, after an action to enforce a formalities required by law
civil obligation has failed the defendant (3) Heir pays legacy
voluntarily performs the obligation, he
cannot demand the return of what he has
delivered or the payment of the value of the Consequence: Payment is effective and
service he has rendered. irrevocable.
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of the period fixed by what is incumbent Mora solvendi – Delay on the part of the debtor
the parties is not upon him. From the to fulfil his obligation either to give (ex re) or to
enough in order that moment one of the do (ex persona).
the debtor may incur parties fulfills his
in delay. obligation, delay by
Those obliged to the other begins. (1169 Requisites:
deliver or to do par. 3) 1. Obligation must be liquidated, due and
something incur in demandable
delay from the time No delay if neither 2. Non-performance by the debtor within the
the obligee judicially performs. period agreed upon
or extrajudicially 3. Demand, judicial or extra-judicial, by the
demands from them
creditor, unless demand is not necessary
the fulfillment of their
obligation. (1169 par. under the circumstances enumerated in
1) Art 1169 par (2).
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(3) The expenses incurred by the debtor for Second infractor not Does not appear to
the preservation of the thing after the liable for damages at consider which
mora shall be chargeable to the creditor. all; only the first infractor first
(4) If the obligation bears interest, the debtor infractor is liable, but committed the breach
with his liability
does not have to pay from the time of mitigated
delay.
(5) The creditor is liable for damages. Articles 1192 and 2215 are not irreconcilably
(6) The debtor may relieve himself of the conflicting. The plaintiff referred to in Article
obligation by consigning the thing. 2215(1) should be deemed to be the second
infractor, while the one whose liability for
Compensatiomorae – Delay of both parties in damages may be mitigated is the first
reciprocal obligations. infractor. Furthermore, the directions to
equitably temper the liability of the first
Effects: infractor in Articles 1192 and 2215 are both
1. Delay of the obligor cancels delay of subject to the discretion of the court, despite
obligee (and vice versa) hence it is as if the word "shall" in Article 1192, in the sense
there is no default. that it is for the courts to decide what is
2. The liability of the first infractor shall be equitable under the circumstances. (Ong v
equitably tempered by the courts. If it Bognalbal, 2006)
cannot be determined which of the parties
first violated the contract, the same shall
C.3. FRAUD (DOLO) IN THE
be deemed extinguished, and each shall
PERFORMANCE OF THE OBLIGATION
bear his own damages. [Art. 1192]
Art. 1171. Responsibility arising from fraud is
demandable in all obligations. Any waiver of
Cessation of the Effects of Mora: an action for future fraud is void.
(1) Express or implied renunciation by the
creditor; Fraud (dolo) is the deliberate or intentional
(2) Prescription. evasion of the normal fulfilment of an
obligation. [De Leon]
Equitable Tempering under Art. 1192 vs. Under
Art. 2215 [Ong v Bognalbal, 2006] A waiver of future fraud is void but past fraud
Art 1192 Art 2215 may be subject of a valid waiver by the
“In case both parties “In contracts, quasi- aggrieved party. [De Leon]
have committed a contracts, and quasi-
breach of the delicts, the court may
obligation, the equitably mitigate the Distinguished from Casual Fraud
liability of the first damages under Causal Fraud
infractorshall be circumstances other Fraud in the (dolo causante and
equitably tempered than the case referred Performance
[Art. 1170] dolo incidente)
by the courts. xxx” to in the preceding [Arts. 1338, 1344]
article, as in the ff. Definition
instances: The deliberate and Every kind of
(1) That the plaintiff intentional evasion of deception for the
himself has the normal fulfilment purpose of leading
contravened the of obligations. another party into
terms of the contract [International error and execute a
xxx” Corporate Bank v particular act.
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E.1. SPECIFIC PERFORMANCE The party who deems the contract violated
The creditor has a right to compel the debtor may consider it resolved or rescinded, and act
to perform the prestation. accordingly, without previous court action, but
it proceeds at its own risk. For it is only the
E.2. SUBSTITUTED PERFORMANCE final judgment of the corresponding court that
will conclusively and finally settle whether the
A third person may perform another’s
action taken was or was not correct in law. But
obligation to deliver a generic thing or an
the law definitely does not require that the
obligation to do, unless it is a purely personal
contracting party who believes itself injured
act, at the expense of the debtor.
must first file suit and wait for a judgment
before taking extrajudicial steps to protect its
E.3. RESCISSION (RESOLUTION IN
interest. [UP v Delos Angeles, 1970]
RECIPROCAL OBLIGATIONS)
Art. 1191. The power to rescind obligations is Under Art 1191, the right to rescind an
implied in reciprocal ones, in case one of the
obligation is predicated on the violation of the
obligors should not comply with what is
incumbent upon him. reciprocity between parties, brought about by a
breach of faith by one of them. Rescission,
The injured party may choose between the however, is allowed only where the breach is
fulfillment and the rescission of the substantial and fundamental to the fulfillment
obligation, with the payment of damages in of the obligation. [Del Castillo Vda de Mistica v
either case. He may also seek rescission, Naguiat, 2003; Cannu v Galang, 2005]
even after he has chosen fulfilment, if the
latter should become impossible.
Distinguished from Rescission under Art. 1380
The court shall decree the rescission Rescission / Resolution
Rescission [Art. 1380]
[Art. 1191]
claimed, unless there be just cause
authorizing the fixing of a period. Based on non- Based on lesion or
performance or non- fraud upon creditors.
fulfillment of obligation.
This is understood to be without prejudice to Action is instituted only by Action is instituted by
the rights of third persons who have the injured party. either party or by a
acquired the thing, in accordance with third person.
articles 1385 and 1388 and the Mortgage Applies only to reciprocal Applies to either
Law. obligations where one unilateral or reciprocal
party is guilty of non- obligations even when
Rescission – the unmaking of a contract, or its fulfillment the contract has been
fully fulfilled
undoing from the beginning, and not merely its In some cases, court may Court cannot grant a
termination [Pryce Corp v Pagcor, 2005] grant a term for period or term within
performance. which one must
Rescission may take place extrajudicially, by comply.
declaration of the injured party. But if the Non-performance by the Non-performance by
debtor impugns the declaration of rescission, it other party is important. the other party is
shall be subject to judicial determination. If the immaterial.
debtor does not oppose the extrajudicial
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Distinguished from Termination [Pryce Corp v The creditors, after having pursued the
PAGCOR, 2005] property in possession of the debtor to satisfy
Rescission Termination their claims, may exercise all the rights and
May be effected: May be effected by bring all the actions of the latter for the same
(a) by both parties by mutual agreement or purpose, save those which are inherent in his
mutual agreement, or by one party person. [Art.1177]
(b) unilaterally by one exercising one of its
of them declaring a remedies as a
rescission without the consequence of the In order to satisfy their claims against the
consent of the other if default of the other debtor, creditors have the ff. successive rights:
a legally sufficient (1) To levy by attachment and execution
ground exists or if a upon all the property of the debtor,
decree of rescission is except those exempt from execution;
applied for before the (2) To exercise all the rights and actions of
courts
the debtor, except such are inherently
Requires mutual The parties are not
restitution to restore restored to their personal to him; and
the parties to their original situation; (3) To ask for the rescission of the
original situation prior to termination, contracts made by the debtor in fraud
parties are obliged to of their rights.
comply with their
contractual Requisites
obligations (1) The person to whom the right of action
pertains must be indebted to the
Effect of Rescission under Art 1191: creditor
Extinguishes the obligatory relation as if it had (2) The debt is due and demandable
never been created, the extinction having a (3) The creditor must be prejudiced by the
retroactive effect. Both parties must surrender failure of the debtor to collect his debts
what they have respectively received and due him from third persons, either
return each other as far as practicable to their through malice or negligence
original situation. [Tolentino] (4) The debtors assets are insufficient (
debtor is insolvent)
E.4. DAMAGES, IN ANY EVENT (5) The right of action is not purely
Art. 1170. Those who in the performance of personal to the debtor
their obligations are guilty of fraud, Previous approval of the court is not
negligence, or delay, and those who in any necessary to exercise the accion
manner contravene the tenor thereof, are
subrogatoria.
liable for damages.
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Creditors may also impugn the acts which the rescinded is onerous
debtor may have done to defraud them. [Art. No period for Prescribes in 4 years
prescription from the discovery of the
1177] fraud
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Principal has right of action against substitute A condition is a future and uncertain event.
of agent in cases when the agent is liable for This includes acquisition of proof/knowledge
acts of appointed substitute of a past event unknown to the parties.
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Defendant executed an endorsement saying (4) If it deteriorates through the fault of the
that she’ll pay her debt if the house in which debtor, the creditor may choose
she lives is sold. Such condition depended between the rescission of the obligation
upon her exclusive will; thus, it is void. and its fulfillment, with indemnity for
[Osmeña vs. Rama, 1909] damages in either case;
(5) If the thing is improved by its nature, or
The condition that payment should be made by by time, the improvement shall inure to
Hermosa as soon as he receives funds from the the benefit of the creditor;
sale of his property in Spain is a mixed (6) If it is improved at the expense of the
condition. The condition implies that the debtor, he shall have no other right
obligor already decided to sell the house and than that granted to the usufructuary.
all that was needed to make the obligation
demandable is that the sale be consummated
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Art. 1190, par 3. As for the obligations to do Positive and Negative Conditions
and not to do, the provisions of the second Positive [Art. 1184] Negative [Art. 1185[
paragraph of article 1187 shall be observed The condition that The condition that
as regards the effect of the extinguishment some event happen at some event will not
of the obligation. a determinate time happen at a
shall extinguish the determinate time
Without Debtor’s obligation shall render the
With Debtor’s Fault/Act
Fault/Act (a) as soon as the obligation effective
Loss time expires or from the moment
IV. Obligation V. is Obligation is converted (b) if it has become (a) the time indicated
extinguished. into one of indemnity for has elapsed, or
damages. indubitable that
Deterioration the event will not (b) if it has become
VI. Impairment to be VII.
borne Creditor may choose take place. evident that the
by the creditor. between bringing an event cannot
action for rescission of occur.
the obligation OR
bringing an action for
specific performance, Where no date of fulfilment is stipulated,
with damages in either condition must be fulfilled within a reasonable
case. time or time probably contemplated according
Improvement
VIII. Improvement atIX. the Improvement by the to the nature of the obligation [Art. 1185, par 2].
debtor’s expense, the thing’s nature or by time
debtor shall ONLY have shall inure to the benefit C. OBLIGATIONS WITH A PERIOD OR
usufructuary rights. of the creditor.
TERM
Art. 1193. Obligations for whose fulfillment a
Upon the happening of the resolutory day certain has been fixed, shall be
condition, the rules of Article 1189 shall be demandable only when that day comes.
applied to the party who is bound to return (i.e.
the creditor in the original obligation). Obligations with a resolutory period take
effect at once, but terminate upon arrival of
Impossible Conditions the day certain.
Art. 1183. Impossible conditions, those
contrary to good customs or public policy A day certain is understood to be that which
and those prohibited by law shall annul the must necessarily come, although it may not
obligation which depends upon them. If the be known when.
obligation is divisible, that part thereof
which is not affected by the impossible If the uncertainty consists in whether the day
or unlawful condition shall be valid. will come or not, the obligation is
conditional, and it shall be regulated by the
The condition not to do an impossible thing rules of the preceding Section.
shall be considered as not having been
agreed upon. Art. 1180. When the debtor binds himself to
pay when his means permit him to do so, the
In testaments (Art. 873) and donations (Art. obligation shall be deemed to be one with a
period, subject to the provisions of Article
727), an unlawful or impossible condition does
1197.
not annul the transaction. The condition is
merely deemed not written. Period or Term: Interval of time, which either
suspends demandability or produces
extinguishment.
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The period must be: future, certain, and This is in contrast to payment by mistake of the
possible.[Tolentino] obligor before the occurrence of the suspensive
condition, where fruits and interests may no
A fortuitous event does not interrupt the longer be recovered.
running of the period. It only relieves the
contracting parties from the fulfillment of their Loss, Deterioration, or Improvement of the
respective obligations during the period. Thing Before Period Expires
Art. 1194. In case of loss, deterioration or
improvement of the thing before the arrival
Term/Period and Condition Distinguished of the day certain, the rules in Article 1189
shall be observed.
Term/Period Condition
X. Interval of time which
XI. is Fact or event which is Benefit of the Period
future and certain future and uncertain Art. 1196. Whenever in an obligation a period
Must necessarily XII.
come, May or may not happen is designated, it is presumed to have been
although it may not be
known when
established for the benefit of both the
XIII. No effect on existence
XIV. of Gives rise to an creditor and the debtor, unless from the
the obligation, only its obligation or tenor of the same or other circumstances it
demandability or extinguishes one already should appear that the period has been
performance existing established in favor of one or of the other.
XV. No retroactive XVI. effect Has retroactive effect
unless there is an Period for the benefit of either creditor or
agreement to the contrary
debtor
Creditor Debtor
XVII. When it is left exclusively
XVIII. When it is leftXIX. Creditor may demand XX. Debtor may oppose any
to the will of the debtor, exclusively to the will of the fulfillment or premature demand on
the existence of the the debtor, the very performance of the the part of the obligee for
obligation is not affected existence of the obligation at any time the performance of the
obligation is affected but the obligor cannot obligation, or if he so
compel him to accept desires, he may renounce
payment before the the benefit of the period
Kinds of Period [Art 1193] expiration of the period. by performing his
obligation in advance.
(1) Ex die – period with a suspensive effect.
Obligation becomes demandable after
If the period is for the benefit of the debtor
the lapse of the period.
alone, he shall lose every right to make use of
(2) In diem – period with a resolutory effect.
it—
Obligation becomes demandable at
(1) When after the obligation has been
once but is extinguished after the lapse
contracted, he becomes insolvent,
of the period.
unless he gives a guaranty or security
Effect of Advance Payment or Delivery for the debt;
Art. 1195. Anything paid or delivered before (2) When he does not furnish to the
the arrival of the period, the obligor being creditor the guaranties or securities
unaware of the period or believing that the which he has promised;
obligation has become due and (3) When by his own acts he has impaired
demandable, may be recovered, with the said guaranties or securities after their
fruits and interests. establishment, and when through a
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fortuitous event they disappear, unless (c) If the debtor binds himself when his
he immediately gives new ones equally means permit him to do so.
satisfactory;
(4) When the debtor violates any Art. 1197 does not apply to contract of services
undertaking, in consideration of which and to pure obligations.
the creditor agreed to the period;
(5) When the debtor attempts to abscond The court, however, to prevent unreasonable
[Art. 1198] interpretations of the immediate
(6) When required by law or stipulation; demandability of pure obligations, may fix a
(7) If parties stipulated an acceleration reasonable time in which the debtor may pay
clause [Tolentino] [Tolentino]
The obligation immediately becomes due and The only action that can be maintained by the
demandable even if the period has not yet creditor under Art. 1197 is the action to ask the
expired. The obligation becomes a pure one. courts to fix the term within which the debtor
[Tolentino] must comply with his obligation. The
fulfillment of the obligation itself cannot be
When Courts May Fix Period demanded until after the court has fixed the
Art. 1197. If the obligation does not fix a period for compliance therewith, and such
period, but from its nature and the period has arrived.
circumstances it can be inferred that a
period was intended, the courts may fix the Art. 1197 applies to a situation in which the
duration thereof.
parties intended a period. [Where] no period
The courts shall also fix the duration of the was intended by the parties… Their mere
period when it depends upon the will of the failure to fix the duration of their agreement
debtor. does not necessarily justify or authorize the
courts to do so. Based on the reasons [herein],
In every case, the courts shall determine the agreement subsisted as long as the
such period as may under the circumstances
parents and the children mutually benefited
have been probably contemplated by the
parties. Once fixed by the courts, the period from the arrangement. Effectively, there is a
cannot be changed by them. resolutory condition in such agreement. When
a change in the condition occurs, the
General Rule: The court is not authorized to fix agreement may be deemed terminated.
a period for the parties [De Leon] [pMacasaet v Macasaet, 2004]
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the prestations which are prestation in categorically and unequivocally makes his or
alternatively due. substitution of that her choice known. The choice of the debtor
which is due.
XXV. Choice may pertain XXVII.
to Choice pertains only to
must also be communicated to the creditor
debtor, creditor, or third the debtor. who must receive notice of it since: The object
person. of this notice is to give the creditor . . .
XXVI. opportunity to express his consent, or to
XXVIII. Loss/impossibility XXXI.
of all Loss/impossibility of the
object/prestation due to object/prestation due to
impugn the election made by the debtor, and
fortuitous event shall fortuitous event is only after said notice shall the election take
extinguish the obligation. sufficient to extinguish legal effect when consented by the creditor, or
XXIX. the obligation. if impugned by the latter, when declared
XXX. The loss/impossibility of
one of the things does proper by a competent court. [Arco Pulp and
not extinguish the Paper Co., Inc. v Lim, 2014]
obligation.
XXXII. Culpable loss of any XXXIII.
of Culpable loss of the The effect of the notice is to limit the obligation
the objects alternatively object which the debtor
due before the choice is may deliver in to the object or prestation selected. Notice of
made may give rise to substitution before the selection or choice may be in any form
liability on the part of the substitution is effected provided it is sufficient to make the other party
debtor. does not give rise to any know that the selection has been made. It can
liability on the part of
the debtor. be:
(1) oral
Alternative obligations: Several prestations are (2) in writing
due but the performance of one is sufficient. (3) tacit
[De Leon] (4) any other equivocal means
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applying Art. 1167 in obligations to do the price/value of the the price/value of the
[Tolentino]. thing lost with right to thing lost with right to
damages. damages.
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thing may be divisible, yet the obligation c) By death of creditor or the debtor
may be indivisible. (division among heirs of the deceased)
(2) When the obligation has for its object
the execution of a certain number of F. OBLIGATIONS WITH A PENAL
days of work, the accomplishment of CLAUSE
work by metrical units, or analogous Penal Clause: An accessory undertaking to
things which by their nature are assume greater liability in case of breach. It is
susceptible of partial performance, it attached to an obligation in order to ensure
shall be divisible [Art.1225, par. 2]. performance. The enforcement of the penalty
(3) Even though the object or service may be can be demanded by the creditor only when
physically divisible, an obligation is the non-performance is due to the fault or
indivisible if so provided by law or fraud of the debtor.
intended by the parties.
(4) In obligations not to do, divisibility or If the principal obligation is void, the penal
indivisibility shall be determined by the clause shall also be void. However, the nullity
character of the prestation in each of the penal clause does not carry with it the
particular case. nullity of the principal obligation [Art.1230].
(5) When there is plurality of debtors and
creditors, the effect of Purposes of Penalty
divisibility/indivisibility of the obligation (1) Funcioncoercitiva de garantia - to insure
depend upon whether the obligation is the performance of the obligation.
joint or solidary. (2) Funcionliquidatoria - to liquidate the
(6) A joint indivisible obligation gives rise to amount of damages to be awarded to
indemnity for damages from the time the injured party in case of breach of the
any one of the debtors does not comply principal obligation (compensatory).
with his undertaking [Art. 1224]. (3) Funcionrestrictamente penal - to punish
the obligor in case of breach of the
Effect principal obligation (punitive).
Creditor cannot be compelled to receive
partially the prestation in which the obligation Characteristics of Penalty
consists; neither may the debtor be required to (1) The penalty shall substitute the indemnity
make the partial payment [Art. 1248], UNLESS: for damages and payment of interest in
(1) The obligation expressly stipulates the case of non-compliance [Art. 1226],
contrary. UNLESS:
(2) The different prestations constituting a. There is a stipulation to the
the objects of the obligation are contrary
subject to different terms and b. The obligor refuses to pay the
conditions. penalty
(3) The obligation is in part liquidated and c. The obligor is guilty of fraud
in part unliquidated.
(2) Debtor cannot exempt himself from the
Cessation of Indivisibility performance of the principal obligation by
a) By conversion of the obligation into an paying the stipulated penalty unless this
obligation to pay damages right has been expressly reserved for him
b) By novation of the obligation [Art. 1227].
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(3) Creditor cannot demand the fulfillment of When Penalty may be Reduced [Art. 1229]:
the principal obligation and demanding (1) If the principal obligation has been
the satisfaction of the penalty at the same partly complied with.
time unless the right has been clearly (2) If the principal obligation has been
granted to him [Art. 1227]. Tacit or implied irregularly complied with.
grant is admissible. (3) If the penalty is iniquitous or
a. If the creditor has chosen fulfillment unconscionable even if there has been
of the principal obligation and the no performance.
performance thereof becomes
impossible without his fault, he may The question of whether a penalty is
still demand the satisfaction of the reasonable or iniquitous can be partly
penalty. subjective and partly objective. Its resolution
b. If there was fault on the part of the would depend on such factor as, but not
debtor, creditor may demand not only necessarily confined to, the type, extent and
the satisfaction of the penalty but also purpose of the penalty, the nature of the
the payment of damages. obligation, the mode of breach and its
c. If the creditor chooses to demand the consequences, the supervening realities, the
satisfaction of the penalty, he cannot standing and relationship of the parties, and
afterwards demand the fulfillment of the like, the application of which, by and large,
the obligation. is addressed to the sound discretion of the
court. [Ligutan v CA, 2002; Florentino v
Proof of Actual Damage Supervalue, 2007]
Art. 1228: That proof of actual damages is not
necessary is applicable only to the general rule
stated in Art. 1226, but not to the exceptions.
IV. JOINT AND
The penalty is exactly identical with what is
known as “liquidated damages” in Art. 2226.
SOLIDARY
OBLIGATIONS
In cases where there has been partial or
irregular compliance, as in this case, there will
be no substantial difference between a penalty
A. JOINT OBLIGATIONS
and liquidated damages insofar as legal The whole obligation, whether capable of
results are concerned... There is no justification division into equal parts or not, is to be paid or
for the Civil Code to make an apparent performed by several debtors and/or
distinction between a penalty and liquidated demanded by several creditors.
damages because the settled rule is that there Presumption of Joint Obligation
is no difference between penalty and An obligation is presumed joint if there is a
liquidated damages insofar as legal results are concurrence of several creditors, or of several
concerned and either may be recovered debtors, or of several creditors and debtors in
without the necessity of proving actual one and the same obligation [Art. 1207]
damages and both may be reduced when
proper. [Filinvest v CA, 2005] Exceptions:
(1) When the obligation expressly states
that there is solidarity
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(2) When the law requires solidarity, i.e. creditors nor interrupt the prescription
quasi-delicts as to other debtors.
(3) When the nature of the obligation (3) Vices of each obligation arising from the
requires solidarity personal defect of a particular debtor or
(4) When a charge or condition imposed creditor do not affect the obligation or
upon heirs or legatees, and the right of the others.
testament expressly makes the charge or (4) Insolvency of a debtor does not increase
condition in solidum the responsibility of his co-debtors, nor
(5) When the solidary responsibility is does it authorize a creditor to demand
imputed by a final judgment upon anything from his co-debtors.
several defendants (5) Defense of res judicata is not extended
from one debtor to another.
Presumption of Divisibility in Joint Obligations
(Joint Divisible Obligations)
Credit or debt shall be presumed to be divided Joint Indivisible Obligations
into as many equal shares as there are Art. 1209. If the division is impossible, the
creditors or debtors, the credits or debts being right of the creditors may be prejudiced only
considered distinct from one another. by their collective acts, and the debt can be
[Art.1208] enforced only by proceeding against all the
debtors. If one of the latter should be
insolvent, the others shall not be liable for
Joint divisible obligation - One where a his share.
concurrence of several creditors, or of several
debtors, or of several creditors and debtors, by When Indivisible [Art. 1225]
virtue of which, each of the creditors has a right (1) Obligations to give definite things
to demand, and each of the debtors is bound (2) Obligations not susceptible of partial
to render compliance with his proportionate performance
part of the prestation which constitute the (3) Indivisibility is provided by law or
object of the obligation (obligacion intended by the parties, even though
mancomunada). object or service may be physically
divisible
Joint creditor cannot act in representation of (4) In obligations not to do, when character
the others, neither can a joint debtor be of prestation requires indivisibility
compelled to answer for the liability of others.
Plurality of Creditors—If one or some of the
Principal Effects of Joint Liability creditors demands the prestation, the debtor
(1) Demand by one creditor upon the may legally refuse to deliver to them. He can
debtor, produces the effects of default insist that all the creditors together receive the
only with respect to the creditor who thing, and if any of them refuses to join the
demanded and the debtor on whom the others, the debtor may deposit the thing in
demand was made, but not with respect court by way of consignation [Tolentino]
to others.
(2) Interruption of prescription by the Plurality of Debtors—If there are two or more
judicial demand of one creditor upon a debtors, the fulfillment of or compliance with
debtor does not benefit the other the obligation requires the concurrence of all
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the debtors, although each for his own share Solidarity may exist although the creditors and
and for the enforcement of the obligation. the debtors may not be bound in the same
manner and by the same periods and
Failure of one debtor to perform in a joint conditions. [Art. 1211]
indivisible obligation gives rise to indemnity for
damages In a “joint” obligation, each obligor answers
Art. 1224. A joint indivisible obligation gives only for a part of the whole liability; in a
rise to indemnity for damages from the time “solidary” or “joint and several” obligation, the
anyone of the debtors does not comply with relationship between the active and the
his undertaking. The debtors who may have passive subjects is so close that each of them
been ready to fulfill their promises shall not
contribute to the indemnity beyond the must comply with or demand the fulfillment of
corresponding portion of the price of the the whole obligation. The fact that the liability
thing or of the value of the service in which sought against the CCC is for specific
the obligation consists. performance and tort, while that sought
against the individual respondents is based
Joint Divisible Joint Indivisible solely on tort does not negate the solidary
Obligations Obligations nature of their liability for tortuous acts alleged
In case of breach of In case of breach where in the counterclaims. [Lafarge Cement v
obligation by one of the one of the joint debtors
debtors, damages due fails to comply with his Continental Cement Corp, 2004]
must be borne by him undertaking, the
alone. obligation can no longer Distinguished from Indivisibility
be fulfilled or
Art. 1210. The indivisibility of an obligation
performed. Thus, the
action must be
does not necessarily give rise to solidarity.
converted into one for Nor does solidarity of itself imply
indemnity for damages. indivisibility.
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All debtors are liable Only the debtors Active Solidary Obligation
for breach guilty of breach of Art. 1214. The debtor may pay any one of the
committed by a co- obligation is liable solidary creditors; but if any demand,
debtor for damages judicial or extrajudicial, has been made by
All debtors are Other debtors are one of them, payment should be made to
proportionately not liable if one him.
liable for insolvency debtor is insolvent
of one debtor A relationship of mutual agency is created
among co-creditors. But once one creditor
makes a demand for payment, the tacit
representation by the other creditors is
Kinds of Solidary Obligations considered revoked.
As to Source
(1) Legal – imposed by law The creditor who may have executed any
(2) Conventional – agreed upon by parties novation, compensation, confusion, or
(3) Real – imposed by the nature of the remission of the debt, as well as he who
obligation collects the debt, shall be liable to the others
for the share in the obligation corresponding to
As to Parties Bound them. [Art. 1215, par 2]
(1) Active (solidarity among creditors) –
Each creditor has the authority to claim A solidary creditor cannot assign his rights
and enforce the rights of all, with the without the consent of the others [Art. 1213].
resulting obligation of paying everyone Such an assignment produces no effect
of what belongs to him. whatsoever [Tolentino].
(2) Passive (solidarity among debtors) –
Each debtor can be made to answer for Passive Solidary Obligation
the others, with the right on the part of
Art. 1216. The creditor may proceed against
the debtor-payor to recover from the any one of the solidary debtors or some or
others their respective shares. all of them simultaneously. The demand
(3) Mixed (solidarity among creditors and made against one of them shall not be an
debtors) – Solidarity is not destroyed by obstacle to those which may subsequently
the fact that the obligation of each be directed against the others, so long as
the debt has not been fully collected.
debtor is subject to different conditions
or periods. The creditor can commence
Art. 1217. Payment made by one of the
an action against anyone of the debtors
solidary debtors extinguishes the obligation.
for the compliance with the entire If two or more solidary debtors offer to pay,
obligation minus the portion or share the creditor may choose which offer to
which corresponds to the debtor affected accept.
by the condition or period.
He who made the payment may claim from
As to Uniformity his co-debtors only the share which
(1) Uniform – Parties are bound by the same corresponds to each, with the interest for the
payment already made. If the payment is
stipulation made before the debt is due, no interest for
(2) Non-uniform – Parties are bound by the intervening period may be demanded.
different conditions or terms
When one of the solidary debtors cannot,
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because of his insolvency, reimburse his A creditor’s right to The solidary debtor who
share to the debtor paying the obligation, proceed against the made the payment shall
such share shall be borne by all his co- surety exists have the right to claim
debtors, in proportion to the debt of each. independently of his from his co-debtors the
right to proceed against share which
the principal corresponds to them
Art. 1222. A solidary debtor may, in actions with interest, UNLESS
filed by the creditor, avail himself of all barred by prescription or
defenses which are derived from the nature illegality [Art. 1218].
of the obligation and of those which are
personal to him, or pertain to his own share. Art 2047 specifically calls for the application of
With respect to those which personally the provisions on solidary obligations to
belong to the others, he may avail himself suretyship contracts. In particular, Art 1217
thereof only as regards that part of the debt
for which the latter are responsible. recognizes the right of reimbursement from a
co-debtor (the principal co-debtor, in case of
A relationship of mutual guaranty is created suretyship) in favor of the one who paid (i.e.,
among co-debtors. the surety). In contrast, Art 1218 is definitive on
when reimbursement is unavailing, such that
The interruption of prescription as to one only those payments made after the obligation
debtor affects all the others; but the has prescribed or became illegal shall not
renunciation by one debtor of prescription entitle a solidary debtor to reimbursement.
already had does not prejudice the others. [Diamond Builders v Country Bankers, 2007]
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Reimbursement & Subrogation Distinguished (2) If the creditor ratifies the payment to the
Reimbursement Subrogation third person;
Personal action to Includes (3) If by the creditor's conduct, the debtor
recover amount paid reimbursement, but has been led to believe that the third
also the exercise of person had authority to receive the
other rights attached
payment. [Art. 1241]
to the original
obligation (e.g.
guaranties, securities) Place of Payment
(1) In the place designated in the obligation.
Art. 1238. Payment made by a third person who (2) In the absence of stipulation—
does not intend to be reimbursed by the debtor a. If obligation is to deliver a determinate
is deemed to be a donation, which requires the thing: wherever the thing might be at
debtor's consent. But the payment is in any the moment the obligation was
case valid as to the creditor who has accepted
constituted.
it.
b. In any other case: Domicile of debtor
To whom [Art. 1251]
(1) The person in whose favor the obligation
has been constituted; or Time of Payment
(2) His successor in interest; or Upon demand, except-
(3) Any person authorized to receive it [Art. (1) When time is of the essence
1240] (2) When the debtor loses the benefit of the
period
Payment to a person who is incapacitated to (3) When the obligation is reciprocal
administer his property shall be valid:
(1) if he has kept the thing delivered, OR Form of Payment
(2) insofar as the payment has been Art. 1249. The payment of debts in money
shall be made in the currency stipulated,
beneficial to him. [Art. 1241 par 1]
and if it is not possible to deliver such
currency, then in the currency which is legal
Payment made in good faith to any person in tender in the Philippines.
possession of the credit shall release the
debtor. [Art. 1242] The delivery of promissory notes payable to
order, or bills of exchange or other
Payment made to the creditor by the debtor mercantile documents shall produce the
after the latter has been judicially ordered to effect of payment only when they have been
cashed, or when through the fault of the
retain the debt shall not be valid. [Art. 1243] creditor they have been impaired.
Payment to a third person [Art. 1241 par 2] In the meantime, the action derived from the
Payment made to a third person shall also be original obligation shall be held in the
valid insofar as it has redounded to the benefit abeyance.
of the creditor.
Extraordinary inflation or deflation
That payment has redounded to the benefit of Art. 1250. In case an extraordinary inflation
or deflation of the currency stipulated
the credit must be proved, except:
should supervene, the value of the currency
(1) If after the payment, the third person at
acquires the creditor's rights; the time of the establishment of the
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obligation shall be the basis of payment, (5) If debt produces interest, the payment is
unless there is an agreement to the contrary. not to be applied to the principal unless
For extraordinary inflation (or deflation) to the interests are covered.
affect an obligation, the following requisites (6) When no application can be inferred
must be proven: from the circumstances of payment, it is
(1) an official declaration of extraordinary applied: (a) to the most onerous debt of
inflation or deflation from the BSP the debtor; or (b) if debts due are of the
(2) obligation was contractual in nature; same nature and burden, to all the debts
and in proportion
(3) parties expressly agreed to consider (7) Rules of application of payment may not
the effects of the extraordinary be invoked by a surety or solidary
inflation or deflation [Equitable PCI guarantor.
Bank v Ng Sheung, December 19 2007]
Rules on application of payment cannot be
A.1 APPLICATION OF PAYMENTS made applicable to a person whose obligation
Designation of the debt to which should be as a mere surety is both contingent and
applied a payment made by a debtor who owes singular. There must be full and faithful
several debts to the same creditor. compliance with the terms of the contract.
[Reparations Commission vs. Universal Deep
Requisites: Sea Fishing Corp, 1978]
(1) There is a plurality of debts
(2) Debts are of the same kind The debtor’s right to apply payment can be
(3) Debts are owed to the same creditor and waived and even granted to the creditor if the
by the same debtor debtor so agrees (Premiere Development v
(4) All debts must be due, UNLESS parties Central Surety, 2009).
so stipulate, or when application is made
by the party for whose benefit the term A.2. DATION IN PAYMENT
has been constituted Delivery and transmission of ownership of a
(5) Payment made is not sufficient to cover thing by the debtor to the creditor as an
all debts [Art. 1252] accepted equivalent of the performance of the
obligation (dacionenpago).
Rules on Application
(1) Preferential right of debtor - debtor has Requisites:
the right to select which of his debts he (1) Existence of a money obligation
is paying. (2) Alienation to the creditor of a property
(2) The debtor makes the designation at the by the debtor with the creditor’s consent
time he makes the payment. (3) Satisfaction of the money obligation
(3) If not, the creditor makes the
application, by so stating in the receipt Dation in payment extinguishes the obligation
that he issues, unless there is cause for to the extent of the value of the thing
invalidating the contract. delivered, either as agreed upon by the parties
(4) If neither the creditor nor debtor or as may be proved, unless the parties by
exercises the right to apply, or if the agreement – express or implied, or by their
application is not valid, the application is silence – consider the thing as equivalent to
made by operation of law. the obligation, in which case the obligation is
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change in the liability of guarantors and (4) Fault or negligence concurs with the
co-debtors, or the creditor’s right of fortuitous event.
preference. (5) Loss occurs after delay.
(6) Debtor has promised to deliver the same
B. LOSS OF THE THING DUE OR thing to two or more different parties.
IMPOSSIBILITY OR DIFFICULTY OF (7) Obligation arises from a criminal act.
(8) Borrower in commodatum: saves his
PERFORMANCE
own things and not the thing of the
creditor during a fortuitous event.
Loss
A thing is lost when it perishes, goes out of
Loss of the thing when in possession of the
commerce or disappears in such a way that its
debtor
existence is unknown or it cannot be recovered
Loss was due to the debtor’s fault. Burden of
[Art. 1189, no. 2]
explaining the loss of the thing falls upon him,
UNLESS due to an earthquake, flood, storm, or
Effects of Loss [Arts. 1262-1263]
other natural calamity [Art. 1265].
Obligation to Deliver a Obligation to Deliver a
Specific Thing Generic Thing
XXXVIII. Obligation XL. is Loss of a generic thing In Reciprocal Obligations
extinguished if the thing does not extinguish an Extinguishment of the obligation due to loss of
was destroyed without obligation, EXCEPT in the thing or impossibility of performance
fault of the debtor and case of delimited
before he has incurred generic things, where affects both the creditor and debtor; the entire
delay. the kind or class is juridical relation is extinguished.
XXXIX. limited itself, and the
whole class perishes. Partial loss
Art. 1264. The courts shall determine whether,
An obligation to pay money is generic;
under the circumstances, the partial loss of the
therefore, it is not excused by fortuitous loss of
object of the obligation is so important as to
any specific property of the debtor [Gaisano v
extinguish the obligation.
Insurance Company, 2006].
Actions Against Third Persons Partial loss due to a fortuitous event does not
Article 1269. The obligation having been extinguish the obligation. The thing due shall
extinguished by the loss of the thing, the be delivered in its present condition, without
creditor shall have all the rights of action any liability on the part of the debtor, UNLESS
which the debtor may have against third the obligation is extinguished when the part
persons by reason of the loss. (1186) lost was of such extent as to make the thing
useless.
Other cases where loss is attributed to debtor
(1) Law provides that the debtor shall be Impossibility of Performance
liable even if the loss is due to fortuitous [Arts. 1266-1267]
events [Arts. 1942, 1979, 2147, 2159]. When prestation becomes legally or physically
(2) Obligor is made liable by express impossible (by fortuitous event or force
stipulation. majeure), the debtor is released.
(3) Nature of the obligation requires an
assumption of risk.
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Impossibility must have occurred without fault If the renunciation is not gratuitous, the nature
of debtor, and after the obligation has been of the act changes and it may be:
constituted. (1) dation in payment – when the creditor
Subjective impossibility receives a thing different from that
Where there is no physical or legal loss, but the stipulated;
thing belongs to another, the performance by (2) novation – when the object or principal
the debtor becomes impossible. The debtor conditions of the obligation have
must indemnify the creditor for damages. changed;
(3) compromise – when the matter
Partial Impossibility renounced is in litigation or dispute and
Courts shall determine whether it is so in exchange of some concession which
important as to extinguish the obligation. the creditor receives.
(1) If debtor has performed part of the
obligation when impossibility occurred, Although the debtor must accept the
creditor must pay the part done as long remission, nothing prevents the creditor from
as he benefits from it. making a unilateral declaration of his right,
(2) If debtor received full payment from abandoning and thereby extinguishing his
creditor, he must return excess amount credit, as expressly allowed by Art 6, CC.
corresponding to part which was
impossible to perform. Kinds of Condonation:
A. As to extent
Doctrine of Unforeseen Events 1. Total – extinguishes the entire
Art. 1267. When the service has become so obligation.
difficult as to be manifestly beyond the 2. Partial – refers to only a particular
contemplation of all the parties, the obligor aspect of the obligation, e.g. to the
may also be released therefrom, in whole or in amount of indebtedness or to an
part. accessory obligation only.
C. CONDONATION B. As to Form
Art. 1270. Condonation or remission is
Condonation or Remission of the Debt essentially gratuitous, and requires the
An act of liberality, by virtue of which, without acceptance by the obligor. It may be made
receiving any equivalent, the creditor expressly or impliedly.
renounces the enforcement of the obligation. One and the other kind shall be subject
The obligation is extinguished either in whole to the rules which govern inofficious donations.
or in such part of the same to which remission Express condonation shall, furthermore,
refers. comply with the forms of donation.
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Presumptions of Condonation:
(2) In case of joint or solidary obligations
(1) Whenever the private document in which
Confusion in Confusion in
the debt is found is in the possession of Joint Obligation Solidary Obligation
the debtor, it shall be presumed that the Extinguishes the Extinguishes the
creditor delivered it voluntarily, unless share of the person in entire obligation, but
the contrary is proved. [Art. 1272] whom the two the other debtors may
(2) Delivery of a private document characters concur (Art be liable for
evidencing credit made voluntarily by 1277) reimbursement if
the creditor to the debtor implies the payment was made
prior to remission.
renunciation of the action of creditor
against the latter. [Art. 1272]
Obligation is not extinguished when confusion
(3) Accessory obligation of pledge has been
takes place in the person of subsidiary debtor
remitted when thing after its delivery is
(e.g. guarantor), but merger in the person of
found in the possession of the debtor or
the principal debtor shall benefit the former.
third person. [Art. 1274]
Note: Where, however, the mortgagee acquires
ownership of the entire mortgaged property,
Effect
the mortgage is extinguished; but this does not
Art. 1273. Renunciation of the principal debt necessarily mean the extinguishment of the
shall extinguish the accessory obligations, but obligation secured thereby, which may become
remission of the latter leaves the principal an unsecured obligation.
obligation in force.
E. COMPENSATION
D. CONFUSION OR MERGER OF Compensation: Offsetting of two obligations
RIGHTS which are reciprocally extinguished if they are
of the same value, or extinguished to the
Confusion: The meeting in one person of the concurrent amount if of different values.
qualities of creditor and debtor of the same
obligation. Requisites [Art. 1279]
(1) Each obligor is bound principally, and at
Requisites the same time a principal creditor of the
(1) It should take place between principal other
debtor and creditor. (Art 1276) (2) Both debts must consist in a sum of
(2) The very same obligation must be money, or if the things due are
involved; FUNGIBLE, of the same kind & quality
(3) The confusion must be total, i.e. as Note: The term ‘consumable’ is
regards the whole obligation. erroneously used in Art 1279. The
appropriate term is ‘fungible’.
Effects (3) Both debts are due
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Effects rise from the moment all the requisites (1) Legal Compensation – takes place by
concur. operation of law from the moment all
requisites are present.
Debtor claiming its benefits must prove Since it takes place ipso jure, when used as a
compensation; once proven, effects retroact defense, it retroacts to the date when all its
from the moment when the requisites requisites are fulfilled.
concurred.
Art. 1290. When all the requisites mentioned
Compensation Distinguished from Other Modes in article 1279 are present, compensation
takes effect by operation of law, and
of Extinguishment
extinguishes both debts to the concurrent
Compensation Confusion amount, even though the creditors and
debtors are not aware of the compensation.
There must always be Involves only one
two obligations. obligation.
Legal compensation may apply to:
There are two persons There is only one person i. Awards of attorney’s fees, against the
who are mutually whom the characters of litigant and not his lawyer [Gan Tion v
debtors and creditors of the creditor and debtor
each other in two meet. CA, 1969]
separate obligations, ii. Bank deposits, against the accounts of a
each arising from the depositor whose checks were
same cause.
dishonoured [BPI v CA, 1996]
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retained, unless
Kinds of Novation waived by the debtor.
As to form
(1) Express – declared in an unequivocal As to essence or object
terms (1) Objective/ Real
(2) Implied – the old and new obligations (2) Subjective/ Personal
are on every point incompatible with a. Substitution of debtors
each other i. Expromision
ii. Delegacion
Novation is not presumed b. Subrogation of a third person to the
In the absence of an unequivocal declaration of rights of the creditor
extinguishment of the pre-existing obligation, i. Conventional
only proof of incompatibility between the old ii. Legal
and new obligation would warrant a novation
by implication. [California Bus Line vs. State (1) Objective Novation
Investment, 2003] a. Change of the subject matter
b. Change of cause or consideration
Test of Incompatibility c. Change of the principal conditions or
Whether or not the old and new obligation can terms
stand together, each one having an
independent existence. No incompatibility (2) Subjective Novation
exists when they can stand together. Hence, a. Substitution of debtors
there is no novation. Incompatibility exists
when they cannot stand together. Hence, there Expromision Delegacion
Initiative for change does Debtor (delegante)
is novation. not emanate from the offers or initiates the
debtor, and may even be change, and the
For there to be implied novation, the changes made without his creditor (delegatorio)
must be essential, i.e. referring to the object, knowledge. accepts a third person
(delegado) as
cause, or principal conditions of the obligation. consenting to the
substitution.
As to effect Requisites
(1) Total (1) Consent of the Consent of old debtor,
creditor and the new new debtor, and
(2) Partial debtor creditor
(2) Knowledge or XLII.
Total Partial consent of the old
(1) Transfers to the person A creditor, to whom debtor is not required
subrogated the credit partial payment has
with all the rights been made, may
thereto appertaining, exercise his right for Effects
either against the the remainder, and (1) Old debtor is released (1) Insolvency of the
debtor or third shall be preferred to (2) Insolvency of the new new debtor revives
persons. the person debtor does not the obligation of the
(2) Obligation is not subrogated in his revive the old old debtor if it was
extinguished, even if place in virtue of the obligation in case the anterior and public,
the intention is to pay partial payment. old debtor did not and known to the old
it. XLI. agree to expromision debtor.
(3) Defenses against the (3) If with knowledge (2) New debtor can
old creditor are and consent of old demand
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b. Subrogation
Transfers to the person subrogated the credit
with all the rights thereto appertaining, either
against the debtor or against third persons, be
they guarantors or possessors of mortgages,
subject to stipulation in a conventional
subrogation. [Art. 1303]
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CIVIL LAW
CONTRACTS
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spouses may give each other on the occasion of litigation in which they may take part by
any family rejoicing. The prohibition shall also virtue of their profession.
apply to persons living together as husband (6) Any others specially disqualified by law.
and wife without a valid marriage. Article 1782, Civil Code: Persons who are
Article 1490, Civil Code: The husband and the prohibited from giving each other any donation
wife cannot sell property to each other, except: or advantage cannot enter into universal
(1) When a separation of property was agreed partnership
upon in the marriage settlements; or (2) When
there has been a judicial separation of property Limitations to stipulations/what not to
under Article 191. stipulate:
Article 1491, Civil Code: The following persons 1. Contrary to Law
cannot acquire by purchase, even at a public or Pactum commisorium – automatic foreclosure
judicial auction, either in person or through the Article 2088, Civil Code: The creditor cannot
mediation of another: appropriate the things given by way of pledge
(1) The guardian, the property of the person or mortgage, or dispose of them. Any
or persons who may be under his stipulation to the contrary is null and void.
guardianship; Pactum leonina – one party bears the lion’s
(2) Agents, the property whose share of the risk
administration or sale may have been Article 1799, Civil Code: A stipulation which
entrusted to them, unless the consent of excludes one or more partners from any share
the principal has been given; in the profits or losses is void.
(3) Executors and administrators, the Pactum de non alienundo – a stipulation not to
property of the estate under alienate
administration; Article 2130, Civil Code: A stipulation forbidding
(4) Public officers and employees, the the owner from alienating the immovable
property of the State or of any subdivision mortgaged shall be void.
thereof, or of any government-owned or 2. Contrary to morals
controlled corporation, or institution, the
administration of which has been 3.Contrary to good customs
entrusted to them; this provision shall
apply to judges and government experts 4. Contrary to public order
who, in any manner whatsoever, take
part in the sale; 5. Contrary to public policy
(5) Justices, judges, prosecuting attorneys, Public policy is the principle under which
clerks of superior and inferior courts, and freedom of contract or private dealing is
other officers and employees connected restricted by law for the good of the public. In
with the administration of justice, the determining whether a contract is contrary to
property and rights in litigation or levied public policy, the nature of the subject matter
upon an execution before the court determines the source from which such
within whose jurisdiction or territory they question is to be solved [Ferrazzinni v Gsell,
exercise their respective functions; this 1916]
prohibition includes the act of acquiring
by assignment and shall apply to A contract which is neither prohibited by law
lawyers, with respect to the property and nor condemned by judicial decision, nor
rights which may be the object of any contrary to public morals, contravenes no
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analogous nominate contracts, and by the A contract is perfected by mere consent. From
customs of the place the moment of a meeting of the offer and the
acceptance upon the object and the cause that
D. STAGES OF A CONTRACT would constitute the contract, consent arises.
(PrePerCon) However, “the offer must be certain”and “the
acceptance seasonable and absolute; if
(1) Preparation (conception or
qualified, the acceptance would merely
“generation”) – when negotiations are
constitute a counteroffer. [Insular Life v. Asset
in progress
Builders Corp., 2004]
(2) Perfection (or birth) – when the parties
come to an agreement
The offer must be certain and the acceptance
(3) Consummation (or death) - when the
absolute. [Art. 1319]
contract is fully executed
Offer
II. Essential Requisites A unilateral proposition which one party makes
to the other for the celebration of the contract
There is no contract unless the following [Tolentino]
requisites concur:
(1) Consent of the contracting parties; Requisites of an Offer:
(2) Object certain which is the subject (1) Definite
matter of the contract; (2) Intentional
(3) Cause of the obligation which is (3) Complete
established. [Art. 1318, NCC]
Invitation to make offers (advertisements)
Article 1318 of the Civil Code states that no (1) Business advertisements of things for
contract exists unless there is a concurrence of sale are NOT definite offers, just
consent of the parties, object certain as subject invitations to make an offer, UNLESS the
matter, and cause of the obligation established. contrary appears (Art. 1325).
[Francisco v. Pastor Herrera, 2002] (2) Advertisements for bidders are
invitations to make proposals, the
advertiser is NOT bound to accept the
A. CONSENT
lowest or highest bid; UNLESS the
The meeting of the minds of the parties on the
contrary appears. The bidder is the
subject matter and cause of the contract.
offeror (Art. 1326).
Requisites
e.g. The Terms and Conditions of the Bidding
(1) It must be manifested by the concurrence
disseminated by PUREFOODS constitutes the
of the offer and acceptance [Arts. 1319-
"advertisement" to bid on the project. The bid
1326].
proposals or quotations submitted by the
(2) The contracting parties must possess the
prospective suppliers including respondent
necessary legal capacity [Arts. 1327-1329].
FEMSCO, are the offers. The reply of petitioner
(3) It must be intelligent, free, spontaneous,
Purefoods constitutes the acceptance or
and real (not vitiated) [Arts. 1330-1346]
rejection of the respective offers. [Jardine Davies
v. CA, 2000]
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(3) Statements of intention: no contract offer annuls the latter and frees the offeror.
results even if accepted. [Tolentino]
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With consideration Without consideration Mercado v. Espiritu (1917): Minors were held in
estoppel through active misrepresentation.
Offeror cannot Offeror may withdraw Bambalan v. Maramba (1928): There is no
unilaterally withdraw by communicating estoppel if the minority was known by the
his offer. withdrawal to the other party.
offeree before (2) Insane or demented persons, UNLESS they
acceptance. contract during a lucid interval. [Art. 1328]
(3) Deaf-mutes who do not know how to read
Art. 1324 provides the general rule AND write.
regarding offer and acceptance: when the offerer Persons disqualified to contract
gives to the offeree a certain period to accept, (1) Those under civil interdiction for
"the offer may be withdrawn at any time before transactions inter vivos [RPC Art. 34]
acceptance" except when the option is founded (2) Undischarged insolvents [Sec. 24,
upon consideration. If option is founded upon a Insolvency Law]
consideration, the offeror cannot withdraw his (3) Husband and wife cannot donate to each
offer before the lapse of the period agreed upon. other [Art. 123, FC], nor sell to each other if
However, Art. 1479 modifies the general the marriage is under the regime of
rule, which applies to "a promise to buy and sell" Absolute Community of Property [Art.1490]
specifically. This rule requires that a promise to (4) The ff. cannot purchase [Art. 1491]:
sell to be valid must be supported by a Prohibited Party Subject
consideration distinct from the price. The option
Guardian Property of the ward
can still be withdrawn, even if accepted, if the
Agent Property of the
same is not supported by any consideration.
Principal
[Tuazon v. Del Rosario-Suarez, 2010]
Executors and Property under
Capacity to Contract Administrators administration
There are two types of void contracts: (1) Public Officers Property under their
those where one of the essential requisites of a administration
valid contract as provided for by Article 1318 of Justices, judges, Property attached in
the Civil Code is totally wanting; and (2) those prosecutors, clerks of litigation
declared to be so under Article 1409 of the Civil court, lawyers
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Incapacity to Give Consent vs. Disqualification To invalidate consent, the error must be
to Contract excusable. It must be real error, and not one
Incapacity to Give Disqualification to that could have been avoided by the party
Consent Contract alleging it. The error must arise from facts
Restrains the exercise Restrains the very unknown to him. He cannot allege an error
of the right to contract right itself which refers to a fact known to him, or which
Based upon subjective Based upon public he should have known by ordinary diligent
circumstances of policy and morality examination of the facts. An error so patent
certain persons and obvious that nobody could have made it, or
Voidable Void one which could have been avoided by ordinary
prudence, cannot be invoked by the one who
Consent made it in order to annul his contract. A
Requisites of Consent: mistake that is caused by manifest negligence
(1) intelligent cannot invalidate a juridical act. [Tolentino]
(2) free
(3) spontaneous Requisites:
(4) real a. The error must be substantial regarding:
a. The object of the contract (error in re)
Vices of Consent which may be:
A contract where consent is given through i. Mistake as to the identity of the thing
a. Mistake (error in corpore)
b. Violence ii. Mistake as to the substance of the thing
c. Intimidation (error in substantia)
d. Undue influence iii. Mistake as to the conditions of the
e. Fraud thing provided, or
is voidable. [Art. 1330] iv. Mistake as to the quantity of the thing
(error in quantitate)
b. The error must be excusable
c. The error must be a mistake of fact and not
of law.
Mistake
Inadvertent and excusable disregard of a Mistake which vitiates consent is an error of
circumstance material to the contract [J.B.L. fact, and not an error of law. Ignorance of the
Reyes] law excuses no one from compliance therewith
[Art. 3]; but the modern tendency is to allow an
In order that mistake may invalidate consent, it excusable mistake of law to be invoked as
should refer to the substance of the thing vitiating consent. [Tolentino]
which is the object of the contract, or to those
conditions which have principally moved one or See also Art. 526, on Possession: Mistake upon
both parties to enter into the contract. a doubtful or difficult question of law may be
[Art.1331] There is no mistake if the party the basis of good faith.
alleging it knew the doubt, contingency or risk
affecting the object of the contract. [Art. 1333]
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Ignorantia Facti Excusat vs. Ignorantia Legis imminent and grave evil upon his person or
Neminem Excusat property, or upon the person or property of his
Mistake of Fact Mistake of Law spouse, descendants or ascendants, to give his
One or both One or both parties consent
contracting parties arrive at an erroneous
believe that a fact conclusion on the To determine the degree of intimidation, the
exists when in reality interpretation of a age, sex and condition of the person shall be
it does not, or vice question of law or its borne in mind. [Art. 1335]
versa legal effects
Vitiates consent Does not vitiate The conveyance of several properties by the
consent except when wife to her husband’s creditors, though
it involves mutual reluctant, is still consent. She assented to the
error as to the effect of requirements of the defendants in order that
an agreement when the civil and criminal actions against them
the real purpose is would be dropped. A contract is valid even
frustrated. though one of the parties entered into it
against his wishes and desires, or even against
Note: The obligation to show that the terms of his better judgment. [Martinez vs HSBC, 1910]
the contract had been fully explained to the
party who is unable to read or understand the Violence
language of the contract, when fraud or Serious or irresistible force used to
mistake is alleged, devolves on the party extort consent [Art. 1335]
seeking to enforce it. [Art. 1332] Requisites:
(1) One party is compelled to give his
Art. 1332… altered the old rule that said consent by a reasonable and well-
that a person who affixes his signature to a grounded fear of an evil;
document is bound thereby. This was (2) The evil must be imminent and grave;
necessitated by the fact that there continues to (3) The evil must be upon his person or
be a number of people without good education; property, spouse, descendants or
and that the documents [in question] have been ascendants;
written in English or Spanish. The provision was (4) The evil must be unjust.
intended to protect a party to a contract
disadvantaged by illiteracy, ignorance, mental If a contract is signed merely because of “fear
weakness, or some other handicap. If fraud is of displeasing persons to whom obedience and
alleged, person enforcing the contract must respect are due”, the contract is still valid, for
show that the terms thereof have been fully by itself, reverential fear is not wrong. [PARAS,
explained to the former; and if a party pleads Civil Code]
that he signed without knowing its contents,
burden shifts to other party to show that the Violence Intimidation
former fully understood the contents. [Leonardo Physical compulsion Moral compulsion
v. CA, 2004] External or prevents Internal or induces the
the will to manifest performance of an act
Intimidation itself
One of the contracting parties is compelled by
a reasonable and well-grounded fear of an
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Note: Violence or intimidation shall annul the have been employed by both contracting
obligation, although it may have been parties. [Art. 1344]
employed by a third person who did not take
part in the contract. [Art. 1336] Art. 1339. Failure to disclose facts, when
there is a duty to reveal them, as when the
Undue Influence parties are bound by confidential relations,
When a person takes improper advantage of constitutes fraud.
his power over the will of another, depriving
the latter of a reasonable freedom of choice. Art. 1340. The usual exaggerations in trade,
Requisites: when the other party had an opportunity to
(1) Improper advantage know the facts, are not in themselves
(2) Power over the will of another fraudulent.
