CIVIL LAW

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CIVIL LAW Pre-Week Notes Persons & Family Relations

Q: What are the two kinds of capacity? A: Juridical capacity, or legal capacity, is the fitness of man to be the subject of legal relations. It is inherent in every natural person and is lost only through death. Capacity to act refers to the power to do acts with legal effect. It is acquired and may be lost. Q: What are the restrictions on capacity to act? A: The following circumstances, among others, modify or limit capacity to act: 1. Age, 2. Insanity 3. Imbecility 4. State of being deaf-mute 5. Penalty 6. Prodigality 7. Family relations 8. Alienage 9. Absence 10. Insolvency 11. Trusteeship Q: How is personality determined? A: Birth determines personality. But a conceived child shall be considered born for all purposes that are favorable to it, provided it be born later (Art 40, CC). The fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery (Art 41 CC). Q: What happens when there is doubt as to the order of death between persons? A: Article 43 of the Civil Code provides a statutory presumption when there is doubt on the order of death between persons who are called to succeed each other (only). If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. Q: What are the requisites for marriage? A: The essential requisites of marriage are: 1) legal capacity of the contracting parties, who must be a male and a female; and 2) consent (of the parties) freely given in the presence of a solemnizing officer (Art 2 FC). The formal requisites are: 1) authority of solemnizing officer; 2) valid marriage license; and 3) marriage ceremony (Art 3 FC). The absence of any of the essential or formal requisites shall render the marriage void ab initio, except where the marriage was solemnized by a person not legally authorized and one party believed in good faith that the officer had authority to do so (Arts 3 and 35(2) FC). A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. Q: What are void marriages? A: The following are void marriages: Article 35 (Void from the Beginning) 1) Contracted by any party below eighteen years of age even with the consent of parents or guardians 2) Solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so. 3) Solemnized without license, except in marriages under exceptional circumstances 4) Bigamous or polygamous marriages not falling under Article 41 (Art. 41: subsequent marriage by present spouse who obtained a declaration of presumptive death for absent spouse prior to the subsequent marriage) 5) There is a mistake as to the identity of the other contracting party 6) Subsequent marriages that are void under Article 53 (Art 53: a subsequent marriage is null and void if prior to its celebration, it has not recorded in the civil registry and registries of property the items in Art. 52)

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Article 36 (Psychological Incapacity) 1) Contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after its solemnization Article 37 (Incestuous) 1) Between ascendants and descendants of any degree, legitimate or illegitimate 2) Between brothers and sisters, whether of the full or half blood, legitimate or illegitimate Article 38 (Against Public Policy) 1) Between collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree. 2) Between step-parents and step-children. Note: Stepbrothers and stepsisters can marry because marriages between them are not among those enumerated in article 38. 3) Between parents-in-law and children-in-law. 4) Between adopting parent and adopted child. 5) Between the surviving spouse of the adopting parent and the adopted child. 6) Between the surviving spouse of the adopted child and the adopter. 7) Between an adopted child and a legitimate child of the adopter. 8) Between adopted children of the same adopter. 9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. Article 41 (Bigamous Marriages, Absentee Spouse and Presumptive Death) 1) In general, marriage contracted by any person during the subsistence of a previous marriage is void. Article 44 (Present spouse who contracts marriage in bad faith) 1) Both spouses of a subsequent marriage acted in bad faith in case where a previous spouse was an absentee Q: When is the subsequent marriage of a present spouse valid? A: When one spouse is absent, the remarriage of a present spouse is valid when: (1) the prior spouse had been absent for 4 consecutive years; (2) the spouse present had a well-founded belief that absent spouse is dead; and (3) judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). In extraordinary absence, the following must be established: 1) the prior spouse had been missing for 2 consecutive years; 2) there is danger of death attendant to the disappearance; 3) the spouse present had a well-founded belief that the missing person is dead; and 4) judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). Q: What are the requisites for psychological incapacity? A: Republic v. Molina (1997) set forth the following rules in declaring a marriage void due to psychological incapacity: 1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. 2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision. Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 and Barcelona vs. CA (2003) provide that expert opinion is not a condition sine qua non for proof of psychological incapacity. The root cause may be proven by the totality of evidence in actual trial. 3) The incapacity must be proven to be existing at the time of the celebration of the marriage. 4) Such incapacity must also be shown to be medically or clinically permanent or incurable. 5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. 6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. 7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. 8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification. Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 provide that the appearance of the prosecuting attorney or fiscal and the Solicitor-General is no longer mandatory.

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4) 5) 6)

What are the grounds for annulment? Marriage may be annulled on the following grounds existing at time of marriage: One of the parties is 18 or above but below 21, and there is no parental consent. Either party was of unsound mind (insanity). The consent of either party was obtained through fraud (different from mistake in identity): a) through non-disclosure of a previous conviction of a crime involving moral turpitude; b) through concealment by the wife of the fact at the time of the marriage that she was pregnant by another man; c) through concealment of a sexually-transmitted disease, regardless of its nature, existing at the time of marriage; d) through concealment of drug addiction, habitual alcoholism or homosexuality/lesbianism. The consent of either party was obtained through force, intimidation, or undue influence. Either party is physically incapable of consummating the marriage (impotence; this is different from sterility). Either party has a serious and incurable sexually-transmissible disease, even if not concealed.*

Q: What are the grounds for legal separation? A: 1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; 3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; 4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; 5) Drug addiction or habitual alcoholism of the respondent; 6) Lesbianism or homosexuality of the respondent; 7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; 8) Sexual infidelity or perversion; 9) Attempt by the respondent against the life of the petitioner; 10) Abandonment of petitioner by respondent without justifiable cause for more than one year. Q: Is divorce allowed in the Philippines? A: In general, (absolute) divorce is not allowed in the Philippines and even for Filipinos abroad following the personal law theory embodied in Art. 15, NCC. The law, however, recognizes foreign and Muslim divorces. For a foreign divorce to be valid, there must be a valid marriage between a Filipino citizen and a foreigner, and divorce is validly obtained by the alien spouse, capacitating him or her to remarry. In such case, the Filipino spouse shall likewise have the capacity to remarry under Philippine law. Q: May a Filipino obtain divorce? A: No. Only a Filipino who has renounced his citizenship is allowed to obtain divorce. The time of obtaining foreign citizenship is necessary to determine the validity of divorce obtained by the spouse who applied for foreign citizenship. It must be ascertained that when that spouse obtained the divorce, he/she was no longer bound by Philippine domestic law. Q: How is the property relations of married spouses determined? A: Property relations is determined primarily by the marriage settlement agreed upon by the spouses before their marriage (Art 75 FC). Spouses can agree to whatever regime they want (ACP, CPG, complete separation or any other property). In the absence of a marriage settlement or if the regime agreed upon is void, the property regime of absolute community of property will be followed as provided in the Family Code. Local customs shall be considered as suppletory. Q: What constitute community and conjugal properties? A: Community properties are comprised of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. Excluded therefrom are the following: (1) Properties acquired by a gratuitous title and its fruits, (2) Properties for personal use, and (3) Properties acquired before the marriage, for those with legitimate descendants with a former marriage. Conjugal properties are comprised of (1) Those acquired by onerous title during the marriage at the expense of the common fund, (2) Those acquired through the labor, industry, work, profession of either or both spouses, (3) Fruits from common property and net fruits of exclusive property of each spouse, (4) Share of either spouse in hidden treasure, whether as finder or owner of property where treasure is found,

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(5) Those acquired through occupation such as fishing or hunting, (6) Livestock existing at dissolution of partnership in excess of what is brought by either spouse to the marriage, and (7) Those acquired by chance, such as winnings from gambling or betting. Q: With whom is vested the authority to administer community/conjugal properties? A: The authority to administer community/conjugal properties vests with both spouses jointly. If they disagree the husbands decision prevails. However, the wife has five (5) years from the date of the decision to go to court for recourse. Otherwise, it is presumed that she agreed with the husbands decision. Q: Is money received under the Social Security Act conjugal? A: No. Although the employee-spouse contributes to the SSS with his salaries, the proceeds thereof belongs to the designated beneficiary under the Social Security Law. Q: What is the property regime for persons cohabiting without a valid marriage? A: When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In cases of cohabitation of individuals not capacitated to marry each other, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. Q: Who are legitimate children? A: Children conceived, through natural means or artificial insemination, or born during the marriage of parents. Q: Who are illegitimate children? A: Those conceived and born outside of a valid marriage, except children of marriages void under Article 36 (psychological capacity) and Article 53 (the second marriage of a widow or widower who has not delivered to his or her children by his or her first marriage the legitime of said children). Q: What are the grounds for impugning the legitimacy of a child? A: The grounds for impugning the legitimacy of a child are: (1) Physical impossibility for sexual intercourse within the first 120 days of the 300 days which immediately preceded the child's birth due to physical incapacity of the husband, physical separation and serious illness; and (2) Other biological or scientific reasons, except artificial insemination. In case of artificial insemination, legitimacy may be impugned if the consent of either parent was vitiated through fraud, violence, mistake, intimidation, or undue influence. Q: How is legitimacy of a child impugned? A: The action for impugning the legitimacy of a child may be brought within one (1), two (2), or three (3) years from the knowledge of the birth, or the knowledge of registration of birth. a. The action should be brought within one (1) year if husband or any heirs reside in the same city or municipality where the child was born or his birth was recorded; b. Within two (2) years if the husband or all heirs live in the Philippines but do not reside in the same city or municipality where the child's birth took place or was recorded; and c. Within three (3) years, if the husband or all heirs live outside the Philippines when the child's birth took place or was recorded in the Philippines. If the birth of the child has been concealed or was unknown to the husband, the above periods shall be counted from the discovery or knowledge of the birth of the child, or from the discovery or knowledge of its registration, whichever is earlier. Q: How may filiation be proven? A: Legitimate or illegitimate children may prove their filiation in the same way and on the same evidence. They may prove their status using only the following means: (1) by their record of birth appearing in the civil registry, (2) by an admission of his filiation (legitimate or illegitimate) by his parent or parents in a public document or a private handwritten instrument and signed by said parent or parents, (3) by proof of open and continuous possession of status as legitimate or illegitimate child, and (4) by any other means stated by the rules of court or special laws. Q: Who may adopt?

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A: Filipino Citizens may adopt provided he/she is of legal age; is in possession of full civil capacity and legal rights; of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least sixteen (16) years older than adoptee, except when adopter is biological parent of the adoptee or is the spouse of the adoptees parent; and is in a position to support and care for his/her children in keeping with the means of the family. Aliens may also adopt Filipino children provided that he/she possesses the same qualifications for Filipinos but is at least twenty seven (27) years old, and that, his/her country has diplomatic relations with the Philippines; he/she has been living continuously for 3 years in the Philippines prior to the filing of application and maintains such residence until the decree is entered; he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country; his/her government allows the adoptee to enter his/her country as his/her adoptee; and he/she has submitted all the necessary clearances and such certifications as may be required. Q: What are the effects of adoption? A: In the event of adoption, all legal ties between biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter. The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind. Further, the adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. Q: May the adopter/s rescind an adoption? A: NO. Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter/s (Sec 19, RA 8552). Q: Who may rescind and adoption and for what grounds? A: The adopted may request for rescission, with the assistance of DSWD, if a minor, or over 18 but incapacitated, on any of the following grounds: (1) repeated physical and verbal maltreatment despite having undergone counseling, (2) attempt on life of adoptee, (3) sexual assault or violence, and (4) abandonment or failure to comply with parental obligations (Sec 19, RA 8552). Q: Where is application for inter-country legal adoption filed? A: Application shall be filed with the Philippine Regional Trial Court having jurisdiction over the child, or with the Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents. Q: What consists of support? A: Support consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The right and duty to support, especially the right to education, subsists even beyond the age of majority. Q: How is support given? A: Support is given by payment of the amount or by accepting the recipient in the home of the provider, unless there is a legal or moral obstacle from doing so. Q: What is the tender years presumption? A: No child under seven (7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise (Art. 213, FC). Examples of compelling reasons include the following instances: when the mother is insane, or with a communicable disease that might endanger the life or health of the child, or is maltreating the child; or has another child by another man who lives with her (Art 363, CC)

Succession
Q: What is succession? A: It is a mode of acquiring ownership by virtue of which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of law. (Art 774) Q: What are transmitted in succession? A: All the property, rights and obligations of a person which are not extinguished by death. (Art 776) In short, only transmissible rights and obligations pass by succession.