(3) Deprivation of the latter’s will of a
reasonable freedom of choice Art. 1341. A mere expression of an opinion
does not signify fraud, unless made by an
Circumstances to consider: expert and the other party has relied on the
a. Relationship of the parties (family, former's special knowledge.
spiritual, confidential etc.)
b. That the person unduly influenced was Art. 1342. Misrepresentation by a third
suffering from infirmity (mental person does not vitiate consent, unless such
weakness, ignorance etc.) [Art.1337] misrepresentation has created substantial
Note: By analogy, undue influence employed mistake and the same is mutual.
by a third person may annul the contract.
Art. 1343. Misrepresentation made in good
Test of Undue Influence: Whether or not the faith is not fraudulent but may constitute
influence exerted has so overpowered or error.
subjugates the mind of a contracting party as
to destroy his free agency, making him express Dolo Causante vs. Dolo Incidente
the will of another rather than his own. [Coso- Dolo Causante Dolo Incidente
Fernandez Deza, 1921]
Refers to those Refers to those
deceptions or deceptions or
In the absence of a confidential or fiduciary
misrepresentations of misrepresentations
relationship between the parties, the law does
a serious character which are not serious
not presume that one person exercised undue
employed by one in character and
influence upon the other. [Loyola v. CA, 2000]
party and without without which the
which the other party other party would
Fraud
would not have have still entered into
When, through insidious words or
entered into the the contract
machinations of one of the contracting parties,
contract
the other is induced to enter into a contract
Renders the contract Renders the party
which, without them, he would not have
voidable liable for damages
agreed to. [Art. 1338]
Dolo incidente, or incidental fraud, which is
In order that fraud may make a contract
referred to in Article 1344, are those which are
voidable, it should be serious and should not
not serious in character and without which the
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other party would still have entered into the subsequent acts of the parties. [Spouses Lopez
contract. Dolo causante determines or is the v. Spouses Lopez, 2009]
essential cause of the consent, while dolo
incidente refers only to some particular or Requisites (DAP):
accident of the obligation. The effects of dolo (1) A deliberate Declaration contrary to the
causante are the nullity of the contract and the will of the parties;
indemnification of damages, while dolo (2) Agreement of the parties to the
incidente obliges the person employing it to pay apparently valid act, and
damages. [Tankeh v. DBP, 2013] (3) The Purpose is to deceive or to hide from
third persons although it is not
Fraud to vitiate consent must fulfill two necessary that the purpose be illicit or
conditions: (1) The fraud must be dolo causante for purposes of fraud
or it must be fraud in obtaining the consent of
the party. The deceit must be serious. The Absolute Simulation Relative Simulation
fraud is serious when it is sufficient to impress, (Simulados) (Disimulados)
or to lead an ordinarily prudent person into No real transaction Real transaction is
error; that which cannot deceive a prudent is intended. hidden.
person cannot be a ground for nullity. The Fictitious contract. Disguised contract.
circumstances of each case should be Void. (Because there Bound as to hidden
considered, taking into account the personal is an absolute lack of agreement, so long as it
conditions of the victim. (2) The fraud must be declaration of will) does not prejudice a
proven by clear and convincing evidence and third person and is not
not merely by a preponderance thereof. [ECE contrary to law, morals,
Realty v. Mandap, 2014] good customs, public
order or public policy.
Note: However, fraud in its general sense (false The characteristic of simulation is the fact that
representation of a fact) coming about in the the apparent contract is not really desired or
consummation stage of the sale, as opposed to intended to produce legal effects or in any way
the negotiation and perfection stages, entitles alter the juridical situation of the parties. Thus,
the aggrieved party to the rescission of the where a person, in order to place his property
sales contract. [Spouses Tongson v. Emergency beyond the reach of his creditors, simulates a
Pawnshop, 2010] transfer of it to another, he does not really
intend to divest himself of his title and control
Simulation of Contracts of the property; hence, the deed of transfer is
Takes place when the parties do not really but a sham. Lacking, therefore, in a fictitious
want the contract they have executed to and simulated contract is consent which is
produce the legal effects expressed by its essential to a valid and enforceable contract.
wordings. It may be absolute or relative [Arts. [Manila Banking v. Silverio, 2005]
1345-1346]
If the parties [merely] state a false cause in the
The primary consideration in determining the contract to conceal their real agreement, the
true nature of a contract is the intention of the contract is relatively simulated and the parties
parties. Such intention is determined not only are still bound by their real agreement. Hence,
from the express terms of their agreement, but where the essential requisites of a contract are
also from the contemporaneous and present and the simulation refers only to the
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Note: Relative simulation is presumed by law in In order that a thing, right, or service may be
case of Art. 1602 (Contracts presumed to be the object of a contract, it should be in
Equitable Mortgages) existence at the moment of the celebration of
the contract, or at least, it can exist
E. OBJECT OF CONTRACTS subsequently or in the future.
The subject matter; the thing, right or service
which is the subject matter of the obligation A FUTURE THING may be the object of a
arising from the contract. [Tolentino] contract. Such contract may be interpreted as
a:
Requisites a) Conditional contract, where its efficacy
(1) Within the commerce of men [Art. 1347] should depend upon the future existence
(2) Not legally or physically impossible of the thing.
[Art.1348] b) Aleatory contract, where one of the
(3) In existence or capable of coming into contracting parties assumes the risk that
existence [See Arts. 1461, 1493, 1495] the thing will never come into existence,
(4) Determinate or determinable, without e.g. insurance.
the need of a new contract between the
parties [Arts. 1349, 1460, par.2] In case of doubt about the nature of the
contract, it must be deemed conditional as
All things or services may be the object of doubt shall be resolved in favor of greatest
contracts, EXCEPT: reciprocity of interests.
(1) Things which are outside the commerce
of men F. CAUSE OF CONTRACTS
(2) Intransmissible rights The essential and impelling reason why a party
(3) Future inheritance except in cases assumes an obligation (Manresa). Motive, on
authorized by law the other hand, is the particular reason for a
Requisites: contracting party which does not affect the
a. The succession has not yet been other.
opened;
b. The object of the contract forms
part of the inheritance; and
c. The promissor has an expectancy of Requisites (ELT)
a right which is purely hereditary in (1) Exists at the time of the contract is
nature entered into [Arts. 1352, 1409, par. 3]
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This article applies to executory contracts Registration of the instrument only adversely
only [Almirol v Monserrat, 1925] affects third parties [Fule v Court of Appeals,
1998].
An oral promise to reduce to writing an
agreement that is within the Statute of Frauds Before the contracting parties may be
is itself unenforceable [J.B.L. Reyes] compelled to execute the needed form, the
contract should be:
A.3. FOR THE EFFECTIVITY OF THE 1) Perfected or valid
CONTRACT AGAINST THIRD PERSONS 2) Enforceable under the Statute of Frauds
Art. 1357, Civil Code. If the law requires a
document or other special form, as in the Enumerated contracts in Art. 1358 are valid
acts and contracts enumerated in the even when not reduced into writing, although
following article, the contracting parties may parties may have recourse under Art. 1357 to
compel each other to observe that form, compel execution of the writing, except in the
once the contract has been perfected. This following cases:
right may be exercised simultaneously with 1) Solemn Contracts (action under Art. 1357
the action upon the contract. is not available at all)
2) Real Contracts (action under Art. 1357 is
Art. 1358, Civil Code. The following must available if there is consent, subject
appear in a public document: matter, cause, and delivery)
Acts and contracts which have for their 3) Contracts under the Statutes of Fraud
object the creation, transmission, (remedy under Art. 1357 is applicable
modification or extinguishment of real rights only if the defense of the Statute is
over immovable property; sales of real waived expressly or impliedly by the
property or of an interest therein a governed party charged
by Articles 1403, No. 2, and 1405;
The cession, repudiation or renunciation of The recourse under Article 1357 does NOT
hereditary rights or of those of the conjugal impose an obligation but a privilege on
partnership of gains; both parties
The power to administer property, or any Action under this Article 1357 may be
other power which has for its object an act exercised simultaneously with (i.e. need
appearing or which should appear in a not be separate nor need it precede) the
public document, or should prejudice a third action to enforce the contract, although
person; questions of form must be decided first.
The cession of actions or rights proceeding
from an act appearing in a public document.
All other contracts where the amount
involved exceeds five hundred pesos must
appear in writing, even a private one. But
sales of goods, chattels or things in action
are governed by Articles, 1403, No. 2 and
1405.
IV. REFORMATION OF
Article 1357 and 1358 is only needed for
convenience, not validity or enforceability.
INSTRUMENTS
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Veluz v Veluz (1968): The action for reformation [Rosello-Bentir v Leanda, 2000]
of instrument should not be confused with the (1) The right of reformation is necessarily
action for annulment of contract. an invasion or limitation of the parol
evidence rule since, when a writing is
Reformation of Annulment reformed, the result is that an oral
Instrument agreement is by court decree made
Presupposes a valid, Presupposes a legally effective.
existing contract, in defective contract in (2) The prescriptive period for actions
which there had been which the minds of based upon a written contract and for
a meeting of the the parties did not reformation of an instrument is ten (10)
minds of the parties meet, or the consent years under Article 1144 of the Civil
but the instrument of one was vitiated. Code.
drawn up and signed
by them does not A. CASES WHERE REFORMATION IS
correctly express the PROPER
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A.1. MISTAKE Art. 1362. If one party was mistaken and the
The mistake should be of fact generally, other acted fraudulently or inequitably in such
and not of law [BPI v Fidelity and Surety a way that the instrument does not show their
Co., 1927] true intention, the former may ask for the
reformation of the instrument.
i. Mutual
Art. 1361. When a mutual mistake of the A.4. ACCIDENT [ART. 1364]
parties causes the failure of the Art. 1364. When through the ignorance, lack of
instrument to disclose their real skill, negligence or bad faith on the part of the
agreement, said instrument may be person drafting the instrument or of the clerk
reformed. or typist, the instrument does not express the
true intention of the parties, the courts may
ii. Unilateral order that the instrument be reformed.
Art. 1362. If one party was mistaken No fraud exists in the sense that
and the other acted fraudulently or neither of the parties took part therein.
inequitably in such a way that the
instrument does not show their true A.5. SEVERE PACTO DE RETRO /
intention, the former may ask for the RELATIVE SIMULATION
reformation of the instrument. Art. 1365. If two parties agree upon the
mortgage or pledge of real or personal
Art. 1363. When one party was property, but the instrument states that the
mistaken and the other knew or property is sold absolutely or with a right of
believed that the instrument did not repurchase, reformation of the instrument is
state their real agreement, but proper.
concealed that fact from the former,
the instrument may be reformed.
B. WHO MAY ASK FOR
REFORMATION [ART. 1368]
A.2. FRAUD
1. Either party of his successors in interest, if
i. Active
the mistake was mutual; otherwise,
Art. 1362. If one party was mistaken
2. Upon petition of the injured party, or his
and the other acted fraudulently or
heirs and assigns
inequitably in such a way that the
instrument does not show their true
intention, the former may ask for the C. CASES WHERE REFORMATION IS
reformation of the instrument NOT PROPER
1. Simple donations inter vivos—wherein no
ii. Passive (concealment) [Art. 1363] condition is imposed—because donation
Art. 1363. When one party was is an act of liberality [Art. 725] and cannot
mistaken and the other knew or be compelled);
believed that the instrument did not 2. Wills—no reformation before the testator
state their real agreement, but dies because the making of a will is
concealed that fact from the former, strictly personal [Art. 784], a free act [Art.
the instrument may be reformed. 839], and essentially revocable [Art. 828];
3. When the real agreement is void—
A.3. INEQUITABLE CONDUCT [ART. 1362] because there is nothing to reform
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Implied Ratification/Estoppel: the party who instrument cannot subsequently ask for its
has brought an action to enforce the reformation [Art. 1367]
V. INTERPRETATION OF CONTRACTS
CARDINAL TEST: Intention of the parties, to be one party and to the detriment of the
derived from the terms of the contract. other, or by construction, relieve one of
the parties from the terms which he
Bautista v CA (2000): voluntarily consented to, or impose on
(1) Where the language of a contract is plain him those which he did not.
and unambiguous, its meaning should
be determined without reference to Borromeo v Reyes (1972): While ordinarily the
extrinsic facts or aids. The intention of literal sense of the words employed is to be
the parties must be gathered from that followed, such is not the case where they
language, and from that language alone. "appear to be contrary to the evident intention
(2) Courts cannot make for the parties better of the contracting parties." Intention shall
or more equitable agreements than they prevail.
themselves have been satisfied to make,
or rewrite contracts because they operate Kasilag v Rodriguez (1939): Another
harshly or inequitably as to one of the fundamental rule in the interpretation of
parties, or alter them for the benefit of contracts is that the terms, clauses and
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damages for the subordinated to the of absentees, if the latter suffer the
breach is purely existence of an lesion stated in the preceding
secondary. economic prejudice. number;
Hence, where the (3) Those undertaken in fraud of creditors
defendant makes good when the latter cannot in any other
the damages caused, manner collect the claims due them;
the action cannot be (4) Those which refer to things under
maintained or litigation if they have been entered
continued. into by the defendant without the
Mutual restitution when declared proper as knowledge and approval of the
between the parties involved litigants or of competent judicial
Constitutes Constitutes abrogation authority;
termination of the of the contract from (5) All other contracts specially declared
obligation and the beginning and to by law to be subject to rescission.
release of the parties restore the parties to
from further their relative positions Requisites before a Contract Entered Into in
obligations from as if no contract has Behalf of Wards or Absentees May Be
each other been made Rescinded on the Ground of Lesion:
Declares the contract (1) Contract was entered into by a
void at its inception guardian in behalf of his ward or by a
and puts an end to it as legal representative in behalf of an
though it never was absentee [Arts. 1381, Nos. 1 and 2]
May be demanded May be demanded by Note: A guardian is authorized
only by a party to the a third party prejudiced only to manage the estate of the ward;
contract in the contract should he dispose a portion thereof
May be denied by Extension of time does without authority from the court by
court when there is not affect the right to way of a contract, the same is
sufficient reason to ask for rescission unenforceable under Art. 1403(1),
justify the extension irrespective of whether there is lesion
of time or not.
Non-performance is Various reasons of
the only ground for equity are grounds for (2) It was entered into without judicial
the right to rescission approval [Art. 1386]
rescission (3) Ward or absentee suffered lesion of
more than one-fourth of the value of
Requisites of a Valid Rescission [Art. 1381-1383, the property which is the object of the
1385, 1389] contract. [Art. 1381, Nos. 1 and 2]
Art. 1381. The following contracts are (4) There is no other legal means of
rescissible: obtaining reparation for the lesion.
(1) Those which are entered into by [Art. 1383]
guardians whenever the wards whom Note for Art. 1381 (4): Any
they represent suffer lesion by more disposition of the thing subject of
than one-fourth of the value of the litigation or any act which tends to
things which are the object thereof; render inutile the court’s impending
(2) Those agreed upon in representation disposition in such case without the
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knowledge and approval of the litigants execution which cannot exist when the debt is
or of the court, is unmistakably and not yet demandable at the time the rescissory
irrefutably indicative of bad faith. action is brought. [Tolentino]
However, even without knowledge or
approval from the court, the conveyance Note: Even secured creditors are entitled to
of a property subject of litigation may accion pauliana.
still be valid but is susceptible for
rescission under Art. 1381(4). Art. 1382. Payments made in a state of
A definitive judicial insolvency for obligations to whose
determination with respect to the thing fulfillment the debtor could not be
subject of litigation is not a condition compelled at the time they were effected,
sine qua non before the rescissory action are also rescissible.
contemplated under Article 1381(4) of the
Civil Code may be instituted. The Requisites Before Payment made by Insolvent
primordial purpose of Article 1381(4) of Can Be Rescinded:
the Civil Code is to secure the possible (1) It was made in a state of insolvency;
effectivity of the impending judgment by (2) Obligation must have been one which
a court with respect to the thing subject debtor could not be compelled to pay
of litigation. [Ada v. Baylon, 2012] at the time such payment was effected.
(5) Person bringing the action must be Conflict between Arts. 1382 and 1198 if the
able to return whatever he may be obligation is subject to suspensive period is
obliged to restore. [Art. 1385(1)] more apparent than real
(6) Object of the contract must not be Payment made by an insolvent is rescissible.
legally in the possession of a third (Art. 1382), but a debtor can be compelled to
person who did not act in bad faith pay by the creditor even before the expiration
[Art. 1385(2)] of the period since by his insolvency he has
already lost his right to the benefit of such
Requisites before a Contract Entered Into in period. [Art. Art. 1198(1)]
Fraud of Creditors May Be Rescinded:
(1) There is a credit existing prior to the The conflict can be resolved by considering the
celebration of the contract; priority of dates between the two debts. If the
(2) There is fraud, or at least, the intent to obligation with a period became due before
commit fraud to the prejudice of the the obligation to the creditor seeking the
creditor seeking rescission; rescission became due, then the latter cannot
(3) Creditor cannot in any legal manner rescind the payment even if such payment was
collect his credit; and effected before the expiration of the period;
(4) Object of the contract must not be but if the obligation with a period became due
legally in the possession of a third after the obligation to the creditor seeking
person who did not act in bad faith. rescission became due, then the latter can
rescind the payment. [Manresa]
Accion Pauliana
The action to rescind contracts in fraud of
creditors. Consequently, accion pauliana
presupposes a judgment and unsatisfied
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The test as to whether or not a conveyance is Note: Art. 1390 refers to a “proper action in
fraudulent is if it prejudices the rights of the court”. The validity of a voidable contract may
creditors. [Tolentino] only be attacked either by way of a direct
action or by way of defense via a counterclaim,
A conveyance leaving no property for other and not a special or affirmative defense.
creditors to attach is an evidence of fraud. [Jurado]
Citing Oria v McMicking (1912), the following are
Badges of Fraud: Voidable/ Annullable Contracts:
1) Consideration is fictitious or inadequate; (1) Those where one of the contracting
2) Transfer was made while suit had begun parties is incapable of giving consent to
or pending; a contract, and
3) Sale was upon credit by insolvent (2) Those where the consent is vitiated by
debtor; mistake, violence, intimidation, undue
4) There was large indebtedness or influence or fraud
complete insolvency;
5) Transfer consisted of all or nearly all Characteristics of Voidable Contracts:
property especially when insolvent or (1) Its defect consists of the vitiation of
greatly; consent of one of the contracting parties;
6) The transfer was made between father (2) It is binding until it is annulled;
and son when other above (3) It is susceptible of convalidation by
circumstances present; and ratification or prescriotion; amd
7) There was failure of vendee to take (4) Its defect or voidable character cannot
exclusive possession of all property be invoked by third persons
embarrassed financially.
[China Banking v. CA, March 7, 2000] Note: Failure of an heir to obtain authority from
his co-heirs does not result in his incapacity to
B. VOIDABLE CONTRACTS give consent so as to render the contract
Contracts which are valid until annulled, voidable, but rather, renders the contract valid
unless ratified. Defect is more or less intrinsic, but unenforceable against Conrado’s co-heirs for
as in the case of vitiated consent. [Paras] having been entered into without their authority.
[Heirs of Ureta, Sr. v. Heirs of Ureta, September
Art. 1390. The following contracts are 14, 2011]
voidable or annullable, even though there
may have been no damage to the Rescission and Annulment Distinguished
contracting parties: Rescission Nullity
(1) Those where one of the parties is Merely produces the Declares the inefficacy
incapable of giving consent to a inefficacy of the which the contract
contract; contract, which did already carries in itself
(2) Those where the consent is vitiated by not essentially exist
mistake, violence, intimidation, undue in the contract
influence or fraud. Needs ratification to Requires an act of
These contracts are binding, unless they are be effective ratification to be cured
annulled by a proper action in court. They Private interest Direct influence of the
are susceptible of ratification. alone governs. public interest is
involved.
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May be compatible Based on a vice of the benefited by the thing or price received by him
with the perfect contract which (Art. 1399)
validity of the invalidates it
contract Art. 1399 cannot be applied to those cases
A remedy A sanction where the incapacitated person can still return
Equity predominates The law predominates the thing which he has received.
May be demanded Can be demanded only
by third parties by parties to the Effects of Failure to Make Restitution (Arts.
affected by the contract 1400-1402)
contract
Three Ways or Modes of Convalidating a
Who may institute action for annulment Voidable Contract [Jurado]
General Rule: Action for annulment may be (1) By prescription of the action for annulment
instituted by all who are thereby obliged [Art.1391]
principally or subsidiarily. (2) By ratification or confirmation [Art. 1392-
Requisites: 1396]
i. Plaintiff must have interest in the (3) By loss of the thing which is the object of
contract; the contract through the fraud or fault of
ii. The victim and not the party the person who is entitled to institute the
responsible for the vice or defect must action for the annulment [Art.1401]
assert the same
Exception: If a third person is prejudiced in his Prescription of the Action for Annulment
rights with respect to one of the contracting The action for annulment shall be brought
parties and can show detriment which would within four years—
postitively result to him from the contract in (1) From the time the defect of the content
which he has no intervention. (Teves v. People’s ceases, in cases of intimidation, violence
Homesite & housing Corp., 1968) or undue influence
(2) From the time of discovery of the fraud
Effects of Annulment or mistake
If contract has not yet been consummated – (3) From the time guardianship ceases, in
parties shall be released from the obligations actions referring to contracts entered
arising therefrom. into by minors or incapacitated persons
If contract has already been consummated -
The contracting parties shall restore to each Constructive Notice
other the things which have been the subject Discovery or fraud must be reckoned from the
matter of the contract, with their fruits, and the time the document was registered in the office
price with its interest, except in cases provided of the register of deeds. Registration
by law. (Art. 1398-1402) constitutes constructive notice to the whole
world. [Carantes v. CA, 1977]
Obligation of Mutual Restitution
When the defect of the contract consists in the Ratification
incapacity of one of the parties, the The act or means by virtue of which efficacy is
incapacitated person is not obliged to make given to a contract which suffers from a vice of
any restitution except insofar as he has been curable nullity [Arts. 1392-1396]
May be
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(1) EXPRESS or
(2) TACIT – When the person who has the KINDS OF UNENFORCEABLE CONTRACTS
right to invoke it, with the knowledge of 1. Unauthorized contracts – those entered
the reason which renders the contract into by one who has no authority or legal
voidable and such reason having ceased, representation, or who has acted beyond
executes an act implying an intention to his powers [Art. 1403, par.1]
waive his right [Art. 1393] 2. Those which did not comply with the
Statute of Frauds [Art. 1403, par.2]
Requisites of Ratification 3. Those where both parties are incapable
(1) Contract is tainted with a vice of giving consent to a contract [Art. 1403,
susceptible of being cured; par.3]
(2) Confirmation is effected by the person Contract Contracts Contract
who is entitled to do so under the law; entered covered by where
(3) It is effected with knowledge of the vice into Statute of both
or defect of the contract; without Frauds parties are
(4) Cause of the nullity or defect have authority incapable
already disappeared. of giving
The right to ratify may be transmitted to the consent
heirs of the party entitled to such right. It may Effect on No effect unless ratified. Cannot be
likewise be exercised by the guardian of the the enforced by a proper action in court
incapacitated person having such right. [Art. Contract
1394] How to Not by Not by Not by
Ratification does not require the conformity of assail direct direct direct
the contracting party who has no right to bring action. action. action.
As a As a As a
an action for annulment. [Art. 1385]
defense, defense, defense,
by motion by motion by motion
Effect of Ratification
to dismiss to dismiss to dismiss
It extinguishes the action for annulment of a
the on the the
voidable contract. [Art. 1392] complaint ground complaint
It cleanses the contract from all its defects on the that the on the
from the moment it was constituted [Art. 1396] ground contract is ground
that the unenforce that the
C. UNENFORCEABLE CONTRACT contract is able; contract is
Unenforceable Contract – contracts that by unenforce Objection unenforce
reason of statutory defects do not confer any able to the able
action to enforce the same until and unless presentati
they are ratified in the manner prescribed by on of oral
law [J.B.L. Reyes] evidence
to prove an
CHARACTERISTICS: oral
1. Cannot be enforced by a proper action in contract
court [see Art.
2. Susceptible of ratification 1405]
3. Cannot be assailed by third persons [Art. Who can By person By party By party
1408] assail whose against against
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name the whom the whom the (3) Applies only to executory contracts, not
cannot contract contract is contract is partially or completely executed
be was being being (consummated) contracts.
assailed entered enforced; enforced; (4) The Statute of Frauds is exclusive that is,
by third into / by or his or his it applies only to the agreements or
persons( owner of privies privies; or contracts enumerated therein [Quintos v
Art. property parents or Morata, 1930]
1408) guardians, (5) The Statute of Frauds is a personal
as it is a defense, that is, a contract infringing it
personal
cannot be assailed by third persons [Art.
defense
1408]
When When a party asks the court to
(6) Contracts infringing the Statute of
enforce the contract
Frauds are not void, they are merely
How to Ratificatio Ratificatio ratificatio
unenforceable [Art. 1403]
Cure n by n by party n of party
Defect person against against
whose whom the whom the EXCEPTIONS TO APPLICATION OF STATUTE
name the contract is contract is OF FRAUD
contract being being (1) The Statute of Frauds cannot apply if the
was enforced enforced; action is neither for damages because of
entered failure to or his the violation of an agreement nor for the
into object to privies; or specific performance of said agreement
the parents or (2) The Statute of Frauds does not
presentati guardians determine the credibility or weight of
on of oral evidence. It merely concerns itself with
evidence The the admissibility thereof.
to prove an ratificatio (3) The Statute of Frauds does not apply if it
oral n by one is claimed that the contract does not
contract or party express the true agreement of the
by the converts parties. As long as the true or real
acceptanc the agreement is not covered by the Statute
e of contract of Frauds, it is provable by oral evidence
benefits into a
[Cayuga v Santos]
under the voidable
contract contract
Swedish Match v CA (2004):
[Art. 1405] [Art. 1407]
(1) The Statute of Frauds simply provides
the method by which the contracts
GENERAL RULES OF APPLICATION OF
enumerated therein may be proved but
STATUTE OF FRAUDS
does not declare them invalid because
(1) The Statute of Frauds is a Rule of
they are not reduced to writing.
Exclusion, i.e. oral evidence might be
(2) For a note or memorandum to satisfy the
relevant to the agreements enumerated
Statute, it:
therein and might therefore be
(a) Must be complete in itself and cannot
admissible were it not for the fact that
rest partly in writing and partly in
the law excludes said oral evidence.
parol.
(2) The defense of the Statute of Frauds may
be waived [Art. 1405]
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[Pascual v. Secretary of Public Works, The law prohibits the spouses from selling
December 29, 1960] property to each other, subject to certain
exceptions. [Art. 1490] Similarly, donations
A contract which is the direct result of a between spouses during marriage are
previous illegal contract is also void and prohibited. The prohibitions apply to common
inexistent. [Art. 1421] law relations. [Ching v. Goyanko, November 10,
2006]
Void v. Inexistent Contracts
Void Inexistent (See: Pactum commissorium, Pactum de non
Those where all the Those where one or alienado, Pactum leonina)
requisites of a some or all of the
contract are present requisites essential for In contracts with separate provisions, the
but the cause, object the validity of a invalidity of one does not automatically render
or purpose is contract are absolutely the other invalid. Art. 1420 of the New Civil
contrary to law, lacking Code holds that "In case of a divisible contract,
morals, good if the illegal terms can be separated from the
customes, public legal ones, the latter may be enforced."
order or public Contrary to the suppositions of petitioners, the
policy, or the invalid stipulation is independent from the rest
contract itself is of the terms of the agreement and can easily
prohibited or be separated therefrom without doing violence
declared void by law to the manifest intention of the parties. This
Principle of pari Principle of pari delicto being so, the legal terms of the contract can be
delicto is applicable is inapplicable enforced. [Spouses Litonjua v. L & R
May produce legal Cannot produce any Corporation, March 27, 2000]
effects effect
Covers Art. 1409 nos. Covers Art. 1409 nos. 2 The Principle of In Pari Delicto
1, 3, 4, 5, 6 and 7 and 3 When the defect of a void contract consists in
the illegality of the cause or object of the
Classification of Void Contracts [Paras] contract and both parties are at fault or in pari
(1) INEXISTENT CONTRACTS: like those where delicto, the law refuses them any remedy and
essential formalities are not complied with leaves them where they are. [Arts. 1411-1419]
Example: A donation of land in a
private instrument If the act in which the unlawful or forbidden
Consequence: This produces no effect cause consists does not constitute a criminal
whatsoever. offense... [Art. 1412]
(2) ILLEGAL OR ILLICIT CONTRACTS:
The elements of Art. 1411 are that the nullity
Example: A donation made because of
proceeds from an illegal cause or object, and
an immoral condition, such as illicit
that that the act of executing the contract
sexual intercourse
constitutes a criminal offense. Illegality of
Consequence: In some way, the
object or cause gives rise to the in pari delicto
donation produces some effect in that
doctrine. [Ramirez v. Ramirez, March 17, 2006]
that he who gave the donation cannot
get back what he has given.
Exceptions to the Principle of In Pari Delicto:
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(1) Payment of usurious interest [Art. 1413] contract is allowed only when the following
(2) Payment of money or delivery of requisites are met:
property for an illegal purpose, where (1) the contract is not illegal per se but
the party who paid or delivered merely prohibited;
repudiates the contract before the (2) the prohibition is for the protection of
purpose has been accomplished, or the plaintiffs; and
before any damage has been caused to a (3) if public policy is enhanced thereby.
third person [Art. 1414] [See: Hulst v. PR [Acabal v. Acabal, March 31, 2005]
Builders Inc., September 3, 2007]
(3) Payment of money or delivery of See also: Arts. 1345 and 1346
property made by an incapacitated
person [Art. 1415] Non-Existing Cause or Object [Paras]
(4) Agreement or contract not illegal per se Art. 1409(3) speaks of contracts “whose object
but merely prohibited by law, and the or cause did not exist at the time of the
prohibition is designed for the plaintiff’s transaction.” This is not exactly correct
protection [Art. 1416] Note: When the because there can be valid contracts involving
assailed contracts are void ab initio, Art. future property; example, sale of future or
1416 cannot be applied, as in the case of after-acquired property. Thus, Justice J. B. L.
aliens purchasing property despite Reyes notes: “did not exist at the time of the
knowing fully well the constitutional transaction” should be “could not come into
prohibition against foreigners owning existence because the object may legally be a
land in the Philippines at the time of future thing.”
purchase. [Frenzel v. Catito, July 11, 2003]
(5) Payment of any amount in excess of the
maximum price of any article or
VII. NATURAL
commodity fixed by law (Art. 1417)
(6) Contract whereby a laborer undertakes
OBLIGATIONS
to work longer than the maximum
number of hours fixed by law (Art. 1418) NATURAL OBLIGATIONS
(7) Contract whereby a laborer accepts a Those based on equity and natural law, which
wage lower than the minimum wage do not grant a right of action to enforce their
fixed by law (Art. 1419) performance, but after voluntary fulfillment by
(8) In case of divisible contracts, the legal the obligor, authorize the retention of what has
terms may be enforced separately from been delivered or rendered by reason thereof
the illegal terms (Art. 1420); and [Art. 1423]
(9) One who lost in gambling because of
fraudulent schemes practiced on him. Note: The binding tie is the conscience of man
He is allowed to recover his losses (Art. In order that there may be a natural obligation
315(3)(b) even if gambling is prohibited) there must exist a juridical tie which is not
prohibited by law and which in itself could give
The principle of in pari delicto admits of an a cause of action but because of some special
exception under Art. 1416 of the Civil Code circumstances is actually without legal
Under this article, recovery for what has been sanction or means of enforcing compliance by
paid or delivered pursuant to an inexistent intervention of courts. [Tolentino]
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Article 1425. When without the knowledge or Note: In Art. 1247, it is not the voluntary
against the will of the debtor, a third person payment that prevents recovery, but the
pays a debt which the obligor is not legally consumption or spending of the thing or
bound to pay because the action thereon has money in good faith.
prescribed, but the debtor later voluntarily
reimburses the third person, the obligor cannot
recover what he has paid.
VIII. ESTOPPEL
Article 1426. When a minor between eighteen
and twenty-one years of age who has entered DEFINITION
into a contract without the consent of the A condition or state by virtue of which an
parent or guardian, after the annulment of the admission or representation is rendered
contract voluntarily returns the whole thing or conclusive upon the person making it, and
price received, notwithstanding the fact that he cannot be denied or disproved as against the
has not been benefited thereby, there is no person relying thereon [Art. 1431]
right to demand the thing or price thus
returned. KINDS OF ESTOPPEL
Article 1427. When a minor between eighteen (1) Estoppel in pais or by conduct [Art. 1433]
and twenty-one years of age, who has entered a. Estoppel by silence [Art. 1437]
into a contract without the consent of the b. Estoppel by acceptance of benefits
parent or guardian, voluntarily pays a sum of (2) Technical Estoppels
money or delivers a fungible thing in a. Estoppel by Deed – a party to a deed is
fulfillment of the obligation, there shall be no precluded from asserting as against
right to recover the same from the obligee who the other party, material fact asserted
has spent or consumed it in good faith. (1160A) therein; (Art. 1433) and
Article 1428. When, after an action to enforce a b. Estoppel by Record – a party is
civil obligation has failed the defendant precluded from denying the truth of
voluntarily performs the obligation, he cannot matters set forth in a record whether
demand the return of what he has delivered or judicial or legislative
the payment of the value of the service he has (3) Estoppel by Judgment – a party to a case
rendered. is precluded from denying the facts
Article 1429. When a testate or intestate heir adjudicated by a court of competent
voluntarily pays a debt of the decedent jurisdiction
exceeding the value of the property which he (4) Estoppel by laches
received by will or by the law of intestacy from
the estate of the deceased, the payment is Note: Estoppel is effective only as between the
valid and cannot be rescinded by the payer. parties thereto or their successors-in-interest.
Article 1430. When a will is declared void
because it has not been executed in Note: The government is not estopped by
accordance with the formalities required by mistake or error on the part of its officials or
law, but one of the intestate heirs, after the agents. In Manila Lodge No. 761 Benevolent and
settlement of the debts of the deceased, pays a Protective Order of the Elks v. CA (1976), the sale
legacy in compliance with a clause in the executed by the City of Manila to Manila Lodge
defective will, the payment is effective and was certainly a contract prohibited by law, and
irrevocable. that estoppel cannot be urged even if the City
of Manila accepted the benefits of such
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contract of sale and the Manila Lodge No. 761 Applies in law Applies in equity
had performed its part of the agreement, for to Cannot be availed of Being a defense in
apply the doctrine of estoppel against the City unless it is equity, it need not be
of Manila in this case would be tantamount to specifically pleaded specifically pleaded
enabling it to do indirectly what it could not do as an affirmative
directly. allegation
Based on a fixed Not based on a fixed
LACHES OR “STATE DEMANDS” time time
Failure or neglect, for an unreasonable and
unexplained length of time, to do that which,
by exercising due diligence, could or should
have been done earlier; it is negligence or IX. TRUSTS
omission to assert a right within a reasonable
time, warranting a presumption that the party Trusts – a fiduciary relationship with respect to
entitled to assert it either has abandoned it or property, subjecting the person holding the
declined to assert it. same to the obligation of dealing with the
property for the benefit of another person
Elements [J.B.L. Reyes]
(1) Conduct on the part of the defendant, or
of one under whom he claims, giving rise Characteristics of Trust:
to the situation of which complaint is 1. It is a relationship
made and for which the compaint seeks 2. The relationship is of fiduciary character
a remedy; 3. The relationship is with respect to
(2) Delay in asserting the complainant’s property, not one involving merely
rights, the complainant having had personal duties
knowledge or notice of the defendant’s 4. It involves the existence of equitable
conduct and having been afforded an duties imposed upon the holder of the
opportunity to institute a suit; title to the property to deal with it for the
(3) Lack of knowledge or notice on the part benefit of another
of the defendant that the complaint 5. It arises as a result of a manifestation of
would assert the right on which he bases intention to create the relationship
his suit; and
(4) Injury or prejudice to the defendant in Trust Stipulation pour autrui
the event relief is accorded to the Refers to a specific Involves any
complainant, or the suit is not held to be property stipulation in favor of a
barred [Miguel v. Catalino, November 29, third person
1968]
Trust Condition
Prescription Laches Performance of trust Performance or
Concerned with the Concerned with the is enforceable accomplishment is not
fact of delay effect of delay enforceable
Question or matter Question of inequity of
of time permitting the claim to
be enforced
Statutory Not statutory
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CIVIL LAW
SALES
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respective undertakings under the contract (3) Principal – can stand on its own and does
of sale, culminating in the extinguishment not depend on another contract for
thereof. validity, as contrasted from an accessory
contract.
D. OBLIGATIONS CREATED (4) Onerous – imposes valuable consideration
as prestation, as distinguished from a
Art. 1165. When what is to be delivered is a gratuitous contract.
determinate thing, the creditor, in addition to Consequence: all doubts in construing an
the right granted him by Article 1170, may onerous contract shall be resolved in that
compel the debtor to make the delivery. which gives greater reciprocity of interests.
[Art. 1378]
If the thing is indeterminate or generic, he may
ask that the obligation be complied with at the (5) Commutative – because a thing for value is
expense of the debtor. exchanged for equal value, as contrasted
from an aleatory contract.
If the obligor delays, or has promised to deliver Test: As long as the party believes in all
the same thing to two or more persons who do honesty that he is receiving equal for what he
not have the same interest, he shall be gave up for, then commutative character is
responsible for any fortuitous event until he
complied with.
has effected the delivery.
(6) Nominate – given a particular name by law
(1) Specific or Determinate Thing – capable of
particular designation, e.g. this car, the car E.1. SALE IS TITLE AND NOT MODE
with plate no. XNY 200 Delivery or Tradition is the mode to transfer
ownership and possession to the buyer.
(2) Generic or Indeterminate Thing – refers
only to a class, to a genus, and cannot be When a contract of sale is perfected, the seller
pointed out with particularity, e.g. a car is merely obligated to transfer ownership and
(genus nunquam perit) to deliver the property. Transfer of ownership is
effected only upon delivery.
NATURE OF OBLIGATIONS CREATED
Sale is merely title that creates the obligation
PER DEFINITION IN ART.1458 on the part of the seller to transfer ownership
[Villanueva] and deliver possession, but on its own, sale is
not a mode that transfers ownership.
(1) For the SELLER: To transfer ownership and [Equatorial Realty Dev. v. Mayfair Theater, 2001]
to deliver possession of the subject matter
(2) For the BUYER: To pay the price
F. SALE DISTINGUISHED FROM
OTHER CONTRACTS
E. CHARACTERISTICS OF A DONATION
CONTRACT OF SALE Sale Donation
(1) Consensual – perfected by mere consent
Onerous Gratuitous
and without any further acts.
(2) Bilateral and Reciprocal – imposes Perfected by mere Must comply with the
correlative obligations on both parties to consent formalities required
the relationship. Consequently, power to by law. [Art 745, CC]
rescind is implied.
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When the price of the contract of sale is The fact that the object were made by the
simulated, the sale may be void but the act seller only when customers placed their orders,
may be shown to have been in reality a does not alter the nature of the contract of
donation or some other contract. [Art.1471, CC] sale, for it only accepted such orders as called
for the employment of such materials as it
F.1. BARTER ordinarily manufactured or was in a position
Sale Barter habitually to manufacture such. [Celestino Co &
Consideration is price Consideration is Co vs. Collector, 1956:]
in money or its another thing
When each product or system executed is
equivalent
always UNIQUE and could not mass-produce
Barter is a contract where one of the parties the product because of its very nature, such is a
binds himself to give one thing in consideration contract for a piece of work.[Commissioner vs.
of the other’s promise to give another thing Engineering Equipment and Supply Co., 1975]
[Art.1638, CC]
F.3. DACION EN PAGO
If consideration consists partly in money and Sale Dacion en pago
partly in another thing, the intention of the No pre-existing debt Pre-existing debt
parties determines whether the contract is one Creates an obligation Extinguishes the
of sale or barter. obligation (mode of
payment)
If manifest intention is not clear: Barter when Price is more freely Price is value of the
the value of thing is more than the amount of agreed upon, fixed by thing given
money or its equivalent; otherwise, sale. the parties
[Art.1468] Buyer has to pay the Payment is received
price by the debtor before
If the local currency is exchanged with other contract is perfected
denominations of local currency also, there is
barter. There is a novation of the contract of loan into
a contract of sale when the creditor agrees to
accept a thing in payment of the debt. Hence, if
F.2. CONTRACT FOR A PIECE OF WORK the thing given in payment turns out to belong
Contract for a Piece of to another, the creditor’s remedy should be
Sale
Work governed by the law on sales, not loan.
Goods are Goods are [Baviera]
manufactured or manufactured for
procured in the customer upon his Bilateral promise to buy and sell [Asked in 80,
ordinary course of special order 91]
business A promise to buy and sell a determinate thing
For the general For a specific for a price certain is reciprocally demandable.
market, whether on customer [Art 479, CC]
hand or not
Governed by Statute of Not within Statute of Like a sale, the thing must be determinate and
Frauds Frauds the price, certain.
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Conditional Contract of
II. Parties to a Contract
Contract to sell
Sale of Sale
Sale is already No perfected sale yet
perfected
A subsequent buyer is A subsequent buyer All persons who have capacity to enter into
presumed to be a is presumed to be a obligations may enter into a contract of sale
buyer in bad faith buyer in good faith [Art 1489, CC]
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(d) Persons not of unsound mind but (3) Trusteeship [Art. 39]
by reason of age, disease, weak
mind, and other similar causes, A.3. SPECIAL DISQUALIFICATIONS
cannot take care of themselves and [ARTS. 1491-1492] (AGE-PLJ)
manage their property without
outside aid (Easy prey for deceit The sale entered into by agents, guardians,
and exploitation) and executors and adminsitrators shall be
voidable because it affects only private
A.2. RELATIVE INCAPACITY: MARRIED interests.
PERSONS
(1) Husband and wife [Art. 1490] The sale entered into by public officers,
General Rule: Cannot sell property to each lawyers, justices and judges, and others
other specially disqualified by law shall be void
Exceptions: because it affects the public interest.
(a) Separation of property in marriage
settlement, OR (1) Agents - Cannot purchase or acquire
(b) Judicial separation of property. property whose administration or sale was
entrusted to them
Although certain transfers from husband to Exception: Principal gives consent.
wife or vice versa are prohibited, such
prohibition can be taken advantage of only to Requisites:
persons who bear such relation to parties (a) Property is owned by the principal of the
making transfer with their rights or interest. agent
Unless such a relationship appears, the (b) Administration/sale of the property is
transfer cannot be attacked. [Cook v. entrusted to the agent
McMicking, 1914] (c) Consent of the principal is not given
Sale by husband in favor of a concubine after (2) Guardian - Cannot purchase property of
he had abandoned his family and left conjugal person under his guardianship
home where his wife and children lived and
from whence they derived their support, is void. Guardianship is a trust of the highest order,
[Ching v. Goyanko, Jr., 2006] and the trustee cannot be allowed to have any
inducement or neglect his ward’s interest. [Phil
Similarly, donations are prohibited. This is so Trust Co v Roldan, 1956]
because if such transfers are allowed during
marriage, then the same would destroy the Relation so intimate, dependence so great,
system of conjugal partnership, a basic policy and influence so great, that every transaction
in civil law. entered into while the relationship exists is
suspicious and presumptively fraudulent. [De
(2) Alienage[Art. 39] Leon]
General Rule: Aliens are disqualified from
purchasing or acquiring real property. Requisites:
Exception: If acquisition is through (a) Property must be owned by the ward
hereditary succession (b) Ward must be under the guardianship of
the guardian
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Prohibition applies only on sales or assignment BUT if already sold to a third person who relied
during the pendency of litigation involving the on the title of his immediate seller,
property. [Macariola v Asuncion, 1963] reconveyance to the seller spouse is no longer
available [Cruz v CA, 1997]
(7) Others specially disqualified by law
(a) Unpaid sellers with goods in transit from B.3. SPECIFIC INCAPACITY/ SPECIAL
buying the goods DISQUALIFICATIONS
(b) Officer conducting the execution sale of Contracts expressly prohibited by law are void
deputies and cannot be ratified. Neither can the right to
set-up the defense of illegality be waived. [Art.
Art 1492: The prohibitions in the two preceding 1409 (7)]
articles (Arts. 1490, 1491) are applicable to
sales in legal redemption, compromises and
Sales entered into by guardians,
renunciations.
administrators, and agents (specific
B. EFFECTS OF INCAPACITY incapacities) in violation of Art. 1491 may be
ratified by means of and in the form of a new
B.1. ABSOLUTE INCAPACITY
contract when the cause of nullity has ceased
(1) If both parties are incapacitated:
to exist. Ratification is valid only from date of
UNENFORCABLE [Art. 1403 (3)]
execution of the new contract and does not
(2) If only 1 party is incapacitated: VOIDABLE
retroact.
If necessaries are sold and delivered to an
Those entered into by public
incapacitated person: pay a reasonable price
officers/employees, justices and judges, and
therefor. [Art 1489]
lawyers in violation of Art. 1491 are inexistent
and void from the beginning. [Rubias v Batiller,
“Necessaries” – those which are indispensable
1973]
for sustenance, dwelling, clothing, medical
attendance, education and transportation. [Art
194, Family Code] III. Subject Matter
A. REQUISITES OF A VALID SUBJECT
B.2. RELATIVE INCAPACITY
MATTER
Sale between spouses is VOID.
[ARTS. 1459-1465]
Rationale:
(1) To protect 3rd persons who may have
For Rights:
contracted with the spouse
(1) Transmisible or personal
(2) To avoid undue advantage of the dominant
(2) Licit
spouse over the weaker spouse.
(3) To avoid circumvention of the prohibition
For Things:
against donations between spouses.
(1) Licit
[Medina v CIR, 1961]
(2) Existing, Future, Contingent
(3) Determinate or determinable
Such prohibition shall likewise apply to
common law spouses. [Calimlim-Canulas v
Fortun, 1984] A.1. MUST BE LICIT
[Art. 1459]
The thing is licit when—
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(1) Within the commerce of man [Art 1347, CC] (3) Sale of animals if the use or service for
(2) Example of properties that are not within which they are acquired has been stated in
the commerce of man: the contract, and they are found to be unfit
(a) Those belonging to the State or its therefor [Art 1575]
political subdivisions intended for
public use or public service. (Art 420) (4) Sale of land in violation of Cosntitutional
(b) Church prohibition against the transfer of lands to
(c) Narcotics or dangerous drugs except aliens. [Art XII of Constitution]
upon prescription (RA 6425, the
dangerous drugs act of 1972) When the subject matter is illicit, the contract
(3) When right is not intransmissible [Art 1347] of sale is void [Art. 1409 (7)]
(4) It does not contemplate a future
inheritance, unless expressly authorized by A.2. EXISTING, FUTURE, CONTINGENT
law The goods which form the subject of a contract
of sale may either be—
i. Kinds of illicit things: (1) Existing goods owned or possessed by the
(1) Per Se – of its nature seller;
(2) Per Accidens – due to provision of law. (2) Goods to be manufactured, raised, OR
acquired by the seller – “FUTURE GOODS”;
Art 1347, paragraph 2, characterizes a contract [Art 1462, CC]
entered into upon future inheritance as void. 1. It is valid only as an executory contract to be
Art. 1347 applies when the following requisities fulfilled by acquisition and delivery of goods
concur: specified.
(1) Succession has not yet been opened; (3) Things having POTENTIAL existence may be
(2) The object of the contract forms part of the the object of a contract of sale. [Art 1461, CC]
inheritance; and 2. The thing sold must be specific and identified,
(3) The promissor has, with respect to the and owned by the vendor at that time.
object, an expectancy of a right which is
purely hereditary in nature.[Vda. de Cabatu Sale of MERE hope or Sale of VAIN hope or
v. Spouses Tabu, 2012] expectancy expectancy
Valid BUT subject to Void
ii. Examples of illicit sale condition that the
thing will come into Example: Sale of a
(1) Sale of future inheritance is void[Art. 1347] existence falsified raffle ticket
which will never win.
The rights to succession are transmitted from Example: “Next catch”
the moment of the death of the decedent [Art. of a fisherman.
777, CC]. Thus, one cannot sell or promise to
sell what he expects to inherit from a living Emptio Rei Speratei Emptio Spei
person. [Rivero v. Serrano, 1950]
Valid Void
Sale of a thing not yet Sale of the hope itself
(2) Sale of animals suffering from contagious
in existence but will that a thing will come
diseases [Art 1575]
exist into existence
Upon the failure of the Where it is agreed
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Sale of things under litigation entered into by A thing is DETERMINABLE when it is capable
defendant, without the approval of the of being made determinate at the time the
contract was entered into without the necessity
litigants or the court is rescissible. [Art 1381 (4)]
of a new or further agreement between the
NO RESCISSION where the thing is legally in parties. [Art 1460]
the possession of 3rd persons who did not act
in bad faith [Art 1385 (2)] Art. 1165 of NCC: If the obligation to deliver is a
determinate thing, the creditor has the right to
(b) Sale of an undivided interest in a thing [Art compel specific performance and to recover
1463] damages for breach of the obligation. [Jurado]
LEGAL EFFECT: Make the buyer a co-owner in Failure to state the exact location of the land
the thing sold: does not make the subject matter
(i) acquire full ownership of his part indeterminate, so long as it can be
(ii) may sell his part even without conent of located.[Camacho v CA, 2007]
other co-owners
The fact that the exact area of the land
specified in the contract of sale is subject to the
(c) Sale of undivided share of a specific mass
[Art 1464] result of a survey does not render the subject
matter indeterminate.[Heirs of Juan San Andres
The sale of an undivided share in a specific v. Rodriguez, 2000]
mass of fungible goods makes the buyer a co-
owner of the entire mass in proportion to the
amount he bought.
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B. REQUISITES FOR A VALID PRICE General Rule: Price fixed by 3rd persons
(Ce-MoRe) designated by the parties is binding upon them
(1) Certain or ascertainable at the time of
perfection Exceptions:
(2) In Money or its equivalent (a) If unable or unwilling: Sale is inefficacious
(a) Example of “equivalent”: Letters of UNLESS parties subsequently agree about
credit the price.
(b) If price is partly in money and partly in (b) If in bad faith/by mistake: Courts may fix
another thing: Determine manifest price (but mere error in judgment cannot
intention of the parties to see whether serve as basis for impugning price fixed)
it was barter or sale. [Art 1468] (c) If 3rd person is prevented from fixing price
(c) If intention does not clearly appear, it by fault of seller or buyer: Innocent party
shall be considered a barter if the value may avail of remedies (rescission or
of the thing exceed the amount of fulfillment of obligation, with damages)
money or its equivalent. [Art 1468] (d) If 3rd person disregards specific
(3) Real instructions/data/procedure, thereby
When buyer has an intention to pay and the fixing an arbitrary price
seller has an expectation to receive the price
(a) If simulated: Sale is VOID; BUT act may (3) The price is made in reference to another
be shown to have been a donation or thing, or when the price fixed is the price of the
some other act or contract. [Art 1471] commodity on a definite day, or in a particular
(b) An admission of non-payment of any exchange or market, OR when the amount
centavo in exchange of a property in a fixed is above or below the price on such day,
contract of sale renders the sale VOID. exchange or market. [Art 1472]
[Labagala vs. Santiago, 2001]
(c) If Price is false – when the real When the price is not certain, the contract is
consideration is not the price stated in without effect and no obligation arises from it.
the contract: Exception: When the thing is already delivered,
(i) Sale is void the buyer must apy a reasonable price therefor.
(ii) UNLESSproved to be founded on This exception only arises when the means
another true and lawful price [Art contemplated by the parties for fixing the price
1353] have become ineffectual.
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it may indicate a defect in consent. [Bagnas v. shares. [Philippine Free Press vs. CA,
C.A., 1989] 2005]
Generally, the reasonable price is the market
Exceptions: price at the time and place fixed by the
(1) In Voluntary sales contract or by law for delivery of goods.
(a) Where low price indicates a vice of
consent, sale may be annulled. F. FALSE PRICE VS SIMULATED PRICE
(b) Where price is so low to be shocking to (1) False Price – there is a true price but it was
the conscience (fraud, mistake, undue not written down in the contract. Parties
influence), then sale may be set aside. intended to be bound.
(c) Where price is simulated such as when (2) Simulated Price
the real intention was a donation or (a) Absolute - When the parties never
some other contract. intended to be bound at all. Thus, void!
(d) Where the parties did not intend to be Parties may recover from each other
bound at all, sale is void. what they may have given under the
contract.
(2) In Involuntary sales (b) Relative - When parties conceal their
A judicial or execution sale is one made by a true agreement. When it does not
court with respect to the property of a debtor prejudice 3rd persons and is not
for the satisfaction of his indebtedness. intended for any purpose contrary to
(a) Where price is so low to be shocking to law, morals, public policy, etc., it binds
the conscience, such that a reasonable the parties to their real agreement.
mind would not be likely to consent to
it, then judicial sale will be set aside. Effect of simulated price:
(b) If in event of a resale, a better price can (1) If price is simulated when vendor intended
be obtained. to transfer thing gratuitously, the sale is void,
but the contract shall be valid as a donation.
(3) Rescissible contracts of sale (2) If contract is not a donation or any other act
Inadequacy of price is a ground for rescission of transferring ownership because parties did not
conventional sale under Art 1381 (a-b) intend to be bound, it is void.
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(3) Option Contract [Arts. 1479, 1324] (c) Sale vs. Option Contract
(a) Definition Sale Option Contract
(i) An accepted unilateral promise Bilateral Unilateral: gives a
to buy or sell supported by a right to buy or to
consideration distinct from the sell, but imposes no
price [Art 1479] obligation on the
(ii) An option contract is a part of the option-
privilege existing in one holder, aside from
person, for which he had paid a the consideration for
consideration, which gives him the offer
the right to buy, for example, Sale of property Sale of right to
certain merchandise or certain purchase
specified property, if he
chooses, at any time within the (4) Right of First Refusal
agreed period, at a fixed price.
[De la Cavada vs. Diaz, 1918] As to enforceability
(iii) An option is not of itself a If the right to the first offer is embodied in the
purchase, but merely secures contract, it should be executed according to
the privilege to buy. the terms stipulated. The right should be
(iv) A consideration for an optional enforced according to the law on contracts and
contract is just as important as not on the panoramic and indefinite rule on
the consideration for any other human relations. This juridical relation is not
kind of contract. If there was no amorphous nor is it merely preparatory.
consideration for the option, [Equatorial Realty Development vs. Mayfair,
then it cannot be enforced any 1996]
more than any other contract
where no consideration exists.
When the grantee fails to exercise the right
[Baviera]
Only after the grantee fails to exercise its right
of 1st priority under the same terms and
(b) Elements of an Option Contract
conditions within the period agreed upon,
(i) Consent
could the grantor validly offer to sell the
(ii) Subject matter: an option right
property to a 3rd person under the same terms
or accepted unilateral offer to
as offered to the grantee. [Paranaque Kings vs.
buy, or an option right or
CA, 1997]
accepted unilateral offer to sell
a determinate object for a price
As to the effects of the violation of the right
certain, including the mannerof
(a) A sale made in violation of a right of
payment thereof
first refusal is valid but rescissible, and
(iii) Prestation: a consideration
may be the subject ofan action for
separate and distinct from the
specific performance. [Rosencor Devt.
purchase price for the option
Corp. Vs. Inquing, 2001]
given
(b) However, before the sale to the 3rd
person may be rescinded, he must
have been actually or constructively
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aware of the right of 1st refusal at the (2) It is the proof of all the essential elements
time he bought it. of the contract of sale, and not the mere
(c) The sanction for the enforcement of giving of earnest money, which establishes
the right of first refusal against third the existence of a perfected sale. [Platinum
persons is based on Art. 19 of NCC, as Plans Phils. vs. Cucueco, 2006]
no real right was created on the
property. Effect of Perfection
From the moment of the perfection of the
Difference from Sale contract of sale, the parties may reciprocally
Sale Right of 1st Refusal demand performance, subject to the provisions
Bilateral Unilateral of the Statute of Frauds. [Art 1475]
Price and other terms Price and other terms
of payment are certain are yet to be agreed Perfection of Sale by Auction [Art 1476]
upon (1) Contract is perfected when the auctioneer
The thing to be sold must be determinate accepts the bid by the fall of the hammer
or gavel or in any other customary manner.
Distinction from Option Contract (2) If auction is announced to be “without
reserve,” goods cannot be withdrawn from
Option Contract Right of 1st Refusal
the sale after the bid is made.
Separate No need for a (3) By taking part in the auction and offering
consideration is separate bidding, the buyer voluntarily submitted to
necessary consideration the terms and conditions of the auction
Grantee has the right No right to buy or sale announced in the notice.
to buy or sell sell, only a right to (4) Puffing/by-bidding is illegal – means
match the 1st offer to employed by owner to increase the price of
buy should the the bids; illegal.
grantor decide to sell
C. CONSUMMATION
(5) Mutual Promise to Buy and Sell [Art. 1479] When parties fulfill their obligations.
A promise to buy and sell a determinate thing
for a price certain is reciprocally demandable.
FORMALITIES OF THE CONTRACT
[Art. 1403 (d) (e)]
The promise made by one party is the
General rule: No form required as to validity
consideration for the promise made by the
provided all the essengtial requisites are
other. [Baviera]
present.
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Payment of the purchase price is not essential (2) In case of specific goods, which the parties
to transfer of ownership as long as the knew to be at some other place when the
property sold was delivered. contract was perfected, that place is the
place of delivery
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(3) If goods are at the time of sale are (b) Buyer does any other act adopting the
possessed by a third person, then there is transaction (i.e. sale to a third person)
no delivery until he acknowledges to the (c) Retains the goods without giving notice
buyer that he holds the goods for the of rejection after the time fixed has
buyer. expired; if no time has been fixed, after
the expiration of a reasonable time [Art
B.4. WHEN TO DELIVER 1502]
Absent a stipulation as to time, delivery must
be made within a reasonable time; demand or Loss or destruction of the property prior to
tender of delivery shall be made at a return falls upon the buyer and makes him
reasonable hour. responsible for the purchase price.
Hour of delivery: usually during business hours Sale on Approval vs Sale on Return
Sale on Approval Sale on Return
C. WHEN DELIVERY DOES NOT Ownership does not Ownership passes
TRANSFER TITLE pass upon delivery upon delivery, but
buyer may revest
(1) Sale on Approval or Trial ownership in the
General Rule: Title remains with the seller. seller by returning or
Buyer has option to purchase goods if proven tendering the goods
satisfactory, the approval of the buyer being a within the time fixed
condition precedent. (Same exceptions with in the contract
sale on return) Depends on the Depends on the will
character or quality of of the buyer
The relationship between seller and buyer, if goods
no absolute sale yet, is that of a bailor and Subject to a Subject to a
bailee suspensive condition resolutory condition
Risk of loss remains Risk of loss remains
If there is no time for approval specified but with the seller with the buyer
with period for trial, then approval shall be
made within a reasonable period after the trial Express Reservation
period expires. If it was stipulated that ownership in the thing
shall not pass to the purchaser until he has
(2) Sale on Return or Satisfaction fully paid the price then ownership remains
with seller even when delivery is made [Art
General Rule: Title remains with the seller 1478]
when parties agree that buyer shall
temporarily take the goods into his possession Implied Reservation
to see if they are satisfactory to him (return if The following are instances when there is an
unsatisfactory) implied reservation of ownership:
(a) Goods are shipped, but by the bill of lading
Exceptions: goods are deliverable to the seller or his
(a) Buyer signifies his approval or agent, or to the order of the seller or his
acceptance to the seller agent
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(b) Bill of lading is retained by the seller or his In execution sale, the buyer merely steps into
agent. the shoes of the judgment debtor [Rule 39, sec.
(c) When the seller of the goods draws on the 33, ROC]
buyer for the price and transmits the bill of
exchange and bill of lading to the buyer, (e) When goods are purchased in Merchant’s
and the latter does not honor the bill of store, Fair, or Market [Art 1505]
exchange by returning the bill of lading to The policy of the law has always been that
the seller. where the rights and interest of the vendor
clash with that of an innocent buyer for value,
(3) When Sale Not Valid the latter must be protected. [Sun Brothers and
i.e. When the thing sold is a public property Co. vs. Velasco, 1958]
(4) When Seller is Not the Owner (5) Sale by Person Having a Voidable Title
(a) True owner may recover the thing when
General Rule: Ownership is not acquired by the the ff. requisites concur:
buyer. One cannot give what one does not (i) Subject matter is movable
have. [Art 1505] (ii) Owner has either lost the thing or
has been unlawfully deprived. [Art
Exceptions: 559]
(a) Seller has a Right to transfer ownership (b) Reimbursement is necessary before
(i) Seller need not be the owner of the thing owner can recover when:
at the time of perfection of the (i) Buyer acted in good faith
contract. It is sufficient that seller has a (ii) Acquired at a public auction [Art
right to transfer ownership thereof at 559]
the time it is delivered. [Art. 1459] (c) Recovery no longer possible when:
(ii) One who sells something he does not (i) Buyer in good faith
own yet is bound by the sale when he (ii) Acquired it at a merchant’s store,
acquires the thing later [Bucton vs fair or market. [Art 1506]
Gabar, 1974]
D. KINDS OF DELIVERY
(b) Estoppel: Owner is, by his conduct, D.1.ACTUAL DELIVERY
precluded from denying the seller’s authority
to sell. [Art. 1434] (1) When deemed made: when the thing sold is
placed in the control and possession of the
(c) Registered land bought in good faith vendee [Art. 1497]
General rule: Buyer need not go beyond the (2) Not always essential to passing of title [Art.
Torrens title 1475]
Exception: When he has actual knowledge of (3) Parties may agree when and on what
facts and circumstances that would impel a conditions the ownership shall pass to the
reasonably cautious man to make further buyer [E.g.: Art 1478 where ownership will only
inquiry pass after full payment of the price]
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D.2. CONSTRUCTIVE DELIVERY has no control over the thing sold at the
i. Execution of public instrument [Art 1498, par. moment of the sale, and, therefore, its material
1] delivery could not have been made. [Villamor v.
General Rule: produces the same legal effects Mangaoil, 2012]
of actual delivery.
ii. Symbolic Delivery
Exceptions: Delivery of keys of the place or depositary
(a) The intention of the parties is where the movable is stored or kept. [Art 1498]
otherwise.
(b) At the time of execution, the subject Unless otherwise agreed, when symbolic
matter was not subject to the control of delivery has been made, the seller is not
the seller which must subsist for a obliged to remove tenants to place the buyer in
reasonable length of time after actual possession of the property as he has
execution. [Pasagui v Villablanca, 1975] already complied with his obligation to
transfer ownership of and deliver the thing
“Control” over thing sold must be such that sold. [Power Commercial and Industrial Corp. v.
seller is capable of physically transferring it to CA, 1997; Sabio v. The International Corporate
buyer. Bank, Inc., 2001]
Although parties may stipulate that the (a) Tradition Longa Manu (Long Hand)
execution of a public instrument is equivalent Delivery of thing by mere agreement.
to delivery, this legal fiction holds true only
when there is no impediment that may prevent Example: Seller points to the property without
the passing of the property from the vendor to actually transferring physical possession
the vendee. [Vda. de Sarmiento v. Lesaca, 1960] thereof.
When an employer assigned all its rights and
If, notwithstanding execution of the title to all surplus property salvaged by the
instrument, the buyer cannot enjoy material contractor, tradition longa manu takes place.
tenancy and make use of the object himself or Delivery is upon the moment a thing is
through another in his name, there is no salvaged. [Board of Liquidators v. Floro, 1960]
delivery. [Power Commercial v. CA, 1997]
(b) Tradition Brevi Manu (Short Hand)
Execution of a public instrument gives rise only MOVABLE is delivered when the buyer had the
to a prima facie presumption of delivery, thing already in his possession before the sale
negated by failure of the buyer to take actual took place, not as owner but as lessee,
possession of land sold. A person who does not borrower, or depositary.
have actual possession cannot transfer
constructive possession by execution and (c) Tradition Constitutum Possessorium
delivery of public instrument. [Spouses Seller continues to be in possession of the
Santiago v. Villamor, 2012] property sold, by virtue of a lease contract
agreement with the vendee.
There is symbolic delivery, unless from the
express terms of the instrument, or by clear (d) Delivery to a Common Carrier
inference therefrom, that the same was not the General Rule: Delivery to the courier or carrier
intention of the parties, e.g. where the vendor is tantamount to delivery to buyer, whether
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carrier is named by buyer or not. The buyer Ownership shall be transferred to the person
assumes the risk of loss. who may have first taken possession in good
faith.
Exceptions
i. Seller reserved title by the form of the (2) Sale of Immovables
bill of lading, with intent to remain the
owner, not merely for the purpose of (a) Ownership belongs to the person who:
securing payment, OR (i) In good faith first recorded the sale in the
ii. Contrary intention appears in the Registry of Property; OR
contract (i.e. seller is required to (ii) If there is no inscription of sale on the
deliver goods to buyer at the point of title, ownership passes to the person
destination) who in good faith was first in
iii. F.O.B. (Free on Board or Freight on possession; OR
Board) - When seller bears the (iii) In the absence thereof, to the person
expenses of transportation up to the who presents the oldest title,
F.O.B. point. PROVIDED there is good faith.
iv. C.I.F. (Cost, Insurance, Freight) - Price
quoted includes the costs of the goods, Possession - refers to any of the modes of
insurance, and freight charges on the possession in Articles 1497-1501
goods up to the point of destination.
v. F.A.S. (Free Alongside) -Seller bears Oldest Title – any public document showing
the expenses of transportation until he acquisition of the land in good faith. To
delivers the goods alongside a vessel constitute “title,” the transmission of
at a named port. ownership must appear in a public document
[Art. 1358 (1)]
E. DOUBLE SALES
[ART. 1544] Examples: Deed of Sale, Deed of Donation,
Deed of Trust
General Rule: Prior tempore, potior jure (“he
who is first in time is preferred in right”) (b) Registration includes any entry made in the
applies. Primary Entry Book of the registry, including
both registration in its ordinary and strict sense
Requisites [Cheng v Genato, 1998]: and cancellation, annotation, and even
(1) 2 or more valid sales; marginal notes. [Cheng v. Genato, 1998]
(2) Same subject matter;
(3) 2 or more buyers with conflicting Pencilled entries on the title are not considered
interests over the rightful ownership of registration. [AFPMBAI v. Court of Appeals,
the thing sold; 1999]
(4) Same seller
(3) Second Sale Made by Virtue of Execution
E.1. RULES GOVERNING SALE OF and Attachment
MOVABLES, IMMOVABLES AND Art. 1544 does NOT apply in cases where the
UNREGISTERED LANDS first sale of an unregistered immovable
occurred prior to an execution sale and the
second sale occurred by virtue of an execution
(1) Sale of Movables
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sale. This is because a buyer of unregistered One who buys the property of another, without
land at an execution sale only steps into the notice that some other person has a right to or
shoes of the judgment debtor (the person who interest in such property, and who pays a full
sold the property prior to the execution sale). and fair price for the sale, at the time of the
The second buyer merely acquires the latter's purchase or before he has notice of the
interest in the property sold as of the time the claim/interest of some other person in the
property was levied upon. [Carumba v. CA, property. [Agricultural and Home Extension
1970] Development Group v CA, 1992]
(a) Unregistered by both buyers: the first
sale is preferred General Rule: As a rule, he who asserts the
(b) Registered by both buyers: the second status of a purchaser in good faith and for
sale is preferred value has the burden of proving such assertion.
(c) If the first buyer did not register but the This onus probandi cannot be discharged by
second buyer registered property, then mere invocation of the legal presumption of
the first buyer is preferred. good faith, i.e., that everyone is presumed to
act in good faith [Mathay v CA, 1998]
(4) Sale of Unregistered Land
(a) Instrument or deeds establishing, When buyer is presumed to be in bad faith:
transmitting, acknowledging, (a) Annotation of adverse claim: Places any
modifying or extinguishing rights with subsequent buyer of the registered
respect to lands not registered under land in bad faith. [Balatbat v CA, 1996]
the Land Registration Act or the (b) Annotation of Lis Pendens: Buyer
Spanish Mortgage Law, are required to cannot be considered an innocent
be registered in the Registry of purchaser for value where it ignored
Property to prejudice 3rd persons, the lis pendens on the title.
although such registration is (c) A purchaser of a parcel of land cannot
understood to be “w/o prejudice to a close his eyes to facts which should put
3rd party with a better right”. [PD 1528 a reasonable man upon his guard, such
Sec 113] as when the property subject of the
(b) Art. 1544 applies to unregistered land purchase is in the possession of
subject to a conventional sale (because persons other than the seller. A buyer
of Art. 1358) but NOT to unregistered who could not have failed to know or
land subject to judicial sale. discover that the land sold to him was
(c) Unregistered by both buyers, the first in the adverse possession of another is
buyer is preferred. a buyer in bad faith. [Heirs of Ramon
(d) If first buyer did not register but second Durano v Uy, 2010]
buyer registered property, second
buyer is preferred. Annotation of Adverse
Lis Pendens
Claim
F. PROPERTY REGISTRATION May be cancelled even May be cancelled
DECREE before the action is only in one instance,
(1) Requisites for Registration of Deed of Sale finally terminated for i.e., after the claim is
in Good Faith causes which may not adjudged invalid or
be attributable to the unmeritorious by the
Purchaser in Good Faith claimant Court
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(1) Title of person negotiating the document, Negotiation [Art. 1508] Transfer
over goods covered by document document of title, the than his transferor
(2) Title of depositor/owner over such goods buyer may acquire a
(3) Direct obligation of bailee/carrier to hold better title than his
possession of goods for him transferor.
D. NON-NEGOTIABLE DOCUMENTS
OF TITLE E. WARRANTIES OF SELLER OF
Goods described in a non-negotiable DOCUMENTS OF TITLE
document of title are deliverable only to a [ART. 1516]
specified person.
A person who negotiates a document of title
Carrier will not deliver the goods to any holder warrants that:
of the document or to whom such document (1) Genuineness of document
may have been endorsed by the consignee. (2) Legal right to negotiate or transfer
(3) No knowledge of fact which would impair
Must present the deed of sale or donation in the validity or worth of the document
his favor. (4) Right to transfer the title to the goods and
merchantability or fitness for a particular
A person to whom a document has been
purpose, whenever such warranties would
negotiated acquires have been implied
(1) Title to goods as against the transferor
(2) Right to notify the bailee of the transfer
He does not warrant that:
thereof
(1) Common carrier will fulfill its obligation to
(3) Right, thereafter, to acquire the obligation
deliver the goods
of the to hold goods for him
(2) Previous endorsers will fulfill their
obligation [Art. 1516-1517]
“Negotiation” [negotiable document of title]
vs. “Transfer” [non-negotiable document of
Goods in the hands of the carrier covered by a
title]
negotiable document cannot be attached or
Negotiation [Art. 1508] Transfer levied upon, unless:
Delivery of a The assignment of (1) Document is first surrendered to the
negotiable document rights of the carrier; or
of title to another if by consignee of a non- (2) Impounded by the court; or
the terms thereof, the negotiable document (3) Its negotiation is enjoined. [Art. 1519-1520]
goods are deliverable of title to another; or
to bearer, or when the F. RULES ON LEVY/GARNISHMENT
document was Document of title OF GOODS
endorsed in blank by was ordered sold or
[ARTS. 1514, 1519, 1520]
the person to whose assigned, without
order the goods are indorsement.
Goods in the hands of the carrier covered by a
deliverable.
negotiable document cannot be attached or
Transferee does not
levied upon, unless:
In a negotiable acquire a better title
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(1) Document is first surrendered to the carrier; (2) The consignor or agent who had paid the
or price or is responsible for the price
(2) Impounded by the court; or (3) Any other person who is in the position of a
(3) Its negotiation is enjoined. [Art. 1519-1520] seller (i.e. buyer who paid the price and
had a right to return the goods). [Baviera]
The levy of an attachment of execution upon
the goods by a creditor of the transferor, may B. REMEDIES OF UNPAID SELLER
defeat the title of the transferee and the right JUDICIAL REMEDIES OF AN UNPAID
to acquire the obligation of such bailee, when: SELLER
(1) Action for the price or specific performance
(1) It was done prior to the notification to such [Art. 1595]
bailee by the transferor of a non- Instances:
negotiable document of title or (a) The goods has passed to the buyer and
(2) By a notification to such bailee by the the buyer wrongfully neglects or
transferor or a subsequent purchaser from refuses to pay the price
the transferor of a subsequent sale of the (b) Price is payable on a certain day and
goods by the transferor. [Art 1514 (3rd par)] the buyer wrongfully neglects or
refuses to pay the price, irrespective of
A creditor whose debtor is the owner of a delivery of the goods or transfer of title,
negotiable document of title shall be entitled or
to such aid from courts in regard to property (c) When the goods cannot readily be
which cannot be readily attached or levied by resold for a reasonable price, and the
ordinary legal process [Art 1520] buyer wrongfully refuses to accept the
goods even before ownership passed, if
NCC1596, paragraph 4 is inapplicable.
X. Remedies of an Unpaid (d) Seller was notified by the buyer of his
Seller repudiation of the contract after the
seller has completed the manufacture
of the goods or had procured the goods
A. DEFINITION OF UNPAID SELLER to be delivered and the goods could
[ART. 1525] not readily be resold for a reasonable
A seller is considered to be an unpaid seller if price
the whole price has not been paid or tendered,
or when check received as a conditional Buyer can set up the defense that seller at any
payment was dishonored by non-payment or time before judgment could not or did not
insolvency of the buyer [Baviera] intend to deliver the goods.
An seller is unpaid within such definition Unless the contrary appears, payment and
whether or not title has been passed. Partial delivery are presumed to be concurrent acts,
payment of the price does not extinguish the and the obligation of each party to perform the
unpaid seller’s lien. [De Leon] contract is dependent upon the simultaneous
performance by the other party
Term also includes:
(1) The agent of the seller to whom the bill of
lading was endorsed,
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If ownership has not yet passed to the buyer, The unpaid seller’s right to rescind for non-
the seller cannot maintain an action for the performance is not absolute. Exceptions:
price, unless it involves (b) or (c). (a) 3rd persons possessing the objects of
the contract to whom no bad faith is
Title to goods passes from the moment the imputable
goods are placed at the buyer’s disposal when (b) Casual breach
refusal to accept is without just cause.
The seller cannot unilaterally and
(2)Action for damages for non-acceptance, if extrajudicially rescind a contract absent
buyer wrongfully neglects or refuses to accept express stipulation to do so, except as provided
and pay for the goods (Art. 1596) in Art. 1597.
Measure of damages: Estimated loss directly (4) Special rule for sale of movables by
and naturally resulting in the ordinary course installments – Recto Law [Arts. 1484, 1485]
of events from the buyer’s breach. Not only
actual damages, but also unrealized profits. It Applies in cases of:
is the difference between the contract price (a) Sale of movables in installment
and the market or current price. [De Leon] The rule is intended to apply to sales of
movables, the price of which is payable
(a) Where there is available market for in two or more installments, but not to
goods: Difference between the contract straight-term sales where the price is
price and the market price at the time payable in full, after making a down
the goods ought to have been payment because the law aims to
accepted or if no time was fixed, at the protect improvident buyers who may
time of refusal to accept be tempted to buy beyond their means.
(b) If the resale was made with diligence: [Levy Hermanos vs. Gervacio, 1939]
resale price is evidence of market (b) Lease of personal property with option
value, taking into account whether or to buy
not the goods could be readily sold (i) When lessor has deprived the lessee
(c) Where labor/expense was necessary for of the possession or enjoyment of
seller to fulfill his obligation: Labor the thing (Ex.: When lessor files a
performed and expenses made by complaint for replevin against
seller before receiving notice of buyer’s lessee)
repudiation or countermand (ii) Also applies when seller assigns his
(d) Profit that the seller would have made if credit to someone else
sale had been fully performed
C. ALTERNATIVE REMEDIES OF THE
(3) Rescission by giving the buyer notice of the
UNPAID SELLER UNDER RECTO LAW
election to rescind [Art. 1597]
(a) Specific Performance
(b) Cancellation of sale: If vendee fails to pay 2
Under this rule, rescission would bar an action
or more installments
on the contract because it means cancellation
When the seller cancels the sale by
of the contractual obligations between the
repossessing the property sold, he is barred
parties. [Baviera]
from exacting payment for its price.
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(c) Foreclosure of Chattel Mortgage: If vendee (iv) Remedies are ALTERNATIVE, not
fails to pay 2 or more installments cumulative, i.e. exercise of one
(i) If seller chooses this remedy, he bars exercise of the others. [Nonato
shall have no further action to vs. IAC, 1985]
recover any unpaid balance, and
any stipulation to the contrary Where the mortgagor unjustifiably refused to
shall be void surrender the chattel subject of the mortgage
(ii) What Art 1484 (3) prohibits is upon failure of two or more installments, or if
“further action against the he concealed the chattel to place it beyond the
purchaser to recover any unpaid reach of the mortgagee, that thereby
balance of the price;” and although constrained the latter to seek court relief, the
this Court has construed the word expenses incurred for the prosecution of the
“action” to mean “any judicial or case, such as attorney's fees, could rightly be
extrajudicial proceeding by virtue awarded. [Borbon II v. Servicewide, 1996]
of which the vendor may lawfully
be enabled to exact recovery of the
supposed unsatisfied balance of XI. Performance of
the purchase price from the
purchaser or his privy,” there is no Contract
occasion at this stage to apply the
restrictive provision of the said A. DELIVERY OF THING SOLD
article because there has not yet (1) Sale of movables [Arts. 1522, 1537, 1480]
been a foreclosure sale resulting in
a deficiency. The payment of the (a) When Quantity less than expected
sum of P1,250 of Sapinoso was a (i) Buyer may reject all
voluntary act on his part and did (ii) Buyer accepts with knowledge of
not result from a “further action” seller’s inability to deliver the rest –
instituted by Northern Motors. buyer pays at contract price
[Motors vs. Sapinoso, 1970] (iii) Buyer has used or disposed prior to
(iii) The purpose of the law is to knowing seller’s inability to deliver the
remedy the abuses committed in rest – buyer pays fair value
foreclosure of chattel mortgages.
It prevents mortgagees from (b) Quantity more than expected
seizing the mortgaged property, (i) If divisible, buyer may reject excess
buying it at foreclosure sale for a (ii) If indivisible, buyer may reject all
low price and then bringing the
suit against the mortgagor for a If the buyer accepts all goods delivered, he
deficiency judgment. The almost makes himself liable for the price of all of
invariable result of this procedure them.
was that the mortgagor found
himself minus the property and (c) Quality different or different goods
still owing practically the full (i) If divisible, buyer may accept the goods
amount of his original compliant with contract and reject
indebtedness. [Bachrach Motor Co., those that are not
Inc. v. Millan, 1935]
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(i) Buyer is awarded a grace period of 1 Not every false representation voids the
month per year of installments contract, only those matters substantially
paid or 60 days, whichever is affecting the buyer’s interest, not matters of
higher, within which he may pay opinion, judgment, probability, or expectation.
without additional interest When the buyer undertakes his own
May be used once every 5 years of the investigation, and the seller does nothing to
life of the contract or any of its prevent it from being as full as the buyer
extensions chooses, the buyer cannot afterwards allege
misrepresentations. [Songco v. Sellner, 1917]
(ii) If contract is to be cancelled, seller
must first:
(1) Give a 30-day notice of Condition vs. Warranty
cancellation, and Condition Warranty
(2) Refund cash surrender value to Pertains to and affects Goes into the
buyer; the existence of the performance of an
(3) CSV is equivalent to 50% of obligation obligation and may,
total payments made including in itself, be an
deposits, options and down- obligation
payments plus 5% for every Non-happening does Non-fulfillment
year in excess of 5 years of the not amount to breach constitutes breach of
life of the contract or any of its of contract contract
extensions. Must be stipulated Stipulation or
operation of law
Cancellation of the contract under Section 4 of
May attach either to Always relates to the
R.A. 6552 as a two-step process. First, the the seller’s duty to subject matter or the
seller should extend the buyer a grace period deliver thing or some seller’s obligations as
of at least 60 days from the due date of the
other circumstance to the subject matter
installment. Second, at the end of the grace
period, the seller shall furnish the buyer with a If seller has promised that the condition should
notice of cancellation or demand for rescission happen or be performed, the buyer may treat
through a notarial act, effective 30 days from the nonperformance of the condition as a
the buyer‘s receipt thereof. [Jestra Development breach of warranty. [Art.1545]
v. Pacifico, 2007]
A. EXPRESS WARRANTIES
For there to be express warranty, the following
XII. Warranties requisites must concur: (APIR)
A statement or representation made by the (1) An affirmation of fact or any promise
seller contemporaneously and as part of the relating to the thing sold;
contract of sale, having reference to the (2) The natural tendency of such affirmation or
character, quality, or title of the goods, and by promise is to induce the buyer to buy;
which he promises or undertakes to ensure (3) The buyer buys the thing relying thereon.
that certain facts are or shall be as he then [Art. 1546]
represents. (4) Made before the sale not upon delivery or
any other point
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An express warranty can be made by and also Express Warranty False Representation
be binding on the seller even in the sale of a on allege false
second hand article. [Moles v. IAC, 1989] representation. [Phil
Mftg Co. v Go Jucco,
Express Warranty vs. Dealer’s or Trader’s Talk 1926]
Dealer’s or Trader’s
Express Warranty
Talk Reason: buyer’s duty
What is specifically Affirmation of the to inspect remains
represented as true in value of the thing or despite false
said document cannot statement of the representation by the
be considered as mere seller’s opinion only seller; he has the
dealer's talk. [Moles v. is not a warranty duty to exercise due
IAC, 1989] unless: diligence.
The seller made it as
an expert;
B. IMPLIED WARRANTIES
It was relied upon by
[ART. 1547]
the buyer. [Art.1546]
Ordinarily, what does
An implied warranty is derived by law by
not appear on the
implication or inference from the nature of the
face of the written
transaction or relative situation, or
instrument [Moles v.
circumstances of the parties, irrespective of
IAC, 1989]
any intention of the seller to create it.[De Leon]
Express Warranty vs. False Representation
(1) Implied Warranty of Title
Express Warranty False Representation (2) Implied Warranty against Encumbrance/
Concealment of facts When concealment Non-Apparent Servitudes
does not necessarily of facts comes with (3) Implied Warranty against Hidden Defects
amount to false an active [Art. 1547]
representation misstatement of fact (a) Implied warranty as to Merchantable
or a partial statement Quality and Fitness of Goods
of fact such that (b) Implied warranty against Redhibitory
withholding of that Defect in the Sale of Animals [Art.
unsaid portion makes 1572]
that which is stated (c) Quality and Fitness of Goods in Sale by
absolutely false Sample or Description
(4) Other Warranties
However, buyer who
fails to inspect B.1. IMPLIED WARRANTY OF TITLE
condition of property (1) Implied warranty arises by operation of law
despite ample and need not be stipulated in the contract
opportunity to do so of sale.
when there is no
opposition on the (2) Warranty of Seller’s Right to Sell: Seller
part of seller to warrants his right to sell at the time the
inspect cannot later ownership is to pass.
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C. EFFECTS OF WARRANTIES
(1) Natural tendency is to induce buyer to
purchase the subject matter
(2) Buyer purchases subject matter relying
thereon E. BUYER’S OPTIONS IN CASE OF
(3) Seller liable for damages in case of breach BREACH OF WARRANTY
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(3) Buyer made waiver with knowledge of only 3 months after. Within such time, the
risks: Seller not liable; buyer assumed the feeds could have been contaminated by other
consequences factors. [Nutrimix Feeds v. CA, 2004]
(3) Implied Warranty against Encumbrances One of the express warranties stipulated was
[Art. 1560] that the stockholdings are on a clean balance
(a) Rescission: Within 1 year from execution of sheet. An important sense of a deed of sale is
deed of sale OR the transfer of ownership over the subject
(b) Damages: Within 1 year from execution of properties to the buyer. The failure of the
deed of sale or discovery of the burden or seller to effect a change in ownership of the
servitude subject properties amounts to a hidden defect.
[PNB v. Mega Prime Realty and Holdings, 2008]
(4) Implied Warranty against Hidden Defects
[Arts. 1567-1571]
If thing is not lost: (5) Implied Warranty against Redhibitory
(a) Withdraw from contract (accion Defects of Animals
redhibitoria) + damages Remedies
(b) Demand a proportionate reduction of (a) Withdraw from contract + damages
the price (accion quanti minoris) + (b) Demand a proportionate reduction of
damages the price + damages
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Express Warranty Implied Warranty (1) Goods are sold without stipulation as to
directly attributable price as has been paid credit
to the use of the + damages (2) Goods are sold on credit, but term of credit
consumer prior to the has expired
discovery of the non- (3) Buyer becomes insolvent
conformity
The seller may exercise his right of lien
notwithstanding that he is in possession of the
XIII. Breach of Contract goods as agent or bailee for the buyer [Art
1527, par. 2]
A. GENERAL REMEDIES [ART 1191]
When Unpaid Seller Loses His Lien [Art 1529]
The following remedies arise from the bilateral
(1) Seller delivers goods to carrier or other
nature of the contract of sale:
bailee for transmission to the buyer
(1) Specific performance
without reserving ownership or right of
(2) Rescission
possession (i.e. under a straight or non-
negotiable bill of lading)
General rule: Rescission of a contract will not
(2) Buyer or his agent lawfully obtains
be permitted for a slight or casual breach, but
possession of goods
only for such substantial and fundamental
(3) Seller waives the lien
breach as would defeat the very object of the
(a) But it is not lost with respect to the
parties in making the agreement. [Song Fo &
remainder of the goods when only
Co. vs. Hawaiian-Philippine Co., 1925]
partial delivery is made (unless such is
symbolic delivery of the whole)
(3) Damages
(b) It is not lost by the mere fact that seller
obtained a judgment for the price
Prescriptive periods
(1) 10 years if based on written contract
When Lien May Be Revived After Delivery
(2) 6 years if based on oral contract
(1) If the buyer refuses to receive the goods
after the same are delivered to the carrier
B. REMEDIES OF THE SELLER
or other bailee on his behalf, though the
[ARTS. 1636, 1594]
seller has parted with both ownership and
possession. Here, the seller may reclaim
B.1. SALE OF MOVABLES the goods and revest the lien.[Art 1531,
Extrajudicial or Self-Help Remedies- No need to par.1(2)]
resort to the courts as long as possession of
the goods has not yet passed to the buyer (2) If the buyer returns the goods in wrongful
repudiation of the sale, then the lien is
i. Possessory Lien Over The Goods revived.
Right to retain possession of goods until
payment or tender of the whole price, or unless Possessory lien is lost after the seller loses
he agrees to sell on credit [Arts. 1526-1529, possession but his lien as an unpaid seller
1503, 1535] remains. His preference can only be defeated
by the government’s claim to the specific tax
When available [Art 1527] on the goods. [Arts 2241, 2247]
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In case of misdelivery, the goods are still iii. Special right of resale
considered in transit, hence, the seller may still Available to unpaid seller who has a right of
exercise his right pursuant to Article 1523. lien or who has stopped the goods in transitu
[Art. 1533]
When Goods Are No Longer In Transit [Art 1531,
par. 2]
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(3) If seller chose specific performance, and (4) Sale of lands payable in straight terms [RA
such becomes impossible, he may still 6552, Sec 3]
avail of rescission
(4) If absolute sale, seller must make a Rights of the Buyer:
demand for rescission The law imposes additional requirements on
(a) Judicially, OR the part of the seller for a valid rescission
(b) By a notarial act
(5) Demand necessary even if automatic (1) If buyer has paid at least 2 years of
rescission is stipulated installments: (GRN)
(a) Effect of lack of demand: Buyer can (a) Grace period of 1 month per year of
still pay installment payment made
(b) Effect of demand: Court may not BUT the buyer may only avail of the
grant buyer a new term grace period once every 5 years
(b) Refund of Cash Surrender Value (CSV):
E. PD 957, SECTIONS 23 AND 24 50% of total amount paid + 5% for
every year after the first 5 years of
Non-forfeiture of payments installments
(1) No installment payment made by the BUT total CSV should not be greater
buyer shall be forfeited in favor of the than 90% of total amount paid
owner or developer of the condominium or (c) Notice of cancellation of demand for
subdivision project, after due notice, when rescission by notarial act effective 30
the buyer desists from paying due to the days from the buyer’s receipt thereof
failure of the developer or owner to and upon full payment of CSV
develop the project according to the
approved plans or within the time limit (2) If buyer has paid less than 2 years of
stated. installments: (GN)
(2) Buyer’s Remedy: At his option, he may (a) Grace period of at least 60 days
reimburse the total amount paid including (b) Notice of cancellation or demand for
amortization interest with interest thereon rescission by notarial act, effective 30
at the legal rate days upon receipt thereof
(3) If the buyer fails to pay the installments for
reasons other than the failure of the owner (3) During the grace period, the buyer shall
or developer to develop the project, his also have the right:
rights shall be governed by RA 6552. (a) To sell or assign his rights, evidenced
in a notarial instrument
(b) To update his account
F. MACEDA LAW (RA 6552): SALE OF
(c) To pay in advance any installment, or
IMMOVABLES ON INSTALLMENT the full unpaid balance of the price,
without any interest
RA 6552 does NOT apply to:
(1) Industrial lots Down payments, deposits, or options on the
(2) Commercial buildings contract shall be included in the total number
(3) Sale to tenants under Agricultural Reform of installments made.
Code [RA 3844]
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OR
Rescission, if:
Accept the whole and
pay at contract rate
XIV. Extinguishment of
(a) Lack in area is at
least 1/10 of what is
Sale
stated, or inferior
value of thing sold A. CAUSES
exceeds 1/10 of price [ARTS. 1600, 1231]
(b) Buyer would not Generally, extinguished by the same causes as
have bought the all other obligations [Arts.1600, 1231]
property has he been
aware of the inferior (P-PLAN-C3-R3)
quality or smaller (1) Payment/performance
area (2) Prescription
(3) Loss of thing due
This rule also applies to judicial sales [Art. (4) Annulment
1541] (5) Novation
(6) Condonation/remission
(2) If for a lump sum: (7) Confusion/merger
(8) Compensation
Everything is within (9) Rescission
boundaries, even if Not everything is within (10) Resolutory condition fulfilled
less or more than the boundaries (11) Redemption (Conventional or Legal)
stated area
No remedy Proportional reduction
in price B. CONVENTIONAL REDEMPTION
Where both the area OR [ART. 1601]
and the boundaries Rescission
of the immovable B.1. DEFINITION
are declared, the (1) Vendor reserves the right to repurchase the
area covered within thing sold, with the obligation to comply
the boundaries of with the provisions of Article 1616 and other
the immovable stipulations which may have been agreed
prevails over the upon. [Art 1601,CC]
stated area. [Rudolf (2) Available when the seller reserves the right
Lietz, Inc. v. CA, to repurchase the thing sold in the same
2005] instrument of sale as one of the
stipulations of the contract [Villarica v CA,
Prescriptive period: 6 months counted from 1968]
date of delivery
B.2. PERIOD
General Rule: Follow period stipulated in
contract, but should not exceed 10 years.
(1) If no period stipulated, then it shall be four
years from the execution of the contract
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(3) Period of redemption extended (or granted (2) If decreed to be an equitable mortgage:
anew) upon or after the expiration of the any money, fruits or other benefit to be
right to repurchase; received by the buyer as rent or otherwise
(4) Part of the purchase price retained by the considered as interest.
seller; (3) If decreed as a true sale with right to
(5) Payment of taxes on the thing sold borne purchase: seller may redeem within 30
by the seller; days from finality of judgment, even if the
(6) Any other case where it may be fairly period for redemption has expired.
inferred that the Real intention of the
parties is for the transaction to secure a C.5. PERIOD OF REDEMPTION
debt or other obligation. [ART. 1606]
(a) No stipulation: 4 years from the date of
The right of repurchase is not a right granted contract
to the seller by the buyer in a subsequent (b) When there is agreement: Period not to
instrument, but one reserved by the seller in exceed 10 years
the same instrument as the sale contract. Any (c) General Rule: Period starts to run from the
right granted after the execution of the sale date of the execution of the contract
instrument is not a right to repurchase, but (d) Exception: When the efficacy of the sale is
some other right like an option to buy. [Roberts subject to a suspensive condition, period
v. Papio, 2007] should be counted not from the date
appearing on the instrument, but from the
C.2. REQUISITES FOR PRESUMPTION OF date when the condition is fulfilled,
AN EQUITABLE MORTGAGE marking the consummation of the sale
[Molina v. CA, 2003] [Tolentino citing Manresa].
(1) That the parties entered into a contract
denominated as a contract of sale, and Additional 30 days for Repurchase
(2) That their intention was to secure an The last paragraph of Art. 1606 giving the
existing debt by way of a mortgage. vendor the right to repurchase within 30 days
from the time of the rendition of final judgment
In case of doubt, a contract purporting to be a applies only where the nature and the
sale with right to repurchase shall be character of the transaction, whether as a
construed as an equitable mortgage [Art. 1603] pacto de retro or an equitable mortgage, was
put in issue before the court [Gonzales v. De
C.3. RATIONALE BEHIND PROVISION ON Leon, 4 SCRA 332]
EQUITABLE MORTGAGE
(1) Circumvention of usury law When an unrecorded pacto de retro sale was
(2) Circumvention of prohibition against construed as an equitable mortgage, the
pactum commissorium – creditor cannot plaintiff had the right to enforce his lien in a
appropriate the things given by way of separate proceeding notwithstanding the fact
pledge or mortgage since remedy is that he had failed to obtain judgment
foreclosure. declaring him the sole and absolute owner of
the land. [Heirs of Arches v. Diaz, 1973]
C.4. REMEDIES OF APPARENT VENDOR
(1) If the instrument does not reflect the true Where the petition of the buyer in a pacto de
agreement: remedy is reformation retro sale is for a judicial orders pursuant Art.
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1607, so that there may be consolidation of under Arts. 546 and 547. Under Art. 1616, the
ownership since there was failure to redeem seller a retro must pay for useful
during the redemption period, the right of improvements introduced by the buyer a retro;
action to foreclose or to collect the otherwise, the latter may retain possession of
indebtedness arises from the court judgment the land until reimbursement is made.
declaring the contract an equitable mortgage. [Gargollo v. Duero, 1961]
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XV. The Law on Sale of "Developer" shall mean the person who
develops or improves the subdivision project or
Subdivision and condominium project for and in behalf of the
owner thereof.
Condominium (PD 957)
"Dealer" shall mean any person directly
engaged as principal in the business of buying,
selling or exchanging real estate whether on a
A. DEFINITIONS
full-time or part-time basis.
A.1. DEFINITION OF "SALE" OR "SELL"
(a) include every disposition, or attempt to
"Broker" shall mean any person who, for
dispose, for a valuable consideration, of a
commission or other compensation,
subdivision lot, including the building and
undertakes to sell or negotiate the sale of a
other improvements thereof, if any, in a
real estate belonging to another.
subdivision project or a condominium unit
in a condominium project.
"Salesman" shall refer to the person regularly
(b) also include a contract to sell, a contract of
employed by a broker to perform, for and in his
purchase and sale, an exchange, an
behalf, any or all functions of a real estate
attempt to sell, an option of sale or
broker.
purchase, a solicitation of a sale, or an
offer to sell, directly or by an agent, or by a
circular, letter, advertisement or otherwise. B. REQUIREMENTS FOR OWNERS
(c) privilege given to a member of a AND DEVELOPERS
cooperative, corporation, partnership, or (1) Registration of projects
any association and/or the issuance of a (subdivision/condominium) with the NHA
certificate or receipt evidencing or giving (2) Registration of the owner
the right of participation in, or right to, any (3) License to sell of owner or dealer with
land in consideration of payment of the performance bond [PB, exceptions in
membership fee or dues, shall be deemed Section 7]
a sale within the meaning of this definition.
B.1. REGISTRATION OF PROJECTS
A.2. DEFINITION OF "BUY" OR [SECTION 4, PD 957]
"PURCHASE" The registered owner of a parcel of land who
include any contract to buy, purchase, or wishes to convert the same into a subdivision
otherwise acquire for a valuable consideration project shall submit his subdivision plan to the
a subdivision lot, including the building and National Housing Authority. The same
other improvements, if any, in a subdivision procedure shall be followed in the case of a
project or a condominium unit in a plan for a condominium project except that
condominium project. NHA also approves the building thereon in
accordance with the National Building Code.
"Owner" shall refer to the registered owner of
the land subject of a subdivision or a B.2. REGISTRATION OF OWNER
condominium project. [SECTION 4, PD 957]
The owner or the real estate dealer interested
in the sale of lots or units, respectively, in such
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project that has been distributed to (4) Has demonstrated his unworthiness to
prospective buyers transact the business of dealer, broker, or
(5) Bad business repute of owner/dealer salesman, as the case may be.
(6) Does not conduct his business in The NHA may suspend the DBS' registration
accordance with law or sound business pending hearing of the case. The suspension or
principles revocation of the registration of a dealer or
broker (DB) shall carry with it all the
C. REQUIREMENT FOR DEALERS, suspension or revocation of the registration of
BROKERS, AND SALESMEN (DBS) all his salesmen (S).
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conveyance of the subdivision lots and reimbursed the total amount paid including
condominium units, whether or not the amortization interests but excluding
purchase price is paid in full, shall be delinquency interests, with interest thereon at
registered by the seller in the Office of the the legal rate.
Register of Deeds of the province or city where
the property is situated. Section 23 does not require that a notice be
given first by the buyer to the seller before a
D.2. MORTGAGES ON UNIT OR LOT BY demand for refund can be made, as the notice
OWNER OR DEVELOPER [SECTION 18, and demand can be made in the same letter or
PD 957] communication. This is designed to stem the
(1) Need prior written approval of the NHA tide of fraudulent manipulations perpetrated
(2) Must show that proceeds of mortgage will by unscrupulous subdivision and condominium
be used for development of the sellers and operators.
condominium or subdivision
(3) Value of each lot or unit determined by the Section 23 vests upon the buyer to either
buyer (if there is one) and the buyer shall demand reimbursement, or wait for further
be notified before release of loan development.
(4) Buyer may pay directly to mortgagee
D.5. FAILURE TO PAY INSTALLMENTS
D.3. ADVERTISEMENTS BY THE OWNER [SECTION 24, PD 957]
OR DEVELOPER [SECTION 19, PD 957] The rights of the buyer in the event of this
(1) Must reflect real facts, must not mislead or failure to pay the installments due for reasons
deceive public other than the failure of the owner or
(2) Owner or developer shall be liable for any developer to develop the project shall be
misrepresentation as to facilities, etc. governed by Republic Act No. 6552 [Maceda
(3) Advertisements shall form part of the sales Law].
warranties enforceable against the owner
or developer
(4) Failure to comply with sales warranties is D.6. ISSUANCE OF TITLE [SECTION 25,
punishable under PD 957 PD 957]
The owner or developer shall deliver the title of
D.4. NON-FORFEITURE OF PAYMENTS the lot or unit to the buyer upon full payment
(SECTION 23, PD 957) of the lot or unit. No fee, except those required
No installment payment made by a buyer in a for the registration of the deed of sale in the
subdivision or condominium project for the lot Registry of Deeds, shall be collected for the
or unit he contracted to buy shall be forfeited issuance of such title. In the event a mortgage
in favor of the owner or developer when the over the lot or unit is outstanding at the time of
buyer, after due notice to the owner or the issuance of the title to the buyer, the owner
developer, desists from further payment due to or developer shall redeem the mortgage or the
the failure of the owner or developer to corresponding portion thereof within six
develop the subdivision or condominium months from such issuance in order that the
project according to the approved plans and title over any fully paid lot or unit may be
within the time limit for complying with the secured and delivered to the buyer in
same. Such buyer may, at his option, be accordance herewith.
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D.7. REALTY TAX [SECTION 26, PD 957] interest shall automatically be members or
Real estate tax and assessment on a lot or unit shareholders, to the exclusion of others, in
shall de paid by the owner or developer proportion to the appurtenant interest of their
without recourse to the buyer for as long as the respective units in the common areas.
title has not passed the buyer; Provided,
however, that if the buyer has actually taken (1) separate interest in a unit in a residential,
possession of and occupied the lot or unit, he industrial or commercial building
shall be liable to the owner or developer for (2) undivided interest in the land on which the
such tax and assessment effective the year building is located and other common
following such taking of possession and areas
occupancy. (a) common areas may not be
partitioned even by judicial decree
D.7. NO OTHER CHARGES [SECTION 27, [Section 7]
PD 957] (3) title to land and common areas held by
No owner or developer shall levy upon any lot condominium corporation - owners of
or buyer a fee for an alleged community separate interest are automatically
benefit. Fees to finance services for common members/shareholders, exclusively.
comfort, security and sanitation may be
collected only by a properly organized A.1. OTHER DEFINITIONS
homeowners association and only with the Sec. 3. As used in this Act, unless the context
consent of a majority of the lot or unit buyers otherwise requires:
actually residing in the subdivision or (1) "Condominium" means a condominium as
condominium project. defined in Section 2.
(2) "Unit" means a part of the condominium
project intended for any type of
independent use or ownership, including
XVI. The Condominium one or more rooms or spaces located in
one or more floors (or part or parts of
Act (RA 4726) floors) in a building or buildings and such
accessories as may be appended thereto.
A. DEFINITION OF A CONDOMINIUM (3) "Project" means the entire parcel of real
Sec. 2. A condominium is an interest in real property divided or to be divided in
property consisting of separate interest in a condominiums, including all structures
unit in a residential, industrial or commercial thereon,
building and an undivided interest in common, (4) "Common areas" means the entire project
directly or indirectly, in the land on which it is excepting all units separately granted or
located and in other common areas of the held or reserved.
building. A condominium may include, in (5) "To divide" real property means to divide
addition, a separate interest in other portions the ownership thereof or other interest
of such real property. Title to the common therein by conveying one or more
areas, including the land, or the appurtenant condominiums therein but less than the
interests in such areas, may be held by a whole thereof.
corporation specially formed for the purpose
(hereinafter known as the "condominium
corporation") in which the holders of separate
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B. TRANSFERS OR CONVEYANCES OF A
UNIT OR AN APARTMENT, OFFICE OR D. PARTITION BY SALE [SECTION 8]
STORE, OR OTHER SPACE THEREIN This is an action that may be brought by one or
[SECTION 5, RA 4726] more persons owning condominiums in a
(1) Transfer or conveyance of a unit or a space condominium project for the partition of the
therein includes the transfer or conveyance project by the sale thereof. The effect is as if
of the the owners of all the condominiums in such
(a) undivided interests in common areas project were co-owners of the entire project in
(b) membership or shareholding in the the same proportion as their interests as their
condominium corporation interests in the common areas.
(2) Proviso: only Filipino citizens or
corporations at least 60% of the capital A partition by sale can only be done upon
stock are owned by Filipino citizens may be showing any of the following:
the transferee of common areas in cases (1) That three years after damage or
where the common areas are owned by the destruction to the project which renders
owners of separate units as co-owners (not material part thereof unfit for its use prior
by condominium corporation) thereto, the project has not been rebuilt or
(3) Exception to proviso: hereditary succession. repaired substantially to its state prior to
its damage or destruction
Shareholdings in a condominium corporation (2) That damage or destruction to the project
may be conveyed only in a proper case. Not has rendered one-half or more of the units
every purchaser of a condominium unit is a therein untenantable and that
shareholder of a condominium corporation. condominium owners holding in aggregate
The Condominium Act leaves to the Master more than thirty percent interest in the
Deed the determination of when the common areas are opposed to repair or
shareholding will be transferred the buyer of restoration of the project
the unit. But ownership of a unit is an (3) That the project has been in existence in
indispensable requisite to being a shareholder excess of fifty years, that it is obsolete and
in the corporation. [Sunset View Condominium uneconomic, and that condominium
Corporation v. Campos (1981)] owners holding in aggregate more than
fifty percent interest in the common areas
are opposed to repair or restoration or
C. RIGHTS OF A CONDOMINIUM UNIT remodeling or modernizing of the project
OWNER (ASIDE FROM RIGHTS ARISING (4) That the project or a material part thereof
has been condemned or expropriated and
FROM OWNERSHIP) [SECTION 6]
that the project is no longer viable, or that
(1) Absolute right to sell or dispose of his
the condominium owners holding in
condominium unless the master deed
aggregate more than seventy percent
unless there is a right of first refusal in
interest in the common areas are opposed
favor of condominium owners
to continuation of the condominium
(2) Exclusive right to mortgage, pledge or
regime after expropriation or
encumber his condominium and to have
condemnation of a material portion thereof
the same appraised independently of the
(5) That the conditions for such partition by
other condominiums but any obligation
sale set forth in the declaration of
incurred by such condominium owner is
restrictions, duly registered in accordance
personal to him
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with the terms of the Condominium Act, (b) Association of condominium owners
have been met (c) Board of governors elected by
condominium owners
E. DECLARATION OF RESTRICTIONS BY (d) Management agent elected by the
OWNER OF PROJECT - PRECONDITION owners or by the board named in the
TO CONVEYANCE [SECTION 9] declaration
(1) The owner must register with the Register (2) Provisions for voting majorities quorums,
of Deeds a declaration of restrictions before notices, meeting date, and other rules
the conveyance of any condominium in the governing such body or bodies
project (3) Powers of the management body
(2) The restrictions constitute a lien upon each (4) Maintenance of insurance policies (fire,
condominium in the project and shall casualty, workmen's compensation, etc)
insure to and bind all condominium owners (5) Maintenance, utility, gardening and other
in the project services for the common areas
(3) The lien may be enforced by any (6) Amendment of the restrictions
condominium owner or by the (7) Reasonable assessment to meet
management body of the project expenditures
(8) And many other provisions - the common
F. ASSESSMENT IN ACCORDANCE WITH thread is the management and
maintenance of the common areas and the
DECLARATION OF RESTRICTIONS
manner of exercise of the management
[SECTION 20]
body's powers
This is the "tax imposition power" of the
condominium corporation. If unpaid, the
I. INVOLUNTARY DISSOLUTION OF THE
management body may cause a notice of
assessment to be registered with the Register
CONDOMINIUM CORPORATION
of Deeds, which may be released only upon [SECTION 12]
payment of the assessed fees. This lien is In case of involuntary dissolution, the common
superior to all other subsequent liens except areas held by the corporation shall be
real property taxes liens and other liens transferred pro-indiviso and in proportion to
provided for in the declaration of restrictions. their interest to the members/stockholders of
the corporation, subject to the rights of
G. HOW LIEN ENFORCED AFTER NON- creditors of the corporation. The common
areas remain in undivided co-ownership.
PAYMENT OF ASSESSED FEES [SECTION
20]
J.POWER OF ATTORNEY HELD BY
Judicial or extra-judicial foreclosure of real
property mortgages, where the management
CORPORATION IN CASE OF VOLUNTARY
body may bid unless disallowed by the DISSOLUTION OF CONDOMINIUM
declaration of restrictions. CORPORATION [SECTION 15]
The condominium corporation is deemed to
H. CONTENTS OF A DECLARATION OF hold a power of attorney from all
RESTRICTIONS [SECTION 9] members/stockholders to sell and dispose of
(1) Provisions for the management of the their separate interests in the project. To
project by any of the ff bodies: liquidate, the condominium corporation will
sell the entire project as if it owned the whole
(a) Condominium corporation
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L. STOCKHOLDER/MEMBER
DEMANDING PAYMENT FOR SHARES OR
INTEREST AKA APPRAISAL RIGHT
[SECTION 17]
By-laws of the condominium corporation shall
provide that any shareholder/member
demanding payment for his share or interest
must also consent to sell his separate interest in
the project to the corporation or any buyer of
the corporation's choice.
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CIVIL LAW
SUCCESSION
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Rule on Transmission:
A. DEFINITION General rule: All property rights which have
accrued to the hereditary estate since the
Succession - a mode of acquisition by virtue of opening of succession are transmitted to the
which the property, rights and obligations to heirs
the extent of the value of the inheritance, of a
person are transmitted through his death to Exception: Property acquired after the making
another or others either by his will or by of a will shall not pass to the heirs unless it
operation of law. [Art. 774, CC] should expressly appear in the will that such
was the intention of the testator. [Art. 793, CC]
Kinds of Succession
(1) Testamentary – that which results from the Rules on Opening of Succession:
designation of an heir, made in a will (1) The rights to succession are transmitted
executed in the form prescribed by law. from the moment of the death of the
[Art. 779, CC] decedent. [Art. 777, CC]
(2) Legal or Intestate – that which takes place
by operation of law in the absence of a Implications of this principle:
valid will. (a) The law in effect at the time of death of
(3) Mixed – that which is effected partly by will the decedent governs the succession
and partly by operation of law. [Art. 780, [Art. 2236, CC]
CC] (b) The heir becomes the owner of his
(4) Compulsory – succession to the legitime share as well as all fruits which accrue
and prevails over all other kinds of after the death of the decedent.
succession [Balane, 2010] (c) Upon death of the decedent, heirs may
immediately possess, administer and
B. OBJECT OF SUCCESSION AND dispose of their shares in the estate (in
TRANSMISSION the absence of existing debts/claims
against the estate);
Inheritance includes: (d) The possession of hereditary property
(1) All the property, rights and obligations of a is deemed transmitted to the heir
person which are not extinguished by his without interruption and from the
death [Art. 776, CC] moment of death of the decedent, in
(2) Not only the property and the case the inheritance is accepted [Art.
transmissible rights and obligations 533, CC]
existing at the time of his death, but also (e) Estate taxes accrue upon death of the
those which have accrued thereto since the decedent, even if the heirs come into
opening of the succession [Art. 781, CC] possession only later.
What are transmitted? (2) A person may be “presumed” dead for the
(1) Rights and obligations which are not purpose of opening his succession. In this
strictly personal (intuit personae) [Balane, case, succession is only of provisional
2010] character because there is always a chance
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Testator – a decedent who left a will [Art. 775, Will - an act whereby a person is permitted,
CC] with the formalities prescribed by law to
control to a certain degree the disposition of
Kinds of Successors his estate to take effect after his death. [Art.
(1) Heirs – those who are called to the whole 783, CC]
or an aliquot portion of the inheritance
either by will or by operation of law [Art. i. KINDS OF WILLS
782, CC] (5) Notarial – an ordinary or attested will,
(2) Devisees – persons to whom gifts of real which must comply with the requirements
property are given by virtue of a will of the law [Arts. 804-808, CC]
(3) Legatees – persons to whom gifts of (6) Holographic – a will entirely written, dated
personal property are given by virtue of a and signed by the hand of the testator [Art.
will 810, CC]
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Kinds of Ambiguities
Patent or Extrinsic Latent or Intrinsic Requisites:
Ambiguity Ambiguity He must not be expressly prohibited by law to
make a will [Art. 796, CC]
one which appears one which cannot be
upon the face of the seen from the reading (a) Age Requirement
instrument of the will but which The testator must not be under 18 years of
appears only upon age [Art. 797, CC]
consideration of
extrinsic “Year” shall be understood to be 12
circumstances calendar months [Sec. 31, Book 1, Admin
Code]
There is no distinction between patent and (b) Soundness of Mind of the Testator
latent ambiguities in so far as the admissibility The testator is of sound mind at the time of
of parol or extrinsic evidence to aid execution [Art. 798, CC]
testamentary disposition is concerned.
Sanity is negatively stated in Art. 799:
Not necessary that the testator be in full
iv. GOVERNING LAWS, IN GENERAL
possession of reasoning faculties
Not necessary that the testator’s mind be
Aspect of the Will Governing Law
wholly unbroken, unimpaired,
Formal Validity Law in force at the time the unshattered by disease, injury or other
will was executed [Art. 795, cause [Art. 799, CC]
CC]
Intrinsic Validity Law of decedent’s To be of sound mind, the testator must
nationality at the time of his know:
death [Arts. 16 and 2263, CC] The nature of the estate to be disposed
of;
Aspects of the Will Governed by the National The proper objects of his bounty;
Law of the Decedent The character of the testamentary act
(1) Order of succession; [Art. 799, CC]
(2) Amount of successional rights;
(3) Intrinsic validity of testamentary General rule: Soundness of mind is
provisions; and presumed [Art. 800, CC]
(4) Capacity to succeed [Art. 16, CC]
Exception: When the testator, one month
A.2. TESTAMENTARY CAPACITY AND or less before the execution of the will, was
INTENT publicly known to be insane
Testamentary capacity must exist at the time
of the execution of the will A.3. FORM
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country; or
Applicable Laws as to Formal Validity (4) Philippine Law [Art.
Formal validity is governed by the law in 816, CC]
force at the time the will was executed [Art.
795, CC] ATTESTED OR NOTARIAL WILLS
As to the place, forms and solemnities of a
will are governed by the law of the country in Specific Requirements for Notarial Wills
which the will was executed [Art. 17, CC] (1) Subscribed at the end
Arts. 815-817 (summarized in the table (2) Attestation clause
below) provide for the various governing laws (3) Marginal signatures
in these instances: (4) Page numbers
(1) A will was made in a foreign country by a (5) Acknowledged by a notary public
Filipino [Art. 815] (6) Additional requirements for handicapped
(2) A will was made in a foreign country by testators
an alien [Art. 816] (7) Subscribed by 3 or more witnesses in the
(3) A will was made in the Philippines by an presence of the testator and of one another
Alien [Art. 817]
(1) Subscription: Subscribed to, at the end of
Governing Law as to Place of Execution of Will the will [Art. 805, CC]
Place of By the testator himself; or
Testator Execution of Governing Law By the testator’s name written by a
Will representative in his presence and under
Philippines Philippine Law [Art. 16, his express direction.