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Q: Who is an heir? How is an heir distinct from a devisee or legatee? A: An heir is a person called to the succession either by provision of a will or by operation of law (Art 782) Castan: An heir is one who succeeds to the whole or an aliquot part of the inheritance. A devisee and/or legatee are those who succeed to definite, specific and individual properties. Q: When do heirs acquire a definite right to the inheritance? A: The rights to the succession are transmitted from the moment of the death of the decedent. (Art 777) Q: What are the different kinds of succession? A: The different kinds of successions are as follows: (1) Compulsory Succession to the legitime. This prevails over all other kinds. (2) Testamentary Succession by will (3) Intestate Succession in default of a will (4) Mixed Not a distinct kind, but a combination of any two or all of the first three. Q: What is a will? A: A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. (Art 783) Q: What are the characteristics of a will? A: (1) Purely personal (Art 784-785; 787) Will making cannot be delegated. (2) Free and intelligent (Art 839) (3) Solemn and formal (Art 804-814; 820-821) The requirements will depend on whether the will is attested or holographic. (4) Revocable or ambulatory (Art 828) (5) Mortis causa (Art 783) (6) Individual (Art 818) Joint wills are prohibited in our jurisdiction. (7) Executed with animus testandi (Art 783) (8) Executed with testamentary capacity (Art 796-803) (9) Unilateral (Art 783) (10) Dispositive of property (Art 783) (11) Statutory (Art 783) Q: What are requirements for testamentary capacity? A: In order to conclude that the decedent had testamentary capacity it must be shown that the testator is of sound mind at the time of the execution of the will (Art 798, CC), that he is not under 18 years of age (Art. 797, CC), and that he is not expressly prohibited by law to make a will (Art 796, CC). Q: How can we say that the testator is of sound mind? A: The testator is of sound mind if he has the ability to know three things: (1) The nature of estate to be disposed of (2) Proper objects of ones bounty, and (3) Character of testamentary act (Art 799) Moreover, soundness of mind is presumed. (Ar 800) Q: What are the common requirements for both notarial and holographic wills? A: As provided under Art 804, both kinds of wills must be in writing and must be executed in a language known to the testator. Q: What are the specific requirements for notarial wills? A: The notarial will must be: 1. In writing (Art. 804, CC) 2. In the language known to the testator (Art. 804, CC) 3. Subscribed to, at the end (Art. 805, CC) By the testator himself; or By the testators name written by a representative in his presence and under his express direction. 4. Attested and subscribed by 3 or more credible witnesses in the presence of the testator and of one another (Art. 805, CC). 5. Signed by the testator or his representative under the instruction of the testator and the witnesses on each and every page except the last page (Marginal signatures) 6. Numbered correlatively (Art. 805, CC), i.e., Page One of Five pages (Arabic numerals)

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Acknowledged before a notary public by the testator and the witnesses (Art. 806, CC)

Q: What must the attestation clause contain? A: The attestation clause shall state the ff: 1. Number of pages; 2. The fact that the testator or his representative under his express direction signed the will and every page in the presence of instrumental witnesses 3. That the witnesses signed the will and all its pages in the presence of the testator and of one another. The attestation clause is the affair of the witnesses; therefore, it need not be signed by the testator. (Fernandez v. Vergel de Dios) Q: How is presence, in relation to the requirement of attestation, determined? A: As provided in the case of Jaboneta vs. Gustilo, (1906), the test of presence is not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. Q: Must there always be marginal signatures on all pages of notarial wills? A: The general rule is that each and every page of the will must be signed by the testator or his representative and his witnesses. However, in the case of Abangan v Abangan (1919), the Court ruled that when the will consists of only two pages, the first of which contains all dispositions and is signed at the bottom by the testator and the witnesses, and the second page contains only the attestation clause duly signed at the bottom by the witnesses, it is valid. Q: What are the requisites for a holographic will? A: The requisites for a holographic will are: 1. In a language known to the testator (Art. 804, CC) 2. Entirely written, dated and signed in the hand of the testator himself (Art. 810, CC) Q: Who are qualified to be witnesses to notarial wills? A: Under Art. 820, CC, those who may be witnesses must be 1. Of sound mind 2. Aged 18 years or over 3. Not blind, deaf or dumb 4. Able to read and write Q: Who are disqualified as witnesses? A: Under Art. 821, CC, those who may not be witnesses are 1. Person not domiciled in the Philippines 2. Those who have been convicted of falsification, perjury, or false testimony. Q: What is the exception to the general rule that devises or legacies in favor of a spouse, parent or child who also attests to the will as a witness shall be void? A: Devises or legacies in favor of a spouse, parent or child shall not be void if there are three witnesses other than the spouse, parent or child, in which case, the interested witness shall be considered as a mere surplusage. Q: What is a codicil? A: A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered (Art 825). Q: What is the effect of the insertion of a codicil written by another person in a holographic will? When made Effect After the execution, without consent of testator Insertion considered not written. Validity cannot be defeated by the malice or caprice of a third person After execution, with consent Will is valid, insertion is void. After execution, validated by testators signature Insertion becomes part of the will. Entire will becomes void because it is not wholly written by the testator. Contemporaneous to the execution of the will Will is void because it is not written entirely by the testator Q: What does the principle of equality of heirs mean? A: Heirs instituted without designation of shares shall inherit in equal parts (Art 846) Q: What does the principle of individuality of institution mean?