CC]
(2) Attestation: Attested and subscribed by 3
Outside of (1) Law of the country or more credible witnesses in the presence
Filipino the in which it is of the testator and of one another [Art.
Philippines executed [Art. 805, CC]
17,CC]; or
(2) Philippine Law [Art.
Attestation Subscription
815, CC]
Mental act (act of the Mechanical act (act of
Philippines (1) Philippine Law; or
senses) the hand)
(2) Law of the country
of which testator is a Purpose is to render Purpose of
citizen or subject available proof during identification
[Art. 817, CC] probate of will, not
only of the authenticity
Outside of (1) Law of the place
Alien of the will but also of
the where the will is
its due execution
Philippines executed [Art. 17,
CC]; or
The attestation clause shall state the
(2) Law of the place
following:
where the testator
(1) Number of pages;
resides; or
(2) The fact that the testator or his
(3) Law of the testator’s
representative under his express
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direction signed the will and every testament, due to the simultaneous lifting
page in the presence of instrumental of two pages in the course of signing, is not
witnesses per se sufficient to justify denial of probate.
(3) That the witnesses signed the will and [Icasiano v. Icasiano (1964)]
all its pages in the presence of the
testator and of one another. (4) Page Numberings: Numbered correlatively
in letters placed on the upper part of each
The signatures of the witnesses must be at page (i.e. Page One of Five Pages). [Art.
the bottom of the attestation clause [Cagro 805, CC]
v. Cagro (1953)] Mandatory part: pagination by means of
a conventional system
The notary public cannot be counted as an Directory part: pagination in letters on
attesting witness [Cruz v. Villasor (1973)] the upper part of each page [Balane
(2010)]
Test of presence: Not whether they actually
saw each other sign, but whether they (5) Acknowledged before a notary public by
might have seen each other sign had they the testator and the witnesses [Art. 806,
chosen to do so considering their mental CC]
and physical condition and position with
relation to each other at the moment of Notary public cannot be considered a third
inscription of each signature. [Jaboneta v. witness. He cannot acknowledge before
Gustilo (1906)] himself his having signed the will. To allow
such would have the effect of having only
(3) Marginal Signatures two attesting witnesses to the will. [Cruz v.
General rule: Testator or his representative Villasor (1973)]
shall write his name, and the witnesses
shall sign each and every page except the The certification of acknowledgement need
last page [Art. 805, CC] not be signed by the notary in the presence
of the testator and the witnesses.
Exceptions: [Javellana v. Ledesma (1955)]
(1) When the will consists of only one page
(2) When the will consists of only two (6) Additional rules for handicapped testators:
pages, the first of which contains all (a) Deaf Mute [Art. 807, CC]
dispositions and is signed at the Testator must personally read the
bottom by the testator and the will; or
witnesses, and the second page Testator shall personally designate
contains only the attestation clause two persons to read the contents and
duly signed at the bottom by the communicate it to him in some
witnesses. [Abangan v. Abangan (1919)] practicable manner.
The use of thumbprint was allowed [Matias (b) Blind [Art. 808, CC]
v. Salud (1957)] The will shall be read to the testator
twice - By one of the subscribing
The inadvertent failure of one witness to witnesses and by the notary public
affix his signature to one page of a acknowledging the will.
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under Art. 819, CC. Prohibition is applicable revoking it, by the testator himself, or by
only to joint wills executed by Filipinos, even if some other person in his presence, and by
execution is made in a foreign country which his express direction.
allows joint wills.
The act contemplating revocation must be
A.4. CODICILS done at any time before the death of the
Codicil testator. The right of revocation cannot be
(1) It is a supplement or addition to a will, waived or restricted. [Art. 828, CC]
(2) made after the execution of a will,
(3) and annexed to be taken as a part of the Law Governing Revocation [Art. 829, CC]
will, Place of Testator’s Governing Law
(4) by which any disposition made in the Revocation Domicile
original will is explained, added to, or Philippines Philippines, or Philippine Law
altered. some other
(5) in order that it may be effective, it shall be country
executed as in the case of a will. [Arts.
Philippines Philippine law
825-826, CC]
Foreign (1) Law of the
A.5. INCORPORATION BY REFERENCE Country place where
Outside the the will was
Requisites [Art. 827, CC]
Philippines made; or
(a) The document or paper referred to in the
will must be in existence at the time of the (2) Law of the
execution of the will. place in which
(b) The will must clearly describe and identify the testator
the same, stating among other things the had his
number of pages thereof. domicile at
(c) It must be identified by clear and the time of
satisfactory proof as the document or revocation
paper referred to therein; and
(d) It must be signed by the testator and the Doctrine of Dependent Relative Revocation
witnesses on each and every page, except
Molo v. Molo (1951)
in case of voluminous books of account or
The rule that where the act of destruction is
inventories.
connected with the making of another will so
A.6. REVOCATION as to fairly raise the inference that the testator
A will may be revoked by the testator at any meant the revocation of the old to depend
time before his death [Art. 828, CC] upon the efficacy of the new disposition
intended to be substituted, the revocation will
Modes of Revocation [Art. 830, CC] be conditional and dependent upon the
(1) By implication of law; or efficacy of the new disposition; and if for any
(2) By the execution of a will, codicil or other reason, the new will intended to be made as a
writing executed as provided in the case of substitute is inoperative, the revocation fails
wills; or and the original will remain in full force.
(3) By burning, tearing, canceling, or
obliterating the will with the intention of The failure of the new testamentary disposition
upon whose validity the revocation depends is
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The testator cannot republish without The testator himself may, during his lifetime
petition the court having jurisdiction for the
reproducing in a subsequent will, the allowance of his will. [Art. 838, CC]
dispositions contained in a previous one which
is void as to its form. [Art. 835, CC] Matters to be proved in probate
(1) Identity – Whether the instrument which is
Reproduction in the codicil is required only offered for probate is the last will and
when the original will is void as to it form; in all testament of the decedent
other cases, reference to the original will (2) Due Execution – Whether the will has been
suffices to republish it through the codicil. executed in accordance with the
[Tolentino] formalities prescribed by law
(3) Capacity – Whether the testator had
If after making a will, the testator makes a testamentary capacity at the time of
second will expressly revoking the first, the execution of the will
revocation of the second will does not revive
the first will, which can be revived only by
another will or codicil. [Art. 837, CC] Scope of probate proceedings [Art. 839, CC]
General rule: The probate court cannot inquire
Principle of instanter – Revoking clause in the into the intrinsic validity of testamentary
2nd will is not testamentary in character but
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provisions. Only the extrinsic validity of such testator or after his death, shall be conclusive
wills may be examined. as to due execution. [Art. 838, CC]
Exception: When practical considerations The probate of a will by the probate court
demand that the intrinsic validity of the will be having jurisdiction thereof is usually
resolved considered as conclusive as to its due
execution and validity, and is also conclusive
When the will is intrinsically void on its face that the testator was of sound and disposing
(e.g., when there is clearly a preterition) such mind at the time when he executed the will,
that to rule on its formal validity would be a and was not acting under duress, menace,
futile exercise. [Acain v. Diongson (1987)] fraud, or undue influence, and that the will is
genuine and not a forgery. [Mercado v. Santos
Claimants are all heirs and they consent, either (1938)]
expressly or impliedly, to the submission of the
question of intrinsic validity to the court. ii. GROUNDS FOR DENYING PROBATE
[Valera v. Inserto (1987)] (1) If the signature of the testator was
procured by fraud;
Probate court may pass upon the title to a (2) If it was procured by undue and improper
property, but such determination is provisional pressure and influence, on the part of the
and not conclusive, and is subject to the final beneficiary or some other person;
decision in a separate action to resolve title. (3) If the testator acted by mistake or did not
[Pastor v.CA (1983)] intend that the instrument he signed
should be his will at the time affixing his
Probate court may decide on the ownership of signature thereto;
a property when the estate contains only one (4) If the testator was insane or otherwise
property to be adjudicated upon. [Portugal v. mentally incapable of making a will at the
Portugal-Beltran (2005)] time of its execution;
(5) If the formalities required by law have not
Revocation vs. Disallowance been complied with; or
Revocation Disallowance (6) If it was executed through force or under
Voluntary act of the Given by judicial duress, or the influence of fear, or threats.
testator decree [Art. 839, CC]
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(2) such institution should not comprise the If there is error in the name but identity can
entire estate or still be identified through other proof,
(3) the person so instituted should not accept institution is still valid.
the inheritance or be incapacitated to If heir is unidentifiable, none is deemed
succeed. instituted.
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(3) It appears on the face of the will that the (3) The compulsory heir omitted must be of
testator would not have made such the direct line.
institution if he had known the falsity of the (4) The omitted compulsory heir must be living
cause. at the time of the testator’s death or must
at least have been conceived before the
Scope of Institution [Arts. 852-853, CC] testator’s death.
(1) There are more than one instituted heir
(2) The testator intended them to get the (a) Compulsory Heirs in the Direct Line
whole estate or the whole disposable A direct line is that constituted by the
portion series of degrees among ascendants and
(3) The testator has designated a definite descendants (ascending and descending).
portion for each heir [Art. 964, par.2, CC]
(4) Under Art. 852: the total of all portions is
less than the whole estate (or free portion) (b) Dispositions Less Than Legitime But No
Therefore, a proportionate increase is Preterition [Balane]
necessary If the heir in question is instituted in the
The difference cannot pass by intestacy will but the portion given to him by the will
because the intention of the testator is is less than his legitime – there is no
clear—to give the instituted heirs the preterition. [Reyes v. Barretto-Datu (1967)]
entire amount
(5) Under Art. 853: The total exceeds the If the heir is given a legacy or devise –
whole estate (or free portion) there is no preterition. [Aznar v. Duncan
Therefore, a proportionate reduction (1966)]
must be made on the remaining part of
the estate. If the heir had received a donation inter
vivos from the testator – the better view is
Preterition that there is no preterition. The donation
The preterition or omission of one, some, or all inter vivos is treated as an advance on the
of the compulsory heirs in the direct line, legitime under Articles 906, 909, 910 and
whether living at the time of the execution of 1062.
the will or born after the death of the testator,
shall annul the institution of heir; but the The remedy, if the value of inheritance,
devises and legacies shall be valid insofar as legacy or devise, or donation inter vivos is
they are not inofficious. only for completion of his legitime under
Articles 906 and 907.
If the omitted compulsory heirs should die
before the testator, the institution shall be (c) Distinguished from Disinheritance
effectual, without prejudice to the right of
representation. [Art. 854, CC] Preterition Disinheritance
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The testator may designate one or more Effects of predecease of the first heir/fiduciary
persons to substitute the heir/s instituted or the second heir/fideicommissary
in case the heirs should:
(1) die before him (predecease), Situation 1: If the first heir dies followed by the
(2) should not wish to accept the second heir, then the testator dies, who will
inheritance (repudiation), or inherit? The legal heirs. There is no
(3) should be incapacitated to accept the fideicommissary substitution because first and
inheritance (incapacitated). second heirs are not living at the time of the
testator’s death. [Art. 863, CC]
(4) Fideicommissary Substitution
The testator institutes an heir with an Situation 2: The testator dies first followed by
obligation to preserve and to deliver to the second heir. The first heir survived them
another the property so inherited. The heir but subsequently dies, who will inherit? The SH
instituted to such condition is called the and his heirs under Art. 866, CC. This is
First Heir or the Fiduciary Heir; the one to because the SH passes his rights to his own
receive the property is the Fideicommissary heirs when he dies before FH.
or the Second Heir. [Art. 863, CC]
Situation 3: If the first heir dies, followed by the
Requisites: [Arts. 863-865, CC] testator, then the second heir, who will inherit?
(a) A Fiduciary or First Heir instituted is No specific provision in law, but SH inherits
entrusted with the obligation to because the T intended him to inherit.
preserve and to transmit to a
Fideicommissary Substitute or Second D. TESTAMENTARY DISPOSITIONS
Heir the whole or part of the WITH A CONDITION, A TERM, AND A
inheritance. MODE
(b) The substitution must not go beyond
one degree from the heir originally 3 Kinds of Testamentary Dispositions
instituted. (1) Conditional [Art. 871, CC]
(c) The Fiduciary Heir and the (2) Dispositions with a term [Art. 885, CC]
Fideicommissary are living at the time (3) Dispositions with a mode/modal
of the death of the testator. dispositions [Art. 882, CC]
(d) The fideicommissary substitution must
be expressly made. CONDITIONAL DISPOSITIONS
(e) The fideicommissary substitution is Basis of testator’s right to impose conditions,
imposed on the free portion of the terms or modes: Testamentary freedom
estate and never on the legitime
Prohibited conditions: (considered as not
In the absence of an obligation on the part imposed)
of the first heir to preserve the property for (1) Any charge, condition or substitution
the second heir, there is no whatsoever upon the legitimes. [Art. 872]
fideicommissary substitution. [PCIB v. (2) Impossible and illegal conditions. [Art.
Escolin (1974)] 873]
(3) Absolute condition not to contract a first
marriage. [Art. 874]
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(4) Absolute condition not to contract a partly on chance or the will of a third
subsequent marriage unless imposed on person.
the widow or widower by the deceased
spouse, or by the latter’s ascendants or General rule: May be fulfilled at any time
descendants. [Art. 874] (before or after testator’s death), unless
(5) Scriptura captatoria or legacy-hunting testator provides otherwise.
dispositions - dispositions made upon the
condition that the heir shall make some Exception: If already fulfilled at the time of
provision in his will in favour of the testator execution of will:
or of any other person. [Art. 875] (1) if testator unaware of the fact of
fulfillment – deemed fulfilled
Scriptura captatoria/ Legacy-Hunting (2) if testator aware:
Dispositions can no longer be fulfilled again:
deemed fulfilled
Reasons for prohibition:
(1) The captatoria converts the testamentary can be fulfilled again: must be
grants into contractual transactions; fulfilled again.
(2) It deprives the heirs of testamentary
Constructive Compliance:
freedom;
if casual – not applicable
(3) It gives the testator the power to dispose
if mixed – applicable only if dependent partly
mortis causa not only of his property but on the will of a third party not interested.
also of his heir’s.
DISPOSITIONS WITH A TERM
Effect: Entire disposition is void A term may either be suspensive or resolutory.
(1) If the term is suspensive:
Potestative, Casual and Mixed Conditions Before the arrival of the term, the property
(1) Potestative Conditions should be delivered to the legal or
General rule: Must be fulfilled as soon as intestate heirs.
the heir learns of the testator’s death
A caución muciana has to be posted by the
Exception: If the condition was already heirs.
complied with at the time the heir learns of
the testator’s death; or if the condition is of (2) If the term is resolutory:
such a nature that it cannot be fulfilled Before the arrival of the term, the property
again. should be delivered to the instituted heir.
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(b) Right of representation ad infinitum in The father and the mother shall
case of predecease, incapacity, or inherit equally if both living. One
disinheritance [Arts. 972 and 992, CC] parent succeeds to the entire estate
For decedents who are Legitimate of the child if the other parent is
Children, only the Legitimate dead. [Art. 986, CC]
Descendants are entitled to right of In default of the mother and the
representation. father, the ascendants nearest in
For decedents who are Illegitimate degree will inherit. [Art. 987]
Children, both the Legitimate and If there is more than one relative of
the Illegitimate Descendants can the same degree but of different
represent, only with respect to the lines, one half will go to the paternal
decedent’s illegitimate parents. ascendants and the other half to the
(c) If all the Legitimate Children repudiate maternal ascendants. [Art. 987]
their legitime, the next generation of (b) Rule of equal division
Legitimate Descendants may succeed The relatives who are in the same
in their own right. degree shall inherit in equal shares.
[Art. 987]
(2) Direct Ascending Line
(a) Rule of division between lines
Legend:
LC – Legitimate Children
SS – Surviving Spouse
LP – Legitimate Parents
ILP – Illegitimate Parents
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because spouse is
given preference
6 2 or more LC, 1/2 in equal Same as share of 1LC 1/2 share of 1 LC (for
SS, ILC portions each child)
7 LP alone 1/2
8 LP, ILC 1/4 in equal portions 1/2
9 LP, SS 1/4 1/2
10 LP, SS, ILC 1/8 1/4 1/2
11 ILC alone 1/2 in equal portions
12 ILC, SS 1/3 1/3 in equal portions
13 SS alone 1/2
Steps in Determining the Legitime of disposable free portion and restore it to the
Compulsory Heirs estate if the donation is inofficious.
(1) Determine the gross value of the estate at (7) Distribute the residue of the estate in
the time of the death of the testator. accordance with the will of the testator.
(2) Determine all debts and charges which are
chargeable against the estate. Remedy of a Compulsory Heir in case of
(3) Determine the net value of the estate by Impairment of Legitime
deducting all the debts and charges from Extent and Nature of
Remedy
the gross value of the estate. Impairment
(4) Collate or add the value of all donations Total omission of a Annulment of
inter vivos to the net value of the estate. compulsory heir who is institution and
(5) Determine the amount of the legitime from a direct descendant or reduction of legacies
the total thus found. ascendant (preterition) and devises [Art. 854,
(6) Impute the value of all donations inter CC]
vivos made to strangers against the
Testamentary Reduction of the
dispositions impairing disposition insofar as
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or diminishing the they may be inofficious Mediate Source; the one obligated to
legitime or excessive [Art. 907, reserve the property
CC] (4) Reservatarios – within the 3rd degree of
consanguinity from the Prepositus
Partial impairment Completion of the
[Cabardo v. Villanueva (1922)] belonging to
legitime [Art. 906, CC]
the line from which the property came
Impairment by Collation – reduction
inofficious donations of donations [Arts. 771 Requisites for Reserva Troncal [Chua vs. CFI
and 911, CC] (1977)]:
(a) That the property was acquired by a
RESERVA TRONCAL descendant (Prepositus) from an
ascendant or from a brother or sister
Art. 891, CC. The ascendant who inherits from (Origin or Mediate Source) by gratuitous
his descendant any property which the latter title,
may have acquired by gratuitous title from
(b) That the Prepositus died without
another ascendant, or a brother or sister, is
obliged to reserve such property as he may (legitimate*) issue,
have acquired by operation of law for the (c) That the property is inherited by another
benefit of relatives who are within the third ascendant (Reservista) by operation of law,
degree and who belong to the line from which and
said property came. (d) That there are relatives within the 3rd
degree (Reservatarios) belonging to the
Concept of Reserva Troncal
line from which said property came.
(1) A descendant (prepositus) inherits or
acquires property from an ascendant or Only legitimate descendants will prevent the
from a brother or sister (origin or mediate property from being inherited by the legitimate
source) by gratuitous title ascending line by operation of law [Balane]
(2) The same property is inherited by another
ascendant (reservista) or is otherwise 3 transmissions involved: [Balane]
acquired by him by operation of law from (1) 1st transfer – by gratuitous title, from a
the said descendant (prepositus) person to his descendant, brother or sister
(3) The said ascendant (reservista) must (2) 2nd transfer – by operation of law, from the
reserve the property for the benefit of the transferee in the 1st transfer to another
relatives of the deceased descendant ascendant. This creates the reserva.
within the third civil degree and who (3) 3rd transfer – from the transferee in the
belong to the line from which the said second transfer to the relatives
property came (reservatarios).
JURIDICAL NATURE OF RIGHTS
Parties: [Balane] Nature of the reservista’s right: [Balane citing
(1) Origin or Mediate Source – either an Edroso v. Sablan]
ascendant of any degree of ascent or a
The reservista’s right over the reserved
brother or sister of the Prepositus;
property is one of ownership
responsible for the 1st transfer
The right of ownership is subject to a
(2) Prepositus – the first transferee of the
resolutory condition, i.e. the existence of
reserved property
reservatarios at the time
(3) Reservista – an ascendant of the
Prepositus other than the Origin or
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The right of ownership is alienable, but (6) Prescription, when the reservista holds the
subject to the same resolutory condition. property adversely against the
The reservista’s right of ownership is reservatarios, as free from reservation
registrable. F. DISINHERITANCE
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(5) A refusal without justifiable cause to causes the testator to make a will or to
support the parent or ascendant who change one already made;
disinherits such child or descendant; (6) The loss of parental authority for causes
(6) Maltreatment of the testator by word or specified in this Code;
deed, by the child or descendant; (7) The refusal to support the children or
(7) When a child or descendant leads a descendants without justifiable cause;
dishonorable or disgraceful life; (8) An attempt by one of the parents against
(8) Conviction of a crime which carries with it the life of the other, unless there has been
the penalty of civil interdiction. a reconciliation between them.
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Order of Payment in Case the Estate Is Not Sufficient to Cover All the Legacies and Devises
Art. 911 Art. 950
Order of Preference
Legitime of compulsory heirs Remuneratory legacy/devise
Donations inter vivos Preferential legacy/devise
Preferential legacies or devises Legacy for support
All other legacies or devises pro rata Legacy for education
Legacy/devise of specific, determinate thing
which forms a part of the estate
All others pro rata
Application
When the reduction is necessary to preserve the When there are no compulsory heirs and the
legitime of compulsory heirs from impairment entire estate is distributed by the testator as
whether there are donations inter vivos or not; or legacies or devises; or
When, although, the legitime has been When there are compulsory heirs but their
preserved by the testator himself there are legitime has already been provided for by the
donations inter vivos. testator and there are no donations inter vivos.
Art. 911, CC governs when there is a conflict Art. 950, CC governs when the question of
between compulsory heirs and the devisees and reduction is exclusively among legatees and
legatees. devisees themselves.
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proper, the rules on Intestate succession (b) Distinction between legitimate and
shall apply. illegitimate filiation. The ratio under
present law is 2:1. [Art. 983, in relation
The Intestate or Legal Heirs: to Art. 895 as amended by Art. 176, FC]
(1) Relatives (c) Rule of division by line in the ascending
(a) Legitimate ascendants line [Art. 987 (2), CC]
(b) Illegitimate parents (d) Distinction between full-blood and
(c) Legitimate children half-blood relationship among
(d) Illegitimate children brothers and sisters, as well as
(e) Surviving Spouse nephews and nieces. [Art. 1006 and
(f) Brothers, sisters, nephews and nieces 1008, CC]
(BSNN) (e) Right of representation.
(g) Other collateral relatives (4) Rule of Barrier between the legitimate
(2) Surviving spouse family and the illegitimate family (the iron-
(3) State (through escheat proceedings) curtain rule)
The illegitimate family cannot inherit by
Intestate succession is based on the presumed intestate succession from the legitimate
will of the decedent. That is, to distribute the family and vice-versa. [Art. 992, CC]
estate in accordance with the love and (5) Rule of Double Share for full blood
affection he has for his family, and in default of collaterals
these persons, the presumed desire to promote When full and half-blood brothers or
charitable and humanitarian activities. sisters, nephews or nieces, survive, the full
[Balane] blood shall take a portion in the
inheritance double that of the half-blood.
Fundamental Principles in Intestate Succession: [Arts. 895 and 983, CC]
(1) Rule of Preference between Lines
Those in the direct descending line shall Note:
exclude those in the direct ascending If one of the legitimate ascendants,
and collateral lines; illegitimate parents, legitimate children or
Those in the direct ascending line shall, illegitimate children survives, the brother,
in turn, exclude those in the collateral sisters, nephews, and nieces (BSNN) are
line. excluded.
(2) Rule of Proximity If one of the legitimate ascendants,
The relative nearest in degree excludes illegitimate parents, legitimate children,
the farther one [Art. 962(1), CC], saving illegitimate children or surviving spouse
the right of representation when it survives, the other collateral relatives and
properly takes place. the state are excluded.
(3) Rule of Equal Division If any of the heirs concur in legitimes, then
The relatives who are in the same degree they also concur in intestacy.
shall inherit in equal shares. [Arts.
962(2), 987 and 1006, CC] A.1. RELATIONSHIP
The number of generations determines the
Exceptions: [Balane, 427-428]
(a) Rule of preference between Lines proximity of the relationship. Each generation
forms one degree. [Art. 963, CC]
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A series of degrees forms a line. This line may portion shall accrue to the others of the same
either be direct or collateral. [Art. 964, CC] degree.
A direct line is that constituted by the series
of degrees among ascendants and Exception: When the right of representation
descendants. should take place.
The direct line is either ascending (brings a
person with those from whom he descends) Note: This accretion in intestacy takes place in
and descending (connecting the head of the case of predecease, incapacity, or renunciation
family with those who descend from him). among heirs of the same degree. The relatives
[Art. 965, CC] must be in the same relationship because of
A collateral line is that constituted by the the Rule of Preference of Lines.
series of degrees among persons who are not
ascendants or descendants, but who come Repudiation [Arts. 968-969, CC]
from a common ancestor. There is no right of representation in
repudiation. If the nearest relative/s repudiates
Note: It is important to distinguish between the inheritance, those of the following degree
direct and collateral as the direct has shall inherit in their own right.
preference over the collateral.
In case of repudiation by all in the same
In a line, as many degrees are counted as there degree, the right of succession passes on the
are generations. [Art. 966, CC] heirs in succeeding degrees: descending line
(1) In the direct line, ascent is made up to the first, ascending line next, and collateral line
common ancestor or progenitor. next. [Balane]
(2) In the collateral line, ascent is made to the
common ancestor. Then descent to the Adoption [Art. 189, FC]
person with whom the computation is to be In adoption, the legal filiation is personal and
made. exists only between the adopter and the
adopted. The adopted is deemed a legitimate
Note: Descending line is preferred over child of the adopter, but still remains as an
ascending. intestate heir of his natural parents and other
blood relatives. (Note, however, Section 16 of
Blood relationship is either full or half-blood. the Domestic Adoption Act [RA 8552], which
[Art. 967, CC] provides that all legal ties between the
biological parent(s) and the adoptee shall be
Note: As among brothers and sisters and severed and the same shall then be vested on
nephews and nieces, there is a 2:1 ratio for full- the adopter(s).”
blood and half-blood relatives. Direct relatives
are preferred. But this distinction does not A.2. RIGHT OF REPRESENTATION
apply with respect to other collateral relatives. Representation – right created by fiction of
law, by virtue of which the representative is
Incapacity [Art. 968, CC] raised to the place and the degree of the
General rule: If there are several relatives of the person represented, and acquires the rights
same degree, and one or some of them are which the latter would have if he were living or
unwilling or incapacitated to succeed, his if he could have inherited [Art. 970, CC]
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Effect of Representation and only if they concur with at least one uncle
The representative heir acquires the rights or aunt. In this case, they share in the
which the person represented would have if he inheritance per stirpes.
were living or if he could have inherited.
If the children survive alone, they inherit in
When it occurs their own right and share in equal proportions
Representation is allowed with respect to or per capita. [Art. 975, CC]
inheritance conferred by law (legitime and
intestate based on Art. 923) Right of representation in the collateral line is
only possible in intestate succession. It cannot
It occurs only in the following instances: (DIP) take place in testamentary succession.
(1) Predecease of an heir
(2) Incapacity or unworthiness Per stirpes
(3) Disinheritance [Art. 923, CC] Inheritance per stirpes means that the
representative/s shall receive only what the
There is no representation in testamentary person represented would have received, if
succession. [Art. 856, CC] he were living or could inherit. [Art.975, CC]
If there are more than one representative in
There is no representation in repudiation.
the same degree, then it shall be divided
A renouncer can represent, but cannot be equally, without prejudice to the distinction
represented. Rationale is found in Art. 971 between legitimate and illegitimate, if
which states that “The representative does not applicable.
succeed the person represented but the one
whom the person represented would have The Double Heirship Test
succeeded.” In determining whether or not representation
is proper, it is necessary that the
Representation in the Direct Descending Line representative must be a legal heir of both
Representation takes place ad infinitum in the the person he is representing and the
direct descending line but never in the direct decedent. [Art. 973, CC]
ascending line. [Art. 972, CC] But the representative need not be qualified
to succeed the person represented. [Art. 971,
General rule: Grandchildren inherit from the CC] In the same manner, the person
grandparents by right of representation, if represented need not be qualified to succeed
proper. the decedent, as it is his disqualification
which gives rise for representation to apply.
Exception: Whenever all the children repudiate, Legitimate children may not be
the grandchildren inherit in their own right represented by their illegitimate
because representation is not proper. [Art. descendants (because of the bar in Art.
969, CC] 992). In contrast, illegitimate children may
be represented by their legitimate and
Representation in Collateral Line illegitimate descendants. [Art. 902]
In the collateral line, representation takes Illustration: A has legitimate son J and
place only in favor of the children of the illegitimate son K. J has an illegitimate son
brothers or sisters (i.e., nephews and nieces) J-1 while K also has an illegitimate son K-1.
whether of the full or half-blood [Art. 972, CC] K-1 may inherit from A by representation of
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K (under Art. 902), but J-1 may not inherit the former in the inheritance of the parents
from A (because of the barrier under Art. or ascendants of the adopter. The adopted
992) child is not related to the deceased in that
case, because filiation created by fiction of
Representation in Adoption law is exclusively between the adopter and
If the adopting parent should die before the the adopted. [Tolentino, 448-449]
adopted child, the latter cannot represent
B. ORDER OF INTESTATE SUCCESSION
Decedent is a Legitimate Child Decedent is an Illegitimate Child Decedent is an Adopted Child
1 Legitimate children or Legitimate children or Legitimate children or
descendants (LCD) descendants (LCD) descendants (LCD)
2 Legitimate parents or Illegitimate children or Illegitimate children or
ascendants (LPA) descendants (LPA) descendants (ICD)
3 Illegitimate children or Illegitimate parents (IP) Legitimate or illegitimate
descendants (ICD) parents, or legitimate
ascendants, adoptive parents
4 Surviving spouse (SS) Surviving spouse (SS) Surviving spouse (SS)
5 Brothers and sisters, nephews, Illegitimate brothers and Brothers and sisters, nephews,
nieces (BS/NN) sisters, nephews, nieces nieces (BS/NN)
(IBS/NN)
6 Legitimate collateral relatives State State
within the 5th degree (C5)
7 State
Siblings, Nephews, All other collaterals and LC, ILC, LP, ILP SS
Nieces State
Other collaterals within Collateral more remote LC, ILC, LP, ILP and SS Collaterals in the same
5th degree in degree and State degree
State No one Everyone No one
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Outline of Intestate Shares Divide the entire estate equally but with the
(1) Legitimate children only observance of the rule of division by line.
Divide entire estate equally among all [Art. 987, CC]
legitimate children [Art. 979, CC]
(7) Legitimate parents and illegitimate children
Legitimate children include an adopted Legitimate parents get ½ of the estate,
child. illegitimate children get the other ½. [Art.
991, CC]
(2) Legitimate children and Illegitimate children
Divide entire estate such that each (8) Legitimate parents and surviving spouse
illegitimate child gets ½ of what a Legitimate parents get ½ of the estate; The
legitimate child gets [Art. 983, CC and Art. surviving spouse gets the other ½. [Art. 997,
176, FC] CC]
Ensure that the legitime of the legitimate (9) Legitimate parents, surviving spouse and
children are first satisfied. illegitimate children
Legitimate parents get ½ of the estate;
(3) Legitimate children and surviving spouse surviving spouse and the illegitimate child
Divide entire estate equally between the each get ¼ each, the latter to share among
legitimate children and the surviving themselves if more than one. [Art. 1000, CC]
spouse, the latter deemed as one child. The
same rule holds where there is only one (10) Illegitimate children only
child. Divide the entire estate equally. [Art. 988,
CC]
“Children” as used in Art. 996 is interpreted
to include a situation where there is only (11) Illegitimate children and surviving spouse
one child. Illegitimate children get ½ of the estate; the
surviving spouse gets the other ½. [Art. 998,
(4) Legitimate children. Surviving spouse, and CC]
Illegitimate children
Divide the entire estate such that the (12) Surviving spouse only
surviving spouse is deemed one legitimate Entire estate goes to the surviving spouse.
child and each illegitimate child getting ½ [Art. 994/995, CC]
of what the legitimate child gets. [Art. 996,
CC and Art. 176, FC] (13) Surviving spouse and illegitimate parents
Illegitimate parents get ½ and the spouse
gets the other ½. [by analogy with Art. 997,
Ensure that the legitime of the legitimate
children and the spouse are first satisfied. CC]
(5) Legitimate parents only (14) Surviving spouse and legitimate brothers
and sisters, nephews and nieces
Divide the entire estate equally. [Art. 985,
CC] Surviving spouse gets ½ of the estate, while
the rest gets the other ½ with the nephews
(6) Legitimate ascendants only (excluding and nieces inheriting by representation if
parents) proper. [Art. 1001]
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guardianship have been approved, even if (4) Any heir of full age who, having knowledge
the testator should die after the approval of the violent death of the testator, should
thereof; except if the guardian is his fail to report it to an officer of the law
ascendant, descendant, brother, sister, or within a month, unless the authorities have
spouse; already taken action; this prohibition shall
(4) Relatives of the priest or minister of the not apply to cases wherein, according to
gospel within the fourth degree, the law, there is no obligation to make an
church, order, chapter, community, accusation;
organization, or institution to which such (5) Any person convicted of adultery or
priest or minister may belong; concubinage with the spouse of the
(5) Attesting witness to the execution of a will, testator;
the spouse, parents, or children, or any one (6) Any person who by fraud, violence,
claiming under such witness, spouse, intimidation, or undue influence should
parents, or children; cause the testator to make a will or to
(6) Physician, surgeon, nurse, health officer or change one already made;
druggist who took care of the testator (7) Any person who by the same means
during his last illness. prevents another from making a will, or
from revoking one already made, or who
Based on morality or public policy [Arts. 739 supplants, conceals, or alters the latter's
and 1028, CC] will;
(1) Those made in favor of a person with (8) Any person who falsifies or forges a
whom the testator was guilty of adultery or supposed will of the decedent.
concubinage at the time of the making of
the will. Pardon of Acts of Unworthiness
(2) Those made in consideration of a crime of Express Implied
which both the testator and the beneficiary
have been found guilty. Made by the execution Effected when the
(3) Those made in favor of a public officer or of a document or any testator makes a will
his spouse, descendants and ascendants, writing in which the instituting the
by reason of his public office. decedent condones unworthy heir with
the cause of incapacity knowledge of the
Based on acts of unworthiness [Art. 1032, CC] cause of incapacity
The following are incapable of succeeding by Cannot be revoked Revoked when the
reason of unworthiness: testator revokes the
(1) Parents who have abandoned their will or the institution
children or induced their daughters to lead
a corrupt or immoral life, or attempted Unworthiness vs. Disinheritance
against their virtue;
Unworthiness Disinheritance
(2) Any person who has been convicted of an
attempt against the life of the testator, his Unworthiness renders Disinheritance is the
or her spouse, descendants, or ascendants; a person incapable of act by which a
(3) Any person who has accused the testator succeeding to the testator, for just cause,
of a crime for which the law prescribes succession, whether deprives a compulsory
imprisonment for six years or more, if the testate or intestate heir of his right to the
accusation has been found groundless; legitime [Art. 815, CC]
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Forms of Acceptance [Arts. 1049 – 1050, CC] Forms of Repudiation [Art. 1051, CC]
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(1) in In a public instrument acknowledged Rationale for collation: If donations inter vivos
before a notary public; or will not be collated, then the rule on legitimes
(2) In an authentic document – equivalent of shall be circumvented or disregarded.
an indubitable writing or a writing whose
authenticity is admitted or proved; or
(3) By petition presented to the court having
jurisdiction over the testamentary or
intestate proceeding Operations Related to Collation
(1) Collation – adding to the mass of the
Heirs in Two Capacities [Art. 1055, CC] hereditary estate the value of the donation
(1) If a person is called to the same or gratuitous disposition.
inheritance as an heir by will and by law (2) Imputing or Charging – crediting the
and he repudiates the inheritance in his donation as an advance on the legitime (if
capacity as a testamentary heir, he will be the donee is a compulsory heir) or on the
considered to have also repudiated the free portion (if the donee is a stranger, i.e.,
inheritance as a legal heir. not a compulsory heir). [Balane, p. 522]
(2) If he repudiates it as a legal heir, without (3) Reduction – determining to what extent
knowledge of his being a testamentary the donation will remain and to what
heir, he may still accept it in the latter extent it is excessive or inofficious.
capacity. (4) Restitution – returning or the act of
payment of the excess to the mass of
D. COLLATION hereditary estate.
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Surviving spouse is not obliged to collate. (3) Neither shall donations to the spouse of
the child be brought to collation; but if
What to Collate they have been given by the parent to the
(1) Any property or right received by spouses jointly, the child shall be obliged
gratuitous title during the testator’s to bring to collation one-half of the thing
lifetime [Art. 1061, CC] donated. [Art. 1066, CC]
(2) All that they may have received from the
decedent during his lifetime. [Art. 1061, CC] Note: Parents are not obliged to bring to
(3) Expenses incurred by the parents in giving collation in the inheritance of their ascendants
their children a professional, vocational or any property which may have been donated by
other career shall not be brought to the latter to their children. [Art. 1065, CC]
collation unless the parents so provide, or
unless they impair the legitime; but when E. PARTITION AND DISTRIBUTION
their collation is required, the sum which OF ESTATE
the child would have spent if he had lived
in the house and company of his parents E.1. IN GENERAL
shall be deducted therefrom. [Art. 1068,
CC] Separate, Divide, Assign. Partition is the
(4) Any sums paid by a parent in satisfaction separation, division and assignment of a thing
of the debts of his children, election held in common among those to whom it may
expenses, fines, and similar expenses shall belong. The thing itself or its value may be
be brought to collation. [Art. 1069, CC] divided. [Art. 1079, CC]
Note: Only the value of the thing donated shall Owned in common. Before partition, the whole
be brought to collation. estate of the decedent is owned in common by
the heirs. [Art. 1078, CC]
PROPERTIES NOT SUBJECT TO COLLATION
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Prohibition to Partition
JUDICIAL vs. EXTRAJUDICIAL PARTITION (1) The prohibition to partition for a period not
exceeding 20 years can be imposed even
Judicial – Partition done by Court pursuant to on the legitime.
an Order of Distribution which may or may not (2) If the prohibition to the partition is for
be based on a project of partition. more than 20 years, the excess is void.
(3) Even if a prohibition is imposed, the heirs
Extra-judicial – partition made by the decedent by mutual agreement can still make the
himself by an act inter vivos or by will or by a partition.
third person entrusted by the decedent or by
the heirs themselves. [Paras] Effects of Inclusion of Intruder in Partition [Art.
Partition Inter Vivos: It is one that merely 1108, CC]
allocates specific items or pieces of property (1) Between a true heir and several mistaken
on the basis of the pro-indiviso shares fixed heirs – partition is void.
by law or given under the will to heirs or (2) Between several true heirs and a mistaken
successors. [Art. 1080, CC] heir – transmission to mistaken heir is void
(3) Through error or mistake, share of true heir
Who May Effect Partition is allotted to mistaken heir – partition shall
(1) The Decedent, during his lifetime by an act not be rescinded unless there is bad faith
inter vivos or by will [Art.1080, CC] or fraud on the part of the other persons
(2) The decedent’s heirs [Art.1083, CC] interested, but the latter shall be
(3) A competent court [Art. 1083,CC] proportionately obliged to pay the true heir
(4) A third person not an heir designated by of his share. The partition with respect to
the decedent [Art.1081, CC] the mistaken heir is void. [Sempio-Dy]
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After the partition has been made, the co-heirs The obligation of warranty among co-heirs
shall be reciprocally bound to warrant the title shall cease in the following cases:
to, and the quality of, each property (1) The testator himself has made the
adjudicated [Art. 1092, CC] partition
Unless it appears, or it may be
The reciprocal obligation of warranty shall be reasonably presumed, that his intention
proportionate to the respective hereditary was otherwise, but the legitime shall
shares of the co-heirs; always remain unimpaired.
(2) When it has been so expressly stipulated in
If any one of them should be insolvent, the the agreement of partition
other co-heirs shall be liable for his part in the Unless there has been bad faith
same proportion, deducting the part (3) When the eviction is due to a cause
corresponding to the one who should be subsequent to the partition, or has been
indemnified. caused by the fault of the distributee of the
property. [Art. 1096, CC]
Those who pay for the insolvent heir shall have
a right of action against him for E.3. RESCISSION AND NULLIFICATION
reimbursement, should his financial condition
OF PARTITION
improve [Art. 1093, CC]
Causes for Rescission or Annulment
An action to enforce the warranty among the
(1) A partition may be rescinded or annulled
co-heirs must be brought within ten years from
for the same causes as contracts. [Art.
the date the right of action accrues. [Art. 1094,
1097, CC]
CC]
(2) A partition, judicial or extra-judicial, may
also be rescinded on account of lesion,
If a credit should be assigned as collectible, the
when any one of the co-heirs received
co-heirs shall not be liable for the subsequent
things whose value is less by at least one-
insolvency of the debtor of the estate, but only
fourth, than the share to which he is
for his insolvency at the time the partition is
made. [Art. 1095, CC] entitled, considering the value of the
things at the time they were adjudicated
[Art. 1098, CC]
The warranty of the solvency of the debtor can
only be enforced during the five years following This article applies only to cases of
the partition. partition among-coheirs
Lesion is the injury suffered in
Co-heirs do not warrant bad debts, if so known consequence of inequality of situation by
to, and accepted by the distributee. one party who does not receive the full
equivalent for what she gives in a sale or
But if such debts are not assigned to a co-heir, any commutative contract
and should be collected, in whole or in part, (3) The partition made by the testator cannot
the amount collected shall be distributed be impugned on the ground of lesion,
proportionately among the heirs. [Art. 1095, except when the legitime of the
CC] compulsory heirs is thereby prejudiced, or
when it appears or may be reasonably be
End of Warranty presumed, that the intention of the
testator was otherwise. [Art. 1099, CC]
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(4) Preterition of a compulsory heir in the Nullity – the act is supposed to never have
partition [Art. 1104, CC]: existed
Partition shall not be rescinded unless Rescission – the act is valid at the origin
bad faith or fraud on the part of other though it afterwards became ineffective
heirs is proved. Important Periods in Partition
The culpable heirs shall share in the Testator, if publicly known to
1 month or
damages of the prejudiced compulsory be insane, burden of proof is
less before
heir proportionately. on the one claiming validity of
making a will
(5) A partition which includes a person the will
believed to be an heir, but who is not, shall Maximum period testator can
be void only with respect to such person. 20 years prohibit alienation of
[Art. 1105, CC] dispositions
5 years from
To claim property escheated
The action for rescission on account of lesion delivery to the
to the State
shall prescribe after four years from the time State
the partition was made. [Art. 1100, CC] To report knowledge of violent
1 month death of decedent lest he be
The heir who is sued shall have the option of considered unworthy
indemnifying the plaintiff for the loss, or 5 years from
consenting to a new partition Action for declaration of
the time
incapacity & for recovery of
disqualified
Indemnity may be made: the inheritance, devise or
person took
(1) By payment in cash or legacy
possession
(2) By the delivery of a thing of the same kind 30 days from
and quality as that awarded to the Must signify
issuance of
plaintiff. acceptance/repudiation
order of
otherwise, deemed accepted
distribution
If a new partition is made, it shall affect neither
1 month form Right to repurchase hereditary
those who have not been prejudiced nor those
written notice rights sold to a stranger by a
who have not received more than their just
of sale co-heir
share [Art. 1101, CC]
To enforce warranty of
An heir who has alienated the whole or a title/quality of property
10 years adjudicated to co-heir from
considerable part of the real property
the time right of action
adjudicated to him cannot maintain an action
accrues
for rescission on the ground of lesion, but he
shall have a right to be indemnified in cash To enforce warranty of
[Art. 1102, CC] 5 years from solvency of debtor of the
partition estate at the time partition is
The omission of one or more objects or made
securities of the inheritance shall not cause the 4 years from Action for rescission of
rescission of the partition on the ground of partition partition on account of lesion
lesion, but the partition shall be completed by
the distribution of the objects or securities
which have been omitted. [Art. 1103, CC]
Difference of Nullity from Rescission
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CIVIL LAW
AGENCY
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(2) Responsibility for the Substitute The law on agency allows the appointment by
General Rule: If the Agent validly appoints an agent of a substitute in the absence of an
a substitute, the Principal is liable for the express agreement to the contrary. (An agent’s
Substitute’s acts act of entrusting jewelry to a substitute is
therefore not an abuse of confidence such as to
Exception: [1892] constitute estafa) [Serona v. People]
(a) If the agent appoints a substitute
although he was not given the power A.4. RETAIN IN PLEDGE THE OBJECTS
to appoint one OF AGENCY
(b) If the agent was given the power to
appoint a substitute, and the principal Art. 1914. The agent may retain in pledge the
did not designate the person he can things which are the object of the agency until
appoint, but he appoints someone who the principal effects the reimbursement and
is notoriously incompetent or insolvent. pays the indemnity set forth in the two
preceding articles.
(3) Validity of the Substitute’s acts Art 1912. The principal must advance to the
agent, should the latter so request, the sums
necessary for the execution of the agency.
If the principal prohibits the agent from
appointing a substitute, then all the acts of the Should the agent have advanced them, the
substitute are void. principal must reimburse him therefore, even if
the business or undertaking was not
What may a third person who has contracted successful, provided the agent is free from
fault.
with a prohibited Substitute do?
(a) If the principal is aware that a Substitute The reimbursement shall include interest on
is acting on his behalf without authority the sums advanced, from the day on which the
yet he fails to repudiate the substitute’s advance was made.
acts, then there may be implied agency
(act will not be void) Art. 1913. The principal must also indemnify
(b) If the principal was not aware of the acts, the agent for the damages which the execution
or that when he became aware he of the agency may have caused the latter,
repudiates the acts, then the Agent may without fault or negligence on his part.
be held liable.
(1) Two scenarios under which the Agent may
retain in pledge the objects of the agency:
(4) The Substitute is an Alternate, not a
(a) if the agent advances funds for the
Delegate
execution of the agency, or
(b) if the agent has suffered injury caused
An agent cannot delegate to another the same
by the execution of the agency
agency. Potestas delegate non delegare
potest. Re-delegation is detrimental to the
principal as the second agent has no privity of
contract with the principal... Article 1892
allows the agent to appoint a substitute (not a
delegate). [Baltazar v. Ombudsman]
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Art. 1882. The limits of the agent's authority Rule: The third person can rely completely on
shall not be considered exceeded should it the written power of attorney to determine
have been performed in a manner more
whether the agent’s act is within the limits of
advantageous to the principal than that
specified by him. (1715) his authority.
The agent may do acts more advantageous to Exception: If the third person is aware of the
the principal than what is indicated in the secret understanding between the principal
power of attorney. and the agent.
For example, if the agent was authorized to
sell a car for P2,500,000 but was able to sell it
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(6) Authority of Corporate Officers Art. 1885. In case a person declines an agency,
The general principles of agency govern the he is bound to observe the diligence of a good
relation between the corporation and its father of a family in the custody and
officers or agents, subject to the articles of preservation of the goods forwarded to him by
the owner until the latter should appoint an
incorporation, bylaws, or relevant provisions of agent or take charge of the goods. (n)
law. [San Juan v. CA]
Art. 1899. If a duly authorized agent acts in
A corporate officer intrusted with the general accordance with the orders of the principal, the
management and control of its business, has latter cannot set up the ignorance of the agent
implied authority to make any contract or do as to circumstances whereof he himself was, or
any other act which is necessary or appropriate ought to have been, aware. (n)
to the conduct of the ordinary business of the
corporation. As such officer, he may, without If the Principal was aware of certain
any special authority from the Board of circumstances, and the agent simply followed
Directors, perform all acts of an ordinary the former’s instructions without being aware
nature, which by usage or necessity are of those circumstances thereby causing injury
incident to his office... to a third person, then the principal cannot
Where similar acts have been approved by the blame the agent later on.
directors as a matter of general practice,
custom and policy, the general manager may B.3. CARRY OUT THE AGENCY
bind the company without formal
authorization of the board of directors. [Board (1) In General
of Liquidators v. Kalaw]
Art. 1884 par. 1 The agent is bound by his
B.2. ACT IN ACCORDANCE WITH acceptance to carry out the agency, and is
liable for the damages which, through his non-
INSTRUCTIONS performance, the principal may suffer.
Art. 1887. In the execution of the agency, the The agent is bound to carry out his duties as
agent shall act in accordance with the agent once he accepts the authorization
instructions of the principal.
granted by the principal. Else, he is liable for
In default thereof, he shall do all that a good damages if the principal suffers injury.
father of a family would do, as required by the
nature of the business. (1719) (2) Continuing Business
The agent must act within the specific limits of Art. 1884 par. 2 He must also finish the
his authority (See B.1.) and perform the acts in business already begun on the death of the
the manner dictated by the principal. principal, should delay entail any danger.
(1718)
If the principal did not provide instructions as
(3) In case of Withdrawal
regards the manner, then the agent must do
all that a good father of a family would do.
Art. 1929. The agent, even if he should
withdraw from the agency for a valid reason,
What if a person refuses to be an agent but must continue to act until the principal has
goods have already been forwarded to him? had reasonable opportunity to take the
necessary steps to meet the situation. (1737a)
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Art. 1888. An agent shall not carry out an The relations of an agent to his principal are
agency if its execution would manifestly result fiduciary and it is an elementary and very old
in loss or damage to the principal. (n) rule that in regard to property forming the
subject matter of the agency, he is stopped
Example: If the Agent is obliged to buy palay from acquiring or asserting a titled adverse to
whose price suddenly spiked and, if bought, that of the principal. His position is analogous
will lead to the principal’s ruin, then the agent to that of a trustee and he cannot consistently,
may not carry out the agency. with the principles of good faith, be allowed to
create in himself an interest in opposition to
B.4. ADVANCE FUNDS that of his principal or cestui que trust.
[Severino v. Severino]
Art. 1886. Should there be a stipulation that
the agent shall advance the necessary funds, (3) Double Sales
he shall be bound to do so except when the
principal is insolvent. (n)
Art. 1916. When two persons contract with
Conditions: regard to the same thing, one of them with the
agent and the other with the principal, and the
(a) There is a stipulation stating that the agent two contracts are incompatible with each
shall advance the necessary funds, and other, that of prior date shall be preferred,
(b) The principal must be solvent without prejudice to the provisions of article
1544. (n)
B.5. PREFER THE PRINCIPAL’S
INTEREST OVER HIS OWN Art. 1917. In the case referred to in the
preceding article, if the agent has acted in
good faith, the principal shall be liable in
(1) In General damages to the third person whose contract
must be rejected. If the agent acted in bad
Art. 1889. The agent shall be liable for faith, he alone shall be responsible. (n)
damages if, there being a conflict between his
interests and those of the principal, he should Art. 1544. If the same thing should have been
prefer his own. (n) sold to different vendees, the ownership shall
be transferred to the person who may have first
taken possession thereof in good faith, if it
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which caused damage against itself, thereby b. The agent exceeded the scope of
preventing it from recovering from the his authority
principal what it lost. [see Metrobank v. CA c. The agent undertook to secure the
1991] principal’s ratification, and
d. The principal did not ratify the
C. LIABILITY OF AGENTS contract
If the agent acts beyond the scope of his
C.1. WHEN SOLIDARY authority, the third person can recover from
either the principal or the agent but not from
Art. 1894. The responsibility of two or more both. [Eurotech v. Cuizon]
agents, even though they have been appointed
simultaneously, is not solidary, if solidarity has (2) Acts in His Own Name
not been expressly stipulated. (1723)
Art. 1883. If an agent acts in his own name, the
(1) Each of the agents can be held solidarily principal has no right of action against the
liable for the non-fulfilment of the agency or persons with whom the agent has contracted;
for injuries caused by fault or negligence IF: neither have such persons against the
(a) The principal simultaneously appoints principal.
more than one agent, and
In such case the agent is the one directly
(b) There is an express stipulation that bound in favor of the person with whom he has
such agents are solidarily liable contracted, as if the transaction were his own,
(2) Not solidarily liable IF except when the contract involves things
The fellow agents acted beyond the scope of belonging to the principal.
their authority.
The provisions of this article shall be
understood to be without prejudice to the
C.2. WHEN PERSONAL actions between the principal and agent. (1717)
(1) Expressly Bound or In Excess of Authority This is called an “Agency with an undisclosed
General Rule: the agent who transacts as an principal.
agent is not personally liable to the third
person for the obligation entered into If the agent enters contract without notice to
the third party that he was acting as an agent,
Exceptions: the agent is directly bound as a party to the
(a) When the agent expressly binds contract, and the principal and the third
himself person have no right of action against one
(b) When the agent exceeds the limits of another.
his authority without giving the person
he is transacting with sufficient notice What if the contract “involves things belonging
of his powers [Art 1897] to the principal?” Does the agent go away
scot-free?
(c) When all of the ff are present: The exception under Art 1883 “does not say
a. The person transacting with the that (a third party) does not have, and cannot
agent is aware of the limits of the bring an action against the agent also.”
agent’s authority [Beaumont v. Prieto]
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(c) Relying upon such representation, such To be a General Agent, it is sufficient that the
third person has changed his position to listed authorized transactions apparently cover
his detriment. all that is required to run the business of the
principal. It is not necessary that the power
Agency by estoppel is similar to the doctrine of granted actually says “all the business of the
apparent authority. It requires proof of reliance principal.” [Dominion Insurance v. CA]
upon the representation and that the
representation predated the action which B. SPECIAL AGENCY
relied on the representation. [Litonjua v.
Eternit] If the agent handles only specific aspects of the
principal’s business and not all of it, the he is a
With respect to hospitals in relation to special agent. [See Art 1876]
physicians who are independent contractors,
General Agency Special Agency
there are only two requisites [Nogales v.
Capitol Medical]: The Agent handles all The Agent only
(a) (Representation) The hospital acted in a of the business of the handles specific
manner which would lead a reasonable principal. aspects of the
person to conclude that the individual who business.
was alleged to be negligent was an
employee or agent of the hospital
(b) (Reliance) The plaintiff acted in reliance
upon the conduct of the hospital or its
VI. Agency Couched In
agent, consistent with ordinary care and
prudence
General Terms (ACGT)
This refers to a type of authority granted to the
V. General vs. Special agent, not to the scope.
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Required:
The authorization must be
IX. Rights and
(a) Written, and
(b) Specific
Obligations of Principal
Only specific authorization is required: A. OBLIGATIONS
(a) If the contract is a sale of an immovable
other than land A.1. COMPLY WITH THE OBLIGATIONS
(b) If the contract transmits ownership over an CONTRACTED BY THE AGENT
immovable other than land
(c) If the contract transmits ownership over Art. 1910. The principal must comply with all
land thru a transaction other than a sale the obligations which the agent may have
contracted within the scope of his authority.
As for any obligation wherein the agent has
B.3. EFFECT OF SPECIFIC
exceeded his power, the principal is not bound
AUTHORIZATION except when he ratifies it expressly or tacitly.
(1727)
Where an instrument specifies and defines
powers and duties, all such powers and duties If the agent acts within the scope of his
are limited and confined to those which are authority, then the principal must comply.
specified and defined, and all other powers Otherwise, the principal is bound to comply
and duties are excluded. [BPI v. De Coster] only if he ratifies the agent’s act that was done
beyond the scope of his authority.
VIII. Agency By
(1) Acts Within the Scope of Authority
Operation of Law (a) Those expressly specified in the power
of attorney
(b) Conducive acts
Normally, an agency is established only if there
(c) Advantageous acts
is mutual intent on the part of the principal (d) Collateral acts
and agent to establish the agency. [Victorias
Milling v. CA] (2) Ratified Acts
An agency may be established by operation of Art. 1901. A third person cannot set up the fact
law, however, in the following cases: that the agent has exceeded his powers, if the
(1) In a partnership, every partner is an agent principal has ratified, or has signified his
of the partnership for the purpose of its willingness to ratify the agent's acts. (n)
business [Art. 1818];
(2) Agency by estoppel (both statutory and If the principal ratifies or signifies to ratify the
jurisprudential), where the principal’s act of the agent, then that effectively binds the
actions would reasonably lead a third third person to the unauthorized act of the
person to conclude that an agency exists; agent. The principal, by implication, also
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becomes bound to the act simply by signifying Art. 1918. The principal is not liable for the
his willingness to ratify. expenses incurred by the agent in the following
cases:
By benefitting from the unauthorized act of an (1) If the agent acted in contravention of the
agent, the principal is said to have ratified the principal's instructions, unless the latter
acts of the agent and is estopped from denying should wish to avail himself of the benefits
said authority. [Filipinas Life v. Pedroso] derived from the contract;
(2) When the expenses were due to the fault of
In some cases, the mere acceptance of benefits the agent;
is not tantamount to ratification by the (3) When the agent incurred them with
principal. The principal must have full knowledge that an unfavorable result
knowledge at the time of ratification of all the would ensue, if the principal was not aware
material facts and circumstances relating to thereof;
the unauthorized act of the person who
assumed to act as agent. If the material facts (4) When it was stipulated that the expenses
were suppressed or unknown, there can be no would be borne by the agent, or that the
ratification. [Manila Memorial v. Linsangan] latter would be allowed only a certain sum.