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A: When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise (Art 847). Q: What does the principle of simultaneity of institution mean? A: When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively (Art 849). Q: May an institution made on the basis of false cause take effect? A: The general rule is that the false cause is deemed not written and the institution shall take effect. However, if the testator would not have made the institution had he known the false cause, the institution shall not take effect. Q: What is the doctrine of dependent relative revocation? A: The rule that where the act of destruction is connected with the making of another will so as to fairly raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remain in full force. (Molo v Molo 1951) Q: What is probate? A: It is a special proceeding required to establish the validity of a will and in order to pass real or personal property. Q: Can the probate court inquire into the intrinsic validity of testamentary provisions? A: The general rule is that in probate proceedings, the probate court cannot inquire into the intrinsic validity of testamentary provisions. Only the extrinsic validity of such wills may be examined. This rule however admits of certain exceptions: 1. Nuguid v. Nuguid (1966): The Supreme Court, passing on the intrinsic validity of the will in the probate proceedings, ruled that there being no devise or legacy, the institution of heir is totally annulled. 2. Acain vs Diongson (1987): When the will is intrinsically void, on its face such that to rule on its formal validity would be a futile exercise 3. Valera vs. Inserto, (1987): Claimants are all heirs, and they consent, either, expressly or impliedly, to the submission of the question of intrinsic validity to the court. 4. Pastor vs. CA, (1983): Probate court may pass upon the title thereto, but such determination is provisional and not conclusive, and is subject to the final decision in a separate action to resolve title. Q: What are the grounds for disallowance of a will? A: Art 839 CC in relation to Rule 76, Section 9 provides the exclusive list of grounds for disallowance of a will (FIFUSM): 1. If the Formalities required by law have not been complied with; 2. If the testator was Insane or otherwise mentally incapable of making a will at the time of its execution; 3. If it was executed through Force or under duress, or the influence of fear, or threats; 4. If it was procured by Undue and improper pressure and influence, on the part of the beneficiary or some other person; 5. If the Signature of the testator was procured by fraud; or 6. If the testator acted by Mistake or did not intend that the instrument he signed should be his will at the time affixing his signature thereto. Q: What is the difference between revocation and disallowance? A: Revocation Disallowance Voluntary Act of the Testator Given by Judicial Decree With or Without Cause Must always be for a legal cause May be partial or total Always total, except when the ground of fraud of influence for example affects only certain portions of the will Q: What are the classes of substitution? A: 1. Simple or Common or Vulgar The testator may designate one or more persons to substitute the heir/s instituted in case the heirs should: 1. die before him (predecease), 2. should not wish to accept the inheritance (repudiation), or 3. should be incapacitated to accept the inheritance (incapacitated). (Art. 859, CC)

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Brief or Compendious (Art. 860, CC) 1. Brief Two or more persons were designated by the testator to substitute for only one heir 2. Compendious One person is designated to take the place of two or more heirs Reciprocal If the heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there is more than one substitute, they shall have the same share in the substitution as the institution. Fideicommissary If the testator institutes an heir with an obligation to preserve and to deliver to another the property so inherited. The heir instituted to such condition is called the First Heir or the Fiduciary Heir; the one to receive the property is the fideicommissary of the second heir. (Art. 863, CC)

3.

4.

Q: What are the requisites for fideicommisary substitution? A: 1. A Fiduciary or First Heir instituted is entrusted with the obligation to preserve and to transmit to a Fideicommissary Substitute or Second Heir the whole or part of the inheritance. 2. The substitution must not go beyond one degree from the heir originally instituted. 3. The Fiduciary Heir and the Fideicommissary are living at the time of the death of the testator. 4. The fideicommissary substitution must be expressly made. 5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime Q: Is it necessary that there be an obligation imposed on the first heir to take care of the property for a fideicommisary substitution to exist? A: Yes. As held in the case of PCIB vs. Escolin (1974), in the absence of an obligation on the part of the first heir to preserve the property for the second heir, there is no fideicommissary substitution. Q: What is the rule of preference between lines? A: Those in the direct descending line shall exclude those in the direct ascending and collateral lines. Those in the direct ascending line shall, in turn, exclude those in the collateral line (Arts 978 and 985) Q: What is the rule of proximity? A: The relative nearest in degree excludes the farther one (Art 926) Q: What is the rule on the right of representation? A: The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (Art 972) Q: What is the rule of division between lines in the direct ascending line? A: The father and the mother shall inherit equally if both living. One succeeds to the entire estate of the child if the other is dead. (Art. 986, CC) In default of the mother and the father, the ascendants nearest in degree will inherit. (Art. 987) If there are more than one relative of the same degree but of different lines, one half will go to the paternal ascendants and the other half to the maternal ascendants. (Art. 987) Q: What is the rule of equal division in the direct ascending line? A: The relatives who are in the same degree shall inherit in equal shares. (Art 987) Q: What remedy may be availed of if there is preterition? A: Annulment of institution but devises and legacies shall be valid insofar as they are not inofficious (Art. 854, CC) Q: What remedy may be availed of if there is an impairment or diminution of legitime due to testamentary dispositions? A: Reduction of the disposition insofar as they may be inofficious or excessive (Art. 907, CC) Q: What remedy may be availed of if there is impairment or diminution of legitime due to inofficious donations? A: Collation reduction of donations (Arts. 771 and 911, CC) Q: What is preterition?

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A: 1. 2. 3. 4.

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There is preterition when the following elements obtain: There must be a total omission of one, some or all of the heir/s in the will. The omission must be that of a compulsory heir. The compulsory heir omitted must be of the direct line. The omitted compulsory heir must be living at the time of the testators death or must at least have been conceived before the testators death.

Q: What are the effects of preterition? A: The following are the effects of preterition: 1. The institution of the heir is annulled. 2. Devises and legacies shall remain valid as long as they are not inofficious. 3. If the omitted compulsory heir should die before the testator, the institution shall be effective, without prejudice to the right of representation. Neri vs. Akutin (1941): When there are no devises and legacies, preterition will result in the annulment of the will and give rise to intestate succession. Q: What are the requisites for Reserva Troncal? A: The requisites for reserva troncal are: 1. That the property was acquired by a descendant (Prepositus) from an ascendant or from a brother or sister (Source) by gratuitous title, 2. That the Prepositus died without an issue, 3. That the property is inherited by another ascendant (Reservista) by operation of law, and rd 4. That there are relatives within the 3 degree (Reservatarios) belonging to the line from which said property came. Q: How may the reserva be extinguished? A: The reserva may be extinguished by: (DaDaLaRP) 1. Death of the reservista 2. Death of all the relatives within the third degree belonging to the line from which the property came 3. Loss of the reservable property 4. Renunciation by the reservatarios 5. Prescription, when the reservista holds the property adversely against the reservatarios, as free from reservation Q: What are the requisites for a valid disinheritance? A: 1. Heir disinherited must be designated by name or in such a manner as to leave no room for doubt as to who is intended to be disinherited. 2. It must be for a cause designated by law. 3. It must be made in a valid will. 4. It must be made expressly, stating the cause in the will itself. 5. The cause must be certain and true, and must be proved by the interested heir if the person should deny it. 6. It must be unconditional. 7. It must be total. Q: A: 1. 2. 3. 4. 5. What are the causes for legal or intestate succession?

If a person dies without a will (Art 960[1]) If a person dies with a void will (Art 960[1]) If a person dies with a will which has subsequently lost its validity (Art 960[1]) When the will does not institute an heir (Art 960[2]) When the will does not dispose of all the property belonging to the testator. legal succession shall take place only with respect to the property which the testator has not disposed (Art 960[2]) 6. If the suspensive condition attached to the institution of the heir does not happen or is not fulfilled (Art 960[3]) 7. If the heir dies before the testator (Art 960[3]) 8. If the heir repudiates the inheritance, there being no substitution, and no right of accretion takes place (Art 960[3]) 9. When the heir instituted is incapable of succeeding, except in cases provided in the Civil Code (ex. substitution or right of representation) (Art 960[4]) 10. Preterition Intestacy may be total or partial depending on whether or not there are legacies or devises (Balane, p.426) 11. Upon the expiration of a resolutory term attached to the institution of heir (Balane, p.426) 12. Upon fulfillment of a resolutory condition attached to the institution of heir, rendering the will ineffective (Balane, p.426)

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Q: What is the right of representation? A: It is a right created by fiction of law by virtue of which the representative is raised to the place and degree of the person represented and acquires the rights which the latter would have if he were living or if he would have inherited. Q: What is the iron-curtain rule? A: An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. Q: May an adopted child represent his parent in case the latter predeceases his parents? A: If the adopting parent should die before the adopted child, the later cannot represent the former in the inheritance of the parents or ascendants of the adopter. The adopted child is not related to the deceased in that case, because filiation created by fiction of law is exclusively between the adopter and the adopted. (De la Puerta v CA (1990); Sayson v CA (1992)) Outline of Intestate Shares: 1. Legitimate children only Divide entire estate equally among all legitimate children (Art. 979, CC) Legitimate children include an adopted child. 2. Legitimate children and Illegitimate children Divide entire estate such that each illegitimate child gets of what a legitimate child gets (Art. 983, CC and Art. 176, FC) Legitimate children and surviving spouse Divide entire estate equally between the legitimate children and the surviving spouse, the latter deemed as one child. The same rule holds where there is only one child. Children as used in Art. 996 is interpreted to include a situation where there is only one child. (Santillon v Miranda (1965)) 4. Legitimate children. Surviving spouse, and Illegitimate children Divide the entire estate such that the surviving spouse is deemed one legitimate child and each illegitimate child getting of what the legitimate child gets (Art. 996, CC and Art. 176, FC) Legitimate parents only Divide the entire estate equally. (Art. 985, CC) Legitimate ascendants only (excluding parents) Divide the entire estate equally but with the observance of the rule of division by line (Art. 987, CC) Legitimate parents and illegitimate children Legitimate parents get of the estate, illegitimate children get the other (Art. 991,CC) Legitimate parents and surviving spouse Legitimate parents get of the estate; The surviving spouse gets the other (Art. 997,CC) Legitimate parents, surviving spouse and illegitimate children Legitimate parents get of the estate; surviving spouse and the illegitimate child each get each, the latter to share among themselves if more than one. (Art. 1000, CC)

3. -

5. 6. 7. 8. 9. -

10. Illegitimate children only Divide the entire estate equally. (Art. 988, CC) 11. Illegitimate children and surviving spouse Illegitimate children get of the estate; the surviving spouse gets the other . (Art. 998, CC) 12. Surviving spouse only Entire estate goes to the surviving spouse. (Art. 994/995, CC) 13. Surviving spouse and illegitimate parents Illegitimate parents get and the spouse gets the other (by analogy with Art. 997, CC) 14. Surviving spouse and legitimate brothers and sisters, nephews and nieces Surviving spouse gets of the estate, while the rest gets the other with the nephews and nieces inheriting by representation if proper. (Art. 1001, CC)