(3) When Estoppel Applies (n)
Art. 1911. Even when the agent has exceeded General Rule: the principal must advance or
his authority, the principal is solidarily liable reimburse (with interest) the sums necessary to
with the agent if the former allowed the latter execute the agency.
to act as though he had full powers. (n)
Exceptions:
Even if there was no express authority, the (1) Expenses incurred through acts which
principal is still solidarily liable because he contravene the principal’s instructions, and
allowed the agent to act as if he had authority. the principal does not want to derive
(This is not actually estoppel, but implied benefit therefrom
agency.) (2) Expenses due to the fault of the agent
(3) Expenses incurred by the agent with the
A.2. ADVANCE OR REIMBURSE SUMS knowledge that an unfavourable result
NECESSARY would ensue, and the principal was
unaware
Article 1912. The principal must advance to the (4) If there is a stipulation that expenses would
agent, should the latter so request, the sums be borne by the agent or that he would be
necessary for the execution of the agency. allowed only a certain sum
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The Situation: the agent suffers damage as a the agent for all the consequences of the
result of performing his duties as an agent, agency. (1731)
and such damage did not result from the
agent’s fault or negligence If several principals appoint an agent for a
common transaction, then they are all
solidarily liable to the agent.
A.4. COMPENSATE THE AGENT
B.3. IF THE CONTRACT INVOLVES
Art. 1875. Agency is presumed to be for a THINGS BELONGING TO THE PRINCIPAL
compensation, unless there is proof to the
contrary. (n) Art. 1883. If an agent acts in his own name, the
principal has no right of action against the
Steps to determine whether the agent is persons with whom the agent has contracted;
entitled to compensation: neither have such persons against the
(1) Determine whether the person is an agent principal.
or a broker
In such case the agent is the one directly
(2) If he is an agent, determine whether he is bound in favor of the person with whom he has
the procuring cause, i.e. if there is a close, contracted, as if the transaction were his own,
proximate and causal relation between the except when the contract involves things
agent’s efforts and the sale belonging to the principal.
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authority. [PNB v. Agudelo] This operates A mere statement in the power of attorney that
as an exception to the exception. it is coupled with an interest is not enough. The
Art. 1920. The principal may revoke the agency Lim v. Saban enumerates certain rules with
at will, and compel the agent to return the respect to an agency coupled with an interest:
document evidencing the agency. Such
(1) It is one where there is mutual benefit on
revocation may be express or implied. (1733a)
the part of the principal and agent, or the
principal and third person
Art. 1927. An agency cannot be revoked if a
bilateral contract depends upon it, or if it is the (2) The agency coupled with an interest
means of fulfilling an obligation already cannot be revoked for as long as the
contracted, or if a partner is appointed interest of the agent or third person exists
manager of a partnership in the contract of (3) The agent’s interest must be “the subject
partnership and his removal from the matter of the power conferred and not
management is unjustifiable. (n) merely an interest in the exercise of the
power because it entitles him to
Art. 1930. The agency shall remain in full force
compensation.”
and effect even after the death of the principal,
if it has been constituted in the common (4) If the agent’s interest is limited to
interest of the latter and of the agent, or in the compensation, then it is not an agency
interest of a third person who has accepted the coupled with an interest. [Lim v. Saban]
stipulation in his favor. (n)
The agency coupled with an interest is
General Rule: The principal may revoke the irrevocable because ”the agency becomes part
agency at will and compel the agent to return of another obligation or agreement. It is not
the power of attorney solely the rights of the principal but also that
of the agent and third persons which are
Exception: An agency cannot be revoked if: affected. [Republic v. Evangelista]
(1) A bilateral contract depends upon it; or
(2) It is the means of fulfilling an obligation An agency coupled with an interest can still be
already contracted; or revoked, but only for just cause, i.e. bad faith,
(3) A partner is appointed manager of a breach of confidence, or betrayal of trust.
partnership in the contract of partnership [Coleongco v. Claparols]
and his removal from the management is
unjustifiable;
(4) If it is an agency couple with an interest
(a) If the agency was constituted in the
common interest of the principal and
of the agent, or
(b) If the agency was constituted in the
interest of a third person who has
accepted the stipulation in his favour.
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XI. Modes of The principal can revoke the agency even if the
period fixed in the contract has not yet expired.
Extinguishment [CMS Logging v. CA]
B.1. IN GENERAL
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(1) When Notice is Required Art. 1924. The agency is revoked if the principal
directly manages the business entrusted to the
Art. 1921. If the agency has been entrusted for agent, dealing directly with third persons. (n)
the purpose of contracting with specified
persons, its revocation shall not prejudice the If the principal believes that the agent is in
latter if they were not given notice thereof. breach of the contract and thereby decides to
(1734) deal with the business directly, then the
agency is said to be revoked. [CMS Logging v.
(2) When a Third Person in Good Faith Has No CA] The mere act of direct management by the
Knowledge of Revocation principal is not enough to revoked the agency.
Art. 1922. If the agent had general powers, B.5. SPECIAL AUTHORITY REVOKES THE
revocation of the agency does not prejudice
third persons who acted in good faith and GENERAL AUTHORITY WHERE A
without knowledge of the revocation. Notice of SPECIAL MATTER IS INVOLVED
the revocation in a newspaper of general
circulation is a sufficient warning to third Art. 1926. A general power of attorney is
persons. (n) revoked by a special one granted to another
agent, as regards the special matter involved
What does “agent with general powers” mean? in the latter. (n)
Most likely, it is an agent authorized to
transact with the general public in Art. 1926 refers to a general agency (entirety of
contradistinction to the agent who contracts business) and special agency (only aspects of
with specified persons under Art. 1921. the business).
B.3. APPOINTMENT OF NEW AGENT If Agent 1 is given a general agency, and Agent
2 is later given a special agency, then Agent 1
Art. 1923. The appointment of a new agent for can no longer perform the powers granted to
the same business or transaction revokes the Agent 2 under the special agency.
previous agency from the day on which notice
thereof was given to the former agent, without B.6. WHEN AGENCY CANNOT BE
prejudice to the provisions of the two
preceding articles. (1735a)
REVOKED
Revocation takes effect when notice is given to Art. 1927. An agency cannot be revoked if a
the former agent, not when the new agent is bilateral contract depends upon it, or if it is the
means of fulfilling an obligation already
appointed. contracted, or if a partner is appointed
manager of a partnership in the contract of
partnership and his removal from the
management is unjustifiable. (n)
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Accomplishment
The fulfillment of the purpose for which agency
was created ipso facto terminates agency even
though it was expressly made irrevocable. If
the purpose has not been accomplished, the
agency continues indefinitely for as long as the
intent to continue is manifested through words
or actions of the parties.
Dissolution
The dissolution of a partnership or corporation
which entrusted (principal) or accepted (agent)
the agency extinguishes its juridical existence,
except for the purpose of winding up its affairs.
It is equivalent to death.
Expiration
(1) If created for fixed period, expiration of the
period extinguishes agency even if the
purpose was not accomplished.
(2) If no time is specified, the courts may fix
the period as under the circumstances
have been probably contemplated by the
parties [Art. 1197]. Otherwise, the agency
terminates at the end of a reasonable
period of time. Either party can terminate
the relationship at will by giving notice to
the other [De Leon (2010)].
The period contemplated may be implied from
terms of agreement, purpose of agency, and
the circumstances of the parties.
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Nature of Agency: General and Special i. The transaction entered into by the
(1) General Agency agent is unenforceable
a. To be a General Agent, it is sufficient 1. But the agent may still have the
that the listed authorized transactions principal ratify it
apparently cover all that is required to ii. If the principal is a corporation, then
run the business of the principal. It is the specific authorization must come
not necessary that the power granted in the form of a Board resolution
actually says “all the business of the 1. Except to the extent that such
principal.” [Dominion Insurance v. CA] power is given to the agent
b. General Agency refers to the scope of expressly or by reasonable
the business covered, not to the extent implication from the
of discretion or responsibility given to circumstances [Vicente v
the Agent Geraldes]
(2) Agency Couched in General Terms iii. If the transaction is sale of a piece of
a. A type of agency that only grants the land, then there must be a written
agent power to perform acts of and specific authorization to sell
administration 1. Else, the sale is void
b. Test: if the nature of the business
requires performance of certain acts
repeatedly and without express
authorization, then those are acts of
administration
(3) Specific Agency
a. Refers to the scope of the agent’s
authority
b. The agency must comprise of one or
more specific transactions, short of the
entire business
c. Cf. General Agency
(4) Special Power of Attorney (SPA)
a. It is not merely the name of a
document but a description of the
power granted to an agent
b. Certain transactions require a SPA,
and these transactions usually involve
acts of strict dominion (i.e. acts of
ownership)
c. If the power is couched in general
terms, then the agent may do only acts
of administration; if the power is
couched in specific terms then the
agent is empowered to perform such
specific act of strict dominion
d. Effect of Lack of SPA
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CIVIL LAW
PARTNERSHIP
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The Civil Code requires the parties “bind B.1. LAWFUL PURPOSE
themselves to contribute” to a common Article 1770 (1). A partnership must have a
fund. The partnership may therefore exist lawful object or purpose, and must be
even before the common fund is created. established for the common benefit or interest
The common fund may not even come of the partners.
from the partners themselves but may be If there is no lawful purpose, then the
borrowed from third persons. [Lim Tong partnership agreement is void ab initio.
Lim v Philippine Fishing Gear] Contracts whose purpose is contrary to law are
The form of the common fund may not void from the beginning. [Art1409 (1)].
even be cash or property; it can be in the
form of credit or industry.
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Article 1770 (2). When an unlawful partnership (3) Insane or demented persons;
is dissolved by a judicial decree, the profits (4) Deaf-mutes who do not know how to write;
shall be confiscated in favor of the State, (5) Incompetents who are under guardianship.
without prejudice to the provisions of the Penal
Code governing the confiscation of the Exceptions : The capacity of the following
instruments and effects of a crime. persons to enter into a contract of partnership,
though capacitated to contract generally, are
Upon the dissolution of an unlawful limited:
partnership, the profits are simply confiscated (1) Those who are prohibited from giving each
by the State. The previous rule is to give such other any donation or advantage cannot
profits to a charitable institution. enter into a universal partnership [Article
1782];
Art 1770 (2) talks of “profits.” When it comes (2) A corporation cannot enter into a
to the original contributions of the partners, partnership in the absence of express
the same must be reimbursed to them. [Arbes authorization by statute or charter.
v Polistico]
B.2. COMMON BENEFIT Although a corporation cannot enter into a
partnership contract, it may, however, engage
Article 1770. A partnership must have a lawful
in a joint venture with others [Aurbach vs.
object or purpose, and must be established for
Sanitary Wares Manufacturing Corp]
the common benefit or interest of the partners.
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stipulation, except the fruits thereof (b) Attached to such instrument must be
[Article 1779]. an inventory, signed by the parties, of
(2) All the profits: the property contributed [Articles 1771
(a) It comprises all that the partners may and 1773];
acquire by their industry or work during (2) Where the capital is at least P3,000, in
the existence of the partnership. money or property:
(b) Only the usufruct over the property of (a) The contract must appear in a public
the partners passes to the partnership instrument; and
[Article 1780]. (b) It must be recorded in the Office of the
Securities and Exchange Commission
When the articles of universal partnership do (SEC).
not specify its nature (all present property or
all the profits), the partnership will be As to the second, failure to comply with these
considered as one only of all the profits [Article requirements, however, does not affect the
1781]. liability of the partnership and the partners to
D.2. OBJECT OF PARTICULAR third persons [Articles 1768 and 1772].
PARTNERSHIP
A particular partnership has for its object F. DURATION
determinate things, their use or fruits, or a F.1. COMMENCEMENT
specific undertaking, or the exercise of a Art 1784. A partnership begins from the
profession or vocation [Article 1783]. moment of the execution of the contract,
D.3. EFFECT OF UNLAWFUL OBJECT unless otherwise stipulated
If the partnership has an unlawful object or
purpose: F.2. TERM
(1) The contract is void ab initio [Article As to period, a partnership may either be:
1409(1)]. (1) For a fixed term or particular undertaking;
(2) Once dissolved by judicial decree: or
(a) The profits shall be confiscated by (2) At will, the formation and dissolution of
favor of the State; which depend on the mutual desire and
(b) The instruments or tools and proceeds consent of the parties. Any one of the
of the crime shall also be forfeited in partners may, at his sole pleasure, dictate
favor of the State [Article 1770]. the dissolution of the partnership, even in
(3) The contributions of partners shall not be bad faith, subject to liability for damages
confiscated unless they are instruments or [Ortega v. CA [(995)].
tools of the crime [De Leon (2010)].
F.3. EXTENSION
E. FORM A partnership term may be extended by:
General rule: The contract may be constituted (1) Express renewal; or
in any form [Article 1771]. (2) Implied renewal, when these requisites
Exceptions: concur:
(1) Where immovable property or real rights (a) The partnership is for a fixed term or
are contributed: particular undertaking;
(a) The contract must appear in a public (b) It is continued after the termination of
instrument; and the fixed term or particular
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undertaking without any express (2) Partnership de facto is one which failed to
agreement [Article 1785]. so comply.
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etc.” (1979)]. A professional partnership is a (16) Incoming partner, who is about to be taken
particular partnership [Article 1783]. as a member into an existing partnership;
I. KINDS OF PARTNERS (17) Retiring partner, who is withdrawing from
(1) Capitalist partner, whose contribution is the partnership.
money or property;
(2) Industrial partner, contribution is only his Industrial Capitalist
industry; partner partner
(3) General partner, whose liability to third Form of contribution
persons extends to his separate property;
(4) Limited partner, whose liability to third Industry Money or property
persons is limited to his capital Share in profits
contribution; Just and equitable According to
(5) Managing partner, who was designated to share agreement; if none,
manage the affairs or business of the in proportion to
partnership; contribution
(6) Liquidating partner, who takes charge of
the winding up of partnership affairs; Share in losses
(7) Partner by estoppel, who is not really a Exempted as to According to
partner but is liable as such for the losses as between agreement; if none,
protection of innocent third persons; partners, but liable in the same
(8) Continuing partner, who continues the to third persons, proportion as the
business after dissolution of the without prejudice to agreed share in
partnership by admission of a new partner, reimbursement profits; if none, in
or retirement, death or expulsion of from capitalist proportion to
existing partners; partners contribution
(9) Surviving partner, who remains a partner Engagement in business
after dissolution by death of any partner;
(10) Subpartner, who is not a member of the Cannot engage in Cannot engage, for
partnership but contracts with a partner business for himself, his own account, in
with regard to the share of the latter in the unless the the same kind of
partnership; partnership business as that of
(11) Ostensible partner, who takes active part expressly permits the partnership,
in the business of the partnership and is him to do so; should unless there is a
known by the public; he do so without stipulation to the
(12) Secret partner, who takes active part in the permission, the contrary; should he
business, but is unknown to the third capitalist partners do so, he shall bring
persons as a partner; may: [1] exclude him to the common fund
(13) Silent partner, who does not take active from the firm; or [2] any profits accruing
part in the business, but may be known to avail themselves of to him from his
be a partner by third persons; the benefits transactions and
(14) Dormant partner, who does not take active obtained in violation shall personally
part in the business and is not known or of the prohibition, bear all the losses
held out as a partner; with right to [Article 1808]
(15) Original partner, who has been a partner damages in either
since the constitution of the partnership; case [Article 1789]
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Conjugal
Partnership
partnership of gains
Created by Arises in case the
voluntary spouses, of opposite
agreement of two or sex, agree before
more partners of marriage
either sex
Governed by Governed by law
agreement
Has juridical Has no juridical
personality personality
Commencement Commencement is
date may be on the date of the
stipulated celebration of the
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obliged to sell his interest to the other (2) When the debtor declares, pursuant to
partners, unless there is an agreement to the Article 1252, at the time of making the
contrary [Article 1791]. payment, to which debt the sum must be
applied, it shall be so applied [Article
A.2. CONTRIBUTION OF INDUSTRY 1792].
An industrial partner is obliged to contribute
his industry at the stipulated time. C. RIGHT TO RETURN OF CREDIT
RECEIVED
General rule: An industrial partner cannot A partner, authorized to manage or not, who
engage in business for himself. Should he do already received, in whole or in part, his share
so, the capitalist partners, as well as industrial of a partnership credit, is obliged to bring to
partners [De Leon (2010)] may either: the partnership capital what he received when:
(1) Exclude him from the firm; or (1) The other partners have not collected their
(2) Avail themselves of the benefit which he shares; and
may have obtained. (2) The partnership debtor has become
insolvent.
Exception: He may engage in business for
himself when the partnership expressly permits This obligation exists even when he issued a
him to do so [Article 1789]. receipt for his share only [Article 1793].
B. RIGHT TO APPLY PAYMENT Ratio: In this case, the debt becomes a bad
RECEIVED TO PARTNERSHIP CREDIT debt. It would be unfair for the partner who
General rule: A partner authorized to manage, already collected not to share in the loss of the
who collects a demandable sum owed to him other partners.
in his own name from a person who also owes
the partnership a demandable sum, is obliged D. RIGHT TO INDEMNITY FOR
to apply the sum collected to both credits pro DAMAGES
rata, even if he issued a receipt for his own Every partner is responsible to the partnership
credit only. for damages suffered by it through his fault.
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Exception : The court may equitably lessen the partner having an associate is a managing
liability if, through his extraordinary efforts in partner [Article 1804].
other activities of the partnership, unusual
profits were realized [Article 1794]. Note, This arrangement refers to a contract of
however, that there is still no compensation in subpartnership, which is a partnership within a
this case. partnership, distinct and separate from the
main partnership. It is considered a
D.2. SUIT FOR DAMAGES modification of the original contract [De Leon
Before a partner may sue another for alleged (2010)].
fraudulent management and resultant
damages, liquidation must first be effected to B. RIGHT TO INSPECT PARTNERSHIP
determine the extent of the damage. Without BOOKS
liquidation of partnership affairs, a partner The partnership books shall be kept:
cannot claim damages [Soncuya v. De Luna (1) At a place agreed upon by the partners;
(1939)]. (2) When there is no such agreement, at the
principal place of business of the
E. RESPONSIBILITY TO PARTNERS partnership.
In the absence of any stipulation to the
contrary, every partner is an agent of the Every partner shall, at any reasonable hour,
partnership for the purpose of its business. As have access to and may inspect and copy any
such, it is responsible to every partner: of them.
(1) For amounts, and the corresponding
interest from the time the expenses were Any reasonable hour means reasonable hours
made, which he may have disbursed on on business days throughout the year [Pardo v.
behalf of the partnership; Lumber Co. (1925)].
(2) For obligations he may have contracted in
good faith in the interest of the partnership C. RIGHT TO A FORMAL ACCOUNT
business; and General rule: The right to a formal account of
(3) For risks in consequence of the partnership affairs accrues only when the
management of the partnership [Article partnership is dissolved.
1796].
Exceptions: In the special and unusual cases
mentioned in Article 1809, formal accounting
III. Rights and may be demanded by any partner even before
dissolution:
Obligations of Partners (1) If he is wrongfully excluded from the
partnership business or possession of its
among Themselves property by his co-partners;
A. RIGHT TO ASSOCIATE ANOTHER (2) If the right exists under the terms of any
agreement;
IN SHARE
(3) If, without his consent, a partner has
Every partner may associate another person
derived profits from any transaction
with him in his share. The admission of the
connected with the formation, conduct, or
associate to the partnership, however, requires
liquidation of the partnership or from any
consent of all the other partners even if the
use of partnership property;
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The interest charged may be redeemed before H.3. MANAGEMENT BY TWO OR MORE
foreclosure or, in case of sale directed by the PARTNERS
court, may be purchased without causing When there are two or more managing
dissolution: partners appointed, without specification of
(1) With separate property, by one or more of their duties or without a stipulation on how
the partners; or each one will act:
(2) With partnership property, by one or more (1) Each one may separately execute all acts
of the partners, will consent of all, except of administration.
the debtor partner [Article 1814]. (2) If any of them opposes the acts of the
others, the decision of the majority
H. RIGHT TO PARTICIPATE IN prevails.
MANAGEMENT (3) In case of a tie, the partners owning the
Management of the partnership is primarily controlling interest will decide [Article
governed by the agreement of the partners in 1801].
the articles of partnership. It may be stipulated
that the partnership will be managed by: Requisites:
(1) All the partners; or (1) Two or more partners have been appointed
(2) A number of partners appointed as as managers;
managers, which may be appointed: (2) There is no specification of their respective
(a) In the articles of partnership; or duties; and
(b) After constitution of the partnership.
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(3) There is no stipulation that one of them is evidence against the partnership [Article
shall not act without the consent of all the 1820].
others. (3) Notice to any partner of any matter
relating to partnership affairs is notice to
H.4. STIPULATION OF UNANIMITY the partnership [Article 1821].
In case there is a stipulation that none of the (4) Wrongful act or omission of any partner
managing partners shall act without the acting for partnership affairs makes the
consent of others, the concurrence of all is partnership liable [Article 1822].
necessary for the validity of the acts. (5) Partnership is bound to make good losses
The absence or disability of one cannot be for wrongful acts or misapplications of
alleged, unless there is imminent danger of partners [Article 1823].
grave or irreparable injury to the partnership
[Article 1802]. I. RIGHT TO PROFITS AND
OBLIGATION FOR LOSSES
H.5. MANAGEMENT WHEN MANNER I.1. RULES FOR DISTRIBUTION OF
NOT AGREED UPON PROFITS AND LOSSES
When there is no agreement as to the manner The distribution of profits and losses shall be in
of management, the following rules apply: accordance with the following rules:
(1) All the partners are considered agents (1) They shall be distributed in conformity with
[mutual agency]. Whatever any one does the agreement.
alone binds the partnership, unless there is (2) If only the share in profits has been
a timely opposition to the act, under Article stipulated, the share in the losses shall be
1801. in the same proportion.
(2) Any important alteration in the immovable (3) In the absence of any stipulation:
property of the partnership, even if useful (a) The share in the profits of the capitalist
to the partnership, requires unanimity. If partners shall be in proportion to their
the alteration is necessary for the contributions.
preservation of the property, however, (b) The losses shall be borne by the
consent of the others is not required [De capitalist partners, also in proportion
Leon (2010)]. to the contributions.
(c) The share of the industrial partners in
If the refusal is manifestly prejudicial to the the profits is that share as may be just
partnership, court intervention may be sought and equitable. If he also contributed
[Article 1803]. capital, he will receive a share of the
profits in proportion to his
H.6. MUTUAL AGENCY contribution; and
In addition to the Article 1801, there is (d) The industrial partner, who did not
effectively a mutual agency in the following contribute capital, is not liable for
cases: losses [Article 1797].
(1) Partners can dispose of partnership
property even when in partnership name I.2. EXCLUSION OF PARTNER FROM SHARE
[Article 1819]. General rule: A stipulation excluding one or
(2) An admission or representation made by more partners from any share in the profits or
any partner concerning partnership affairs losses is void [Article 1799].
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Exception: A stipulation exempting an General rule: The partners may adopt any firm
industrial partner from losses is valid, since, if name desired.
the partnership fails to realize profits, he can
no longer withdraw his work or labor [De Leon Exceptions:
(2010)]. (1) They cannot use a name which is “identical
or deceptively or confusingly similar to an
J. OBLIGATION TO RENDER existing or corporation [or partnership] or
INFORMATION to any other name already protected by
Partners shall render on demand true and full law or is patently deceptive, confusing or
information of all things affecting the contrary to existing laws” [Section 18,
partnership to: Corporation Code].
(1) Any partner; (2) Use of names of deceased partner in law
(2) The legal representative of any deceased firms is “permissible provided that the firm
partner; or indicates in all its communications that
(3) The legal representative of any partner said partner is deceased” [Rule 3.02, Code
under legal disability [Article 1806]. of Professional Responsibility].
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(1985)]. The provisions refer to wrongful General rule: Any act of a partner which is
acts or omission and misapplication of apparently for the carrying on of the usual
money or property by a partner in the business of the partnership binds the latter,
ordinary course of business. including the execution of any instrument in
(2) A person admitted as a partner into an the partnership name.
existing partnership is liable for all the
obligations of the partnership arising Exception: The partnership is not bound when
before his admission, except that his the following concur:
liability shall be satisfied only out of (1) The partner has in fact no authority to act;
partnership property, unless there is a and
stipulation to the contrary [Article 1826]. In (2) The person with whom he deals has
other words, he is not personally liable. knowledge of such fact [Article 1818 (1)].
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(b) All the partners consented to the (2) Knowledge of the partner acting in the
representation; and particular matter acquired while a partner;
(c) A partnership liability results. (3) Knowledge of the partner acting in the
(2) He is liable jointly and pro rata (as though particular matter then present to his mind;
he were a partner in fact) with those who or
consented to the representation when: (4) Knowledge of any other partner who
(a) There is an existing partnership but not reasonably could and should have
all the partners consented; or communicated it to the acting partner.
(b) There is no existing partnership and all These do not apply in case of fraud on the
those represented as partners partnership committed by or with the consent
consented to the representation. of the partner [Article 1821].
(3) He is liable separately when:
(a) There is an existing partnership but
V. Dissolution
none of the partners consented; or A. CONCEPTS
(b) There is no existing partnership and Dissolution – the change in the relation of the
not all of those represented as partners partners caused by any partner ceasing to be
consented to the representation. associated in the carrying on of the business. It
is different from the winding-up of the
J. LIABILITY OF AN INCOMING business [Article 1828]. It does not terminate
PARTNER the partnership, which continues until the
A person admitted as a partner is liable: winding up of partnership affairs is completed
(1) For obligations incurred subsequent to his [Article 1829].
admission as the other partners are liable;
(2) For obligations incurred before his Winding up – the actual process of settling the
admission, but will be satisfied only out of partnership business or affairs after
the partnership property, unless otherwise dissolution. It involves collection and
stipulated that he fully assumes such distribution of partnership assets, payment of
obligations. debts, and determination of the value of the
interest of the partners in the partnership.
Ratio:
(1) The new partner partakes of the benefits of Termination – the point in time when all
the partnership property and an already partnership affairs are completely wound up
established business. and finally settled. It signifies the end of the
(2) He has every means of obtaining full partnership life [De Leon (2010)].
knowledge of the debts of the partnership
and remedies that amply protect his B. CAUSES OF DISSOLUTION
interest [De Leon (2010)]. B.1. WITHOUT VIOLATION OF THE
AGREEMENT
K. NOTICE TO OR KNOWLEDGE OF (1) By the termination of the definite term or
THE PARTNERSHIP particular undertaking specified in the
The following operate as notice to or agreement;
knowledge of the partnership: (2) By the express will of any partner, who
(1) Notice to any partner of any matter must act in good faith, when no definite
relating to partnership affairs; term or particular is specified.
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(3) By the express will of all the partners who (2) When a specific thing which a partner had
have not assigned their interests or promised to contribute, perishes before
suffered them to be charged for their delivery, or by the loss of the thing, only
separate debts, either before or after the the use or enjoyment of which has been
termination of any specified term or contributed; the loss of a specific thing,
particular undertaking; however, does not dissolve the corporation
(4) By the expulsion of any partner from the after its ownership has already been
business bona fide in accordance with such transferred to the partnership;
a power conferred by the agreement (3) By the death of any partner;
between the partners [Article 1830(1)]. (4) By the insolvency of any partner or of the
partnership;
If, after the expiration of the definite term or (5) By the civil interdiction of any partner;
particular undertaking, the partners continue
the partnership without making a new B.4. BY DECREE OF COURT
agreement, the firm becomes a partnership at A partner may apply for dissolution in court
will [Article 1785]. when:
(1) A partner has been declared insane in any
Any one of the partners may, at his sole judicial proceeding or is shown to be of
pleasure, dictate the dissolution of the unsound mind;
partnership at will. He must, however, act in (2) A partner becomes in any other way
good faith, not that the attendance of bad faith incapable of performing his part of the
can prevent the dissolution of the partnership partnership contract;
but that it can result in a liability for damages (3) A partner has been guilty of such conduct
[Ortega v. CA (1995)]. as tends to affect prejudicially the carrying
on of the business;
B.2. IN CONTRAVENTION OF THE (4) A partner willfully or persistently commits
AGREEMENT a breach of the partnership agreement, or
Where circumstances do not permit dissolution otherwise so conducts himself in matters
under any other provision of Article 1830, it relating to the partnership business that it
may also be dissolved by the express will of any is not reasonably practicable to carry on
partner at any time. the business in partnership with him;
Thus, even if there is a specified term, one (5) The business of the partnership can only
partner can cause its dissolution by expressly be carried on at a loss;
withdrawing even before the expiration of the (6) Other circumstances render a dissolution
period, with or without justifiable cause. If the equitable.
cause is not justified or no cause was given, the
withdrawing partner is liable for damages but A person who acquires the interest of a partner
in no case can he be compelled to remain in may likewise apply:
the firm [Rojas v. Maglana (1990)]. (1) After the termination of the specified term
or particular undertaking;
B.3. BY OPERATION OF LAW (2) At any time if the partnership was a
(1) By any event which makes it unlawful for partnership at will when the interest was
the business of the partnership to be assigned or when the charging order was
carried on or for the members to carry it on issued
in partnership;
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be said to have been in any degree due to for the partnership had knowledge or
his connection with it [Article 1834]. notice of the death or insolvency [Article
1833].
Any act of a partner after dissolution in no case
binds the partnership in the following cases: C.4. ON EXISTING LIABILITY OF
(1) Where the partnership is dissolved because PARTNERS
it is unlawful to carry on the business, General rule: Dissolution does not of itself
unless the act is appropriate for winding up discharge the existing liability of any partner.
partnership affairs;
(2) Where the partner has become insolvent; Exception: A partner may be relieved when
(3) Or, where the partner has no authority to there is an agreement to that effect between:
wind up partnership affairs, except by a (1) Himself;
transaction with one who: (2) The partnership creditor; and
(a) Had extended credit to the partnership (3) The person or partnership continuing the
prior to dissolution and had no business.
knowledge or notice of his want of
authority; or Such agreement may be inferred from the
(b) Had not extended credit to the course of dealing between the creditor having
partnership prior to dissolution, and, knowledge of the dissolution and the person or
having no knowledge or notice of his partnership continuing the business.
want of authority, the fact of his want
of authority has not been advertised In case of dissolution by death, the individual
[Article 1834]. property of a deceased partner is liable for
obligations of the partnership incurred while
Article 1834 does not affect the liability under he was a partner, after payment of his separate
Article1825 of any person who, after debts [Article 1835].
dissolution, represents himself or consents to
another representing him as a partner in a D. WINDING UP PARTNERS
partnership engaged in carrying on business D.1. WHO MAY WIND UP
[Article 1834]. The following partners have the right to wind
up the partnership affairs:
C.3. ON LIABILITY FOR CONTRACTS (1) Those designated in an agreement;
AFTER DISSOLUTION BY SPECIFIC (2) Those who have not wrongfully dissolved
CAUSES the partnership; or
General rule: A contract entered into by a (3) The legal representative of the last
partner acting for the partnership after surviving partner, who was not insolvent.
dissolution by act, death or insolvency of a
partner binds the other partners. Any partner or his legal representative or
assignee may obtain winding up by the court,
Exceptions: upon cause shown [Article 1836].
(1) The dissolution being by act of any partner,
the partner acting for the partnership had D.2. MANNER OF WINDING UP
knowledge of the dissolution; or 1. Extrajudicial, by the partners themselves;
(2) The dissolution being by death or or
insolvency of a partner, the partner acting
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2. Judicial, under the control and direction (c) During the agreed term for the
of the proper court. partnership.
The action for liquidation of the partnership is For the purpose of continuing the business, the
personal. The fact that sale of assets, including said partners may possess the partnership
real property, is involved does not change its property provided:
character, such sale being merely a necessary (1) They secure the payment by bond
incident of the liquidation of the partnership, approved by the court; or
which should precede and/or is part of its (2) They pay any partner who has caused the
process of dissolution [Claridades v. Mercader dissolution wrongfully the value of his
(1966)]. interest in the partnership, less any
damages recoverable, and indemnity
E. RIGHTS OF PARTNERS IN CASE OF against all present or future partnership
DISSOLUTION liabilities [Article 1837(2)].
E.1. DISSOLUTION WITHOUT VIOLATION
II. PARTNER WHO CAUSED THE
OF THE AGREEMENT
Each partner may have:
DISSOLUTION
(1) The partnership property applied to The partner who caused the dissolution
discharge the partnership liabilities; and wrongfully has the following rights:
(2) The surplus applied in cash to the net (1) If the business is not continued, all the
amount owing to the respective partners. rights Article 1837, 1st par., subject to
liability for damages;
This is a right as against his co-partners and all (2) If the business is continued, the right, as
partners claiming through them in respect of against his co-partners and all claiming
their interests in the partnership. It cannot be through them, to:
availed if there is an agreement to the contrary (a) Ascertainment, without considering the
[Article 1837 (1)]. value of the goodwill of the business,
and payment to him in cash the value
of his partnership interest, less any
E.2. DISSOLUTION IN CONTRAVENTION
damage, or have the payment secured
OF THE AGREEMENT
by a bond approved by the court; and
I. PARTNER WHO DID NOT CAUSE THE (b) Be released from all existing liabilities
DISSOLUTION of the partnership [Article 1837(3)].
The partners who did not cause the dissolution
wrongfully has the following rights: The goodwill of a business may be defined to
(1) To demand the right under Article 1837, 1st be the advantage which it has from its
par.; establishment or from the patronage of its
(2) To be indemnified for damages for breach customers, over and above the mere value of
of the agreement against the partner who its property and capital. The goodwill [which
caused the dissolution wrongfully [Article includes the firm name] is part of the
1837(1)]; partnership assets and may be subject of sale
(3) To continue the business: [De Leon (2010)].
(a) In the same name;
(b) By themselves or jointly with others;
F. RIGHTS OF PARTNERS IN CASE OF
RESCISSION
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(2) Separate creditors have priority on (e) Expulsion of a partner, and the
individual property, saving the rights of lien remaining partners continue the
of secured creditors. business, either alone or with others.
(3) Anything left from either shall be applied (2) When the cause of dissolution is the
to satisfy the other [Article 1839(8)]. retirement or death of any partner, and
business is continued with the consent of
G.6. DISTRIBUTION OF PROPERTY OF the retired partner or the representative of
INSOLVENT PARTNER the deceased partner, without assignment
Where a partner has become insolvent or his of their rights to partnership property.
estate is insolvent, the claims against his (3) When the cause of dissolution is the
separate property shall rank in the following assignment by all the partners or their
order: representatives of their rights in
(1) Those owing to separate creditors; partnership property to one or more third
(2) Those owing to partnership creditors; persons who promise to pay the debts and
(3) Those owing to partners by way of who continue the business of the
contribution [Article 1839(9)]. partnership [Article 1840, 1st par.].
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legal representative, as against such person or (2) The business is controlled or managed by
partnership, subject to the prior rights of one or more general partners, who are
creditors of the dissolved partnership: personally liable to creditors [Articles 1848
(1) May have the value of his interest at the and 1850].
date of dissolution ascertained; and (3) One or more limited partners contribute to
(2) Shall receive as an ordinary creditor: the capital and share in the profits but do
(a) An amount equal to the value of his not manage the business and are not
interest in the dissolved partnership personally liable for partnership
with interest; or obligations beyond their capital
(b) At his option or at the option of his contributions [Articles 1845, 1848 and
legal representative, in lieu of interest, 1856].
the profits attributable to the use of his (4) Obligations or debts are paid out of the
right in the property of the dissolved partnership assets and the individual
partnership [Article 1841]. property of the general partners [Article
1843].
J. RIGHT TO AN ACCOUNT (5) The limited partners may have their
In the absence of any agreement to the contributions back subject to conditions
contrary, the right to an account of his interest prescribed by law [Articles 1844 and 1957].
shall accrue to any partner, or his legal
representative at the date of dissolution, as A limited partnership has the following
against: advantages:
(1) The winding up partners; (1) For general partners, to secure capital
(2) The surviving partners; or from others while retaining control and
(3) The person or partnership continuing the supervision for the business;
business [Article 1842]. (2) For limited partners, to have a share in the
profits without risk of personal liability.
VI. Limited Partnership C. GENERAL AND LIMITED
A. DEFINITION
PARTNERS DISTINGUISHED
A limited partnership is:
(1) A partnership; General partner Limited partner
(2) Formed by two or more persons; Extent of liability
(3) Having as members: Personally, but Liable only to the
(a) One or more general partners; and subsidiarily, liable extent of his capital
(b) One or more limited partners. for obligations of contributions
the partnership
The limited partners as such shall not be
bound by the obligations of the partnership Right to participate in management
[Article 1843]. Unless otherwise No right to
agreed upon, all participate in
B. CHARACTERISTICS general partners management
(1) A limited partnership is formed by have an equal right
compliance with the statutory to manage the
requirements [Article 1844]. partnership
Nature of contribution
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requirements. When there is failure to (2) Subsequently, but within a sufficient time
substantially comply with the requirements: before the statement was relied upon to
(1) In relation to third persons, the partnership enable him to cancel or amend the
is general, unless they recognized that the certificate, or to file a petition for its
firm is a limited partnership; and cancellation or amendment [Article 1847].
(2) As between the partners, the partnership
remains limited, since they are bound by REQUISITES:
their agreement [De Leon (2010)]. (1) The partner knew the statement to be
false:
E.2. PURPOSE OF FILING (a) At the time he signed the certificate; or
The purpose of filing the certificate in the SEC (b) Subsequently, but having sufficient
is: time to cancel or amend it, or file a
(1) To give actual or constructive notice to petition for its cancellation or
potential creditors or persons dealing with amendment, and he failed to do so;
the partnership; and (2) The person seeking to enforce liability has
(2) To acquaint them with its essential relied upon the false statement in
features, including the limited liability of transacting business with the partnership;
limited partners [De Leon (2010)]. and
(3) The person suffered loss as a result of
E.3. FIRM NAME reliance upon such false statement.
General rule: The surname of a limited partner
shall not appear in the partnership name. E.5. GENERAL AND LIMITED PARTNER
AT THE SAME TIME
Exceptions: A person may be a general and a limited
(1) It is also the surname of a general partner; partner in the same partnership at the same
or time. This fact must be stated in the certificate.
(2) Prior to the time when the limited partner A person who is a general, and also at the
became such, the business had been same time a limited partner, shall have all the
carried on under a name in which his rights and powers, and be subject to all the
surname appeared. restrictions of a general partner, except that, in
respect to his contribution as a limited partner,
A limited partner whose surname appears in a he shall have the rights against the other
partnership name contrary to this prohibition is members which he would have had if he were
liable as a general partner to partnership not also a general partner [Article 1853].
creditors who extend credit without actual
knowledge that he is not a general partner. F. MANAGEMENT
Only general partners have the right to
E.4. FALSE STATEMENT IN THE manage the partnership. If a limited partner
CERTIFICATE takes part in the control of the business, he
If the certificate contains a false statement, becomes liable as a general partner [Article
one who suffers loss by reliance thereon may 1848].
hold liable any party to the certificate who
knew the statement to be false: A general partner shall have the rights and
(1) At the time he signed the certificate; or powers and be subject to all restrictions and
liabilities of a partner in a partnership without
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(2) He does not participate in the A limited partner shall have the same rights as
management of the business [Article a general partner to:
1848]; and (1) Require that the partnership books be kept
(3) His surname does not appear in the at the principal place of business of the
partnership name [Article 1846]. partnership;
(2) To inspect and copy any of them at a
G.2. LIABILITY TO PARTNERSHIP reasonable hour;
CREDITORS (3) To demand true and full information of all
General rule: A limited partner is not liable as a things affecting the partnership;
general partner. His liability is limited to the (4) To demand a formal account of
extent of his contributions [Article 1843]. partnership affairs whenever
circumstances render it just and
Exceptions: The limited partner is liable as a reasonable;
general partner when: (5) To ask for dissolution and winding up by
(1) His surname appears in the partnership decree of court;
name, with certain exceptions [Article (6) To receive a share of the profits or other
1846, 2nd par.]. compensation by way of income; and
(2) He takes part in the control of the business (7) To receive the return of his contribution
[Article 1848]. provided the partnership assets are in
excess of all its liabilities [Article 1851].
G.3. LIABILITY TO SEPARATE
CREDITORS H.2. RIGHT TO TRANSACT BUSINESS
On due application to a court of competent WITH THE PARTNERSHIP
jurisdiction by any separate creditor of a A limited partner may:
limited partner, the court may: (1) Loan money to the partnership;
(1) Charge his interest with payment of the (2) Transact other business with the
unsatisfied amount of such claim; partnership; and
(2) Appoint a receiver; and (3) Receive a pro rata share of the partnership
(3) Make all other orders, directions and assets with general creditors if he is not
inquiries which the circumstances of the also a general partner [Article 1854, 1st
case may require. par.].
The interest so charged may be redeemed with Limitations: A limited partner, with respect to
the separate property of any general partner, his transactions with the partnership, cannot:
but may not be redeemed with partnership (1) Receive or hold as collateral security any
property [Article 1862]. partnership property; or
(2) Receive any payment, conveyance, or
Note: In a general partnership, the interest release from liability if it will prejudice the
may be redeemed with partnership property right of third persons [Article 1854, 1st
with the consent of all the partners whose par.].
interests are not charged [Article 1814].
Violation of the prohibition is considered a
fraud on the creditors of the partnership
H. RIGHTS OF A LIMITED PARTNER [Article 1854, 2nd par.].
H.1. IN GENERAL
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CIVIL LAW
CREDIT TRANSACTIONS
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A. COMMODATUM
Commodatum – an essentially gratuitous
contract where one party delivers to another
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something not consumable so that the latter (5) Obligation to pay for the ordinary expenses
may use the same for a certain time and return for the use and preservation of the thing
it. [Art. 1933] loaned. [Art. 1941]
(6) Obligation to be solidarily liable when
there are two or more bailees to whom a
A.1. KINDS OF COMMODATUM thing is loaned in the same contract. [Art.
(1) Ordinary commodatum – the use of the 1945]
thing by the bailee is for a certain period of
time [Art. 1933] A.4. OBLIGATIONS OF THE BAILOR
(2) Precarium – one where the bailor may (1) Obligation to refund the extraordinary
demand the thing loaned at will; if any one expenses during the contract for the
of the following is present preservation of the thing loaned. [Art.
(a) The duration and purpose of the 1949]
contract is not stipulated (2) Obligation to bear equally the
(b) The use of the thing is merely tolerated extraordinary expenses arising on the
by the owner [Art. 1947] occasion of actual use of the thing by the
bailee. [Art. 1949]
A.2. PARTIES Exception: Contrary stipulation
The Civil Code refers to the parties in a (3) Obligation to pay damages to the bailee
commodatum as the bailor (creditor) or bailee for hidden flaws known to the bailor. [Art.
(debtor). 1951]
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(b) Necessary – obligation arises as a General rule: The depositor shall reimburse the
consequence of law or quasi-contract depositary for any loss arising from the
(2) Judicial – obligation arises as a character of the thing deposited [Art. 1993]
consequence of a law allowing the
issuance of a judicial order constituting a Exceptions:
deposit (1) Depositor was not aware of the danger;
(2) Depositor was not expected to know the
A. VOLUNTARY DEPOSIT dangerous character of the thing;
Voluntary deposit – an agreement to constitute (3) Depositor notified the depositary of such
a deposit is binding, but the deposit itself is a dangerous character;
real contract, as it is not perfected until the (4) Depositary was aware of the danger
delivery of the thing. [Art. 1963] without advice from the depositor.
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(a) They have been previously informed about Regarding the legal deposit of a vehicle that
the effects brought by the guests; and was stolen while parked with Saisaki
(b) The latter have taken the precautions restaurant, “the depositary may not exempt
prescribed regarding their safekeeping. itself from responsibility for loss or damage of
the thing deposited with it, by exclusionary
B.3. EXTENT OF LIABILITY UNDER stipulation. Such stipulations are void for being
ART.1998 contrary to law.” [Triple-V Food Services v.
(1) Those in hotel rooms which come under Filipino Merchants Insurance Company,
the term “baggage” or articles such as February 21, 2005]
clothing as are ordinarily used by travelers
(2) Include those lost or damaged in hotel B.6. HOTEL-KEEPER’S RIGHT TO
annexes such as vehicles in the hotel’s RETENTION
garage. The hotel-keeper has a right to retain the
things brought into the hotel by the guest, as a
B.4. WHEN HOTEL-KEEPER LIABLE security for credits on account of—
Regardless of the amount of care exercised the (1) lodging, and
hotel-keeper is liable when— (2) supplies usually furnished to hotel guests
(1) The loss or injury to personal property is [Art. 2004]
caused by his servants or employees as
well as by strangers [Art. 2000]. The right of retention recognized in this article
(2) The loss is caused by the act of a thief or is in the nature of a pledge created by
robber done without the use of arms and operation of law.
irresistible force. [Art. 2001]
C. JUDICIAL DEPOSIT
B.5. WHEN HOTEL-KEEPER NOT LIABLE Takes place when an attachment or seizure of
(1) The loss or injury is caused by force property in litigation is ordered [Arts. 2005-
majeure, like flood, fire, [Art.2000] theft or 2009]
robbery by a stranger—not the hotel-
keeper’s servant or employee—with the use C.1. NATURE AND PURPOSE
of firearms or irresistible force [Art.2001] It is auxiliary to a case pending in court. The
Exception: Hotel-keeper is guilty of fault or purpose is to maintain the status quo during
negligence in failing to provide against the pendency of the litigation or to insure the right
loss or injury from his cause. [Arts.1170 and of the parties to the property in case of a
1174] favorable judgment.
(2) The loss is due to the acts of the guests, his
family, servants, visitors [Art.2002] C.2. DEPOSITARY OF SEQUESTERED
(3) The loss arises from the character of the PROPERTY
things brought into the hotel [Ibid.] A person is appointed by the court [Art. 2007]
with the obligations—
The hotel-keeper cannot free himself from (1) To take care of the property with the
responsibility by posting notices to the effect diligence of a good father of the family.
that he is not liable for the articles brought by [Art. 2008]
the guest. Such kind of stipulation shall be (2) To continue in his responsibility until the
void. [Art. 2003] controversy which give rise thereto is
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Creditor has every right to take all possible A guaranty may secure a future debt [Art.
measures to secure payment of his credit— 2053]
guaranty can be constituted even against the Continuing Guaranty
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(1) Not limited to a single transaction but conditional obligation [Art. 2053]
which contemplates a future course of (1) Principal obligation subject to a suspensive
dealings, covering a series of transactions condition – the guarantor is liable only
generally for an indefinite time or until after the fulfillment of the condition.
revoked. (2) Principal obligation subject to a resolutory
(2) It is prospective in its operation and is condition – the happening of the condition
generally intended to provide security with extinguishes both the principal obligation
respect to future transactions. and the guaranty
(3) Future debts, even if the amount is not yet
known, may be guaranteed but there can A guarantor’s liability cannot exceed the
be no claim against the guarantor until the principal obligation [Art. 2054]
amount of the debt is ascertained or fixed General rule: Guaranty is a subsidiary and
and demandable. accessory contract – guarantor cannot bind
himself for more than the principal debtor and
Rationale: A contract of guaranty is subsidiary even if he does, his liability shall be reduced to
(1) To secure the payment of a loan at the limits of that of the debtor. But the
maturity – surety binds himself to guarantor may bind himself for less than that
guarantee the punctual payment of a loan of the principal.
at maturity and all other obligations of
indebtedness which may become due or Exceptions:
owing to the principal by the borrower. (1) Interest, judicial costs, and attorney’s fees
(2) To secure payment of any debt to be as part of damages may be recovered –
subsequently incurred – a guaranty shall creditors suing on a suretyship bond may
be construed as continuing when by the recover from the surety as part of their
terms thereof it is evident that the object is damages, interest at the legal rate, judicial
to give a standing credit to the principal costs, and attorney’s fees when
debtor to be used from time to time either appropriate, even without stipulation and
indefinitely or until a certain period, even if the surety would thereby become
especially if the right to recall the guaranty liable to pay more than the total amount
is expressly reserved. stipulated in the bond.
(3) To secure existing unliquidated debts –
refers to debts existing at the time of the Interest runs from:
constitution of the guaranty but the Filing of the complaint (upon judicial
amount thereof is unknown and not to demand); or
debts not yet incurred and existing at that The time demand was made upon the
time. surety until the principal obligation is
(4) The surety agreement itself is valid and fully paid (upon extra-judicial demand)
binding even before the principal obligation
intended to be secured thereby is born; for Rationale: Surety is made to pay, not by
example, those securing obligations reason of the contract, but by reason of his
subject to a condition precedent are valid failure to pay when demanded and for
and binding before the occurrence of the having compelled the creditor to resort to
condition precedent. the courts to obtain payment.
A guaranty may secure the performance of a (2) Penalty may be provided – a surety may be
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held liable for the penalty provided for in a Liability arises only if principal debtor is held
bond for violation of the condition therein. liable
(1) In the absence of collusion, the surety is
Principal’s liability may exceed guarantor’s bound by a judgment against the principal
obligations even though he was not a party to the
The amount specified in a surety bond as the proceedings;
surety’s obligation does not limit the extent of (2) The creditor may sue, separately or
the damages that may be recovered from the together, the principal debtor and the
principal, the latter’s liability being governed surety;
by the obligations he assumed under his (3) A demand or notice of default is not
contract required to fix the surety’s liability
Exception: Where required by the
The existence of a guaranty is not presumed provisions of the contract of suretyship
[Art. 2055] (4) A surety bond is void where there is no
Guaranty requires the expression of consent on principal debtor because such an
the part of the guarantor to be bound. It undertaking presupposes that the
cannot be presumed because of the existence obligation is to be enforceable against
of a contract or principal obligation. someone else besides the surety, and the
latter can always claim that it was never
Rationale: his intention to be the sole person
(1) There be assurance that the guarantor had obligated thereby.
the true intention to bind himself;
(2) To make certain that on making it, the Note: A surety is not entitled to exhaustion
guarantor proceeded with consciousness of
what he was doing. The undertaking is to the creditor, not the
debtor
Contract of guaranty is covered by the Statute The surety makes no covenant or
of Frauds [See Art. 1403 (2) (b)] agreement with the principal that it will fulfill
Guaranty must not only be expressed but must the obligation guaranteed for the benefit of the
so be reduced into writing. Hence, it shall be principal. The surety’s undertaking is that the
unenforceable by action, unless the same or principal shall fulfill his obligation and that the
some note or memorandum thereof be in surety shall be relieved of liability when the
writing, and subscribed by the party charged, obligation secured is performed; unless
or by his agent; evidence, therefore, of the otherwise expressly provided.
agreement cannot be received without the
writing, or a secondary evidence of its contents. Prior demand by the creditor upon the principal
However, it need not appear in a public is not required. The surety is not exonerated by
document neglect of the creditor to sue the principal.
Strictissimi juris rule is applicable only to
B. NATURE AND EXTENT OF accommodation surety.
SURETYSHIP
Liability is contractual and accessory but direct. Reason: An accommodation surety acts
without motive of pecuniary gain and hence,
Liability is limited by the terms of the contract. should be protected against unjust pecuniary
impoverishment by imposing on the principal,
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duties akin to those of a fiduciary. This rule will (a) If the guarantor has expressly
apply only after it has been definitely renounced it.
ascertained that the contract is one of (b) If he has bound himself solidarily with
suretyship or guaranty. the debtor. Here, the liability assumed
is that of a surety. The guarantor
Strictissimi juris rule is not applicable to becomes primarily liable as a solidary
compensated sureties co- debtor. In effect, he renounces in
Reasons: the contract itself the benefit of
(1) Compensated corporate sureties are exhaustion.
business associations organized for the (c) In case of insolvency of the debtor –
purpose of assuming classified risks in guarantor guarantees the solvency of
large numbers, for profit and on an the debtor. If the debtor becomes
impersonal basis. insolvent, the liability of the guarantor
(2) They are secured from all possible loss by arises as the debtor cannot fulfill his
adequate counter-bonds or indemnity obligation
agreements. (d) When the debtor has absconded, or
cannot be sued within the Philippines –
Such corporations are in fact insurers and in the creditor is not required to go after a
determining their rights and liabilities, the debtor who is hiding or cannot be sued
rules peculiar to suretyship do not apply. in our courts, and to incur the delays
and expenses incident thereto.
The stipulation in the indemnity agreement Exception: When the debtor has left a
allowing the surety to recover even before it manager or representative
paid the creditor is enforceable. In accordance (e) If it may be presumed that an execution
therewith, the surety may demand from the on the property of the principal debtor
indemnitors even before paying the creditors. would not result in the satisfaction of
[Mercantile Insurance Company v. Ysmael, 169 the obligation – If such judicial action
SCRA 66, 1989] including execution would not satisfy
the obligation, the guarantor can no
C. EFFECT OF GUARANTY longer require the creditor to resort to
C.1. EFFECTS OF GUARANTY BETWEEN all such remedies against the debtor as
THE GUARANTOR AND THE CREDITOR the same would be but a useless
formality. It is not necessary that the
1. The guarantor has the right to benefit from debtor be judicially declared insolvent.
excussion/ exhaustion [Art. 2058]
“The right of guarantors…to demand
The guarantor cannot be compelled to pay exhaustion of the property of the principal
the creditor unless the latter has: debtor, exists only when a pledge or a
(a) Exhausted all of the property of the mortgage has not been given as special
debtor; and security for the payment of the principal
(b) Resorted to all the legal remedies obligation.” [Southern Motors, Inc. v.
against the debtor. Barbosa, 1956]
Exceptions to benefit of excussion [Art. 2059] “The surety in the present case bound itself
(1) As provided in Art. 2059: "jointly and severally" [in solidum] with the
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defendant; and excussion [previous Exception: The creditor may, prior thereto,
exhaustion of the property of the debtor] secure a judgment against the guarantor,
shall not take place "if he [the guarantor] who shall be entitled, however, to a
has bound himself solidarily with the deferment of the execution of said
debtor." [Luzon Steel Corp. v. Sia, 1969] judgment against him, until after the
properties of the principal debtor shall
(2) If he does not comply with Art. 2060 have been exhausted, to satisfy the latter’s
In order that the guarantor may make use obligation.
of the benefit of excussion, he must:
(a) Set it up against the creditor upon the 3. The creditor has the duty to make prior
latter’s demand for payment from him; demand for payment from the guarantor
(b) Point out to the creditor: [Art. 2060]
(i) Available property of the debtor –
the guarantor should facilitate the The demand is to be made only after
realization of the excussion since judgment on the debt.
he is the most interested in its
benefit. Joining the guarantor in the suit against
(ii) Within the Philippine territory – the principal debtor is not the demand
excussion of property located intended by law. Actual demand has to be
abroad would be a lengthy and made.
extremely difficult proceeding and 4. The guarantor has the duty to set up the
would not conform with the benefit of excussion [Art. 2060]
purpose of the guaranty to provide
the creditor with the means of As soon as he is required to pay, guarantor
obtaining the fulfillment of the must also point out to the creditor
obligation. available property (not in litigation or
(iii) Sufficient to cover the amount of encumbered) of the debtor within the
the debt Philippines.
(3) If he is a judicial bondsman and sub- surety
[Art. 2084] 5. The creditor has the duty to resort to all
(4) Where a pledge or mortgage has been legal remedies [Arts. 2058, 2061]
given by him as a special security
(5) If he fails to interpose it as a defense After the guarantor has fulfilled the
before judgment is rendered against him. conditions required for making use of the
benefit of excussion, it becomes the duty of
2. The creditor has the right to secure a the creditor to:
judgment against the guarantor prior to the (1) Exhaust all the property of the debtor
excussion pointed out by the guarantor;
(2) If he fails to do so, he shall suffer the
General rule: An ordinary personal loss for the insolvency of the debtor,
guarantor (not a pledgor or mortgagor), but only to the extent of the value of
may demand exhaustion of all the property the said property
of the debtor before he can be compelled
to pay. 6. The creditor has the duty to notify the
guarantor in the action against the debtor
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7. A compromise shall not prejudice the The need to enforce the provisions on
person not party to it [Art. 2063] indemnity in Article 2066 forms the basis
for the subrogation clause of Article 2067.