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15. Surviving spouse and illegitimate brothers and sisters, nephews and nieces Surviving spouse gets of the estate while the rest gets the other with the nephews and nieces inheriting by representation, if proper; Note that all the other relatives should be illegitimate because of the iron-curtain rule. (Art. 994,CC) 16. Illegitimate parents only Entire estate goes to the illegitimate parents. (Art 993, CC) 17. Illegitimate parents and children of any kind (whether legitimate or illegitimate child) Illegitimate parents are excluded and do not inherit; For the rule on the respective shares of the children, see numbers 1, 2 or 10, whichever is applicable. 18. Legitimate brothers and sisters only Divide the entire estate such that full-blood brothers/sisters gets a share double the amount of a half-blood brother or sister. (Art. 1004 and 1006, CC) 19. Legitimate brothers and sisters, nephews and nieces Divide the entire estate observing the 2 is to 1 ratio for full and half blood relationships with respect to the brothers and sisters, with the nephews and nieces inheriting by representation, if proper. (Art. 1005 & 1008, CC) 20. Nephews and nieces only Divide the entire estate per capita, observing the 2 is to 1 ratio in case of full blood and half blood. (Arts. 975 and 1008, CC) 21. Other collaterals (Arts. 1009 and 1010) Divide entire estate per capita. th Collateral relatives must be with the 5 degree of consanguinity. Note: the nearer relative excludes the more remote relatives.

22. State If there are no other intestate heirs, the State inherits the entire estate through escheat proceedings. (Art. 1011, CC) Q: What is accretion? A: It is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to one who renounces or cannot receive his share or who died before the testator is added or incorporated to that of his co-heirs, co-devisees, or co-legatees (Art 1015). Q: Differentiate acceptance and repudiation of inheritance: A: 1. Acceptance involves the confirmation of transmission of successional rights, while repudiation renders such transmission ineffective. 2. Repudiation is equivalent to an act of disposition and alienation. 3. The publicity required for repudiation is necessary for the protection of other heirs and also of creditors. Q: What are the forms of tacit acceptance? A: Under Article 1050, the following are forms of tacit acceptance. 1. when the heir sells, donates or assigns his right 2. when the heir demands partition of the inheritance 3. when the heir alienates some objects of the inheritance, etc. Q: How is implied acceptance made? A: Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance; if they do not do so within that time, they are deemed to have accepted the inheritance. (Art 1057, CC) Q: How is inheritance repudiated? A: Repudiation may be made: 1. in a public instrument acknowledged before a notary public; or 2. in an authentic document equivalent of an indubitable writing or a writing whose authenticity is admitted or proved; or 3. by petition presented to the court having jurisdiction over the testamentary or intestate proceeding

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Q: What is the effect of repudiation by heirs who are heirs in two capacities? A: If a person is called to the same inheritance as an heir by will and by law and he repudiates the inheritance in his capacity as a testamentary heir, he will be considered to have also repudiated the inheritance as a legal heir. If he repudiates it as a legal heir, without his being a testamentary heir, he may still accept it in the latter capacity (Art 1055) Q: What is collation? A: It is the act by virtue of which, the compulsory heir who concurs with other compulsory heirs in the inheritance bring back to the common hereditary mass the property which they may have received from the testator so that a division may be effected according to law and the will of the testator. Except, if the donor have so expressly provided or if the donee should repudiate the inheritance UNLESS the donation should be reduced as inofficious. Q: What properties are not subject to collation? A: 1. Expenses for support, education (only elementary and secondary), medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts. (Art. 1067, CC) 2. Expenses incurred by parents in giving their children professional, vocational or other career unless the parents so provide, or unless they impair the legitime. (Art. 1067, CC) 3. Wedding gifts by parents and ascendants, consisting jewelry, clothing and outfit, except when they exceed 1/10 of the sum disposable by will. (Art. 1070, CC) 4. Donations to the spouse of the child; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (Art. 1066, CC) 5. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. (Art. 1065, CC) Q: What are the instances when partition could not be demanded? A: 1. When expressly prohibited by the testator for a period not exceeding 20 years (Art 1083, CC) 2. When the co-heirs agreed that the estate shall not be divided for a period not exceeding 10 years, renewable for another 10 years (art. 494, CC) 3. When prohibited by law 4. When to partition the estate would render it unserviceable for the use for which it is intended Q: What is the effect of a partition legally made? A: A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. Important periods in succession: 1 month or less before making a will 20 years 5 years from delivery to the State 1 month 5 years from the time disqualified person took possession 30 days from issuance of order of distribution 1 month from written notice of sale 10 years

Testator, if publicly known to be insane, burden of proof is on the one claiming validity of the will Maximum period testator can prohibit alienation of dispositions To claim property escheated to the State To report knowledge of violent death of decedent lest he be considered unworthy Action for declaration of incapacity & for recovery of the inheritance, devise or legacy Must signify acceptance/repudiation otherwise, deemed accepted Right to repurchase hereditary rights sold to a stranger by a co-heir To enforce warranty of title/quality of property adjudicated to co-heir from the time right of action accrues To enforce warranty of solvency of debtor of the estate at the time partition is made Action for rescission of partition on account of lesion

5 years from partition 4 years from partition

Obligations and Contracts

Q: What are the sources of obligations? A: Law

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Contract Quasi-Contract Delict (Crime), and Quasi-Delict

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Q: What are the different types of breach of obligation? A: Fraud (Dolo), Negligence (Culpa), Delay or Default (Mora) Contravention of the Tenor Q: What are the primary remedies of the creditor in case of breach of obligation by the debtor? A: PRESS. Specific performance; Substituted performance; Equivalent performance; Rescission; Pursue property of debtor Q: What is the doctrine of constructive fulfillment of condition? A: ART. 1186. The suspensive condition shall be deemed fulfilled when the debtor voluntarily and willfully prevented its fulfillment. Q: What is a potestative condition and which case does it render an obligation void? A: It is a condition which depends on the will of one of the contracting parties for its fulfillment. ART. 1182. A Suspensive Potestative Condition dependent upon the sole will of the debtor renders the obligation void. Q: What are the modes of extinguishment of obligations in Article 1231? A: 1. Payment or performance 2. Loss of the thing due 3. Condonation or remission 4. Confusion or merger 5. Compensation 6. Novation Other modes of extinguishment: Annulment Rescission Fulfillment of a resolutory condition Prescription

Q: What are the special forms of payment? A: Application of Payments (ARTS. 1252-1254); Payment by Cession (ART. 1255); Dation in payment or Dacion en pago (ART. 1245); Tender and Consignation (ARTS. 1256-1261) Q: When does consignation alone, without tender by the debtor and refusal by the creditor, produces the effect of payment? A: ART. 1256, par. 2. (1) creditor is absent or unknown, or does not appear at the place of payment; (2) creditor incapacitated to receive thing due at the time of payment; (3) creditor refuses to give receipt without just cause; (4) two or more persons claim the same right to collect; (5) title of the obligation has been lost Q: What is the doctrine of unforeseen events which produces the effect of loss of the thing due? A: ART. 1267. The debtor may be released from the obligation (total or partial) if the service has become so difficult as to be manifestly beyond the contemplation of the parties. Q: What is a stipulation pour autrui? A: It is a stipulation in a contract in favor of a third person. (ART. 1311, par. 2) The third person can demand the fulfillment of a contractual stipulation in his favor if he accepted the same to the debtor before its revocation. However,

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contracting parties must have clearly and deliberately stipulated the same and mere incidental benefit or interest of the third person is not sufficient. Q: What are the essential requisites of a contract? A: ART. 1318. Consent, Object, Cause Q: What is an option contract? A: ART. 1324. A preparatory contract whereby the offeror, for a consideration, grants the offeree a certain period to accept the principal contract. Q: Who are incapable of giving consent to a contract? A: ART. 1327. Minors, Insane or demented persons and deaf-mutes who do not know how to write Q: What are the vices of consent? A: ART. 1330. MIVUF. Mistake, Intimidation, Violence, Undue Influence, Fraud Q: What are the different causa of contracts? A: Onerous Contracts respective prestation of each contracting party; Remuneratory Contracts service or benefit remunerated; Gratuitous Contracts mere liberality Q: What are the different defective contracts? A: Rescissible Contracts, Voidable Contracts, Unenforceable Contracts, Void Contracts Rescissible Contracts (Art 1381): (1) Those which are entered into by guardians whenever the wards whom they represent suffer lesion by more than one-fourth of the value of the things which are the object thereof; (2) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number; (3) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due them; (4) Those which refer to things under litigation if they have been entered into by the defendant without the knowledge and approval of the litigants or of competent judicial authority; (5) All other contracts specially declared by law to be subject to rescission Voidable Contracts (Art 1390): (1) Those where one of the parties is incapable of giving consent to a contract; (2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud Unenforceable Contracts (Art 1403): (1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; (2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum, thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents: (a) An agreement that by its terms is not to be performed within a year from the making thereof; (b) A special promise to answer for the debt, default, or miscarriage of another; (c) An agreement made in consideration of marriage, other than a mutual promise to marry; (d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (e) An agreement of the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (f) A representation as to the credit of a third person (3) Those where both parties are incapable of giving consent to a contract. Void Contracts (Art 1409): (1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy; (2) Those which are absolutely simulated or fictitious; (3) Those whose cause or object did not exist at the time of the transaction; (4) Those whose object is outside the commerce of men; (5) Those which contemplate an impossible service; (6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained; (7) Those expressly prohibited or declared void by law.

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Property
OWNERSHIP What actions can be filed to recover property? Movable Property o WRIT OF REPLEVIN: for manual delivery of property Prescription of Right: 4 years (GF) or 8 years (BF) from time the possession is lost (Art 1140) Immovable Property o ACCION REIVINDICATORIA: Recovery of ownership of real property Including but not limited to possession Prescription of Action: 30 years after cause of action accrues (Art 1141) o ACCION PUBLICIANA: Recovery of a better right to possess (de jure) Judgment as to who has the better right of possession Also, actions for ejectment not filed within 1 year must be filed as accion publiciana Prescription: 10 years after cause of action accrues (Art 1134) o ACCION INTERDICTAL: Recovery of actual/physical possession (de facto) FORCIBLE ENTRY: Lawful possessor deprived through FISTS: Force Intimidation Strategy Threats Stealth Prescription: 1 year from dispossession (force, intimidation, threats) or from knowledge of dispossession (strategy, stealth) UNLAWFUL DETAINER: Possessor refused to vacate upon demand by owner Legal possession (by permission/tolerance) becomes unlawful upon failure to vacate Prescription of action: 1 year from last notice to vacate In case of leases of residential units, the grounds for judicial ejectment are limited to those enumerated in, RA 9653: Rent Control Law of 2009 (See Section on Special Laws) ACCESSION SUMMARY OF BUILDER, PLANTER AND SOWER PROVISIONS (ART. 447-455) Case 1: Landowner is BPS using material of another Landowner and BPS Owner of Material Good faith Good faith Right to acquire the improvements after paying the Limited right of removal if there would be no injury to value of materials. work constructed, or without plantings or constructions being destroyed. (Article 447) Right to receive payment for value of materials Bad faith Good faith Acquire BPS after paying its value and paying Right to receive payment for value of materials indemnity for damages (Article 447) but subject to Absolute right of removal of the work constructed in OMs right to remove any event Right to be indemnified for damages Good faith Bad faith Right to acquire the improvements without paying Lose materials without right to indemnity indemnity Right to acquire indemnity for damages if there are hidden defects known to OM Bad faith Bad faith Same as though acted in good faith under Art. 453 Same as though acted in good faith under Article 453 Case 2: BPS builds, plants, or sows on anothers ;and using his own materials Landowner BPS and Owner of Material Good faith Good faith Landowner has option to: BPS has right to retain (right of retention) the land a. Acquire the improvement after paying indemnity until the payment of indemnity which may be the original cost of improvement OR increase in value of the whole brought about by the NOTE: During this period BPS is not required to pay

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BPS and Owner of Material rent.