A compromise between creditor and The assumption, however, is that the
principal debtor benefits the guarantor but guarantor who is subrogated to the rights
does not prejudice him. of the creditor, has the right to be
A compromise between guarantor and the reimbursed for his answering for the
creditor benefits but does not prejudice the obligation of the debtor. Absent this right
principal debtor. of reimbursement, subrogation will not be
proper.
8. Co-guarantors are entitled to the benefit of
division [Art. 2065] 2. The guarantor has the duty to notify the
debtor before paying the creditor [Art.
The benefit of division applies only when 2068]
there are several guarantors and one
debtor for a single debt. Except when Should payment be made without
solidarity has been stipulated, a co- notification, and supposing the debtor has
guarantor is liable only to the extent of his already made a prior payment, the debtor
share in the obligation as divided among would be justified in setting up the defense
all the co-guarantors. that the obligation has already been
extinguished by the time the guarantor
made the payment. The guarantor will
then lose the right of reimbursement and
consequently the right of subrogation.
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(b) By judicial demand and the creditor, and (3) that it was made
(3) The paying guarantor seeks to be without the consent of the surety or with a
indemnified only to the extent of his reservation of rights with respect to him.
proportionate share in the total obligation. [Filipinas Textile Mills v. CA, November 12,
2003]
D. EXTINGUISHMENT OF GUARANTY
Once the obligation of the debtor is E. LEGAL AND JUDICIAL BONDS
extinguished in any manner provided in the Bond – an undertaking that is sufficiently
Civil Code, the obligation of the guarantor is secured, and not cash or currency.
also extinguished [Art. 2076]. However, there
may be instances when, after the Bondsman – a surety offered in virtue of a
extinguishment of the guarantor’s obligation provision of law or a judicial order.
(as in the case of a release from the guaranty),
the obligation of the debtor still subsists. Qualifications of personal bondsman [2082 in
relation to Art. 2056]
Although the guarantor generally has to make (1) He possesses integrity;
payment in money, any other thing of value, if (2) He has capacity to bind himself;
accepted by the creditor, is valid payment and (3) He has sufficient property to answer for the
therefore releases the guarantor (dacion en obligation which he guarantees.
pago) [Art. 2077].
Pledge or mortgage in lieu of bond [2083]
If one guarantor is released without the Guaranty or suretyship is a personal security.
consent of the others, the release would
benefit the co-guarantors to the extent of the Pledge or mortgage is a property or real
proportionate share of the guarantor released security. If the person required to give a legal
[Art. 2078]. or judicial bond should not be able to do so, a
pledge or mortgage sufficient to cover the
A guarantor is released if the creditor, without obligation shall be admitted in lieu thereof.
the guarantor’s consent, extends the time
within which the debtor may perform his Bondsman not entitled to excussion [2084]
obligation [Art. 2079]. This is to protect the A judicial bondsman and the sub-surety are
interest of the guarantor should the debtor be not entitled to the benefit of excussion.
insolvent during the period of extension and
deprive the guarantor of his right to Reason: They are not mere guarantors, but
reimbursement. sureties whose liability is primary and solidary.
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thing is in danger of being lost or impaired less than the amount due.
[Art. 2106]. (2) If the price of sale is more than amount
due, the debtor is not entitled to the excess
The pledgee can temporarily entrust the unless the contrary is provided.
physical possession of the chattels pledged to (3) If the price of sale is less, the creditor is not
the pledgor without invalidating the pledge. entitled to recover the deficiency. A
The pledgor is regarded as holding the contrary stipulation is void.
pledged property merely as trustee for the
pledgee. The type of delivery will depend upon H. PLEDGE AS DISTINGUISHED
the nature and the peculiar circumstances of FROM CHATTEL MORTGAGE [ARTS.
each case. [Yuliongsiu v. PNB (1968)]
2140, 1484]
Chattel Mortgage Pledge
A pledgee cannot become the owner of, nor
Delivery of Personal Property
appropriate to himself, the thing given in
pledge. If by the contract of pledge the pledgor Not required Delivery is required for
validity
continues to be the owner of the thing pledged
during the pendency of the obligation, it Registration in the Chattel Mortgage Register
stands to reason that in case of loss of the Necessary for validity Not necessary;
property, the loss should be borne by the of the CM against Public document is
pledgor. [PNB v. Atendido (1954)] third persons enough to bind third
persons
Right to Excess of Proceeds of Sale
G. FORECLOSURE
The excess goes to The excess goes to the
G.1. Requirements in sale of the thing
the debtor/ pledgee/creditor,
pledged by a creditor, if credit is not paid mortgagor unless otherwise
on time stipulated
[Art. 2112] Right to Recover Deficiency
(1) Debt is due and unpaid. Creditor/ mortgagee Creditor/ mortgagee is
(2) Sale must be at a public auction. can recover from the not entitled to recover
(3) Notice to the pledgor and owner, stating debtor/ mortgagor, any deficiency after the
the amount due. except if covered by property is sold,
(4) Sale must be made with the intervention of Recto Law notwithstanding
a notary public. contrary stipulation
(5) If at the first auction the thing is not sold, a The provisions of the Civil Code on pledge,
second one with the same formalities shall insofar as they are not in conflict with the
be held. Chattel Mortgage Law shall be applicable to
(6) If at the second auction, there is no sale chattel mortgages [Art. 2141]
either, the creditor may appropriate the
thing pledged but he shall give an
I. PACTUM COMMISSORIUM
acquittance (release) for his entire claim.
It is a stipulation that allows the creditor to
appropriate the collateral, or dispose of it, in
G.2. EFFECTS OF THE SALE OF THE
contravention of the provisions on foreclosure,
THING PLEDGED and as such, is considered null and void
[Art. 2115] [Gomez-Somera].
(1) Extinguishes the principal obligation,
whether the proceeds of the sale is more or
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owner of the property on which it is created Where only a portion of the loan is released, the
(2) Legal – required by law to be executed in mortgage becomes enforceable only as to the
favor of certain persons: proportionate value of the loan [Central Bank
(a) Persons in whose favor the law v. CA]
establishes a mortgage have no other
right than to demand the execution Indivisibility applies only as to
and recording of the document in pledgors/mortgagors who are themselves
which the mortgage is formalized debtors in the principal obligation, and not to
[Article 2125] accommodation pledgors/ mortgagors
(b) The bondsman who is to be offered in
virtue of a provision of law or of a When several things are pledged or mortgaged,
judicial order shall have the each thing for a determinate portion of the
qualifications prescribed in Art 2056 debt, the pledges or mortgage, are considered
[integrity, capacity to bind himself, and separate from each other. But when the
sufficient property to answer for the several things are given to secure the same
obligation], and in other laws [Article debt in its entirety, all of them are liable for the
2082] debt, and the creditor does not have to divide
(c) If the person bound to give a bond his action by distributing the debt among the
should not be able to do so, a pledge various things pledged or mortgaged. Even
or mortgage considered sufficient to when only a part of the debt remains unpaid,
recover his obligation shall be all the things are still liable for such balance.
admitted in lieu thereof [Article 2083] [Tolentino]
(3) Equitable – One which, although lacking
the proper formalities of a mortgage, The question is whether or not the written
shows the intention of the parties to make instrument in controversy was a mortgage or a
the property a security for the debt. conditional sale. The correct test, where it can
(a) Lien created by equitable mortgage be applied, is the continued existence of a debt
ought not to be defeated by requiring or liability between the parties. If such exists,
compliance with formalities necessary the conveyance may be held to be merely a
to the validity of voluntary real estate security for the debt or an indemnity against
mortgage. Ex.: Pacto de retro the liability. [Reyes v. Sierra, 93 SCRA 473]
(b) Provisions governing equitable
mortgage: Arts. 1365, 1450, 1454, E. ESSENTIAL REQUISITES COMMON
1602, 1603, 1604 and 1607. TO PLEDGE AND MORTGAGE
(a) Constituted to secure the fulfillment of a
D. PRINCIPLE OF INDIVISIBILITY OF principal obligation.
PLEDGE/MORTGAGE (b) Pledgor or mortgagor must be the
[Arts. 2089 to 2090] absolute owner of the thing pledged or
A mortgage directly and immediately subjects mortgaged.
the property upon which it is imposed. It is (c) The persons constituting the pledge or
indivisible even though the debt may be mortgage have the free disposal of their
divided, and such indivisibility is likewise property, and in the absence thereof, that
unaffected by the fact that the debtors are not they be legally authorized for the purpose.
solidarity liable. [Dayrit v. CA] Note: Third persons who are not parties to
the principal obligation may secure the
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(5) Before the confirmation, the court retains (5) Surplus proceeds of foreclosure sale
control of the proceedings; execution on belong to the mortgagor.
judgment (6) Debtor (who must be a natural person) has
(6) The proceeds of the sale shall be applied the right to redeem the property sold
to the payment of the: within 1 year from and after the date of
(a) costs of the sale; sale.
(b) amount due the mortgagee; (a) If the mortgagee is a bank and the
(c) claims of junior encumbrancers or debtor is a juridical person, then there
persons holding subsequent is no right of redemption. However, it
mortgages in the order of their priority; may redeem the property before the
and registration of the TCT to the buyer,
(d) the balance, if any shall be paid to the which is similar to the equity of
mortgagor redemption. The TCT must be
(7) Sheriff’s certificate is executed, registered within three months after
acknowledged and recorded to complete the foreclosure.
the foreclosure (b) The mortgagor can only legally
transfer the right to redeem and the
Nature of judicial foreclosure proceedings use of the property during the period of
(1) Quasi in rem action. Hence, jurisdiction redemption.
may be acquired through publication. (7) Remedy of party aggrieved by foreclosure
(2) Foreclosure is only the result or incident of is a petition to set aside sale and the
the failure to pay debt. cancellation of writ of possession.
(3) Survives death of mortgagor. However, if the mortgagee is a bank, the
mortgagor is required to post a bond equal
F.2. EXTRAJUDICIAL FORECLOSURE to the value of the mortgagee’s claim.
[Act 3135] (8) Republication of the notice of sale is
(1) Applies to mortgages where the authority necessary for the validity of the postponed
to foreclose is granted to the mortgagee. extrajudicial sale
(2) Authority is not extinguished by death of (9) In foreclosure of real estate mortgage
mortgagor or mortgagee. This is an agency under Act 3135, the buyer at auction may
coupled with interest. petition the land registration court for a
(3) Public sale should be made after proper writ of possession pending the one-year
notice to the public, otherwise it is a period of redemption of the foreclosed
jurisdictional defect which could render the property.
sale voidable.
(4) There is no need to notify the mortgagor, F.4. NATURE OF POWER OF
where there is no contractual stipulation FORECLOSURE BY EXTRAJUDICIAL SALE
therefor. (1) Conferred for mortgagee’s protection.
Proper notice consists of: (2) An ancillary stipulation.
(a) posting notice in three public places (3) A prerogative of the mortgagee.
and/or
(b) publication in newspaper of general
circulation
Purpose of notice is to obtain the best bid Note:
for the foreclosed property (a) Both should be distinguished from
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Note: There is no right of redemption in pledge Note: The obligation to pay interest is not the
and chattel mortgage. essence of the contract of antichresis; there
being nothing in the Code to show that
The rule up to now is that the right of a antichresis is only applicable to securing the
purchaser at a foreclosure sale is merely payment of interest-bearing loans. On the
inchoate until after the period of redemption contrary, antichresis is susceptible of
has expired without the right being exercised. guaranteeing all kinds of obligations, pure or
The title to land sold under mortgage conditional.
foreclosure remains, in the mortgagor or his
grantee until the expiration of the redemption C. AS DISTINGUISHED FROM OTHER
period and conveyance by the master's deed CONTRACTS
[Medida v. CA] Antichresis Pledge
Kind of property
VI. Antichresis Real property Personal property
Antichresis – a real security transaction that Perfection
arises by contract, with the antichretic creditor Mere consent Delivery of thing
acquiring the right to receive the fruits of an pledged
immovable of the antichretic debtor, and the
obligation to apply them to the payment of the Antichresis Real mortgage
interest, if owing, and thereafter to the Possession
principal. [Art. 2132] Delivered to creditor Retained by debtor
Right to the fruits
A. CHARACTERISTICS Creditor acquires only Creditor does not
(1) Accessory contract – it secures the the right to receive have the right to
performance of a principal obligation fruits receive fruits, but a
(2) Formal contract – it must be in a specified real right over the
form to be valid [Art. 2134] property is created
Payment of taxes and charges
B. SPECIAL REQUISITES Creditor is generally Creditor has no
(1) It can cover only the fruits of an immovable obliged to pay obligation to pay
property Application of fruits
(2) Delivery of the immovable is necessary for First applied to the Mortgagee has no
the creditor to receive the fruits, not to payment of interest, such obligation
make the contract binding and then to principal
(3) Amount of principal and interest must be
specified in writing; otherwise, the
contract of antichresis shall be void D. OBLIGATIONS OF ANTICHRETIC
[Art.2134] CREDITOR
(4) Express agreement that debtor will give (1) To pay taxes and charges on the estate,
possession of the property to creditor and including necessary expenses [Art.2135]
that the latter will apply the fruits to the (a) The creditor may avoid said obligation
interest, if any, then to the principal of his by:
credit (b) Compelling the debtor to reacquire
enjoyment of the property
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(c) By stipulation to the contrary is thereby divested of his title. [Section 3, Act
(2) To apply all the fruits, after receiving them, 1508]
to the payment of interest, if owing, and
thereafter to the principal It is a contract by virtue of which personal
(3) To render an account of the fruits to the property is recorded in the Chattel Mortgage
debtor Register as a security for the performance of an
(4) To bear the expenses necessary for its obligation. [Art. 2140]
preservation and repair
A. CHARACTERISTICS
E. REMEDIES OF CREDITOR IN CASE (1) It is an accessory contract because it
OF NON-PAYMENT OF DEBT secures performance of a principal
(1) Action for specific performance obligation
(2) Petition for the sale of the real property as (2) It is a formal contract because it requires
in a foreclosure of mortgage under Rule 68 registration in the Chattel Mortgage
of the Rules of Court [Art.2137] Register for its validity [but only as against
(a) The parties, however, may agree on an third persons]
extrajudicial foreclosure in the same (3) It is a unilateral contract because it
manner as they are allowed in produces only obligations on the part of
contracts of mortgage and pledge – the creditor to free the thing from the
[Tavera v. El Hogar Filipino, Inc.; Art. encumbrance on fulfillment of the
1939] obligation.
(b) A stipulation authorizing the (4) The excess of the proceeds of the sale goes
antichretic creditor to appropriate the to the debtor or mortgagor
property upon the non-payment of the (5) Creditor or mortgagee can recover
debt within the agreed period is void deficiency from the debtor or mortgagor,
[Art. 2088] except if covered by the Recto Law
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Generally, only personal or movable property with his principal obligation, and no right of
can be covered by a chattel mortgage. innocent third persons is prejudiced.
However, the parties may agree to treat real
property as personal property for purposes of F.2. VENUE
executing a chattel mortgage. There must be a If the mortgagor resides in the Philippines – in
description of the property as would enable the the office of the register of deeds of the
parties or other persons to identify the same province in which the mortgagor resides at the
after reasonable investigation and inquiry. time of the making of the chattel mortgage
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Registration of assignment of mortgage not any part thereof to be sold at a public auction
required by a public officer:
A chattel mortgage may be alienated or (1) After 30 days from the time of condition
assigned to a third person broken
(2) At a public place in the municipality where
The debtor is protected if he pays his creditor the mortgagor resides, or where the
without actual knowledge that the debt has property is situated
been assigned (3) Provided at least 10 day-notice of the time,
place, and purpose of such sale has been
Failure of mortgagee to discharge the posted at 2 or more public places in such
mortgage municipality, and
If the mortgagee, assign, administrator, (4) The mortgagee, his executor,
executor, or either of them, administrator, or assign shall notify the
(1) After performance of the condition before mortgagor or person holding under him
or after the breach thereof, or and the persons holding subsequent
(2) After tender of the performance of the mortgages of the time and place of sale at
condition, at or after the time fixed for the least 10 days previous to the sale:
performance, (a) Either by notice in writing directed to
does not within ten days after being requested him or left at his abode, if within the
thereto by any person entitled to redeem, municipality, or
discharge the mortgage in the manner (b) Sent by mail if he does not reside in
provided by law, the person entitled to redeem such municipality
may recover of the person whose duty it is to
discharge the same, twenty pesos for his DISPOSITION OF PROCEEDS
neglect and all damages occasioned thereby in The proceeds of the sale shall be applied to the
an action in any court having jurisdiction of the payment:
subject-matter thereof. [Act 1508, Sec. 8] (1) Costs and expenses of keeping and sale
(2) Payment of the obligation secured by the
When the condition of the chattel mortgage is mortgage
broken, a mortgagor or person holding a (3) The residue shall be paid to persons
subsequent mortgage, or a subsequent holding subsequent mortgages in their
attaching creditor may redeem the same by order
paying or delivering to the mortgagee the (4) The balance shall be paid to the mortgagor
amount due on such mortgage and the or person holding under him on demand
reasonable costs and expenses incurred by
such breach of condition before the sale
thereof. An attaching creditor who so redeems
VIII. Quasi-Contracts
shall be subrogated to the rights of the A quasi-contract is that juridical relation
mortgagee and entitled to foreclose the resulting from a lawful, voluntary and
mortgage in the same manner that the unilateral act, and which has for its purpose
mortgagee could foreclose it. the payment of indemnity to the end that no
one shall be unjustly enriched or benefited at
G. FORECLOSURE the expense of another [Art. 2142]
The mortgagee, his executor, administrator or
assign may cause the mortgaged property or
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The obligation does not arise: Note: The gestor shall not be liable for (e)
(1) When the property or business is not and (f) if the management was assumed to
neglected or abandoned; save the property or business from
(2) If in fact the manager has been tacitly imminent danger.
authorized by the owner.
(5) Be personally liable for contracts which he
In the first case, the provisions of Articles 1317, entered into with third persons, even
1403, No. 1, and 1404 regarding unauthorized though he acted in the name of the owner,
contracts shall govern. and there shall be no right of action
between the owner and third persons.
In the second case, the rules on agency in Title
X of this Book shall be applicable. [Art. 2144] The gestor shall not be personally liable for
such contracts, provided:
A.1. OBLIGATIONS OF A GESTOR (a) The owner has expressly or tacitly
(1) Perform his duties with all the diligence of ratified the management, or
a good father of a family (b) When the contract refers to things
pertaining to the owner of the
(2) Pay the damages which through his fault business. [Art. 2152]
and negligence may be suffered by the
owner of the property/business under his Note: The responsibility of two or more
management [Art. 2145] gestors shall be solidary, unless the
management was assumed to save the
(3) Be liable for the acts of the persons to thing or business from imminent danger.
whom he delegated all or some of his
duties. This is without prejudice to the A.2. OBLIGATIONS OF THE OWNER OF
direct obligation of the delegate to the THE PROPERTY OR BUSINESS
owner of the business. [Art. 2146] Although the management was not expressly
(4) Be liable for any fortuitous event under the ratified, the owner who enjoys the advantages
following conditions: of the same shall:
(a) Be liable for the obligations incurred in his
(a) If he undertakes risky operations which interest
the owner was not accustomed to (b) Reimburse the gestor for the necessary
embark upon and useful expenses and for the damages
(b) If he has preferred his own interest to the latter may have suffered in the
that of the owner performance of his duties
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The above obligations shall be incumbent WHEN DEBT NOT YET DUE
upon the owner if the management had for its If the payer was in doubt whether the debt was
purpose the prevention of an imminent and due, he may recover if he proves that it was not
manifest loss, although no benefit may have due. [Art. 2156]
been derived. [Art. 2150]
RESPONSIBILITY OF TWO OR MORE
If the owner did not derive any benefit and PAYEES
there was no imminent and manifest danger to When there has been payment of what is not
the property or business, the owner would still due, their responsibility is solidary.
be liable for the abovementioned obligations
and expenses, provided: WHEN MONEY OR THING DELIVERED IS
(5) The gestor has acted in good faith; and
OWNED BY THIRD PERSON
(6) The property or business is intact, ready to
The payee cannot demand that the payor
be returned to the owner. [Art. 2151]
prove his ownership of the thing delivered.
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and accessions insofar as he has thereby (3) When the person obliged to support an
been benefited. orphan, or an insane or other indigent
(2) For the return of the price or assign the person unjustly refuses to give support to
action to collect the sum if he has the latter, any third person may furnish
alienated the same. [Art. 2160] support to the needy individual, with right
of reimbursement from the person obliged
EXEMPTION FROM THE OBLIGATION TO to give support. The provisions of this
RESTORE THE PAYMENT UNDULY MADE article apply when the father or mother of
A person who, believing in good faith that the a child under eighteen years of age
payment was being made of a legitimate and unjustly refuses to support him. [Art. 2166]
subsisting claim,
(4) When through an accident or other cause a
(1) destroyed the document, or
person is injured or becomes seriously ill,
(2) allowed the action to prescribe, or
and he is treated or helped while he is not
(3) gave up the pledges, or
in a condition to give consent to a contract,
(4) cancelled the guaranties for his right shall
he shall be liable to pay for the services of
be exempt from the obligation to restore.
the physician or other person aiding him,
unless the service has been rendered out of
The person who paid unduly may proceed only
pure generosity. [Art. 2167]
against the true debtor or the guarantors with
regard to whom the action is still effective. (5) When during a fire, flood, storm, or other
[Art. 2162] calamity, property is saved from
destruction by another person without the
PRESUMPTION OF PAYMENT BY knowledge of the owner, the latter is
MISTAKE, DEFENSE bound to pay the former just
The presumption arises if something which compensation. [Art. 2168]
had never been due or had already been paid
was delivered; but he from whom the return is (6) When the government, upon the failure of
claimed may prove that the delivery was made any person to comply with health or safety
out of liberality or for any other just cause. regulations concerning property,
undertakes to do the necessary work, even
over his objection, he shall be liable to pay
C. OTHER QUASI-CONTRACTS
the expenses. [Art. 2169]
(1) When, without the knowledge of the
person obliged to give support, it is given (7) When by accident or other fortuitous event,
by a stranger, the latter shall have a right movables separately pertaining to two or
to claim the same from the former, unless more persons are commingled or confused,
it appears that he gave it out of piety and the rules on co-ownership shall be
without intention of being repaid. [Art. applicable. [Art. 2170]
2164]
(8) The rights and obligations of the finder of
(2) When funeral expenses are borne by a lost personal property shall be governed by
third person, without the knowledge of Articles 719 and 720. [Art. 2171]
those relatives who were obliged to give
support to the deceased, said relatives (9) The right of every possessor in good faith
shall reimburse the third person, should to reimbursement for necessary and useful
the latter claim reimbursement. [Art. 2165]
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expenses is governed by Article 546. [Art. (3) Against the same debtor
2172] (4) Who has insufficient property AND
(5) Is insolvent
(10) When a third person, without the
knowledge of the debtor, pays the debt,
B. CLASSIFICATION OF CREDITS
the rights of the former are governed by
(1) Special Preferred Credits
Articles 1236 and 1237. [Art. 2173]
(a) These are considered as mortgages or
(11) When in a small community a nationality pledges of real or personal property, or
of the inhabitants of age decide upon a liens within the purview of legal
measure for protection against provisions governing insolvency. [NCC
lawlessness, fire, flood, storm or other 2243]
calamity, any one who objects to the plan (b) Taxes in NCC 2241 and 2242 shall first
and refuses to contribute to the expenses be satisfied. [NCC 2243] Only taxes
but is benefited by the project as executed enjoy a preference; for all other claims,
shall be liable to pay his share of said there is only a concurrence of credits.
expenses. [Art. 2174] [Gomez-Somera]
(c) They exclude all other claims to the
(12) Any person who is constrained to pay the extent of the value of the affected
taxes of another shall be entitled to property.
reimbursement from the latter. [Art. 2175] (d) These take precedence over ordinary
preferred credits insofar as the
property, to which the liens attach, is
concerned. [Gomez-Somera]
IX. Concurrence and (e) Pro-rating – total amount to be paid is
equal to:
Preference of Credits
Concurrence of credits – implies possession by Credit
two or more creditors of equal rights or ------------------ x value of property
privileges over the same property or all of the Total amount of
property of the debtor. concurring
debts
Preference of credits – is the right held by a
creditor to be preferred in the payment of his (2) Ordinary Preferred Credits
claim above others out of the debtor’s assets. (a) These enjoy a preference, excluding
the credits that are later in order, but
Preference – is merely a method adopted to only as against the value of the
determine and specify the order in which property not otherwise subjected to
credits should be paid, as opposed to a lien, any special preferred credit. [Gomez-
which creates a charge on a particular Somera]
property. [DBP v. NLRC (1990)] (b) NCC 2244 does not create a lien on
specific property; rather, it create
A. WHEN RULES ON PREFERENCE rights in favor of certain creditors to
ARE APPLICABLE have the free property of the debtor
(1) There are two or more creditors applied in accordance with an order of
(2) With separate and distinct claims preference.
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(2) If there are two or more credits with (2) Future property:
respect to the same specific movable (a) A debtor who obtains a discharge from
property, they shall be satisfied pro rata, his debts on account of insolvency, is
after the payment of duties, taxes and fees not liable for the unsatisfied claims of
due the State or any subdivision thereof his creditors with said property [Sec.
[Art.2247] 68 and 69, Insolvency Law, Act 1956]
(3) Those credits which enjoy preference in (3) Property in custodia legis and of public
relation to specific real property or real dominion
rights exclude all others to the extent of
the value of the immovable or real right to
which the preference refers [Art.2248].
(4) If there are two or more credits with
respect to the same specific real property
or real rights, they shall be satisfied pro
rata, after the payment of the taxes and
assessment of the taxes and assessments
upon the immovable property or real right
[Art. 2249].
(5) The excess, if any, after the payment of the
credits which enjoy preference with respect
to specific property, real or personal, shall
be added to the free property which the
debtor may have, for the payment of other
credits [Art.2250].
(6) Those credits which do not enjoy any
preference with respect to specific
property, and those which enjoy
preference, as to the amount not paid,
shall be satisfied according to the
following rules:
(a) Order established by NCC 2244
(b) Common credits referred to in NCC
2245 shall be paid pro rata regardless
of dates [Art.2251].
D. EXEMPT PROPERTY
(1) Present property
(a) Family home [Arts. 152, 153 and 155]
(b) Right to receive support, as well as
money or property obtained by such
support, shall not be levied upon on
attachment or execution. [Art. 205]
(c) Rule 39, Sec. 13
(d) Sec 118, Public Land Act [CA 141, as
amended]
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CIVIL LAW
LAND, TITLES, &
DEEDS
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principles underlying the Torrens system [Sec. (2) As held in Legarda v. Saleeby [31 Phil. 590
2, par. 1, PD 1529] (1915)]
(a) To quiet title to the land and to stop
It is therefore binding on the whole world forever any question as to the legality
because “by the description in the notice (of of said title
initial hearing of the application for (b) To relieve the land of unknown claims
registration) “To Whom It May Concern,” all (c) To guarantee the integrity of land titles
the world are made parties defendant.” and to protect their indefeasibility once
[Aquino, Land Registration and Related the claim of ownership is established
Proceedings, p. 3, citing Esconde v. Borlongay, and recognized
152 SCRA 603, 1987] (d) To give every registered owner
complete peace of mind
A. LAWS IMPLEMENTING LAND (e) To issue a certificate of title to the
REGISTRATION owner which shall be the best evidence
(1) Property Registration Decree [PD 1529, as of his ownership of the land
amended] (f) To avoid conflicts of title in and to real
(2) Cadastral Act [Act 2259, as amended] estate and to facilitate transactions
(3) Public Land Act [CA 141, as amended] (3) As held in Capitol Subdivisions, Inc. v.
(4) Emancipation Decree [PD 27, as amended] Province of Negros Occidental [7 SCRA 60
(5) Comprehensive Agrarian Reform Law of (1963)]
1988 [RA 6657, as amended] (a) To avoid possible conflicts of title in
(6) Indigenous Peoples Rights Act of 1997 and to real property, and
[RA 8371] (b) To facilitate transactions relative
thereto by giving the public the right to
To simplify and streamline land registration rely upon the face of the Torrents
proceedings, Presidential Decree No. 1529 was certificate of title and to dispense with
issued on June 11, 1978, otherwise known as the the need of inquiring further
Property Registration Decree, governing
registration of lands under the Torrens system Object of Registration – Only real property or
as well as the recording of transactions real rights may be the object of registration
relating to unregistered lands, including under the existing land registration laws.
chattel mortgages. This Decree consolidates,
in effect, all pre-existing laws on property CLASSIFICATION OF LANDS:
registration with such appropriate (1) Private or public
modifications as are called for by existing (2) Alienable or inalienable
circumstances. [Pena, p. 9] (3) Registered or unregistered
(4) Registrable or Non-registrable
B. PURPOSES OF LAND
REGISTRATION Registrable lands are:
(1) To notify and protect the interests of (1) Alienable public agricultural lands,
strangers to a given transaction, who may If in the public domain, the land must
be ignorant thereof [Sapto, et al. v. be classified as alienable and
Fabiana, 103 Phil. 683, 1958] disposable. It must be classified as
such at the time of filing the
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application for registration. [Republic v. of real estate and to render title safe and
CA and Naguit, 2005] indefeasible.” [The Philippine Torrens System
(2) Private lands by Florencio Ponce 1964]
Non-registrable lands - those found in the Civil By "Torrens" system generally are meant those
Code dealing with non-registrable properties systems of registration of transactions with
(e.g. property of public dominion) interest in land whose declared object is, under
governmental authority, to establish and
Torrens System - A system for registration of certify to the ownership of an absolute and
land under which, upon landowner’s indefeasible title to realty, and to simplify its
application, the court may, after appropriate transfer. [Grey-Alba v. Dela Cruz, GR No. L-
proceedings, direct the issuance of a certificate 524]
of title. [Black’s Law Dictionary]
ADVANTAGES
The boldest effort to grapple with the problem (1) Secures title
of simplification of title to land was made by (2) Protection against fraud
Mr. (afterwards Sir Robert) Torrens, a layman, (3) Simplified dealings
in South Australia in 1857. . . . In the Torrens (4) Restoration of the estates to its just value,
system title by registration takes the place of whose depreciation is caused by some blur,
"title by deeds" of the system under the technical defect
"general" law. A sale of land, for example, is (5) Barred the recurrence of faults in the title
effected by a registered transfer, upon which a [Legarda v. Saleeby]
certificate of title is issued. The certificate is
guaranteed by statute, and, with certain Nature: Judicial in nature.
exceptions, constitutes indefeasible title to the
land mentioned therein. The object of the Purpose: The real purpose of the Torrens
Torrens system, them, is to do away with the system of registration is to quiet title to land;
delay, uncertainty, and expense of the old to put a stop forever to any question of the
conveyancing system. legality of the registration, in the certificate, or
which may arise subsequent thereto. [Pena, p.
The Torrens system was introduced in the 47]
Philippines by Act No. 496, which took effect
on Jan. 1, 1903. This was later amended and C. ADMINISTRATION OF THE
superseded by PD 1529 which took effect on TORRENS SYSTEM
June 11, 1978. (1) Land Registration Authority
The agency charged with the efficient
The underlying principle of the Torrens system
execution of the laws relative to the
is security with facility in dealing with land.
registration of lands
This is made possible by defining the absolute
Under the executive supervision of the
status of a given property in a certificate of title
DOJ
with a governmental and universal guaranty.
This certificate of title should better be known Consists of an Administrator assisted by
as certificate of title and encumbrances. In the 2 Deputy Administrators
words of Torrens himself the main objects are
“to simplify, quicken, and cheapen the transfer (2) Register of Deeds
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same be considered in relation with the utilization of natural resources shall be under
pending application. the full control and supervision of the State.
The State may directly undertake such
However, if the motion is filed after the activities, or it may enter into co-production,
joint venture, or production-sharing
decision of adjudication has become final but agreements with Filipino citizens, or
before the issuance of the decree by the corporations or associations at least 60 per
Administrator of Land Registration Authority, centum of whose capital is owned by such
the court shall require the interested party to citizens. Such agreements may be for a period
pay the fees prescribed as if such instrument not exceeding twenty-five years, renewable for
had been presented for registration in the not more than twenty-five years, and under
such terms and conditions as may be provided
office of the Register of Deeds. [Pena, p. 72-73]
by law. In cases of water rights for irrigation,
water supply, fisheries, or industrial uses other
LACHES, WHEN IT APPLIES. than the development of waterpower,
Laches sets in if it would take 18 years for a beneficial use may be the measure and limit of
person to file an action to annul the land the grant.
registration proceedings, especially so if the
registrant has already subdivided the land and The State shall protect the nation’s marine
sold the same to innocent third parties. A wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve
party’s long inaction or passivity in asserting its use and enjoyment exclusively to Filipino
his rights over disputed property precludes him citizens.
from recovering the same. [Heirs of Teodoro
dela Cruz vs. CA, 298 SCRA 172; Aurora The Congress may, by law, allow small-scale
Ignacio v. Valeriano Basilio, et al., G.R. No. utilization of natural resources by Filipino
122824, Sept. 26, 2001] citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fish
workers in rivers, lakes, bays, and lagoons.
II. The Regalian Doctrine The President may enter into agreements with
A western legal concept that was first foreign-owned corporations involving either
introduced by the Spaniards into the country technical or financial assistance for large-scale
through the laws of the Indies and the Royal exploration, development, and utilization of
Cedulas. Whereby the Philippines passed to minerals, petroleum, and other mineral oils
Spain by virtue of “discovery” and conquest. according to the general terms and conditions
Consequently, all lands became the exclusive provided by law, based on real contributions to
the economic growth and general welfare of
patrimony and dominion of the Spanish Crown. the country. In such agreements, the State
[Agcaoili] shall promote the development and use of
local scientific and technical resources.
Sec. 2, Art. XII of the 1987 Constitution
The President shall notify the Congress of
All lands of the public domain, waters, every contract entered into in accordance with
minerals, coal, petroleum, and other mineral this provision, within thirty days from its
oils, all forces of potential energy, fisheries, execution.
forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the The principle of State ownership of lands and
State. With the exception of agricultural lands, all other natural resources had its roots in the
all other natural resources shall not be
1935 Constitution, which expressed the
alienated. The exploration, development, and
overwhelming sentiment in the Convention in
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Exceptions:
A. INDIVIDUALS (1) Aliens by way of hereditary succession
(2) Natural born citizens who have lost their
Art. XII, Sec. 3, 1987 Constitution provides, in citizenship- limited to 5,000 sq. m. for
part:
urban land and 3 hectares for rural land
Lands of the public domain are classified into [RA No. 7042 as amended by RA No. 8179]
agricultural, forest or timber, mineral lands (3) Aliens, although disqualified to acquire
and national parks. Agricultural lands of the lands of public domain, may lease private
public domain may be further classified by law land for a reasonable period provided, that
according to the uses to which they may be such lease does not amount to a virtual
devoted. Alienable lands of the public domain transfer of ownership. They may also be
shall be limited to agricultural lands. Private
corporations or associations may not hold such given an option to buy property on the
alienable lands of the public domain except by condition that he is granted Philippine
lease, for a period not exceeding twenty-five citizenship. [Llantino v. Co liong Chong, GR
years, renewable for not more than twenty-five No. 29663]
years, and not to exceed one thousand (4) Lands acquired by an American citizen
hectares in area. Citizens of the Philippines prior the proclamation of Philippine
may lease not more than five hundred
Independence on July 4, 1946 but after the
hectares, or acquire not more than twelve
hectares thereof, by purchase, homestead, or passage of the 1935 Constitution may be
grant. registered, based on the ordinance
appended to the 1935 Constitution [Moss v.
The Krivenko Doctrine - The capacity to acquire Director of Lands, GR No. L-27170]
private land is made dependent upon the (5) Land sold to an alien which is now in the
capacity to acquire or hold lands of public hands of a naturalized citizen can no
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(2) Under Sec. 12, CA 141; Any person who: General Rule: RTC of the province, city, or
(a) Is a citizen of the Philippines over the municipality where the property is situated
age of 18, or the head of a family
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The RTC shall have exclusive jurisdiction over (3) The full names and addresses of all
all applications original for registration of title, occupants of the land and those of the
with power to hear and determine all questions adjoining owners, if known, and, if not
arising upon such applications or petition. known, it shall state the extent of the
[Sec. 2, par. 2, P.D. No. 1529] search to find them.
(4) Whether the property is conjugal,
Exception: Delegated jurisdiction to the MTC, paraphernal or exclusively owned by
MeTC, and MCTC by the Supreme Court in the applicant.
cadastral and land registration cases IF:
(1) There is no controversy over the land, OR (c) Documents to accompany the application
(2) Its value is less than P100,000 [Sec. 34, BP [from Regulations in Ordinary Land
129] Registration Cases]
(1) Tracing-cloth plan duly approved by
C. PROCEDURE IN ORDINARY LAND the Director of Lands, together with
REGISTRATION two blueprint or photographic copies
STEP 1: Survey of the land by the Bureau of thereof;
Lands or a duly registered private surveyor (2) Three copies of the corresponding
technical descriptions;
Note: No plan of such survey, whether it be (3) Three copies of the surveyor’s
original or subdivision, may be admitted in certificate;
land registration proceedings until approved (4) All original muniments of title in the
by the Director of lands [Sec. 1858, possession of the applicant which
Administrative Code] prove his rights, to the title he prays for
or to the land he claims; and
STEP 2: Filing of application for registration by (5) Certificate in quadruplicate of the city
the applicant; or provincial treasurer of the assessed
(a) Form of the application value of the land, at its last assessment
(1) In writing for taxation, or, in the absence thereof,
(2) Signed by the applicant/s or person that of the next preceding year.
duly authorized in his behalf However, in case the land has not been
(3) Sworn before any officer authorized to assessed, the application may be
administer oath for the province or city accompanied with an affidavit in
where the application was actually quadruplicate of the fair market value
signed of the land, signed by three
(4) Application is presented in duplicate disinterested persons.
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to the land or lands mentioned and (1) CLR shall cause the sheriff or his
described in the application. If it is later deputy to post the notice at least 14
shown that the decree of registration had days before the hearing:
included land or lands not included in the (2) In a conspicuous place on each parcel
original application as published, then the of land included in the application and
registration proceedings and the decree of in a conspicuous place on the bulletin
registration must be declared null and void board of the municipal building of the
insofar — but only insofar — as the land not municipality or city in which the land or
included in the publication is concerned. portion thereof is situated.
[Benin v. Tuason, 57 SCRA 531] (3) The court may also cause notice to be
served to such other persons and in
STEP 6: Service of notice upon contiguous such manner as it may deem proper.
owners, occupants and those known to have
interest in the property by the Sheriff; (c) Notice of application and initial hearing by
publication is sufficient and the mere fact
(a) Mailing: that a person purporting to have a
(1) Within 7 days from publication, the legitimate claim in the property did not
CLR shall mail a copy of the notice receive personal notice is not a sufficient
(2) Copies of the notice shall be mailed to: ground to invalidate the proceedings
(i) Every person named in the notice although he may ask for the review of the
whose address is known. judgment or the reopening of the decree of
(ii) the Secretary of Public Highways, registration, if he was made the victim of
to the Provincial Governor, and to actual fraud. [Republic v. Abadilla, CA;
the Mayor of the municipality or G.R. No. 6902-R, Oct. 6, 1951]
city, in which the land lies, if the
applicant requests to have the line STEP 7: Filing of answer or opposition to the
of a public way or road determined application by any person whether named in
(iii) Secretary of Agrarian Reform, the the notice or not;
Solicitor General, the Director of (a) Who may file? Any person claiming an
Lands, the Director of Mines interest, whether named in the notice or
and/or the Director of Fisheries not
and Aquatic Resources, (as
appropriate) if the land borders on (b) When to file? On or before the date of
a river, navigable stream or shore, initial hearing, or within such further time
or on an arm of the sea where a as may be allowed by the court.
river or harbor line has been
established, or on a lake, or if it (c) What shall it contain? It shall state all the
otherwise appears from the objections and the interest claimed by the
application or the proceedings that party the remedy desired.
a tenant-farmer or the national
government may have a claim (d) How shall it be made? It shall be signed
adverse to that of the applicant and sworn to by him or by some other duly
authorized person. Sec. 25, PD 1529
(b) Posting: provides for the requisites of an opposition:
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case may be, to the land or portions (a) Decree is entered in the LRA
thereof upon finding that the party (b) Every decree of registration shall:
concerned has sufficient title proper for (1) Bear the day of the year, hour, and
registration. [Sec. 29, PD 1529] minute of its entry,
(2) Be signed by the Administrator of the
(c) Finality of Judgment - Sec. 30, par. 1, PD Land Registration Authority in his ex
1529 provides that the judgment becomes officio capacity as Clerk of Court in
final upon the expiration of 30 days land registration matters
counted from receipt of notice of (3) State whether the owner is:
judgment. (i) Married or unmarried, and if
married, the name of the husband
Note: This has been MODIFIED to the lapse or wife, provided that if the land
of 15 days counted from receipt of notice of adjudicated is conjugal property, it
judgment as per Sec. 39, BP 129 shall be issued in the names of
both spouses.
STEP 10: Issuance of the decree (ii) If the owner is under disability, it
(a) If the court finds after hearing that the shall state the nature of the
applicant or adverse claimant has title as disability,
stated in his application or adverse claim (iii) If the owner is a minor, his age
and proper for registration, a decree of (4) Contain a description of the land as
confirmation and registration shall be finally determined by the court,
entered (5) Set forth the estate of the owner, and
(b) The Court declares the decision final and also, in such manner as to show their
instructs the LRA to issue a decree of relative priority, all particular estates,
confirmation and registration within 15 mortgages, easements, liens,
days from entry of judgment attachments and other encumbrances,
Note: it is not the court that issues the including rights of tenant-farmer, if
decree, but the LRA any, to which the land or owner’s
(c) One year after issuance of the decree, it estate is subject,
becomes incontrovertible and (6) Contain any other matter properly to
amendments of the same will not be be determined
allowed except in cases of clerical errors
(1) Court retains jurisdiction over the case STEP 12: Sending of copy of the decree of
until after the expiration of 1 year from registration to the corresponding Register of
the issuance of the decree of Deeds (Registrar of Land Titles and Deeds)
registration. [Gomez v. CA, 1988]
(2) Note: While a decision in land
registration proceeding becomes final
after the expiration of thirty days from
the date of service of its notice, the STEP 13: Transcription of the decree of
decree of registration does not become registration
final until after the lapse of one year (a) It is transcribed in the registration book of
from the date of its issuance and entry. the Registrar of Land Titles and Deeds
(b) Registrar issues owner’s duplicate OCT of
STEP 11: Entry of the decree of registration the applicant by the Registrar of Land
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Titles and Deeds, upon payment of the Appeal – Sec. 30, PD 1529 as amended by BP
prescribed fees. 129 provides that an appeal may be taken from
the judgment of the court as in ordinary civil
D. EVIDENCE NECESSARY cases.
Proofs necessary in land registration Period in Sec. 30, PD 1529 has been
(1) Proofs that land has been declassified modified to 15 days as per Sec. 39, BP 129
from the forest zone, is alienable or
disposable, and is registrable (e.g. Unlike ordinary civil actions, the adjudication
Presidential proclamation, legislative acts) of land in a cadastral or land registration
(2) Identity of the land (e.g. survey plan) proceeding does not become final in the sense
(3) Possession and occupation of the land for of incontrovertibility until after the expiration
the length of time and in the manner of one (1) year after the entry of the final decree
required by law [Sec. 4, PD 1073 amending of registration. As long as a final decree has
Sec. 48(b) and (c) of Public Land Act] not been entered by the LRA and the period of
(4) If he claims private ownership not because 1 year has not elapsed from date of such
of his possession, he must prove the basis decree, the title is not finally adjudicated and
of such claim by submitting muniments of the decision in the registration proceeding
title. continues to be under the control and sound
discretion of the court rendering it. [Gomez v.
Proving Private Ownership: CA, 168 SCRA 503, 1988]
(1) Spanish titles are inadmissible and
ineffective proof of ownership in land Action for Reconveyance:
registration proceedings filed AFTER Aug. (a) When to file:
16, 1976 [PD 892 as discussed in Santiago (1) Before issuance of decree, or
v. SBMA, GR No. 156888, 2006] within/after 1 year from entry
(2) Tax declaration and receipts are not (2) If based on implied trust, 10 years;
conclusive but have strong probative value (3) If based on expressed trust and void
when accompanied by proof of actual contract, imprescriptible
possession. [Municipality of Santiago vs. (4) If based on fraud, 4 years from the
CA, 1983] discovery
(3) Other proofs such as testimonial evidence (b) Not available if the property has already
been transferred to an innocent purchaser
E. REMEDIES: for value.
An aggrieved party in a registration proceeding (c) It does not reopen proceedings but a mere
may avail himself of the following remedies: transfer of the land from registered owner
(1) Motion for New Trial [see Rule 37, ROC] to the rightful owner [Esconde v.
(2) Appeal Barlongay, 1987]
(3) Relief from Judgment [see Rule 38, ROC]
(4) Annulment of Judgment [see Rule 47,
ROC] Action for Damages - It can be availed of when
(5) Reconveyance reconveyance is no longer possible as when the
(6) Recovery of Damages land has been transferred to an innocent
(7) Reversion purchaser for value [Ching v. CA, 1990]
(8) Review of Decree of Registration
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Reversion - Instituted by the government, thru omission of the lien or interest was
Solicitor General in all cases where lands of fraudulent;
public domain are held in violation of the (3) That the property has not been
Constitution or were fraudulently conveyed. transferred to an innocent purchaser
for value; and
Indefeasibility of title, prescription, laches, and (4) That the action is fi led within one year
estoppel do not bar reversion suits. from the issuance and entry of the
decree of registration. [Cruz v. Navarro,
Petition to Reopen or Review Decree of GR No. L-27644, 1973]
Registration – Sec. 32, PD 1529
(a) To whom available: Only to an aggrieved F. PETITIONS AND MOTIONS AFTER
party who has been deprived of land or any ORIGINAL REGISTRATION
estate or interest therein by decree of (a) Lost Duplicate Certificate
registration (1) Person in interest must file a sworn
(b) When to file: Within 1 year from entry of statement that the certificate is lost
decree of registration before the Register of Deeds
(1) Upon expiration of the 1 year period, (2) A petition will then be filed for the
every decree becomes incontrovertible issuance of new title
(2) The Court held that the petition may be (3) Court will order issuance of new title
filed at any time after rendition of the after due notice and hearing, with
court’s decision (no need to wait for memorandum that it is issued in place
actual entry in the LRA) and before of a lost certificate
expiration of one year from entry of the
final decree of registration. [Rivera v. (b) Petition seeking surrender of duplicate title
Moran, 48 Phil. 836; Director of Lands (1) In voluntary and involuntary
v. Aba, et al., 68 Phil. 85.] conveyances; when the duplicate
(c) Sole and ONLY Ground: Actual Fraud cannot be produced, the party must
(1) Actual fraud proceeds from an petition the court to compel surrender
intentional deception practiced by of duplicate certificate of title to
means of misrepresentation or Register of Deeds
concealment of material fact (2) After hearing, court may order
(2) The fraud must consist in an issuance of a new certificate and annul
intentional omission of fact required by the old certificate
law to be stated in the application or a
wilful statement of a claim against the (c) Amendment and alteration of certificate of
truth title
(d) Requisites for Petition to Reopen or Review (1) A certificate of title cannot be altered
(1) That the plaintiff is the owner of the or amended except in a direct
land ordered registered in the name of proceeding in court which is summary
the defendant, or that the plaintiff’s in nature
lien or interest in said property does
not appear in the decree or title issued (2) Grounds:
in the defendant’s name; (i) New interest that does not appear
(2) That the registration was procured on the instrument have been
through actual fraud, or that the created
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Scope of the Application: RA 9176 also limited (c) Administrative Order issued by the
the area subject of the application to 12 DENR Secretary
hectares. Prior to RA 9176, the maximum area (d) Bureau of Forest Development Land
applied for was 144 hectares. Classification Map
(e) Certification by the Director of Forestry
Applicant must Prove: (f) Investigation reports of Bureau of
(1) The land is alienable and disposable land Lands Investigator
of public domain; and (g) Legislative act or statute
(2) They have been in open, continuous, (2) The identity of the land; the following may
exclusive, and notorious possession and be submitted:
occupation of the land for the length of (a) Survey plan
time and in the manner and concept (b) Tracing cloth plan and blue print
provided by law [Dir. Of Lands v. Buyco, copies of plan
1992] (c) Technical description of the land
(d) Tax declarations
B. PROCEDURE IN JUDICIAL (e) Boundaries and area
CONFIRMATION: (3) Possession and occupation of the land for
Sec. 48, par.1, of CA 141 as amended provides, the length of time and in the manner
“The following-described citizens of the required by law
Philippines, occupying lands of the public
domain or claiming to own any such lands or VI. Cadastral
an interest therein, but whose titles have not
been perfected or completed, may apply to the Registration
Court of First Instance of the province where Nature: It is a proceeding in rem, initiated by
the land is located for confirmation of their the filing of a petition for registration by the
claims and the issuance of a certificate of title government, not by the persons claiming
therefor under the Land Registration Act…” ownership of the land subject thereof, and the
latter are, on the pain of losing their claim
Hence, the procedure in original registration thereto, in effect compelled to go to court to
discussed in the previous section is also make known their claim or interest therein,
followed in judicial confirmation of imperfect and to substantiate such claim or interest.
or incomplete title.
Unlike other kinds of registration, this is
C. EVIDENCE NECESSARY TO compulsory as it is initiated by the government.
SUBSTANTIATE APPLICATION:
The applicant must prove: The government does not seek the registration
(1) That the land applied for has been of land in its name. The objective of the
declassified and is a public agricultural proceeding is the adjudication of title to the
land, is alienable and disposable, or lands or lots involved in said proceeding.
otherwise capable of registration. A. DISTINGUISHED FROM ORDINARY
Specifically, the following may be REGISTRATION
presented:
(a) Presidential proclamation
(b) Executive Order
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STEP 1: Determination of the President that STEP 8: Actual survey and plotting of the land
public interest requires title to unregistered
lands be settled and adjudicated STEP 9: Director of Lands represented by
President then orders the Director of Lands Solicitor General shall institute original
to conduct cadastral survey registration proceedings
(a) Petition is filed in the appropriate RTC
STEP 2: Director of lands shall make a where the land is situated
cadastral survey
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Process of Registration for Dealings less than new one issued describing therein the
Ownership remaining portion
(1) Filing of the instrument with the Register of (c) If there are SUBSISTING encumbrances
Deeds and annotations:
(2) A brief memorandum thereof is made:
They shall be carried over in the new
(a) On the certificate of title by the Register of
Deeds and signed by him, and
certificate or certificates; except when
(b) On the owner’s duplicate they have been simultaneously
discharged.
Cancellation or extinguishment of such interests
shall be registered in the same manner. Registration of Mortgages and Leases [Sec. 60,
PD 1529]
Registration of Deeds of Sale and Transfers Sec. 60, PD 1529 provides that mortgages and
(a) If ENTIRE property is the subject [Sec. 57, leases shall be registered in the manner
PD 1529] provided in Sec. 54 (Dealings less than
(1) Owner executes and registers the deed ownership)
which must be sufficient in form.
(2) A new certificate of title is issued and The deed shall take effect upon the title only
Register of Deeds prepares and from the time of registration.
delivers to grantee his owner's
duplicate certificate When a deed of mortgage is presented, the
(3) Register of Deeds notes upon the OCT Register of Deeds will enter upon the OCT and
and the duplicate certificate upon the owner’s duplicate a memorandum
the date of transfer, the volume and thereof and shall sign said memorandum.
page of the registration book where
the new certificate is registered Registration of Powers of Attorneys
(4) The original and the owner's duplicate [Sec. 64, PD 1529]
of the grantor's certificate shall be Powers of attorney and revocations shall be
stamped "cancelled". registered with the Register of Deeds of the
(5) The deed of conveyance shall be filed province or city where the land lies.
and indorsed with the number and the
place of registration of the certificate of Any instrument revoking such power shall be
title of the land conveyed. registered in like manner.
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(4) Reference to the number of the certificate protect the rights of the party who caused
of title it to be registered
(5) Adequate description of the land affected (2) Register of Deeds may also cancel upon
and registered owner thereof verified petition of the party who caused
such registration
Other parties who need to register (3) Deemed cancelled when certificate of clerk
(1) Assignee in involuntary proceeding for of court stating manner of disposal of
insolvency proceeding is registered
(a) Duty of the officer serving notice to file
a copy of the notice to the Register of Registration of Adverse Claim
Deeds where the property of debtor A claim is adverse when: [Sec. 70, par. 1, PD
lies 1529]
(b) Assignee elected or appointed by court (1) Claimant’s right or interest in registered
shall be entitled to entry of new land is adverse to the registered owner,
certificate of registered land upon and
presentment of copy of assignment (2) Such right arose subsequent to date of
with bankrupt’s certificate of title original registration, and
(duplicate) (3) No other provision is made in the Decree
(c) New certificate shall note that it is for the registration of such right or
entered to him as assignee or trustee in claimant
insolvency proceedings
(2) Government in eminent domain Requisites for registration of an adverse claim:
(a) Copy of judgment shall be filed in the (1) The adverse claimant must give a
Register of Deeds which states statement of the following in writing:
description of property, certificate (a) His alleged right or interest
number, interest expropriated, nature (b) How and under whom such alleged
of public use right or interest is acquired
(b) Memorandum shall be made or new (c) The description of the land in which the
certificate of title shall be issued right or interest is claimed and
(d) The number of the certificate of title
Effect of registration
(1) Impossibility of alienating the property in (2) The statement must be:
dispute during the pendency of the suit – (a) Signed by the adverse claimant
may be alienated but purchaser is subject (b) Sworn before a notary public
to final outcome of pending suit
(2) Register of Deeds is duty bound to carry (3) The statement must also state his
over notice of lis pendens on all new titles residence or the place to which all notices
to be issued may be served upon him.
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(c) When cancelled, no second adverse claim (2) Waters under Art. 502, Civil Code
based on the same ground may be (a) Rivers and natural beds
registered by the same claimant. (b) Continuous or intermittent waters of
springs and brooks running in their
natural beds and the beds themselves
VIII. Non-Registrable (c) Waters rising continuously
intermittently on lands of public
or
Properties dominion
(d) Lakes and lagoons formed by Nature
on public lands, and their beds
All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral (e) Rain waters running through ravines or
oils, all forces of potential energy, fisheries, sand beds, which are also part of
forests or timber, wildlife, flora and fauna, and public dominion;
other natural resources are owned by the (f) Subterranean waters on public lands
State. [Sec. 2, Art. XII, 1987 Constitution] (g) Waters found within the zone of
operation of public works, even if
With the exception of agricultural lands, all constructed by a contractor
other natural resources shall not be alienated. (h) Waters rising continuously or
[Sec. 2, Art. XI, 1987 Constitution]
intermittently on lands belonging to
private persons, to the State, to a
The classification of public lands is an
province, or to a city or municipality
exclusive prerogative of the Executive
from the moment they leave such
Department of the Government and not of the
lands
courts. In the absence of such classification,
(i) The waste waters of fountains, sewers,
the land remains as unclassified land until it is
and public establishments
released therefrom and rendered open to
disposition. [Aquino, p. 41, citing Dir. Of Lands
Specific kinds of non-registrable properties or
and Dir. Of Forest Development v. CA, 129
lands
SCRA 689, 1984]
(1) Forest or timberland, public forest, forest
reserves
Civil Code provisions dealing with non-
(2) Mangrove swamps - Mangrove swamps or
registrable properties
mangroves should be understood as
(1) Properties of public dominion [Art. 420,
comprised within the public forests of the
Civil Code]
Philippines as defined in Sec. 1820,
(a) Those intended for public use, such as
Administrative Code of 1917. [Dir. Of
roads, canals, rivers, torrents, ports
Forestry v. Villareal, 170 SCRA 598, 1980]
and bridges constructed by the State,
(3) Mineral lands - Both under the 1987
banks, shores, roadsteads, and others
Constitution and Sec. 2 of the Public Land
of similar character;
Act, mineral lands are not alienable and
disposable. [Lepanto Consolidated Mining
(b) Those which belong to the State,
Co. v. Dumyung, 89 SCRA 532, 1979]
without being for public use, and are
(4) Foreshore land and seashore - Seashore,
intended for some public service or for
foreshore, and/or portions of territorial
the development of the national
waters and beaches, cannot be registered.
wealth.