improvement b. Sell the land to the BP or collect rent from sower UNLESS value of land is more than the thing built, planted or sown or BP shall pay rent fixed by parties or by the court in case of disagreement. NOTE: Landowner can be forced to choose under pain of direct contempt or court can choose for him. Good faith Landowner has right to collect damages in any case and option to: a. Acquire improvements without paying indemnity if the improvements are still standing on the land b. Sell the land to BP or collect rent from the sower unless value of the improvements in which case there will be a forced lease c. Order demolition of improvements or restoration of land to its former condition at the expense of the BPS Landowner must pay for necessary expenses for preservation Bad faith Landowner must indemnify BPS for the improvements and pay damages as if he himself did the BPS Landowner has no option to sell the land and cannot compel BPS to buy the land unless BPS agrees to Bad faith Same as though acted in bad faith under Article 453

Bad faith Pay damages to landowner BPS lose materials without right to indemnity No right to refuse to buy the land Recover necessary expenses for preservation of land

Good faith BPS has right to : a. Be indemnified for damages b. Remove all improvements in any event Bad faith Same as though acted in bad faith under Article 453

Case 3: BPS builds, plants or sows on anothers land with materials owned by third persons Landowner BPS Owner of Material Good faith Good faith Good faith Right to acquire improvements and Right of retention until necessary Collect value of material primarily pay indemnity to BPS; subsdiarily and useful expenses are paid from BPS and subsidiarily liable for liable to OM landowner if BPS is insolvent Pay value of materials to OM Has option to: Limited right of removal a. Sell land to BP except if the value of the land is considerably more b. Rent to sower Good faith Good faith Bad faith Right to acquire improvements and Right of retention until necessary Lose the material without right to pay indemnity to BPS and useful expenses are paid. indemnity Has option to: Keep BPS without indemnity to Must pay for damages to BPS a. Sell land to BP except if the OM and collect damages from value of the land is considerably him more b. Rent to sower Without subsidiarily liability for cost of materials Good faith Bad faith Bad faith Landowner has right to collect Recover necessary expenses for Recover value from BPS (as if both damages in any case and option preservation of land from are in good faith) to: landowner unless landowner If BPS acquires improvement, a. Acquire improvements w/o sells land remove materials if feasible w/o paying for indemnity; or injury b. Demolition or restoration; or No action against landowner but c. Sell to BP, or to rent to sower liable to landowner for damages Pay necessary expenses to BPS Bad faith Bad faith Bad faith Same as when all acted in good Same as when all acted in good Same as when all acted in good faith under Article 453 faith under Article 453 faith under Article 453 Bad faith Good faith Good faith Acquire improvement after paying May remove improvements Remove materials if possible w/o

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Landowner indemnity and damages to BPS unless latter decides to remove Subsidiarily liable to OM for value of materials Bad faith Acquire improvements after indemnity; subsidiarily liable to OM for value of materials Has option to: a. Sell the land to BP except if the value of the land is considerably more b. Rent to sower Good faith Acquire improvement after paying indemnity; subsidiarily liable to OM Landowner has option to: a. Sell land to BP except if value of land is considerably more b. Rent to sower Bad faith Acquire improvements and pay indemnity and damages to BPS unless latter decides to remove materials

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BPS Be indemnified for damages in any event Owner of Material injury Collect value of materials from BPS; subsidiarily from landowner Good faith Collect value of materials primarily from BPS and subsidiarily from landowner Collect damages from BPS If BPS acquires improvements, remove materials in any event

Bad faith Right of retention until necessary expenses are paid Pay value of materials to OM and pay him damages

Bad faith Right of retention until necessary expenses are paid Pay value of materials to OM Pay damages to OM

Good faith Receive indemnity for damages Absolute right of removal of improvements in any event

Good faith Collect value of materials primarily from BPS and subsidiarily from landowner Collect damages from BPS If BPS acquires improvements, absolute right of removal in any event Bad faith No right to indemnity Loses right to material

CO-OWNERSHIP What is co-ownership? There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons (Art. 484). What are the rights of each co-owner over the thing or property owned in common? 1. To use the thing according to the purpose intended (Art. 486) 2. To share in the benefits in proportion to his interest provided the charges are borne by each in the same proportion (Art. 485) 3. To bring an action in ejectment (Art. 487) 4. To compel the other co-owners to contribute to the expense for preservation of the property owned in common and to the payment of taxes (Art. 488) 5. To oppose any act of alteration (Art. 491) 6. To protest against acts of majority which are seriously prejudicial to the minority (Art. 493, par. 3) 7. To exercise legal redemption (Art. 1620, 1623) 8. To ask for partition (Art. 494) POSSESSION Define possession. Possession is the holding of a thing or the enjoyment of a right (Art. 523) What rules are observed to solve conflicts of possession? In case of conflicting possession, preference is given to: 1. Present possessor or actual possessor. 2. If there are 2 or more possessors, the one longer in possession. 3. If the dates of possession are the same, the one who presents a title. 4. If all conditions are equal, the thing shall be placed in judicial deposit pending determination of possession or ownership through proper proceedings. (Art. 538) LEASE What are the rights and obligations of a lessor? Art. 1654 provides for the obligations of a lessor. (a) Deliver the thing which is the object of the contract in a condition fit for the use intended. (b) Make on the thing all the necessary repairs in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary. (c) Maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract.

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The lessor has the right to ask for rescission in case the lessee does not fulfill his obligations as set forth in Art. 1657. (Art. 1659) What are the rights and obligations of a lessee? Art. 1657 provides for the obligations of a lessee. (a) Pay the price of the lease according to the terms stipulated. (b) Use the thing leased as a diligent father of a family, devoting it to the use stipulated, and in the absence of stipulation according to the nature of the thing leased and custom of the place. (c) Pay for the expenses for the deed of lease. The lessee has the right to suspend payment of rentals in case the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased. (Art. 1658) the lessee also has the right to ask for rescission of the lease contract in case the lessor fails to fulfill his obligations set forth in Art. 1654. (Art. 1659) NUISANCE What is a Nuisance? A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. (Art. 694)