Even alluvial formation along the seashore
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is part of public domain. [Aquino, p. 45, Limitation. [Pena citing Martinez v. CA, GR No.
citing Dizon v. Rodriguez, 13 SCRA 704, L-31271, 1974]
1965]
(5) Lakes - Lakes are part of public dominion.
[Art. 502(4), Civil Code]
IX. Dealings With
(6) Military Reservations - The reservation
made segregates it from the public domain
Unregistered Lands
and no amount of time in whatever nature
No deed, conveyance, mortgage, lease, or
of possession could have ripen such
other voluntary instrument affecting land not
possession into private ownership.
registered under the Torrens system shall be
[Republic v. Marcos, 52 SCRA 238, 1973]
valid, except as between the parties thereto,
(7) Watershed - The Constitution expressly
unless such instrument shall have been
mandates the conservation and utilization
recorded in the manner herein prescribed in
of natural resources, which includes the
the office of the Register of Deeds for the
country’s watershed. [Tan v. Dir. Of
province or city where the land lies. [Sec. 113,
Forestry, 125 SCRA 302, 1983]
par. 1, PD 1529]
(8) Grazing lands - While the 1987 Constitution
does not specifically prove that grazing
lands are not disposable, yet if such lands
EFFECTS OF TRANSACTIONS COVERING
are part of a forest reserve, there can be no UNREGISTERED LAND
doubt that the same are incapable of (1) As between the parties – The contract is
registration. [Aquino, p. 49, citing Dir. Of binding and valid even if not registered
Lands v. Rivas] (2) As among third persons – There must be
(9) Previously titled land - Proceeds from the registration for the transaction to be
indefeasibility of the Torrens title. binding against third persons
(10) Alluvial deposit along river when man-
made - Such deposit is really an PRIMARY ENTRY BOOK AND
encroachment of a portion of the bed of REGISTRATION BOOK
the river, classified as property of the
public domain under Art. 420, par. 1 and The Register of Deeds for each province or city
Art. 502 (1) of the Civil Code, hence not shall keep a Primary Entry Book and a
open to registration. [Republic v. CA, 132 Registration Book.
SCRA 514, 1984]
(1) The Primary Entry Book shall contain,
The land registration court has no jurisdiction among other particulars:
over non-registrable property and cannot (a) Entry number
validly adjudge the registration of title thereof (b) Names of the parties
in favor of a private applicant. [Pena, p. 105] (c) Nature of the document
(d) Date, hour and minute it was
Thus, where it has so been adjudged, the river presented and received
not being capable of private appropriation or (2) The Registration Book – Provides spaces
acquisition by prescription, the title thereto whereon the annotation is made after the
may be attacked, either directly or collaterally, instrument has been entered in the
by the State which is not bound by any Primary Entry Book
prescriptive period provided by the Statute of
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Process of Registration
(1) Registration is by way of annotation
(2) The instrument dealing with unregistered
land is presented before the Register of
Deeds
(3) The Register will then determine if it can
be registered:
(a) If, on the face of the instrument, it
appears that it is sufficient in law, the
Register of Deeds shall forthwith
record the instrument
(b) In case the Register of Deeds refuses
its administration to record, he shall
advise the party in interest in writing of
the ground or grounds for his refusal
The latter may appeal the matter to
the Commissioner of Land
Registration
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CIVIL LAW
TORTS
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D. CULPA AQUILIANA
Cinco v. Canonoy (1979): The concept of quasi-
DISTINGUISHED FROM CULPA
delict is so broad that it includes not only
injuries to persons but also damage to CONTRACTUAL; PRESENCE OF
property. CONTRACTUAL RELATIONS
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Test: Did the defendant in doing the alleged (3) Experts (In General)
negligent act use that reasonable care and Far Eastern Shipping v CA (1998): Those
caution which an ordinarily prudent man who undertake any work calling for special
would have used in the same situation? If not, skills are required not only to exercise
then he is negligent. Negligence in a given reasonable care in what they do but also
case is not determined by reference to the possess a standard minimum of special
personal judgment of the actor in the situation knowledge and ability. In all employments
before him, but is determined in the light of where peculiar skill is requisite, one who
human experience and the facts involved in the offers his services is understood as holding
particular case. Conduct is said to be negligent himself out to the public as possessing the
when a prudent man in the position of the degree of skill commonly possessed by
tortfeasor would have foreseen that an effect others in the same employment.
harmful to another was sufficiently probable to
warrant his foregoing the conduct or guarding Culion v Philippine Motors (1930): When a
against its consequences. person holds himself out as being
competent to do things requiring
A.2. STANDARD OF CARE NEEDED IN professional skill, he will be held liable for
SPECIFIC CIRCUMSTANCES negligence if he fails to exhibit the care
(1) Operators of Motor Vehicles and skill of one ordinarily skilled in the
Anonuevo v CA (2004): Because of particular work which he attempts to do.
inherent differences between motorists
and cyclists, the former being capable of (4) Doctors
greater speed and destruction, operators Cruz v. CA (1997): Whether or not a
of motor vehicles have a higher standard in physician has committed an ‘inexcusable
his duty of care. lack of precaution’ in the treatment of his
patient is to be determined according to
(2) Banks the standard of care observed by other
Consolidated Bank v CA (2003): The law members of the profession in good
imposes on banks high standards in view standing under similar circumstances
of the fiduciary nature of banking. Section bearing in mind the advanced state of the
2 of Republic Act No. 8791 (RA 8791), profession at the time of treatment of
which took effect on 13 June 2000, present state of medical science. It is in this
declares that the State recognizes the aspect of medical malpractice that expert
‘fiduciary nature of banking that requires testimony is essential to establish not only
high standards of integrity and the standard of care of the profession but
performance.’ This fiduciary relationship also that the physician’s conduct in the
means that the bank’s obligation to treatment and care falls below such
observe high standards of integrity and standard.
performance is deemed written into every
deposit agreement between a bank and its (5) Pharmacists
depositor. The fiduciary nature of banking US v. Pineda (1918): The profession of
requires banks to assume a degree of pharmacy, it has been said again and
diligence higher than that of a good father again, is one demanding care and skill.
of a family. Even under the first conservative
expression, "ordinary care" with reference
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to the business of a druggist…must be held Ylarde v. Aquino (1988): The degree of care
to signify "the highest practicable degree required to be exercised must vary with the
of prudence, thoughtfulness, and vigilance, capacity of the person endangered to care
and most exact and reliable safeguards for himself. …The standard of conduct to
consistent with the reasonable conduct of which a child must conform for his own
the business in order that human life may protection is that degree of care ordinarily
not constantly be exposed to the danger exercised by children of the same age,
flowing from the substitution of deadly capacity, discretion, knowledge and
poisons for harmless medicine.” experience under the same or similar
circumstances.
Mercury Drug v De Leon (2008): Mistake is
negligence and care is no defense. (8) In case of insane persons
US v. Baggay (1911): A lunatic or insane
person who, in spite of his irresponsibility
(6) Possessor of Extremely Dangerous on account of the deplorable condition of
Instrumentalities his deranged mind, is still reasonably and
Pacis v Morales (2010): Indeed, a higher justly liable with his property for the
degree of care is required of someone who consequences of his acts.
has in his possession or under his control
an instrumentality extremely dangerous in A.3. PRESUMPTIONS OF NEGLIGENCE
character, such as dangerous weapons or
substances. Such person in possession or i. IN MOTOR VEHICLE MISHAPS
control of dangerous instrumentalities has (1) Liability of the owner
the duty to take exceptional precautions to
Art. 2184. In motor vehicle mishaps, the owner
prevent any injury being done thereby.
is solidarily liable with his driver, if the former,
Unlike the ordinary affairs of life or
who was in the vehicle, could have, by the use
business which involve little or no risk, a
of the due diligence, prevented the misfortune.
business dealing with dangerous weapons
xxx
requires the exercise of a higher degree of
care.
If the owner was not in the motor vehicle, the
(7) Children provisions of article 2180 are applicable.
Taylor v. Manila Railroad (1910): The
conduct of an infant of tender years is not Art. 2186. Every owner of a motor vehicle
to be judged by the same rule, which shall file with the proper government office a
governs that of an adult. …The care and bond executed by a government-controlled
caution required of a child is according to corporation or office, to answer for damages
his maturity and capacity only, and this is to third persons. The amount of the bond and
to be determined in each case by the other terms shall be fixed by the competent
circumstances of the case. public official.
Jarco Marketing v. CA (1999):No “Owner” shall mean the actual legal owner of
contributory negligence can be imputed to the motor vehicle, in whose name such vehicle
children below 9 years old. is duly registered with the LTO. Registration of
motor vehicles is required not because it is the
operative act which transfers ownership in
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vehicles, but because it is the means by which a right to be indemnified by the real owner of
the owner can be identified so that if any the amount he was required to pay. This rule
accident occurs, or damage or injury is caused applies both to private and to common carriers
in the operation of the vehicle, responsibility with respect to their passengers.
can be fixed.
Caedo v. Yu Khe Tai (1968): The law does not
The owner is solidarily liable with the driver for require that a person must possess a certain
motor vehicle mishaps when: measure of skill or proficiency either in the
(a) The owner was IN the vehicle at the time, mechanics of driving or in the observance of
AND traffic rules before he may own a motor
(b) The owner could have, by the use of due vehicle. The test of his negligence, within the
diligence, prevented the misfortune. meaning of Article 2184, is his omission to do
that which the evidence of his own senses tells
Note: If the owner was NOT inside the vehicle, him he should do in order to avoid the
Art. 2180 applies. accident. And as far as perception is
concerned, absent a minimum level imposed
The presumption is against the owner of the by law, a maneuver that appears to be fraught
motor vehicle. He has the burden of proving with danger to one passenger may appear to
due diligence. Thus, once a driver is proven be entirely safe and commonplace to another.
negligent in causing damage, the law Were the law to require a uniform standard of
presumes the vehicle owner equally negligent perceptiveness, employment of professional
and imposes upon the latter the burden of drivers by car owners who, by their very
proving proper selection and supervision of inadequacies, have real need of drivers'
employee as a defense. services, would be effectively proscribed.
Tamayo v. Aquino (1959): The registered owner (2) Liability of the driver
of a motor vehicle is primarily liable for the
damage or injury caused to another, but he has Art. 2184. xxx It is disputably presumed that a
driver was negligent, if he had been found
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guilty of reckless driving or violating traffic in war, act of owner of the goods, character of
regulations at least twice within the next the goods, order of competent public
preceding two months. authority), if the goods are lost destroyed or
deteriorated, common carriers are presumed
Art. 2185. Unless there is proof to the
to have been at fault or to have acted
contrary, it is presumed that a person driving
a motor vehicle has been negligent if at the negligently, unless they prove that they
time of the mishap, he was violating any observed extraordinary diligence as required
traffic regulation. under Art. 1733.
Article 2184 establishes a presumption of Art. 1752. Even when there is an agreement
negligence on the part of the driver based on limiting the liability of the common carrier in
previous violations of traffic regulations. Article the vigilance over the goods, the common
2185 establishes a presumption of negligence carrier is disputably presumed to have been
on the basis of simultaneous violations. negligent in case of their loss, destruction or
deterioration.
Sanitary Steam v. CA (1998): Despite the
presumption of negligence arising from the iv. RES IPSA LOQUITUR
traffic regulation violation, the claimant must The doctrine of res ipsa loquitur (“the thing or
still prove that such negligence was the the transaction speaks for itself”) is a rule of
proximate cause in order to successfully claim evidence (not of substantive law) peculiar to
for damages. the law of negligence. The doctrine treats the
injury itself as proof of negligence.
Añonuevo v. CA (2004): Article 2185 was not
formulated to compel or ensure obeisance by
all to traffic rules and regulations. It does not Elements: [Ramos v. CA (1999)]
apply to non-motorized vehicles, in recognition (a) The accident is of a kind which ordinarily
of the unequal footing of standards applicable does not occur in the absence of someone’s
to motor vehicles as opposed to other types of negligence;
vehicles. (b) It is caused by an instrumentality within
the exclusive control of the defendant or
ii. POSSESSION OF DANGEROUS defendants; and
WEAPONS OR SUBSTANCES (c) The possibility of contributing conduct,
which would make the plaintiff
Art. 2188. There is prima facie presumption of responsible, is eliminated.
negligence if the death or injury results from
his possession of dangerous weapons or Basis
substances, such as firearms and poison, DM Consunji v. CA (2001): The res ipsa loquitur
except when the use or possession thereof is doctrine is based in part upon the theory that
indispensable in his occupation or business. the defendant in charge of the instrumentality
which causes the injury either knows the cause
iii. COMMON CARRIERS of the accident or has the best opportunity of
ascertaining it and that the plaintiff has no
Art. 1735. In all cases other than those such knowledge, and therefore is compelled to
mentioned in Nos. 1, 2, 3, 4, and 5 of the allege negligence in general terms and to rely
preceding article (calamity, act of public enemy upon the proof of the happening of the
accident in order to establish negligence.
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Effect xxx
Ramos v. CA, supra: The fact of the occurrence
of an injury, taken with the surrounding The responsibility treated of in this article
circumstances, raise a presumption of shall cease when the persons herein
mentioned prove that they observed all the
negligence, or make out a plaintiff’s prima diligence of a good father of a family to
facie case, and present a question of fact for prevent the damage.
defendant to meet with an explanation.
Also referred to as the “doctrine of imputed
In medical malpractice cases, when the negligence”. The rationale is to extend liability
doctrine of res ipsa loquitur is availed by the by legal fiction to those in a position to exercise
plaintiff, the need for expert medical testimony absolute or limited control over the direct
is dispensed with because the injury itself tortfeasor. The doctrine does not apply where
provides the proof of negligence. The reason is moral culpability can be imputed directly, as
that the general rule on the necessity of expert when there is actual intent to cause harm to
testimony applies only to such matters clearly others.
within the domain of medical science, and not
to matters that are within the common The liability of the vicarious obligor is primary
knowledge of mankind which may be testified and direct (solidarily liable with the tortfesor),
to by anyone familiar with the facts. not subsidiary. His responsibility is not
conditioned upon the insolvency of or prior
Note: For the res ipsa loquitur doctrine to recourse against the negligent tortfeasor.
apply, it must appear that the injured party
had no knowledge as to the cause of the
accident, or that the party to be charged with Under Article 2180
negligence has superior knowledge or
opportunity for explanation of the accident. Persons Vicariously Actor
Liable
A.4. PERSONS LIABLE Father and, in case Minor children who live in
(1) The direct tortfeasor of his death or their company
incapacity, the
Art. 2176. Whoever by act or omission causes mother
damage to another, there being fault or
negligence, is obliged to pay for the damage Guardians Minors or incapacitated
done. xxx persons who are under
their authority and live in
The tortfeasor may be a natural or juridical their company
person. For natural persons, apply requisites of
Owners and Employees in the service of
Art. 2176 and for juridical persons, apply
managers of an the branches in which the
vicarious liability provisions.
establishment or latter are employed or on
enterprise the occasion of their
(2) Persons vicariously liable
functions
Art. 2180. The obligation imposed by Article Employers Employees and household
2176 is demandable not only for one’s own helpers acting within the
acts or omissions, but also for those of scope of their assigned
persons for whom one is responsible.
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Art. 2180 (3). The State is responsible in like Art. 2194. The responsibility of two or more
manner when it acts through a special agent; persons who are liable for quasi-delict is
but not when the damage has been caused solidary.
by the official to whom the task done
properly pertains, in which case what is Definition of “Joint Tortfeasors”
provided in Article 2176 shall be applicable. Filipinas Broadcasting Network v. AMEC-
BCCM (2005): They are all persons who
Instances where the State gives its consent to
command, instigate, promote, encourage,
be sued
advise, countenance, cooperate in, aid or abet
(1) Art. 2180 (6) is an example of an express
in the commission of a tort, or who approve of
legislative consent. Here, the State
it after it is done, if done for their benefit.
assumes a limited liability for the acts of its
special agents.
Applicability of the provision
(2) Art. 2189 provides for state liability for
The provision applies when there are 2 or more
damages caused by defective condition of
persons who have participated in the
public works.
commission of a single quasi-delict. The injury
(3) Local Government Code provides for the
must be indivisible.
liability of local government units for
wrongful exercise of its proprietary (as
B. CAUSE
opposed to its governmental) functions.
The latter is the same as that of a private Concept of Proximate Cause
corporation or individual. [Mendoza v. De In order that civil liability for negligence may
Leon, (1916)] arise, there must be a direct causal connection
between the damage suffered by the plaintiff
Merritt v. Government of the Philippine Islands
and the act or omission of the defendant.
(1960): A special agent is one who receives a
definite and fixed order or commission, foreign
Where the particular harm sustained was
to the exercise of the duties of his office if he is
reasonably foreseeable at the time of the
a special official. This concept does not apply
defendant’s misconduct, his act or omission is
to any executive agent who is an employee of
the legal cause thereof. Foreseeability is the
the active administration and who on his own
fundamental basis of the law of negligence. To
responsibility performs the functions which are
be negligent, the defendant must have acted
inherent in and naturally pertain to his office.
or failed to act in such a way that an ordinary
reasonable man would have realized that
A corporate body performing non-
certain interests of certain persons were
governmental functions becomes liable for the
reasonably subjected to a general but definite
damage caused by the accident resulting from
class of risks. [Jarencio]
the tortious act of its driver-employee. Such
corporate body assumes the responsibility of
an ordinary employer and as such, becomes
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would not have happened but for such v. Jose Ching (2008). Plaintiff, however,
condition or occasion. must establish a sufficient link between the
act or omission and the damage or injury.
(3) Intervening Cause That link must not be remote or far-
The test of determining whether or not the fetched; otherwise, no liability will attach.
intervening cause is sufficient to absolve a The damage or injury must be a natural
prior cause of the injury is as follows: and probable result of the act or omission.
whether the intervention of a later cause is
a significant part of the risk involved in the (3) Substantial factor
defendant’s conduct, or is so reasonable If the actor’s conduct is a substantial factor
connected with it that the responsibility in bringing about harm to another, the fact
should not be terminated. In the that the actor neither foresees nor should
affirmative, such foreseeable intervening have foreseen the harm or the manner in
forces are within the scope of the original which it occurred, does not prevent him
risk, and hence of the defendant’s from being liable. [Philippine Rabit v. IAC
negligence. In the negative, there exists an (1990)]
efficient intervening cause that relieves the
defendant of liability. (4) Mixed considerations
There is no exact formula to determine
Phoenix Construction v. IAC (1987): If the probable cause. It is based upon mixed
intervening cause is one which in ordinary considerations of logic, common sense,
human experience is reasonably to be policy and precedent [Dy Teban v. Jose
anticipated, or one which the defendant Ching, supra].
has reason to anticipate under the
particular circumstances, the defendant (5) Cause v. condition
may be negligent, among other reasons, Phoenix Construction v. IAC (1987): The
because of failure to guard against it. distinction between cause and condition
There is an intervening cause combining has already been almost entirely
with the defendant’s conduct to produce discredited. So far as it has any validity at
the result, and the defendant’s negligence all, it must refer to the type of case where
consists in failure to protect the plaintiff the forces set in operation by the
against that very risk. defendant have come to rest in a position
of apparent safety, and some new force
Tests to Determine Proximate Cause intervense. But even in such cases, it is not
(1) But for / Sine qua non rule the distinction between “cause” and
Whether such negligent conduct is a cause “condition” which is important, but the
without which the injury would not have nature of the risk and the character of the
occurred or is the efficient cause which set intervening cause.
in motion the chain of circumstances
leading to the injury. [Bataclan v. Medina, (6) Last clear chance
supra]
The Doctrine of Last Clear Chance
(2) Sufficient link Also known as: "doctrine of discovered
The Supreme Court has adopted a peril” or “doctrine of supervening
relaxation of the “but for” test in Dy Teban negligence” or “humanitarian doctrine”.
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The antecedent negligence of the plaintiff where the proximate cause of the injury has
does not preclude him from recovering been established.
damages caused by the supervening
negligence of the defendant, who had the The doctrine is not applicable in the following
last fair chance to prevent the impending cases:
harm by the exercise of due diligence [PNR Consolidated Bank v. CA (2003): The doctrine
v. Brunty (2006)]. of last clear chance does not apply in a case of
culpa contractual, where neither the
Picart v. Smith (1918): If both parties are contributory negligence of the plaintiff nor his
found to be negligent; but, their last clear chance to avoid the loss, would
negligence are not contemporaneous, the exonerate the defendant from liability. Such
person who has the last fair chance to contributory negligence or last clear chance by
avoid the impending harm and fails to do the plaintiff merely serves to reduce the
so is chargeable with the consequences, recovery of damages by the plaintiff but does
without reference to the prior negligence of not exculpate the defendant from his breach of
the other party. contract.
Simply stated, it covers successive acts of Pantranco v. Baesa (1989): Last clear chance
negligence: applies only if the person who allegedly had
the last opportunity to avert the accident was
Primary negligence of the aware of the existence of peril or should, with
defendant exercise of due care, have been aware of it. The
doctrine can never apply where the party
charged is required to act instantaneously, and
if the injury cannot be avoided by application of
Contributory negligence of the all means at hand after the peril is or should
plaintiff have been discovered.
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participation in the aggravation of the Nikko Hotel v. Roberto Reyes (2005): The
injury resulting to the creditor. doctrine does not find application to the case
because even if respondent Reyes assumed the
Hernandez v. COA (1984): The robbery that risk of being asked to leave the pary,
happened to him cannot be said to be the petitioners, under Articles 19 and 21 of the Civil
result of his imprudence and negligence, Code, were still under the obligation to treat
having occurred in a public utility. This was him fairly in order not to expose him to
undoubtedly a fortuitous event covered by the unnecessary ridicule and shame.
said provisions, something that could not have
been reasonably foreseen although it could C.9. PRESCRIPTION
have happened.
Art. 1146. The following actions must be
C.8. PLAINTIFF’S ASSUMPTION OF RISK instituted within four years:
/ VOLENTI NON FIT INJURIA (1) Upon an injury to the rights of the
plaintiff;
The doctrine of volenti non fit injuria (that to
(2) Upon a quasi-delict;
which a person assents is not presumed in law
as injury) refers to self-inflicted injury or to the
However, when the action arises from or out
consent to injury which precludes the recovery of any act, activity, or conduct of any public
of damages by one who has knowingly and officer involving the exercise of powers or
voluntarily exposed himself to danger, even if authority arising from Martial Law including
he is not negligent in doing so. This is so the arrest, detention and/or trial of the
because, in theory, the plaintiff’s acceptance of plaintiff, the same must be brought within
the risk has wiped out the defendant’s duty, one (1) year.
and as to the plaintiff the defendant’s
negligence is not a legal wrong. Art. 1150. The time for prescription for all
kinds of actions, when there is no special
provision which ordains otherwise, shall be
Requisites: counted from the day they may be brought.
(a) That the plaintiff had actual knowledge of
the danger; Prescription periods:
(b) That he understood and appreciated the 4 years for QD
risk from the danger; and
1 year for defamation
(c) That he voluntarily exposed himself to
such risk
Kramer v. CA (1989): It is clear that the
prescriptive period must be counted when the
The defense is not applicable in the following
last element occurs or takes place, the time of
cases:
the commission of an act or omission violative
Ilocos Norte v. CA (1989): A person is excused
of the right of the plaintiff, which is the time
from the force of the rule (volenti non fit
when the cause of action arises. Thus, the
injuria), that when he voluntarily assents to a
prescription period begins from the day the
known danger he must abide by the
quasi-delict is committed.
consequences, if an emergency is found to
exist or if the life or property of another is in
C.10. WAIVER
peril or when he seeks to rescue his
endangered property.
Art. 6. Rights may be waived, unless the
waiver is contrary to law, public order, public
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policy, morals, or good customs or prejudicial this is found in the obvious truth that man
to a third person with a right recognized by should subordinate his acts to the precepts of
law. prudence and if he fails to observe them and
cause damage to another, he must repair the
Art. 1171. Responsibility arising from fraud is damage.”
demandable in all obligations. Any waiver of
an action for future fraud is void.
A. HUMAN RELATIONS TORTS
C.11. EMERGENCY RULE OR SUDDEN
PERIL DOCTRINE A.1. ABUSE OF RIGHT
Valenzuela v. CA (1996): An individual, who
suddenly finds himself in a situation of danger Art. 19. Every person must, in the exercise of
his rights and in the performance of his
and is required to act without much time to
duties, act with justice, give everyone his due,
consider the best means that may be adopted and observe honesty and good faith.
to avoid the impending danger, is not guilty of
negligence if he fails to undertake what Generally, the exercise of any right must be in
subsequently and upon reflection may appear accordance with the purpose for which it was
to be a better solution, unless the emergency established. It must not be excessive or unduly
was brought by his own negligence. harsh; there must be no intention to injure
another.
III. INTENTIONAL There is abuse of right when:
TORTS (1) The right is exercised for the only purpose
of prejudicing or injuring another
Manresa: “Liability for personal acts or (2) The objective of the act is illegitimate
omission is founded on that indisputable (3) There is an absence of good faith
principle of justice recognized by all legislators
Elements [Albenson v. CA (1993)]:
that when a person by his act or omission
(a) There is a legal right or duty;
causes damage or prejudice to another, a
(b) Which is exercised in bad faith;
juridical relation is created by virtue of which
(c) For the sole intent of prejudicing or injuring
the injured person acquires a right to be
indemnified and the person causing the another.
damage is charged with the corresponding
duty of repairing the damage. The reason for
Case Legal Right and Injury Doctrine
Velayo v. Shell (1959) Right to transfer credit. The standards in NCC 19 are
The transfer of credit from Shell implemented by NCC 21.
Philippines to Shell USA was deemed a
violation of NCC 21 as it allowed Shell to
attach properties of their creditor CALI to
the prejudice of its other creditors.
Globe v. CA (1989) Right to dismiss an employee. When a right is exercised in a
The dismissal itself was not illegal but it manner which does not conform
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was the manner of dismissal which was with the norms in NCC 19, and
deemed in violation of Article 19, as such results in damage to another, a
was based on unfounded accusations of legal wrong is thereby committed.
dishonesty. The law, therefore, recognizes a
primordial limitation on all rights.
University of the East Academic freedom. The conscious indifference of a
v. Jader (2000) The conscious indifference of the school in person to the rights or welfare of the
not informing its student that he could not others who may be affected by his
graduate formed the basis for the award of act or omission can support a claim
damages. for damages.
Amonoy v. Gutierrez Right to demolish another’s house on his The principle of damnum absque
(2001) own property. injuria does not apply when the
Amonoy obtained a judgment in his favor exercise of the legal right is
for Gutierrez to vacate. A demolition order suspended or extinguished pursuant
was issued but the court suspended it with to a court order. The exercise of a
a TRO. Amonoy proceeded with the right ends when the right
demolition. In a complaint for damages, disappears, and it disappears when
he claims the principle of damnum absque it is abused, especially to the
injuria. prejudice of others.
Nikko Hotel Manila Right to forbid uninvited guests from Article 19, known to contain what is
Garden v. Reyes entering the party. commonly referred to as the
(2005) Ruby Lim’s throwing out of complainant principle of abuse of rights, is not a
Reyes, as a gatecrasher in a private party, panacea for all human hurts and
was merely in exercise of her duties as social grievances. The object of this
Executive Secretary of the hotel where the article is to set certain standards
party was held, and did not constitute a which must be observed not only in
violation of Article 19. the exercise of one’s rights but also
in the performance of one’s duties.
NCC 20 does not distinguish, and the act may
be done willfully or negligently.
A.2. ACTS CONTRARY TO LAW
Requisites
(a) The act must be willful or negligent;
Art. 20. Every person who, contrary to law,
willfully or negligently causes damage to (b) It must be contrary to law; and
another, shall indemnify the latter for the (c) Damages must be suffered by the injured
same. party.
The provision is intended to provide a remedy Garcia v. Salvador (2007). Salvador was
in cases where the law declares an act illegal misdiagnosed with Hepatitis, as a result of
but fails to provide for a relief to the party which she lost her job. During trial, it was
injured. [Jarencio] proven that the clinic was operating under
substandard conditions, in violation of the
Clinical Laboratory Law, DOH Administrative
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Order No. 49-B, and the Philippine Medical Baksh v. CA (1993): Where a man's promise
Technology Act of 1969. The Court held that to marry is in fact the proximate cause of
violation of a statutory duty is negligence, and the acceptance of his love by a woman and
that Article 20 provides the legal basis for his representation to fulfill that promise
award of damages to a party who suffers thereafter becomes the proximate cause of
damage whenever one commits an act in the giving of herself unto him in a sexual
violation of some legal provision. congress, proof that he had, in reality, no
intention of marrying her and that the
promise was only a subtle scheme or
deceptive device to entice or inveigle her to
A.3. ACTS CONTRARY TO MORALS accept him and to obtain her consent to
the sexual act, could justify the award of
Art. 21. Any person who willfully causes loss damages pursuant to Article 21 not
or injury to another in a manner that is because of such promise to marry but
contrary to morals, good customs or public because of the fraud and deceit behind it
policy shall compensate the latter for the and the willful injury to her honor and
damage.
reputation. It is essential, however, that
This article is designed “to expand the concept such injury should have been committed in
of torts and quasi-delict in this jurisdiction by a manner contrary to morals, good
granting adequate legal remedy for the untold customs or public policy.
number of moral wrongs which is impossible
for human foresight to specifically enumerate Tanjanco v. CA (1966): However, when for
and punish in statute books”. [Baksh v. CA one whole year, the plaintiff, a woman of
(1993)] legal age, maintained sexual relations with
the defendant, with repeated acts of
Elements: [Albenson v. CA (1993)] intercourse, there is here voluntariness. No
(a) There is an act which is legal; case under Article 21 is made.
(b) But which is contrary to morals, good
customs, and public policy; and (2) Malicious Prosecution
(c) It is done with intent to injure. Malicious prosecution is the institution of
any action or proceeding, either civil or
Examples of acts contrary to morals: criminal, maliciously and without probable
(1) Breach of Promise to Marry and Moral cause.
Seduction
Wassmer v. Velez (1964): Mere breach of Elements: [Magbanua v. Junsay (2007)]
promise to marry is not an actionable (a) The fact of the prosecution or that the
wrong. But to formally set a wedding and prosecution did occur and that the
go through all the above-described defendant was himself the prosecutor
preparation and publicity, only to walk out or that he instigated its
of it when the matrimony is about to be commencement;
solemnized, is quite different. This is (b) That the action finally terminated with
palpably and unjustifiably contrary to good an acquittal;
customs xxx. (c) That in bringing the action, the
prosecutor acted without probable
cause
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(d) That the prosecutor was actuated or be confused with the manner in which this
impelled by legal malice, that is, by right is to be exercised and the effects
improper or sinister motive. flowing therefrom. If the dismissal was
done antisocially or oppressively, then
Que v. IAC (1989): The mere dismissal of there is a violation of Article 1701, which
the criminal complaint by the fiscal’s office prohibits acts of oppression by either
did not create a cause of action for capital or labor against the other, and
malicious prosecution, because the Article 21, which makes a person liable for
proceedings therein did not involve an damages if he willfully causes loss or injury
exhaustive examination of the elements of to another in a manner that is contrary to
malicious prosecution. To constitute such, morals, good customs, or public policy.
there must be proof that the prosecution When the manner in which the company
was prompted by a sinister design to vex exercised its right to dismiss was abusive,
and humiliate a person and that it was oppressive and malicious, it is liable for
initiated deliberately by the defendant damages.
knowing that his charges were false and
groundless. A.4. UNJUST ENRICHMENT
Magbanua v. Junsay (2007): Malicious Art. 22. Every person who through an act of
prosecution involves not only criminal but performance by another, or any other means,
civil and administrative suits as well. acquires or comes into possession of
something at the expense of the latter
without just or legal ground, shall return the
(3) Public Humiliation same to him.
Pe v. Pe (1962): Lolita’s family filed a case
against Alfonse Pe, a married man, for Art. 23. Even when an act or event causing
allegedly seducing Lolita and causing damage to another’s property was not due to
great damage to the name of her parents, the fault or negligence of the defendant, the
brothers, and sisters. The Court sustained latter shall be liable for indemnity if through
the claim, finding an injury to Lolita’s the act or event he was benefited.
family in a manner contrary to morals,
Art. 2142. Certain lawful, voluntary and
good customs and public policy as unilateral acts give rise to the juridical
contemplated in Article 21 of the new Civil relation of quasi-contract to the end that no
Code. one shall be unjustly enriched or benefited at
the expense of another.
Grand Union v. Espino (1979): It is against
morals, good customs and public policy to Art. 2143. The provisions for quasi contracts
humiliate, embarrass and degrade the in this Chapter do not exclude other quasi-
contracts which may come within the purview
dignity of a person. Everyone must respect of the preceding article.
the dignity, personality, privacy and peace
of mind of his neighbors and other persons One person should not be permitted to
(Article 26, Civil Code). unjustly enrich himself at the expense of
another, but should be required to make
(4) Oppressive Dismissal restitution of, or for property or benefits
Quisaba v. Sta. Ines (1974): The right of an received, retained, or appropriated where it is
employer to dismiss an employee is not to just and equitable that such restitution be
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made, and where such action involves no MVRS Publications v. Islamic Da'wah Council
violation or frustration of law or opposition to (2003): Article 26 specifically applies to
public policy, either directly or indirectly. intentional acts which fall short of being
criminal offenses. It itself expressly refers to
Enrichment at the expense of another is not tortious conduct which "may not constitute
per se forbidden. It is such enrichment without criminal offenses." The purpose is precisely to
just or legal cause that is contemplated here. fill a gap or lacuna in the law where a person
Just and legal cause is always presumed, and who suffers injury because of a wrongful act
the plaintiff has the burden of proving its not constituting a crime is left without any
absence. redress. Under Article 26, the person
responsible for such act becomes liable for
The restitution must cover the loss suffered by "damages, prevention and other relief." In
the plaintiff but it can never exceed the short, to preserve peace and harmony in the
amount of unjust enrichment of the defendant family and in the community, Article 26 seeks
if it is less than the loss of the plaintiff. to eliminate cases of damnum absque injuria
in human relations.
Requisites:
(a) That the defendant has been enriched; The principal rights protected under this
(b) That the plaintiff has suffered a loss; provision are the following:
(c) That the enrichment of the defendant is (1) The right to personal dignity
without just or legal ground; and (2) The right to personal security
(d) That the plaintiff has no other action based (3) The right to family relations
on contract, crime or quasi-delict. (4) The right to social intercourse
(5) The right to privacy
A.5. VIOLATION OF HUMAN DIGNITY (6) The right to peace of mind
Art. 26. Every person shall respect the Note: Coverage of Art. 26 is not limited to
dignity, personality, privacy and peace of those enumerated therein, the enumeration
mind of his neighbors and other persons. being merely examples of acts violative of a
The following and similar acts, though they
person’s rights to dignity, personality, privacy
may not constitute a criminal offense, shall
produce a cause of action for damages, and peace of mind. Other “similar acts” are
prevention and other relief: also covered within the scope of the article.
(1) Prying into the privacy of another’s
residence; VIOLATION OF PERSONAL DIGNITY
(2) Meddling with or disturbing the private In order to be actionable it is not necessary
life or family relations of another; that the act constitutes a criminal offense. The
(3) Intriguing to cause another to be remedy afforded by the law is not only the
alienated from his friends; recovery of damages. “Prevention and other
(4) Vexing or humiliating another on account relief” is also available. In other words,
of his religious beliefs, lowly station in injunction and other appropriate reliefs may
life, place of birth, physical defect, or also be obtained by the aggrieved party.
other personal condition.
VIOLATION OF PRIVACY
Privacy is the right to be let alone, or to be free
from unwarranted publicity, or to live without
unwarranted interference by the public in
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matters in which the public is not necessarily This is not limited to situations where the
concerned. This right is purely personal in wrongdoer physically trespasses into
nature, such that it can be invoked only by the one’s property.
person actually injured, it is subject to a proper Generally, there is no invasion of privacy
waiver, and it ceases upon death. However, the when journalists report something that
privilege may be given to heirs of a deceased to occurs in the public realm, except when
protect his memory, to protect the feelings of the acts of the journalist are to an extent
the living heirs. that it constitutes harassment.
RA 4200: It is illegal for any person not
Reasonableness of Expectation of Privacy Test: authorized by both parties to any private
[Ople v. Torres (1998)] communication to secretly record such
(1) Whether by one’s conduct, the individual communication.
has exhibited an expectation of privacy
(2) Whether this expectation is one that (3) Publicity which puts one in a false light in
society recognizes and accepts as the public eye – The interest here is in not
reasonable being made or forced to appear before the
public in an objectionable false light or
The general rule is that the right to privacy may position.
only be invoked by natural persons. Juridical
persons cannot invoke this because the basis
Tort of putting in false
to this right is an injury to the feelings and Defamation
light
sensibilities of the injured party, and a
corporation has none of those. The exception is The embarrassment of Concerns the
where the right to privacy is invoked along with a person being reputational harm to a
the right against unreasonable searches and portrayed as person
seizures. “An individual’s right to privacy under something he is not
Article 26(1) of the Civil Code should not be Statement should be Publication is satisfied
confined to his house or residence as it may actually made in even if communicated
extend to places where he has the right to public to only one specific
exclude the public or deny them access” [Sps. third person
Hing v. Choachuy (2013)].
(4) Commercial appropriation of likeness of
Types of invasion of privacy image – It consists of appropriation, for the
(1) Publication of embarrassing private facts – defendant’s benefit or advantage (ex. used
The interest here is the right to be free in defendant’s advertisement), of the
from unwarranted publicity, wrongful plaintiff’s name or likeness (picture or
publicizing of private affairs and activities, portrait).
as these are outside the ambit of
DISTURBANCE OF PEACE OF MIND
legitimate public concern. The disturbance of the mental and emotional
tranquility of the plaintiff by the defendant is a
Ayer v. Capulong (1988): Public figures legal injury in itself and, therefore, a sufficient
enjoy a limited right to privacy as cause of action for damages, injunction, and
compared to ordinary individuals. other relief. A person, however, cannot be held
liable for damages for the mental or emotional
(2) Intrusion upon plaintiff’s private affairs disturbance of the plaintiff which was due to
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the latter’s susceptibility to such disturbance, was entitled to judge what was best for her
where the defendant had no knowledge of and ask that her decisions be respected.
such peculiar susceptibility. The tendency of Her parents, in so doing, certainly cannot
the law is to secure an interest in mental be charged with alienation of affections in
comfort only to the extent of the ordinary the absence of malice or unworthy motives,
sensibilities of men. which have not been shown, good faith
being always presumed until the contrary
Interference with Relations is proved.
An interference with the continuance of
unimpaired interests founded upon the Liability of Parents, Guardians or Kin
relation in which the plaintiff stands toward The law distinguishes between the right of
one or more third persons [Prosser and a parent to interest himself in the marital
Keeton]. affairs of his child and the absence of
rights in a stranger to intermeddle in such
KINDS: affairs. However, such distinction between
(1) Family relations the liability of parents and that of
(2) Social relations strangers is only in regard to what will
(3) Economic relations justify interference. A parent is liable for
(4) Political relations alienation of affections resulting from his
own malicious conduct, as where he
Family Relations wrongfully entices his son or daughter to
ALIENATION OF AFFECTION leave his or her spouse, but he is not liable
This is a cause of action in favor of a unless he acts maliciously, without
husband against one who wrongfully justification and from unworthy motives.
alienates the affection of his wife, He is not liable where he acts and advises
depriving him of his conjugal rights to her his child in good faith with respect to his
consortium, that is, her society, affection, child's marital relations in the interest of
and assistance. his child as he sees it, the marriage of his
child not terminating his right and liberty
Elements: to interest himself in, and be extremely
(a) Wrongful conduct of the defendant: solicitous for, his child's welfare and
intentional and malicious enticing of a happiness even where his conduct and
spouse away from the other spouse advice suggest or result in the separation
(b) Loss of affection or consortium of the spouses or the obtaining of a divorce
Note: Complete absence of affection or annulment, or where he acts under
between the spouses is not a defense. mistake or misinformation, or where his
(c) Causal connection between such advice or interference are indiscreet or
conduct and loss unfortunate, although it has been held that
the parent is liable for consequences
Tenchavez v. Escaño (1965): There is no resulting from recklessness. He may in
evidence that the parents of Vicenta, out of
good faith take his child into his home and
improper motives, aided and abetted her afford him or her protection and support,
original suit for annulment, or her
so long as he has not maliciously enticed
subsequent divorce; she appears to have his child away, or does not maliciously
acted independently, and being of age, she
entice or cause him or her to stay away,
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Art. 32. Any public officer or employee, or any forced to confess his guilt, or from being
private individual, who directly or indirectly induced by a promise of immunity or
obstructs, defeats, violates or in any manner reward to make such confession, except
impedes or impairs any of the following when the person confessing becomes a
rights and liberties of another person shall State witness.
be liable to the latter for damages: (18) Freedom from excessive fines, or cruel
(1) Freedom of religion and unusual punishment, unless the
(2) Freedom of speech same is imposed or inflicted in
(3) Freedom to write for the press or to accordance with a statute which has not
maintain a periodical publication been judicially declared unconstitutional;
(4) Freedom from arbitrary or illegal (19) Freedom of access to the courts
detention
(5) Freedom of suffrage In any of the cases referred to in this article,
(6) The right against deprivation of property whether or not the defendant’s act or
without due process of law omission constitutes a criminal offense, the
(7) The right to just compensation when aggrieved party has a right to commence an
property is taken for public use entirely separate and distinct civil action for
(8) The right to equal protection of the laws damages, and for other relief. Such civil
(9) The right to be secure in one’s person, action shall proceed independently of any
house, papers and effects against criminal prosecution (if the latter be
unreasonable searches and seizures instituted) and may be proved by a
(10) The liberty of abode and of changing the preponderance of evidence.
same
(11) The right to privacy of communication The indemnity shall include moral damages.
and correspondence Exemplary damages may also be
(12) The right to become a member of adjudicated.
associations and societies for purposes
not contrary to law The responsibility herein set forth is not
(13) The right to take part in a peaceable demandable from a judge unless his act or
assembly and petition the government omission constitutes a violation of the Penal
for redress of grievances code or any other penal statute.
(14) The right to be free from involuntary
servitude in any form Article 32 speaks of a particular specie of an
(15) The right of the accused against “act” that may give rise to an action for
excessive bail damages against a public officer, and that is, a
(16) The right of the accused to be heard by tort for impairment of rights and liberties.
himself and counsel, to be informed of [Vinzons-Chato v. Fortune (2007)]
the nature and the cause of the
accusation against him, to have a speedy Article 32 is clear that not only public officers
and public trial, to meet the witnesses but also private individuals can incur civil
face to face, to have compulsory process liability for violation of rights enumerated
to secure the attendance of witnesses on therein. Because the provision speaks of an
is behalf; officer, employee or person “directly or
(17) Freedom from being compelled to be a indirectly” responsible for the violation of the
witness against one’s self, or from being constitutional rights and liberties of another, it
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is not the actor alone who must answer for action for recovery of civil liability arising from
damages under Article 32. It is not even the offense charged is impliedly instituted with
necessary that the defendant should have the criminal action. Where the offense is
acted with malice or bad faith, otherwise, it defamation, fraud, or physical injuries, a civil
would defeat its main purpose, which is the action may be filed independently of the
effective protection of individual rights. [Silahis criminal action, even though no reservation is
v. Soluta (2006)] made.
Aberca, et al. v. Ver, et al. (1988): It is obvious (1) Defamation – the offense of injuring a
that the purpose of the above codal provision person’s character, fame or reputation
(Art. 32) is to provide a sanction to the deeply through false or malicious statements.
cherished rights and freedoms enshrined in the Defamation is an invasion of a relational
Constitution. Its message is clear; no man may interest since it involves the opinion which
seek to violate those sacred rights with others in the community may have, or tend
impunity. In times of great upheaval or of to have, of the plaintiff.
social and political stress, when the temptation
is strongest to yield — borrowing the words of Elements of libel pursuant to RPC, Art. 353:
Chief Justice Claudio Teehankee — to the law [Daez v. CA (1990)]
of force rather than the force of law, it is (a) An allegation or imputation of a
necessary to remind ourselves that certain discreditable act or condition
basic rights and liberties are immutable and concerning another
cannot be sacrificed to the transient needs or (b) Publication of the imputation
imperious demands of the ruling power. The (c) Identity of the person defamed
rule of law must prevail, or else liberty will (d) Existence of malice
perish.
MVRS Publications, Inc. v. Islamic (2003):
B.2. DEFAMATION, FRAUD, PHYSICAL Where the defamation is alleged to have
INJURIES been directed at a group or class, it is
essential that the statement must be so
Art. 33. In cases of defamation, fraud, and sweeping or all-embracing as to apply to
physical injuries, a civil action for damages, every individual in that group or class, or
entirely separate and distinct from the sufficiently specific so that each individual
criminal action, may be brought by the in the class or group can prove that the
injured party. Such civil action shall proceed defamatory statement was specifically
independently of the criminal prosecution, pointed to him.
and shall require only a preponderance of
evidence. Yuchengco v. Manila Chronicle (2009): In
determining whether certain utterances
Madeja v. Caro (1983): The civil action for are defamatory, the words used are to be
damages that Article 33 allows to be instituted construed in their entirety and taken in
is ex-delicto. This is manifest from the their plain, natural and ordinary meaning,
provision which uses the expressions “criminal as they would naturally be understood by
action” and “criminal prosecution”. Quoting persons hearing or reading them, unless it
Tolentino, the Court ruled that this provision is appears that they were used and
an exception to the general rule that the civil understood in another sense. When malice
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in fact is proven, assertions and proofs that evident that the term “physical injuries”
the libelous articles are qualifiedly could not have been used in its specific
privileged communications are futile, since sense as a crime defined in the Revised
being qualifiedly privileged Penal Code, for it is difficult to believe that
communications merely prevents the the Code Commission would have used
presumption of malice from attaching in a terms in same article—some in this general
defamatory imputation. and others in its technical sense. In other
words, the term “physical injuries” should
(2) Fraud – Estafa under RPC, 315; Article 33 be understood to mean bodily injury, not
does not cover violations of B.P. 22. the crime of physical injuries, because the
terms used with the latter are general
(3) Physical Injuries (Assault and Battery) terms.
Corpus v. Paje (1969): Paje was acquitted
Battery
of the charge of homicide and double
Battery is the actual infliction of any
serious physical injuries through reckless
unlawful or unauthorized violence on the
imprudence on the ground that the
person of another, irrespective of its
collision was a pure accident and the
degree. The law protects the interest of the negligence charged against him did not
individual in freedom from bodily harm or
exist. In a separate civil action to enforce
any impairment of the physical integrity of civil liability filed by the heirs of the
the body.
deceased, the Court ruled that criminal
negligence is not one of the three crimes
Assault
mentioned in Article 33, which authorizes
Assault is an intentional, unlawful offer of
the institution of an independent civil
physical injury to another by force
action. Although in the case of Dyogi v.
unlawfully directed toward the person of
Yatco, the Court held that the term
another, under such circumstances as to
“physical injuries” includes homicide, it is
create a well-founded fear of imminent
borne in mind that the charge against Paje
peril, coupled with the apparent present
was for reckless imprudence resulting in
ability to effectuate the attempt if not
homicide, and the law penalizes the
prevented. The law seeks to protect the
negligent or careless act, not the result
interest of the individual in freedom from
thereof.
offensive bodily touching although no
actual harm is done.
B.3. NEGLECT OF DUTY
Carandang v. Santiago and Valenton
Art. 34. When a member of a city or
(1955): Defamation and fraud (in Art. 33)
municipal police force refuses or fails to
are used in their ordinary sense because
render aid or protection to any person in case
there are no specific provisions in the
of danger to life or property, such peace
Revised Penal Code using these terms as
officer shall be primarily liable for damages,
names of offenses defined therein, so that
and the city or municipality shall be
these two terms defamation and fraud
subsidiarily responsible therefor. The civil
must have been used not to impart to them
action herein recognized shall be
any technical meaning in the laws of the
independent of any criminal proceedings,
Philippines, but in their generic sense. With
and a preponderance of evidence shall
these apparent circumstances in mind, it is
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vicious animals but covers even tame ones as sewers or deposits of infectious matter,
long as they cause injury. constructed without precautions suitable
to the place.
Possible defenses against this liability
(1) Force Majeure Art. 2192. If damage referred to in the two
(2) Fault of person suffering damage preceding articles should be the result of any
(3) Act of third persons defect in the construction mentioned in
article 1723, the third person suffering
A.2. PROVINCES, CITIES, AND damages may proceed only against the
engineer or architect or contractor in
MUNICIPALITIES accordance with said article, within the
period therein fixed.
Art. 2189. Provinces, cities and municipalities
shall be liable for damages for the death of, Ownership of a building imposes on the
or injuries suffered by, any person by reason proprietor thereof the duty to maintain it in
of the defective condition of roads, streets,
good condition at all times to the end that it
bridges, public buildings, and other public
works under their control or supervision. may not collapse either totally or partially as to
cause damage or injury to another’s person or
Guilatco v. Dagupan (1989): It is not even property. This duty obtains whether the
necessary that the defective roads or streets building is leased or held in usufruct.
belong to the province, city or municipality for Considering, however, that the lessee or
liability to attach. The article only requires that usufructuary has direct and immediate control
either control or supervision be exercised over of the building, the law imposes on him the
said street or road. duty to notify the proprietor of such urgent or
extraordinary repairs. And where the
A.3. PROPRIETOR OF BUILDING OR proprietor’s failure to make the necessary
STRUCTURE repairs was due to the failure of the lessee or
usufructuary to notify him, the proprietor is
Art. 2190. The proprietor of a building or entitled to indemnification for damages he
structure is responsible for the damages may have been required to pay to the parties.
resulting from its total or partial collapse, if it
should be due to the lack of necessary Liability does not attach to the proprietor if the
repairs. damage was caused by any defect in the
construction mentioned in Article 1723, in
Art. 2191. Proprietors shall also be
responsible for damages caused: which case the action should be against the
(1) By the explosion of machinery which has engineer or architect.
not been taken care of with due
diligence, and the inflammation of Under Article 2190, the plaintiff is required to
explosive substances which have not prove:
been kept in a safe and adequate place; (a) The total or partial collapse of a building or
(2) By excessive smoke, which may be structure
harmful to persons or property; (b) That the defendant is the proprietor
(3) By the falling of trees situated at or near (c) That the collapse was due to the lack of
highways or lanes, if not caused by force necessary repairs
majeure;
(4) By emanations from tubes, canals,
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Note: There is no requirement to prove (1) A defect in those plans and specifications;
negligence. or
(2) Due to the defects in the ground.
Under Article 2191, with the exception of No. 1,
negligence is also not an issue. Contractor is liable if the edifice falls within 15
years due to:
Gotesco Investment Corp. v. Chatto (1992): The (1) Defects in the construction;
owner or proprietor of a place of public (2) The use of materials of inferior quality
amusement impliedly warrants that the furnished by the contractor; or
premises, appliances and amusement devices (3) Due to any violation of the terms of the
are safe for the purpose for which they are contract.
designed, the doctrine being subject to no
other exception or qualification than that he Here, the plaintiff need only prove that such
does not contract against unknown defects not conditions (defects) exist, and need not prove
discoverable by ordinary or reasonable means. that negligence of the defendant be the cause
of the conditions.
Art. 1723. The engineer or architect who drew Art. 1711. Owners of enterprises and other
up the plans and specifications for a building employers are obliged to pay compensation
is liable for damages if within fifteen years for the death of or injuries to their laborers,
from the completion of the structure, the workmen, mechanics or other employees,
same should collapse by reason of a defect in even though the event may have been purely
those plans and specifications, or due to the accidental or entirely due to a fortuitous
defects in the ground. The contractor is cause, if the death or personal injury arose
likewise responsible for the damages if the out of and in the course of the employment.
edifice falls, within the same period, on The employer is also liable for compensation
account of defects in the construction or the if the employee contracts any illness or
use of materials of inferior quality furnished disease caused by such employment or as
by him, or due to any violation of the terms of the result of the nature of the employment. If
the contract. If the engineer or architect the mishap was due to the employee's own
supervises the construction, he shall be notorious negligence, or voluntary act, or
solidarily liable with the contractor. drunkenness, the employer shall not be
liable for compensation. When the
Acceptance of the building, after completion, employee's lack of due care contributed to
does not imply waiver of any of the cause of his death or injury, the compensation shall
action by reason of any defect mentioned in be equitably reduced.
the preceding paragraph.
Art. 1712. If the death or injury is due to the
The action must be brought within ten years negligence of a fellow worker, the latter and
following the collapse of the building. the employer shall be solidarily liable for
compensation. If a fellow worker's intentional
Engineer or architect who drew up the plans
malicious act is the only cause of the death or
and specifications is liable if the building
injury, the employer shall not be answerable,
collapses within 15 years due to:
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unless it should be shown that the latter did diligence in the selection and supervision
not exercise due diligence in the selection or of the fellow worker causing the death or
supervision of the plaintiff's fellow worker. injury
Alarcon v. Alarcon (1961): Alarcon, a teacher, A.6. HEAD OF A FAMILY FOR THINGS
hired Urzino and Azaña to dig a well on his THROWN OR FALLING
land; in the course of which Urzino died of
asphyxia. The Court found that under the Art 2193. The head of a family that lives in a
principle of ejusdem generis, said “other building or a part thereof, is responsible for
employers” mentioned in Article 1711 must be damages caused by things thrown or falling
construed to refer to persons who belong to a from the same.
class analogous to “owners of enterprises”,
The purpose of the law is to relieve the injured
such as those operating a business or engaged
party of the difficulty of determining and
in a particular industry or trade, requiring its
proving who threw the thing or what caused it
managers to contract the services of laborers,
to fall, or that either was due to the fault or
workers and/or employees. Alarcon, not
negligence of any particular individual.
owning any enterprise, did not fall under the
category of “other employers”.
Dingcong v. Kanaan (1941): Lessee is
considered as the head of the family. It is
Situations covered:
enough that he lives in and has control over it.
(1) Death or injury arising out of or in the
course of employment – here, the
A.7. PRODUCTS LIABILITY
employer is liable even if the event which
caused the death or injury was purely
i. MANUFACTURERS / PROCESSORS OF
accidental or due to a fortuitous event
(2) Illness or disease caused by their
FOODSTUFFS
employment or as the result of the nature
of the employment Art. 2187. Manufacturers and processors of
foodstuffs, drinks, toilet articles and similar
goods shall be liable for death or injuries
Defenses available to the employer:
caused by any noxious or harmful substances
(1) When death or injury is not caused by a used, although no contractual relation exists
fellow worker between them and the consumers.
The mishap due to the employee’s own
notorious negligence or voluntary act, or Under the foregoing provision, liability is not
drunkenness made to depend upon fault or negligence of
(2) When death or injury is caused by a fellow the manufacturer or processor. The provision
worker likewise dispensed with any contractual
General rule: The employer is solidarily relation between the manufacturer and the
liable with the fellow worker causing the consumer, thereby clearly implying that
death or injury liability is imposed by law as a matter of public
Exception: If the only cause of the death policy.
or injury was the fellow worker’s
intentional or malicious act Proof of negligence under this provision is not
Exception to the exception: If it is shown necessary; as such, traditional contract and
that the employer did not exercise due warranty defenses as (1) lack of privity; (2) lack
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of reliance on a warranty; (3) lack of notice to for another person who attaches his own
the defendant of the breach of warranty; and brand name to the consumer products, the
(4) disclaimer of implied warranties are latter shall be deemed the manufacturer. In
inapplicable. case of imported products, the
manufacturer's representatives or, in his
absence, the importer, shall be deemed the
Requisites of liability manufacturer.
(a) Defendant is a manufacturer or possessor
of foodstuff, drinks, toilet articles and Article 92. Exemptions. – If the concerned
similar goods; department finds that for good or sufficient
(b) He used noxious or harmful substances in reasons, full compliance with the labeling
the manufacture or processing of the requirements otherwise applicable under this
foodstuff, drinks or toilet articles Act is impracticable or is not necessary for
the adequate protection of public health and
consumed or used by the plaintiff;
safety, it shall promulgate regulations
(c) Plaintiff’s death or injury was caused by the exempting such substances from these
product so consumed or used; and requirements to the extent it deems
(d) The damages sustained and claimed by consistent with the objective of adequately
the plaintiff and the amount thereof. safeguarding public health and safety, and
any hazardous substance which does not
Burden of proof bear a label in accordance with such
regulations shall be deemed mislabeled
The burden of proof that the product was in a hazardous substance.
defective condition at the time it left the hands
of the manufacturer and particular seller is Article 97. Liability for the Defective Products.
upon the injured plaintiff. – Any Filipino or foreign manufacturer,
producer, and any importer, shall be liable
Who may recover for redress, independently of fault, for
Although the article used the term damages caused to consumers by defects
“consumer”, such term includes a “user” and resulting from design, manufacture,
construction, assembly and erection,
“purchaser” of the injuriously defective food
formulas and handling and making up,
product or toilet article. The person who may presentation or packing of their products, as
recover need not be the purchaser of the well as for the insufficient or inadequate
foodstuff or toilet article. information on the use and hazards thereof.
ii. CONSUMER ACT – RA 7394, SECS. 92- A product is defective when it does not offer
the safety rightfully expected of it, taking
107 (CH. 1) relevant circumstances into consideration,
including but not limited to:
Consumer Act Provisions (a) presentation of product
Article 4. Definition of Terms. (b) use and hazards reasonably expected of
(n) "Consumer" means a natural person who it;
is a purchaser, lessee, recipient or
(c) the time it was put into circulation.
prospective purchaser, lessor or recipient of
consumer products, services or credit.
A product is not considered defective
(as) "Manufacturer" means any person who because another better quality product has
manufactures, assembles or processes been placed in the market. The
consumer products, except that if the goods manufacturer, builder, producer or importer
are manufactured, assembled or processed shall not be held liable when it evidences:
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(a) that it did not place the product on the (a) that there is no defect in the service
market; rendered;
(b) that although it did place the product on (b) that the consumer or third party is solely
the market such product has no defect; at fault.
(c) that the consumer or a third party is
solely at fault. Article 100. Liability for Product and Service
Imperfection. – The suppliers of durable or
Article 98. Liability of Tradesman or Seller. – nondurable consumer products are jointly
The tradesman/seller is likewise liable, liable for imperfections in quality that render
pursuant to the preceding article when: the products unfit or inadequate for
(a) it is not possible to identify the consumption for which they are designed or
decrease their value, and for those resulting
manufacturer, builder, producer or
from inconsistency with the information
importer; provided on the container, packaging, labels
(b) the product is supplied, without clear or publicity messages/advertisement, with
identification of the manufacturer, due regard to the variations resulting from
producer, builder or importer; their nature, the consumer being able to
(c) he does not adequately preserve demand replacement to the imperfect parts.
perishable goods. The party making
If the imperfection is not corrected within
payment to the damaged party may
thirty (30) days, the consumer may
exercise the right to recover a part of the alternatively demand at his option:
whole of the payment made against the (a) the replacement of the product by
other responsible parties, in accordance another of the same kind, in a perfect
with their part or responsibility in the cause state of use;
of the damage effected. (b) the immediate reimbursement of the
amount paid, with monetary updating,
Article 99. Liability for Defective Services. – without prejudice to any losses and
The service supplier is liable for redress, damages;
independently of fault, for damages caused (c) a proportionate price reduction.
to consumers by defects relating to the
rendering of the services, as well as for
insufficient or inadequate information on the The parties may agree to reduce or increase
fruition and hazards thereof. the term specified in the immediately
preceding paragraph; but such shall not be
The service is defective when it does not less than seven (7) nor more than one
provide the safety the consumer may hundred and eighty (180) days.
rightfully expect of it, taking the relevant
circumstances into consideration, including The consumer may make immediate use of
but not limited to: the alternatives under the second paragraph
(a) the manner in which it is provided; of this Article when by virtue of the extent of
the imperfection, the replacement of the
(b) the result of hazards which may imperfect parts may jeopardize the product
reasonably be expected of it; quality or characteristics, thus decreasing its
(c) the time when it was provided. value.
A service is not considered defective because If the consumer opts for the alternative under
of the use or introduction of new techniques. sub-paragraph (a) of the second paragraph
of this Article, and replacement of the
The supplier of the services shall not be held product is not possible, it may be replaced by
liable when it is proven: another of a different kind, mark or model:
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Article 101. Liability for Product Quantity Improper services are those which prove to
Imperfection. – Suppliers are jointly liable for be inadequate for purposes reasonably
imperfections in the quantity of the product expected of them and those that fail to meet
when, in due regard for variations inherent the provisions of this Act regulating service
thereto, their net content is less than that rendering.
indicated on the container, packaging,
labeling or advertisement, the consumer Article 103. Repair Service Obligation. –
having powers to demand, alternatively, at When services are provided for the repair of
his own option: any product, the supplier shall be considered
(a) the proportionate price implicitly bound to use adequate, new,
(b) the supplementing of weight or measure original replacement parts, or those that
differential; maintain the manufacturer's technical
(c) the replacement of the product by specifications unless, otherwise authorized,
another of the same kind, mark or model, as regards to the latter by the consumer.
without said imperfections;
(d) the immediate reimbursement of the Article 104. Ignorance of Quality
Imperfection. – The supplier's ignorance of
amount paid, with monetary updating
the quality imperfections due to inadequacy
without prejudice to losses and damages of the products and services does not exempt
if any. him from any liability.
The provisions of the fifth paragraph of Article 105. Legal Guarantee of Adequacy. –
Article 99 shall apply to this Article. The legal guarantee of product or service
adequacy does not require an express
The immediate supplier shall be liable if the instrument or contractual exoneration of the
instrument used for weighing or measuring is supplier being forbidden.
not gauged in accordance with official
standards.
Article 106. Prohibition in Contractual
Stipulation. – The stipulation in a contract of
Article 102. Liability for Service Quality a clause preventing, exonerating or reducing
Imperfection. – The service supplier is liable the obligation to indemnify for damages
for any quality imperfections that render the effected, as provided for in this and in the
services improper for consumption or preceding Articles, is hereby prohibited, if
decrease their value, and for those resulting there is more than one person responsible for
from inconsistency with the information the cause of the damage, they shall be jointly
contained in the offer or advertisement, the liable for the redress established in the
consumer being entitled to demand pertinent provisions of this Act. However, if
alternatively at his option: the damage is caused by a component or
(a) the performance of the services, without part incorporated in the product or service,
any additional cost and when applicable; its manufacturer, builder or importer and the
(b) the immediate reimbursement of the person who incorporated the component or
amount paid, with monetary updating part are jointly liable.
without prejudice to losses and damages,
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for the resulting damage, being guilty of from acts of public indecency, keeping
causing nuisance. There can be no doubt that disorderly houses, and houses of ill fame,
commercial and industrial activities which are gambling houses, etc. Nuisances have
lawful in themselves may become nuisances if been divided into two classes: Nuisances
they are so offensive to the senses that they per se, and nuisances per accidens. To the
render the enjoyment of life and property first belong those which are
uncomfortable. It is no defense that skill and unquestionably and under all
care have been exercised and the most circumstances nuisances, such as
improved methods and appliances employed gambling houses, houses of ill fame, etc.
to prevent such result. In this case, the Court The number of such nuisances is
ruled that causing or maintaining disturbing necessarily limited, and by far the greater
noises or sounds may constitute an actionable number of nuisances are such because of
nuisance. particular facts and circumstances
surrounding the otherwise harmless cause
Types of Nuisance: of the nuisance. For this reason, it will
(1) Nuisance per se readily be seen that whether a particular
It is recognized as a nuisance under any thing is a nuisance is generally a question
and all circumstances because it of fact, to be determined in the first
constitutes a direct menace to public instance before the term nuisance can be
health and safety and, for that reason, may applied to it.
be abated summarily under the undefined
law of necessity. (3) Public nuisance
To become a nuisance per se, the thing Art. 695. Nuisance is either public or private.
must, of itself, because of its inherent A public nuisance affects a community or
neighborhood or any considerable number of
qualities, without complement, be persons, although the extent of the
productive of injury, or, by reason of the annoyance, danger or damage upon
matter of its use or exposure, threaten or individuals may be unequal. A private
be dangerous to life or property. nuisance is one that is not included in the
foregoing definition.
(2) Nuisance per accidens
It becomes a nuisance depending upon A public nuisance is the doing of or the failure
certain conditions and circumstances, and to do something that injuriously affects safety,
its existence being a question of fact, it health, or morals of the public, or works some
cannot be abated without due hearing substantial annoyance, inconvenience or injury
thereon in a tribunal authorized to decide to the public. It causes hurt, inconvenience, or
whether such a thing does in law constitute damage to the public generally, or such part of
a nuisance. the public as necessarily comes in contact with
it in the exercise of a public or common right.
Iloilo Ice and Cold Storage Co. v. Municipal
Council (1913): A nuisance is, according to Art. 699. The remedies against a public
Blackstone, "Any thing that works3 hurt, nuisance are:
inconvenience, or damages." They arise (1) A prosecution under the Penal Code or
from pursuing particular trades or any local ordinance: or
industries in populous neighborhoods; (2) A civil action; or
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(3) Abatement, without judicial proceedings. Art. 706. Any person injured by a private
nuisance may abate it by removing, or if
Art. 700. The district health officer shall take necessary, by destroying the thing which
care that one or all of the remedies against a constitutes the nuisance, without committing
public nuisance are availed of. a breach of the peace or doing unnecessary
injury. However, it is indispensable that the
procedure for extrajudicial abatement of a
Art. 701. If a civil action is brought by reason public nuisance by a private person be
of the maintenance of a public nuisance, followed.
such action shall be commenced by the city
or municipal mayor.
Art. 707. A private person or a public official
extrajudicially abating a nuisance shall be
Art. 702. The district health officer shall liable for damages:
determine whether or not abatement, (1) If he causes unnecessary injury; or
without judicial proceedings, is the best
(2) If an alleged nuisance is later declared by
remedy against a public nuisance.
the courts to be not a real nuisance.
Art. 703. A private person may file an action
on account of a public nuisance, if it is (5) Attractive Nuisance
specially injurious to himself. General Rule: When people come to the
lands or premises of others for their own
Art. 704. Any private person may abate a purposes, without right or invitation, they
public nuisance which is specially injurious to must take the lands as they see them.
him by removing, or if necessary, by
destroying the thing which constitutes the
Exception: Attractive Nuisance doctrine.
same, without committing a breach of the
peace, or doing unnecessary injury. But it is
necessary: Hidalgo Enterprises v. Balandan (1952):
(1) That demand be first made upon the One who maintains on his premises
owner or possessor of the property to dangerous instrumentalities or appliances
abate the nuisance; of a character likely to attract children at
(2) That such demand has been rejected; play, and who fails to exercise ordinary
(3) That the abatement be approved by the care to prevent children from playing
district health officer and executed with therewith or resorting thereto, is liable to a
the assistance of the local police; and child of tender years who is injured
(4) That the value of the destruction does thereby, even if the child is technically a
not exceed three thousand pesos. trespasser in the premises. The principle
reason for the doctrine is that the condition
(4) Private nuisance or appliance in question although its
It is one which violates only private rights danger is apparent to those of age, is so
and produces damage to but one or a few enticing or alluring to children of tender
persons, and cannot be said to be public. years as to induce them to approach, get
on or use it, and this attractiveness is an
Art. 705. The remedies against a private implied invitation to such children.
nuisance are:
(1) A civil action; or Del Rosario v. Manila Electric Co. (1932): It is
(2) Abatement, without judicial proceedings. doubtful whether contributory negligence can
properly be imputed to the deceased, owing to
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his immature years and the natural curiosity The danger to the child must be caused by
which a child would feel to do something out of the attraction itself, or by something with
the ordinary, and the mere fact that the which the attraction brings the child in
deceased ignored the caution of a companion contact.
of the age of 8 years does not, in our opinion, Protects a meddling child, but not a danger
alter the case. Contributory negligence of a which was created by the child himself.
minor does not bar recovery, where his Limited to latent dangers, and is no basis for
immaturity and natural curiosity impelled him recovery where peril is obvious or patent.
to act to his injury; but discretion shown by the Does not apply to natural dangers.
child is the decisive factor.
The age and maturity of the injured child and
the reason for the child’s presence are
When Applicable/Not Applicable: [De Leon on
important considerations in the application
Torts and Damages] of the doctrine.
Summary of Strict Liability
Person Strictly Liable For What Defenses or Exceptions
Possessor of an animal or For the damage the animal may cause Force majeure
whoever makes use of them Fault of the person who
even if the animal is lost or suffered damage
escaped
Owner of Motor Vehicle Motor vehicle mishaps Solidary liability only if the
owner was in the vehicle and if
he could have prevented it
thru due diligence
If not in vehicle, apply Art.
2180 for his liability as
employer
Manufacturers and Death and injuries caused by any Absence of contractual relation
processors of foodstuffs, noxious or harmful substances used not a defense
drinks, toilet articles and
similar goods
Defendant in possession of Death or injury results from such Possession or use thereof is
dangerous weapons/ possession indispensable in his occupation
substances such as firearms or business
and poison
Provinces, Cities and The death or injuries suffered by any The defective public work is not
Municipalities person by reason of the defective under the LGU’s control or
condition of roads, streets, bridges, supervision
public buildings, and other public
works
Proprietor of building/ (a) Total or partial collapse of Responsibility for collapse
structure building or structure if due to lack should be due to the lack of
of necessary repairs necessary repairs
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CIVIL LAW
DAMAGES
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Damages that arise from the special stipulation, one is entitled to an adequate
circumstance of the case, which, if properly compensation only for such pecuniary loss
pleaded, may be added to the general suffered by him as he has duly proved. Such
damages which the law presumes or implies compensation is referred to as actual or
compensatory damages.
from the mere invasion of the plaintiff’s rights.
Special damages are the natural, but NOT the
The damages must be proven by competent
necessary result of an injury. These are not
evidence (admissible or probative)
implied by law.
Oceaneering Contractors v Baretto (2011). There
must be pleading and proof of actual damages
II. Actual & suffered for the same to be recovered. In
addition to the fact that the amount of loss
Compensatory Damages must be capable of proof, it must also be
actually proven with a reasonable degree of
Compensatory damages are damages in certainty, premised upon competent proof or
satisfaction of, or in recompense for, loss or the best evidence obtainable. The burden of
injury sustained. The phrase “actual damages” proof of the damage suffered is, consequently,
is sometimes used as synonymous with imposed on the party claiming the same, who
compensatory damages. should adduce the best evidence available in
support thereof… In the absence
REQUISITES of corroborative evidence, it has been held that
Asilio, Jr. v. People and Sps. Bombasi (2011): To self-serving statements of account are not
seek recovery of actual damages, it is sufficient basis for an award of actual
necessary to prove the actual amount of loss damages.
with a reasonable degree of certainty,
premised upon competent proof and on the MCC Industrial Sales Corp. v Ssangyong Corp.
best evidence obtainable. (2007). Actual or compensatory damages
cannot be presumed, but must be proven with
a reasonable degree of certainty.
WHEN IS A PERSON ENTITLED?
(1) When there is a pecuniary loss suffered by
Valencia vs. Tantoco (1956): Damages must be
him;
proved with reasonable accuracy, even when
(2) When he has alleged and prayed for such
not denied.
relief (Manchester Dev’t Corp vs. CA (1987));
(3) When he has duly proved it;
(4) When provided by law or by stipulation. DEGREE OF CERTAINTY REQUIRED AS
TO: FACT, CAUSE AND AMOUNT OF
No proof of pecuniary loss is necessary for: DAMAGES
moral, nominal, temperate, liquidated or Damages are not rendered uncertain just
exemplary damages. The assessment of such because they cannot be calculated with
damages is discretionary upon the court, absolute exactness or because the
except liquidated ones. (Art. 2216) consequences of the wrong are not precisely
definite in pecuniary amount.
ALLEGED AND PROVED WITH
CERTAINTY The principle, which will disallow recovery of
Art. 2199. Except as provided by law or by damages when their existence rests solely on
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speculation, applies both to the fact and cause earning capacity is concerned with the
of damages. determination of losses or damages sustained
(1) The requirement of certainty does not by the [plaintiffs], as dependents and intestate
prevent the drawing of reasonable heirs of the deceased, and that said damages
inferences from the fact and circumstance consist, not of the full amount of his earnings,
in evidence. but of the support they received or would have
(2) Events which occur after the wrong received from him had he not died in
complained of may serve to render the consequence of negligence of [defendant’s]
damage sufficiently certain. agent… Only net earnings, and not gross
(3) The damages must be susceptible of earnings are to be considered. That is, the total
ascertainment in some manner other than of the earnings less expenses necessary in the
by mere speculation, conjecture or surmise creation of such earnings or income and less
and by reference to some fairly definite living and other incidental expenses.
standard, such as market value,
established experience or direct inference EXTENT OR SCOPE OF ACTUAL
from known circumstances. DAMAGES
Source Extent of Liability
Talisay-Silay vs. Associacion (1995): Where, -If the obligor acted in GOOD
however, it is reasonably certain that injury FAITH, he shall be liable for
consisting of failure to realize otherwise natural and probable
reasonably expected profits had been incurred, consequences of the breach,
uncertainty as to the precise amount of such which the parties have
unrealized profits will not prevent recovery or foreseen or could have
the award of damages. reasonably foreseen at the
Contracts time the obligation was
Art.
and Quasi- constituted.
COMPONENTS 2201
contracts
Actual damage covers the following: -If the obligor acted with
(1) Value of loss; unrealized profit FRAUD, BAD FAITH, MALICE
(2) Attorney’s fees and expenses of litigation or WANTON ATTITUDE, he
(3) Interest shall be responsible for all
damages which may be
LOSS COVERED; reasonably attributed to the
breach.
In General
Liability extends to all
Art. 2200. Indemnification for damages shall damages which are the
comprehend not only the value of the loss
natural and probable
suffered, but also that of the profits which
consequence of the act or
the obligee failed to obtain. Crimes and
Art. omission complained of
Quasi-
2202
In other words, indemnification for damages is delicts
WON the damage was
not limited to damnum emergens (actual loss) foreseen or could have been
but extends to lucrum cessans (a cession of reasonably foreseen by the
gain or amount of profit lost). defendant is irrelevant
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Art. 2214. In quasi delicts, the contributory Spouses Zalamea v CA (1993). That there was
negligence of the plaintiff shall reduce the fraud or bad faith on the part of respondent
damages that he may recover. airline when it did not allow petitioners to
board their flight in spite of confirmed tickets
Art. 2215. In contracts, quasi-contracts, and cannot be disputed. Overbooking amounts to
quasi-delicts, the court may equitably bad faith, entitling the passengers concerned
mitigate the damages under circumstances to an award of moral damages.
other than the case referred to in the
preceding article, as in the following
instances: IN CRIMES AND QUASI-DELICTS
(1) That the plaintiff himself has Art. 2202. In crimes and quasi delicts, the
contravened the terms of the contract; defendant shall be liable for all damages
(2) That the plaintiff has derived some which are the natural and probable
benefit as a result of the contract; consequences of the act or omission
complained of. It is not necessary that such
(3) In cases where exemplary damages are
damages have been foreseen or could have
to be awarded, that the defendant acted reasonably been foreseen by the defendant.
upon the advice of counsel;
(4) That the loss would have resulted in any In case of crimes, damages are to be increased
event; or decreased according to aggravating or
(5) That since the filing of the action, the mitigating circumstances present.
defendant has done his best to lessen
the plaintiff's loss or injury. Interest, as part of damages, may be
adjudicated in a proper case, in the Court’s
Daywalt vs. Recoletos et al. (1919): The damages discretion.
recoverable upon breach of contract are,
primarily, the ordinary, natural and in a sense Contributory negligence of the plaintiff, in case
the necessary damages resulting from the of quasi-delicts, shall reduce the damages to
breach. Other damages, known as special which he may be entitled. However, in case of
damages, are recoverable where it appears crimes, there is no mitigation for contributory
that the particular conditions which made such negligence of the plaintiff.
damages a probable consequence of the
breach were known to the delinquent party at People v Sarcia (2009). The
the time the contract was made. indemnity authorized by our criminal law as
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civil liability ex delicto for the offended party, in health, and his mental and physical condition
the amount authorized by the prevailing before the accident… Taking into account [the
judicial policy and aside from other proven plaintiff’s] outstanding abilities, he would have
actual damages, is itself equivalent to actual enjoyed a successful professional career in
or compensatory damages in civil law. The banking.
principal consideration for the award of
damages is the penalty provided by law or INJURY TO BUSINESS STANDING OR
imposable for the offense because of its COMMERCIAL CREDIT
heinousness, not the public penalty actually Tanay Recreation Center vs. Fausto (2005): Loss
imposed on the offender… Hence, of goodwill should be proven with the same
notwithstanding the fact that the imposable standard of proof as other compensatory
public penalty against the offender should be damages.
lowered due to his minority, there is no
justifiable ground to depart from the FORMULA FOR THE NET EARNING
jurisprudential trend in the award of damages CAPACITY
in the case of qualified rape, considering the People vs. Aringue (1997):
compensatory nature of the award of civil Net earning capacity = Life expectancy * (Gross
indemnity and moral damages. annual income – Reasonable living expenses)
Where:
EARNING CAPACITY, BUSINESS Life expectancy = 2/3 * (80 – age of victim at
STANDING the time of death)
Art. 2205. Damages may be recovered:
(1) For loss or impairment of earning capacity Tan, et al. vs. OMC Carriers, Inc. (2011): As a
in cases of temporary or permanent rule, documentary evidence should be
personal injury; presented to substantiate the claim for loss of
(2) For injury to the plaintiff's business earning capacity.
standing or commercial credit.
By way of exception, damages for loss of
LOSS OR IMPAIRMENT OF EARNING earning capacity may be awarded despite the
CAPACITY absence of documentary evidence when: (1) the
Gatchalian vs. Delim (1991): The Court did not deceased is self-employed and earning less
award actual damages because it was found than the minimum wage under current labor
that plaintiff’s employment was lost even laws, in which case, judicial notice may be
before the injury upon which she was suing. taken of the fact that in the deceased's line of
The Court equated loss of employment with work, no documentary evidence is available; or
loss of earning capacity. (2) the deceased is employed as a daily wage
worker earning less than the minimum wage
Mercury Drug v Huang (2007). The plaintiff under current labor laws.
need not be actually engaged in gainful
employment to recover damages due to loss or DEATH BY CRIME OR QUASI-DELICT
impairment of earning capacity. In determining Art. 2206. The amount of damages for death
the amount of damages to be awarded, the caused by a crime or quasi-delict shall be at
least three thousand pesos, even though
Supreme Court considered the plaintiff’s age,
there may have been mitigating
probable life expectancy, the state of his
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circumstances.
Additional exception found in Pleyto vs. Lomboy
In addition: (2004):
(1) The defendant shall be liable for the loss “Testimonial evidence suffices to establish a
of the earning capacity of the deceased, basis for which the court can make a fair and
and the indemnity shall be paid to the reasonable estimate of the loss of earning
heirs of the latter; such indemnity shall in capacity.”
every case be assessed and awarded by
the court, unless the deceased on Note: Such an exception to documentary proof
account of permanent physical disability requirement only exists as to the loss of
not caused by the defendant, had no earning capacity.
earning capacity at the time of his death;
(2) If the deceased was obliged to give
IN RAPE CASES
support according to the provisions of
No statutory basis but in several cases the
article 291, the recipient who is not an
court awards compensatory damages to
heir called to the decedent's inheritance
victims of rape.
by the law of testate or intestate
succession, may demand support from
People vs. Astrologo (2007): “Civil indemnity, in
the person causing the death, for a
the nature of actual and compensatory
period not exceeding five years, the exact
damages, is mandatory upon the finding of the
duration to be fixed by the court;
fact of rape.” Awarded Php. 50,000 for simple
(3) The spouse, legitimate and illegitimate
rape.
descendants and ascendants of the
deceased may demand moral damages
People vs. Apattad (2011): When imposable
for mental anguish by reason of the
penalty is death, then the civil indemnity must
death of the deceased.
be Php. 75,000.
CIVIL / DEATH INDEMNITY People vs. Bartolini (2010): The SC held that it
Prof. Casis Book on Damages: could not be proven that the age of the victim
Mere commission of the crime shall entitle the was such that it would support a penalty of
heirs of the deceased to such damages. death. Thus, it imposed reclusion perpetua
But there has been inconsistency as to whether instead. But SC said that this should not affect
indemnity is 50,000 or 75,000. the civil liability to be imposed, and
maintained the same at Php. 75,000.
AS TO THE LOSS OF EARNING CAPACITY
General Rule: People vs. Pascual (2009): In cases of rape with
shall be awarded in every case, and that homicide, civil indemnity in the amount of Php.
claimant shall present documentary evidence 100,000 should be awarded to the heirs of the
to substantiate claim for damages. victim.
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General Rule
MERALCO v Ramoy (2008). Attorney's fees
Attorney’s fees and costs of litigation are
cannot be recovered except in cases provided
recoverable IF stipulated.
for in CC 2208.
Exceptions
Briones v Macabagdal (2010). Attorney’s fees
If there is no stipulation, they are recoverable
and expenses of litigation are recoverable only
only in the following cases:
in the concept of actual damages, not as moral
(1) By reason of malice or bad faith
damages nor judicial costs. Hence, such must
(a) When exemplary damages are
be specifically prayed for…and may not be
awarded
deemed incorporated within a general prayer
(b) In case of a clearly unfounded civil
for "such other relief and remedy as this court
action
may deem just and equitable."
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passenger results from a breach of (10) Even if the allegations regarding the
carriage. amount of damages in the complaint are
(4) In culpa aquiliana or quasi-delict, not specifically denied in the answer, such
(a) when an act or omission causes damages are not deemed admitted.
physical injuries, or (Raagas, et al. vs. Traya et al (1968)).
(b) where the defendant is guilty of (11) An appeal in a criminal case opens the
intentional tort, moral damages may whole case for review and this 'includes
aptly be recovered. This rule also the review of the penalty, indemnity and
applies to contracts when breached damages’. Even if the offended party had
by tort. not appealed from said award, and the
(5) In culpa criminal, moral damages could be only party who sought a review of the
lawfully due when the accused is found decision of said court was the accused, the
guilty of physical injuries, lascivious acts, court can increase damages awarded.
adultery or concubinage, illegal or (Sumalpong vs. CA (1997))
arbitrary detention, illegal arrest, illegal (12) It can only be awarded to natural persons.
search, or defamation.
(6) Malicious prosecution can also give rise to ABS-CBN vs. CA (1999): The award of moral
a claim for moral damages. The term damages cannot be granted in favor of a
"analogous cases," referred to in Article corporation because, being an artificial person
2219, following the ejusdem generis rule, and having existence only in legal
must be held similar to those expressly contemplation, it has no feelings, no emotions,
enumerated by the law. no senses, It cannot, therefore, experience
(7) Although the institution of a clearly physical suffering and mental anguish, which
unfounded civil suit can at times be a legal can be experienced only by one having a
justification for an award of attorney's nervous system. The statement in People vs.
fees, such filing, however, has almost Manero and Mambulao Lumber Co. vs. PNB
invariably been held not to be a ground for that a corporation may recover moral damages
an award of moral damages. (Expertravel& if it "has a good reputation that is debased,
Tours vs. CA (1999)) resulting in social humiliation" is an obiter
(8) The burden rests on the person claiming dictum.
moral damages to show convincing
evidence for good faith is presumed. In a NAPOCOR vs. Philipp Brothers (2001): While it
case involving simple negligence, moral is true that besmirched reputation is included
damages cannot be recovered. (Villanueva in moral damages, it cannot cause mental
vs. Salvador (2006)) anguish to a corporation, unlike in the case of a
(9) Failure to use the precise legal terms or natural person, for a corporation has no
"sacramental phrases" of "mental reputation in the sense that an individual has,
anguish, fright, serious anxiety, wounded and besides, it is inherently impossible for a
feelings or moral shock" does not justify corporation to suffer mental anguish.
the denial of the claim for damages. It is
sufficient that these exact terms have been QUESTION
pleaded in the complaint and evidence has Ortillo contracts Fabricato, Inc. to supply and
been adduced (Miranda-Ribaya vs. install tile materials in a building he is
Bautista (1980)) donating to his province. Ortillo pays 50% of
the contract price as per agreement. It is
also agreed that the balance would be
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mind of his neighbors and other persons. The performing a perfectly legal act, albeit with
following and similar acts, though they may bad faith or in violation of the "abuse of right"
not constitute a criminal offense, shall doctrine.
produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of another's Art. 28. Unfair competition in agricultural,
commercial or industrial enterprises or in
residence:
labor through the use of force, intimidation,
(2) Meddling with or disturbing the private deceit, machination or any other unjust,
life or family relations of another; oppressive or highhanded method shall give
(3) Intriguing to cause another to be rise to a right of action by the person who
alienated from his friends; thereby suffers damage.
(4) Vexing or humiliating another on
account of his religious beliefs, lowly Art. 29. When the accused in a criminal
station in life, place of birth, physical prosecution is acquitted on the ground that
his guilt has not been proved beyond
defect, or other personal condition.
reasonable doubt, a civil action for damages
for the same act or omission may be
VIOLATION OF HUMAN DIGNITY instituted. Such action requires only a
Concepcion v CA (1998).The law seeks to preponderance of evidence. Upon motion of
protect a person from being unjustly the defendant, the court may require the
humiliated. Using this provision, the SC plaintiff to file a bond to answer for damages
in case the complaint should be found to be
awarded moral damages to the plaintiff, a malicious.
married man, against the defendant, who
confronted the plaintiff face-to-face, invading If in a criminal case the judgment of acquittal
the latter’s privacy, to hurl defamatory words is based upon reasonable doubt, the court
at him in the presence of his wife and children, shall so declare. In the absence of any
neighbors and friends, accusing him of having declaration to that effect, it may be inferred
from the text of the decision whether or not
an adulterous relationship with another
the acquittal is due to that ground.
woman.
Art. 27. Any person suffering material or
moral loss because a public servant or
Art. 32. Any public officer or employee, or any
employee refuses or neglects, without just
private individual, who directly or indirectly
cause, to perform his official duty may file an
obstructs, defeats, violates or in any manner
action for damages and other relief against
impedes or impairs any of the following
the latter, without prejudice to any
rights and liberties of another person shall
disciplinary administrative action that may
be liable to the latter for damages:
be taken.
(1) Freedom of religion;
(2) Freedom of speech;
REFUSAL OR NEGLECT OF DUTY
(3) Freedom to write for the press or to
Vital-Gozon v CA (1998). Under CC 27, in
maintain a periodical publication;
relation to CC 2219 and 2217, a public officer
(4) Freedom from arbitrary or illegal
may be liable for moral damages for as long as
detention;
the moral damages suffered by [the plaintiff]
(5) Freedom of suffrage;
were the proximate result of [defendant’s]
(6) The right against deprivation of property
refusal to perform an official duty or neglect in
without due process of law;
the performance thereof. In fact, under
(7) The right to a just compensation when
Articles 19 and 27 of the Civil Code, a public
private property is taken for public use;
official may be made to pay damages for
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(8) The right to the equal protection of the entirely separate and distinct civil action for
laws; damages, and for other relief. Such civil
(9) The right to be secure in one's person, action shall proceed independently of any
house, papers, and effects against criminal prosecution (if the latter be
instituted), and mat be proved by a
unreasonable searches and seizures; preponderance of evidence.
(2) The liberty of abode and of changing the
same; The indemnity shall include moral damages.
(3) The privacy of communication and Exemplary damages may also be
correspondence; adjudicated.
(4) The right to become a member of
The responsibility herein set forth is not
associations or societies for purposes
demandable from a judge unless his act or
not contrary to law; omission constitutes a violation of the Penal
(5) The right to take part in a peaceable Code or other penal statute.
assembly to petition the government for
redress of grievances;
(6) The right to be free from involuntary VIOLATION OF CIVIL AND POLITICAL
servitude in any form; RIGHTS
(7) The right of the accused against Conjuangco v CA (1999). The purpose of [CC 32]
excessive bail; is to provide a sanction to the deeply cherished
(8) The right of the accused to be heard by rights and freedoms enshrined in the
himself and counsel, to be informed of Constitution. Under [CC 32], it is not necessary
the nature and cause of the accusation that the public officer acted with malice or bad
against him, to have a speedy and public faith. To be liable, it is enough that there was a
trial, to meet the witnesses face to face, violation of the constitutional rights of
and to have compulsory process to petitioner, even on the pretext of justifiable
secure the attendance of witness in his motives or good faith in the performance of
behalf; one's duties.
(9) Freedom from being compelled to be a
witness against one's self, or from being Meralco v Spouses Chua (2010). Article 32 of
forced to confess guilt, or from being the Civil Code provides that moral damages
induced by a promise of immunity or are proper when the rights of individuals,
reward to make such confession, except including the right against deprivation of
when the person confessing becomes a property without due process of law, are
State witness; violated.
(10) Freedom from excessive fines, or cruel
and unusual punishment, unless the Art. 34. When a member of a city or
same is imposed or inflicted in municipal police force refuses or fails to
accordance with a statute which has not render aid or protection to any person in case
been judicially declared of danger to life or property, such peace
unconstitutional; and officer shall be primarily liable for damages,
(11) Freedom of access to the courts. and the city or municipality shall be
subsidiarily responsible therefor. The civil
action herein recognized shall be
In any of the cases referred to in this article,
independent of any criminal proceedings,
whether or not the defendant's act or
and a preponderance of evidence shall
omission constitutes a criminal offense, the
suffice to support such action.
aggrieved party has a right to commence an
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brothers and sisters may bring the action and prestige, received P100,000; his wife
mentioned in No. 9 of this article, in the order Maria Lopez received P50,000 for her
named. discomfort, and the fact that she was already
sick and suffering a flu when she left the
RELATIVES OF INJURED PERSONS Philippines via defendant’s plane; and the
Sulpicio Lines v Curso (2010). Article 2219 Montelibanos received P25,000 each, for
circumscribes the instances in which moral being immediate family members of Senator
damages may be awarded. The provision does Lopez, and as such they likewise shared his
not include succession in the collateral line as prestige and humiliation.
a source of the right to recover moral damages.
The usage of the phrase analogous cases in
the provision means simply that the situation IV. Nominal Damages
must be held similar to those expressly Nominal damages consist in damages
enumerated in the law in question awarded, not for purposes of indemnifying the
plaintiff for any loss suffered, but for the
JURIDICAL PERSONS vindication or recognition of a right violated by
ABS-CBN vs. CA (1999): The award of moral the defendant.
damages cannot be granted in favor of a
corporation because, being an artificial person REQUISITES AND CHARACTERISTICS
and having existence only in legal (1) Invasion or violation of any legal or
contemplation, it has no feelings, no emotions, property right.
no senses, It cannot, therefore, experience (2) No proof of loss is required.
physical suffering and mental anguish, which (3) The award is to vindicate the right
can be experienced only by one having a violated.
nervous system. The statement in People vs.
Manero and Mambulao Lumber Co. vs. PNB WHEN AWARDED
that a corporation may recover moral damages Art. 2221. Nominal damages are adjudicated
if it "has a good reputation that is debased, in order that a right of the plaintiff, which has
resulting in social humiliation" is an obiter been violated or invaded by the defendant,
dictum. may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for
FACTORS CONSIDERED IN any loss suffered by him.
DETERMINING AMOUNT
Art. 2222. The court may award nominal
Lopez v Pan American (1966). The amount of damages in every obligation arising from any
damages awarded in this appeal has been source enumerated in article 1157, or in every
determined by adequately considering the case where any property right has been
official, political, social, and financial standing invaded.
of the offended parties on one hand, and the
business and financial position of the offender Art. 2223. The adjudication of nominal
on the other. The SC further considered the damages shall preclude further contest upon
present rate of exchange and the terms at the right involved and all accessory
questions, as between the parties to the suit,
which the amount of damages awarded would or their respective heirs and assigns.
approximately be in U.S. dollars, the
defendant being an international airline.
Senate President Lopez, for his social standing
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One does not ask for nominal damages, and it food service for the plaintiff’s guests. The SC
is in lieu of the actual, moral, temperate, or did not award actual and moral damages
liquidated damages. because it found that the plaintiff’s failure to
inform the hotel regarding the increase of
Nominal damages are incompatible with guests (from 350 expected guests, at
actual, temperate and exemplary damages. maximum capacity of 380, the number of
guests reached 470) was the proximate cause
Armovit vs. CA (1990): Nominal damages of the plaintiff’s injury. Nevertheless, the SC
cannot co-exist with actual or compensatory awarded nominal damages under
damages. considerations of equity, for the discomfiture
that the plaintiffs were subjected to during the
Francisco vs. Ferrer (2001): No moral or event, averring that the hotel could have
exemplary damages was awarded. managed the "situation" better, it being held
Nevertheless, when confronted with their in high esteem in the hotel and service
failure to deliver on the wedding day the industry. Given respondent’s vast experience, it
wedding cake ordered and paid for, petitioners is safe to presume that this is not its first
gave the lame excuse that delivery was encounter with booked events exceeding the
probably delayed because of the traffic, when guaranteed cover.
in truth, no cake could be delivered because
the order slip got lost. For such prevarication, NATURE AND DETERMINATION OF
petitioners must be held liable for nominal AMOUNT
damages for insensitivity, inadvertence or Gonzales v People (2007). The assessment of
inattention to their customer's anxiety and nominal damages is left to the discretion of the
need of the hour. trial court according to the circumstances of
the case. Generally, nominal damages by their
Gonzales v PCIB (2011). Nominal damages "are nature are small sums fixed by the court
recoverable where a legal right is technically without regard to the extent of the harm done
violated and must be vindicated against an to the injured party. However, it is generally
invasion that has produced no actual present held that a nominal damage is a substantial
loss of any kind.” Its award is thus not for the claim, if based upon the violation of a legal
purpose of indemnification for a loss but for right; in such a case, the law presumes
the recognition and vindication of a damage although actual or compensatory
right. When granted by the courts, they are not damages are not proven.
treated as an equivalent of a wrong inflicted
but simply a recognition of the existence of a
technical injury. A violation of the plaintiff’s V. Temperate Damages
right, even if only technical, is sufficient to Art. 2224. Temperate or moderate damages,
support an award of nominal damages. which are more than nominal but less than
Conversely, so long as there is a showing of a compensatory damages, may be recovered
violation of the right of the plaintiff, an award when the court finds that some pecuniary
of nominal damages is proper. loss has been suffered but its amount
cannot, from the nature of the case, be
provided with certainty.
Spouses Guanio v Makati Shangri-la (2011). The
plaintiffs sought to recover damages from the Art. 2225. Temperate damages must be
hotel due to its breach of contract as regards reasonable under the circumstances.
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Pleno vs. CA(1988): Temperate damages are WHERE THERE ARE RECEIPTS
included within the context of compensatory PROVIDED AMOUNTING TO LESS THAN
damages.Tan v OMC Carriers (2011). The SC
P25,000
awarded temperate damages in lieu of actual
People v Lucero (2010). Anent the actual
damages for loss of earning capacity where
damages, we note that the CA
earning capacity is plainly established but no
awarded P3,000.00 representing the amount
evidence was presented to support the
spent for the embalming as shown by the
allegation of the injured party’s actual income.
receipt. However, the prosecution also
presented a list of expenses such as those
Republic v Tuvera (2007). Courts are authorized
spent for the coffin, etc., which were not duly
to award temperate damages even in cases
covered by receipt. If the actual damages,
where the amount of pecuniary loss could have
proven by receipts during the trial, amount to
been proven with certainty, if no such
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less than P25,000.00, the victim shall be is “ad terrorem,” while liquidated damages are
entitled to temperate damages in the amount “ad reparationem.”
of P25,000.00, in lieu of actual damages. In
this case, the victim is entitled to the award REQUISITES AND CHARACTERISTICS
ofP25,000.00 as temperate damages (1) Liquidated damages must be validly
considering that the amount of actual stipulated.
damages is only P3,858.50. The amount of (2) There is no need to prove the amount of
actual damages shall be deleted. actual damages.
(3) Breach of the principal contract must be
WHERE NO RECEIPTS WERE PROVIDED proved.
People v Gidoc (2009). The award
of P25,000.00 as temperate damages in RULES GOVERNING BREACH OF
homicide or murder cases is proper when no CONTRACT
evidence of burial and funeral expenses is Art. 2228. When the breach of the contract
presented in the trial court. committed by the defendant is not the one
contemplated by the parties in agreeing
People v Surongon (2007). Where the amount upon the liquidated damages, the law shall
of actual damages cannot be determined determine the measure of damages, and not
because no receipts were presented to prove the stipulation.
the same but it is shown that the heirs are
Suatengco v Reyes (2008). Liquidated damages
entitled thereto, temperate damages may be
are those agreed upon by the parties to a
awarded, fixed atP25,000.00. Considering
contract to be paid in case of breach thereof.
that funeral expenses were obviously incurred
The stipulation on attorney’s fees contained in
by the victim’s heirs, an award ofP25,000.00
the said Promissory Note constitutes what is
as temperate damages is proper.
known as a penal clause. A penalty clause,
expressly recognized by law, is an accessory
VI.Liquidated Damages undertaking to assume greater liability on the
Art. 2226. Liquidated damages are those part of the obligor in case of breach of an
agreed upon by the parties to a contract, to obligation. It functions to strengthen the
be paid in case of breach thereof. coercive force of obligation and to provide, in
effect, for what could be the liquidated
Art. 2227. Liquidated damages, whether damages resulting from such a breach. The
intended as an indemnity or a penalty, shall obligor would then be bound to pay the
be equitably reduced if they are iniquitous or stipulated indemnity without the necessity of
unconscionable.
proof on the existence and on the measure of
damages caused by the breach.
Liquidated damages are those damages
agreed upon by the parties to a contract to be
General Rule: The penalty shall substitute the
paid in case of breach thereof.
indemnity for damages and the payment of the
interests in case of breach.
It differs from a penal clause in that in the
latter case the amount agreed to be paid may
Exceptions
bear no relation to the probable damages
(1) When there is a stipulation to the contrary.
resulting from the breach. Basically, a penalty
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(2) When the obligor is sued for refusal to pay one or more aggravating circumstances.
the agreed penalty. Such damages are separate and distinct
(3) When the obligor is guilty of fraud. from fines and shall be paid to the offended
party.
The amount can be reduced if:
(1) it is unconscionable as determined by the
Award of exemplary damages is part of the
court
civil liability, not of the penalty.
(2) there is partial or irregular performance.
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Globe Mackay v CA (1989). In this case, the before the court may consider the question of
defendant, the previous employer of the granting exemplary in addition to the
plaintiff, wrote a letter to the company where liquidated damages, the plaintiff must show
the plaintiff subsequently applied for that he would be entitled to moral,
temperate or compensatory damages were it
employment, stating that the plaintiff was not for the stipulation for liquidated
dismissed by the defendant from work due to damages.
dishonesty, accusing plaintiff of malversation
of defendant’s funds. Previous police
investigations revealed that the defendant’s Art. 2235. A stipulation whereby exemplary
accusations against the plaintiff were damages are renounced in advance shall be
unfounded, and cleared the plaintiff of such null and void.
‘anomalies’. Here, the lower court awarded
exemplary damages to the plaintiff, which the
defendant questioned, averring that CC 2231 REQUISITES TO RECOVER EXEMPLARY
may be awarded only for grossly negligent DAMAGES AND LIQUIDATED DAMAGES
acts, not for willful or intentional acts. The SC AGREED UPON
upheld the grant of exemplary damages, The plaintiff must show that he/she is entitled
stating that while CC 2231 provides that for to moral, temperate or compensatory
quasi-delicts, exemplary damages may be damages:
granted if the defendant acted with gross
negligence, with more reason is its imposition If arising When exemplary damages
justified when the act performed is deliberate, from are granted
malicious and tainted with bad faith. The crime was committed
Art.
Crimes with an aggravating
2230
circumstance/s
IN CONTRACTS AND QUASI-
Art. Defendant acted with
CONTRACTS; NCC ART. 2232 Quasi-delicts
2231 gross negligence
Art. 2232. In contracts and quasi-contracts, Defendant acted in a
the court may award exemplary damages if Contracts
Art. wanton, fraudulent,
the defendant acted in a wanton, fraudulent, and Quasi-
2232 reckless, oppressive, or
reckless, oppressive, or malevolent manner. contracts
malevolent manner
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other than the case referred to in the (2) Defendant has done his best to lessen the
preceding article, as in the following plaintiff’s injury or loss.
instances:
(1) That the plaintiff himself has Sweet Lines v CA (1983). The SC deemed CC
contravened the terms of the contract; 2215(2) inapplicable where the harm done to
(2) That the plaintiff has derived some private respondents outweighs any benefits
benefit as a result of the contract; the plaintiffs may have derived from being
(3) In cases where exemplary damages are transported to Tacloban instead of being taken
to be awarded, that the defendant acted to Catbalogan, their destination and the
upon the advice of counsel; vessel's first port of call, pursuant to its normal
(4) That the loss would have resulted in any schedule.
event;
(5) That since the filing of the action, the
RULE WHEN CONTRACTING PARTIES
defendant has done his best to lessen
the plaintiff's loss or injury. ARE IN PARI DELICTO
Generally, parties to a void agreement cannot
expect the aid of the law; the courts leave them
as they are, because they are deemed in pari
GROUNDS FOR MITIGATION OF delicto or "in equal fault." In pari delicto is "a
universal doctrine which holds that no action
DAMAGES
arises, in equity or at law, from an illegal
FOR CONTRACTS: contract; no suit can be maintained for its
(1) Violation of terms of the contract by the specific performance, or to recover the property
plaintiff himself; agreed to be sold or delivered, or the money
(2) Obtention or enjoyment of benefit under agreed to be paid, or damages for its violation;
the contract by the plaintiff himself; and where the parties are in pari delicto, no
(3) Defendant acted upon advice of counsel in affirmative relief of any kind will be given to
cases where exemplary damages are to be one against the other."
awarded such as under Articles 2230,
2231, and 2232; This rule, however, is subject to exceptions that
(4) Defendant has done his best to lessen the permit the return of that which may have been
plaintiff’s injury or loss. given under a void contract to:
(a) the innocent party (Arts. 1411-1412, Civil
FOR QUASI-CONTRACTS: Code);
(1) In cases where exemplary damages are to (b) the debtor who pays usurious interest (Art.
be awarded such as in Art. 2232; 1413, Civil Code);
(2) Defendant has done his best to lessen the (c) the party repudiating the void contract
plaintiff’s injury or loss. before the illegal purpose is accomplished
or before damage is caused to a third
FOR QUASI-DELICTS: person and if public interest is subserved
(1) That the loss would have resulted in any by allowing recovery (Art. 1414, Civil
event because of the negligence or Code);
omission of another, and where such (d) the incapacitated party if the interest of
negligence or omission is the immediate justice so demands (Art. 1415, Civil Code);
and proximate cause of the damage or (e) the party for whose protection the
injury; prohibition by law is intended if the
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CIVIL LAW
PRIVATE
INTERNATIONAL
LAW
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foreign law; foreign law does not apply to Assume that the foreign law is the
non-residents; therefore, no one has same as the law of the forum (doctrine
applicable laws; Forum court then applies of processual presumption)
forum law)
Apply the law of the forum
(4) Foreign Court Theory – the forum court
would assume the same position that the
foreign court would take were the case E.3. EXCEPTIONS TO THE APPLICATION
litigated in the foreign court. OF FOREIGN LAW
The foreign law is contrary to an
E. NOTICE AND PROOF OF FOREIGN important public policy of the forum
LAW The foreign law is procedural in nature
Issues are related to property (Lex
E.1. EXTENT OF JUDICIAL NOTICE Situs)
The party whose cause of action or defense The issue involved in the enforcement
depended upon the foreign law has the of foreign claim is fiscal or
burden of proving the foreign law. administrative
Such foreign law is treated as a question of The foreign law or judgment is contrary
fact to be properly pleaded and proved in to good morals (Contra Bonos Mores)
conformity with the law of evidence of the
The application of foreign law will work
state where it is presented.
undeniable injustice to the citizens of
A judge is not authorized to take judicial
the forum
notice of a foreign law and is presumed to
know only domestic law. The foreign law is penal in character
The application of the foreign law
E.2. PROOF OF FOREIGN LAW might endanger the vital interests of
the state
Methods to prove foreign law
Official publication of the law (and
consularized) III. Personal Law
Copy of the law attested by the
officer having the legal custody of A. NATIONALITY
the record or by his deputy. (and
consularized) A.1. IMPORTANCE OF A PERSONAL LAW
Expert witness An individual’s personal law follows him
wherever he is and governs those transactions
which affect him most closely.
Effect of Failure to Plead and Prove Foreign Importance of Nationality in the Philippines
Law Regulates
Dismiss the case for inability to Civil status
establish a cause of action Capacity
Condition
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A. CHOICE-OF-LAW IN FAMILY
RELATIONS
A.1. MARRIAGE
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In case of doubt, all presumptions favour Exceptions to the rule of lex loci celebrationis
the solidarity of the family. Thus, every (these involve the question capacity to marry,
intendment of law or facts leans toward the which is a substantive requirement for
validity of marriage, the indissolubility of marriage):
the marriage bonds, the legitimacy of (1) Either/both parties are below 18 years
children, the community of property during old
the marriage, the authority of parents over (2) Bigamous or polygamous marriages
their children, and the validity of defense for (3) Subsequent marriage without
any member of the family in case of recording:
unlawful aggression. [Art. 220, Civil Code] (a) The judgment of nullity of the first
marriage
ii. Extrinsic Validity of Marriage (b) Partition and distribution of the
Extrinsic validity covers questions relating to properties of the spouses
formalities or “external conduct required of the (c) Delivery of the children’s
parties or of third persons especially of public presumptive legitimes
officers, necessary to the formation of a legally
(4) Mistake as to identity of the contracting
valid marriage.”
party
In the Philippines, these are enumerated in Art (5) One of the parties was psychologically
3 of the Family Code: incapacitated to comply with the
(1) Authority of the solemnizing officer essential marital obligations
(2) A valid marriage license except in cases (6) Incestuous
provided in Chapter 2 of this Title; and (7) Void by reason of public policy
(3) A marriage ceremony which takes
place with the appearance of the iii. Intrinsic Validity of Marriage
contracting parties before the Intrinsic validity refers to the general
solemnizing officer and their personal ability of a person to marry (e.g. age
declaration that they take each other as requirement and parental consent).
husband and wife in the presence of This is controlled by the parties’
not less than two witnesses of legal personal laws.
age. Marriages celebrated by a Consular
Official - Formal and intrinsic
All marriages solemnized outside the requirements under Philippine law
Philippines in accordance with the laws in shall be followed.
force in the country where they were
solemnized, and valid there as such, shall iv. Effects of Marriage
also be valid in this country... [Art. 26, par. 1,
Family Code] Personal Relations Between the Spouses
Includes mutual fidelity, respect,
cohabitation, support and the right of
This follows the principle of lex loci the wife to use the husband’s family
celebrationis. name.
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i. Divorce Decrees Obtained by Filipinos ii. Parental Authority over the Child
Decrees of absolute divorce are not Most countries follow the personal law
valid if obtained by Filipinos abroad of the father.
If decree is obtained by alien spouse In the Philippines, joint exercise of
capacitating him to marry, Filipino parental authority by the father and
spouse shall have capacity to marry. mother (Art. 211 of the Family Code).
(Art. 26, Family Code)
A.5. ADOPTION
ii. Validity of Foreign Divorce Between Process of adoption - governed by LEX
Foreigners DOMICILII
This will be recognized in the
Philippines under the principle of B. CHOICE OF LAW IN PROPERTY
international comity, provided it does
not violate a strongly held policy of the B.1. THE CONTROLLING LAW
Philippines.
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ii. Contracts with Arbitration Clause ii. Done outside the Philippines, by a person
Arbitration clause – a provision in a domiciled in the Philippines
contract stipulating that any dispute Lex domicilii
arising from the contract shall be
Lex loci actus
submitted to a particular body for
arbitration
D.5. PROBATE
C.5. ADHESION CONTRACTS Disallowance is essentially procedural
Adhesion contracts in character – governed by the law of
Not negotiated by the parties the forum
Drafted by only one dominant party However, the court will look into the
law of the foreign state where the will
The only participation of the other party
was made as to whether the extrinsic
would be to affix his signature
requirements in the execution of the
will have been complied with.
D. CHOICE OF LAW IN WILLS,
SUCCESSION AND ADMINISTRATION D.6. ADMINISTRATION OF ESTATES
OF ESTATES Nationality and domicile does not
affect administration
D.1. EXTRINSIC VALIDITY OF WILLS
Authority of the administrator or
Filipino nationals
executor is limited to the authority of
Lex nationalii
the court that appointed such.
Lex loci celebrationis
Aliens
E. CHOICE OF LAW IN TORTS AND
Lex nationalii
CRIMES
Lex domicilii
Lex loci celebrationis
E.1. LEX LOCI DELICTI COMMISSI
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Law of the place where the alleged tort Since the crime is an “affront against
was committed the sovereignty and good order of the
Choice-of-Law state within whose jurisdiction it
o Common Law – vested rights occurs, each state must attend to the
theory (place of injury) vindication of its own sovereignty.”
o Civil Law – Tortious conduct
Traditional View on Jurisdiction – an E.5. LEX LOCI DELICTI
actor liable by LEX LOCI DELICTI is Law of the place where the crime was
liable everywhere committed
An act is punishable if it has been
E.2. MODERN THEORIES ON FOREIGN made punishable as a crime by law.
TORT LIABILITY Developments in public international
law now includes acts considered as a
i. The Most Significant Relationship crime under international law.
Considers the state’s contacts with the
occurrence and the parties. Exceptions to lex loci delicti:
(1) Crimes committed by state officials,
ii. Interest Analysis diplomatic representatives and officials
Considers the relevant concerns the of recognized international
state may have in the case and its organizations
interest in having its law applied on (2) Crimes committed on board foreign
that issue. vessels even if it is within the territorial
waters of the coastal state, except: (Art.
iii. Cavers’ Principle of Preference 27 of UNCLOS)
Considers justice and social expediency (a) Consequences extends to the
coastal state
E.3. FOREIGN TORT CLAIMS (b) Disturbs the peace or good order of
Tortious liability is transitory - the liability the country
resulting from the conduct is “deemed (c) Requested by the master of the ship
personal to the perpetrator of the wrong, or diplomatic agent or consular
following him whithersoever he may go, so officer of the flag state
that compensations may be exacted from (d) If such measures are necessary for
him in any proper tribunal which may the suppression of illicit traffic in
obtain jurisdiction of the defendant’s
narcotic drugs or psychotropic
person, the right to sue not being confined
substances.
to the place where the cause of action
arises.” (3) Crimes committed by Philippine
nationals abroad under Art. 2 of the
E.4. DISTINGUISHING BETWEEN TORTS RPC.
AND CRIMES (a) On a Philippine ship or airship
(b) Forgery or counterfeit any coin or
Crime is territorial
currency note of the Philippine
Crime is an injury to the state
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Islands or obligations and securities When the law creating or recognizing them, or
issued by the Government of the any other provision does not fix the domicile of
Philippine Islands juridical persons
(c) Introduction of those mentioned the place where their legal
above into the Philippines representation is established or
(d) Public officers or employees where they exercise their principal
committing an offense in the functions
exercise of their functions A foreign corporation is granted a license to
(e) Crimes against national security operate in the Philippines, it acquires domicile
and the law of nations, defined in here.
Title One of Book Two of the RPC.
iv. Jurisdiction over Foreign Corporations
A foreign corporation shall be
F. CHOICE OF LAW AFFECTING
recognized and allowed to transact
CORPORATIONS AND OTHER business in any state which gives its
JURIDICAL ENTITIES consent.
Foreign corporations doing business in
F.1. CORPORATIONS the Philippines are bound by Philippine
law. (Sec. 129 of the Corporation Code),
i. Personal law of a Corporation
except for
Law of the state where it is
(1) Provisions for creation, formation,
incorporated
organization or dissolution
(2) Provisions which fix the relations
ii. Exceptions to the Rule of Incorporation Test
liabilities, responsibilities or duties
Constitutional and Statutory Restrictions of stockholders, members, or
A state may exclude a foreign officers of the corporation
corporation from doing business within (3) Service upon foreign corporations
its territory, or prescribe any conditions doing business in the Philippines
as a prerequisite. may be made on
(a) Resident agent
Control Test During War (b) If none:
Courts may pierce the veil of corporate (i) Government official
identity and look into the nationality of designated by law
the controlling stockholders to (ii) Any of its officers or
determine the “citizenship” of the (iii) Agent within the Philippines
corporation (iv) Through diplomatic
channels
iii. Domicile or Residence of Foreign
Corporations v. Right of Foreign Corporation to Bring Suit
Art. 51 of the Civil Code states: Prerequisite for filing a suit before
Philippine courts:
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