1

ANSWERS TO BAR QUESTIONS IN CIVIL LAW (1987-2018) [ARRANGED BY TOPIC]

(Source: Answers To Bar Examination Questions of the UP LAW COMPLEX [1987-2013])

its effectivity clause that it shall take effect upon

PRELIMINARY TITLE approval and after completion of publication in the
Official Gazette and a newspaper of general
Effect and Application of Laws circulation in the Philippines. The law was passed by
the Congress on July 1, 1990, signed into law by the
How would you compare the Civil Law system in its President on July 3, 1990, and published in such
governance and trend with that of the Common Law newspaper of general circulation on July 7, 1990
system? (1997 Bar) and in the Official Gazette on July 10, 1990.
a) As to the publication of said legislative enactment,
SUGGESTED ANSWER: is there sufficient observance or compliance with the
As regards “governance”: requirements for a valid publication? Explain your
Governance in Civil Law is codal, statutory and answer.
written law. It is additionally derived from case b) When did the law take effect? Explain your
law. Common law is basically derived from case answer.
law. c) Can the executive branch start releasing and
As regards “trend”: disbursing funds appropriated by the said law the
Civil law is now tending to rely more and more day following its approval? Explain your answer.
on decisions of the courts explaining the laws. (1990 Bar)
Common law is now codifying laws more and
more. So they are now merging towards similar
systems. SUGGESTED ANSWER:
a) Yes, there is sufficient compliance. The law
ADDITIONAL ANSWER: itself prescribes the requisites of publication for
1. In common law countries, the traditional its effectivity, and all requisites have been
responsibility has for the most part been with complied with. (Article 2, Civil Code)
the judges; in civil law countries, the task is
primarily reposed on the lawmakers. b) The law takes effect upon compliance with all
Contemporary practices, however, so indicate a the conditions for effectivity, and the last
trend towards centralizing that function to condition was complied with on July 10, 1990.
professional groups that may, indeed, see the Hence, the law became effective on that date.
gradual assimilation in time of both systems.
(Vitug, Civil Law and Jurisprudence, p. XX) c) No. It was not yet effective when it was
2. In Civil Law, the statutes theoretically take approved by Congress on July 1, 1990 and
precedence over court decisions interpreting approved by the President on July 3, 1990. The
them; while in Common Law, the court decisions other requisites for its effectivity were not yet
resolving specific cases are regarded as law complete at the time.
rather than the statutes themselves which are, at
the start, merely embodiments of case law. Civil Section 1 of P.D. No. 755 states:
Law is code law or written law, while Common
Law is case law. Civil Law adopts the deductive “Section 1. Declaration of
method - from the general to the particular, while National Policy. - It is hereby
the Common Law uses the inductive approach - declared that the policy of the
from the particular to the general. Common Law State is to provide readily
relies on equity. Civil Law anchors itself on the available credit facilities to the
letter of the law. The civilists are for the judge- coconut farmers at preferential
proof law even as the Common Law is judge- rates; that this policy can be
made law. Civil Law judges are merely supposed expeditiously and efficiently
to apply laws and not interpret them. realized by the implementation of
the ‘Agreement for the Acquisition
of a Commercial Bank for the
Effectivity of laws Benefit of the Coconut Farmers’
executed by the Philippine
After a devastating storm causing widespread Coconut Authority, the terms of
destruction in four Central Luzon provinces, the which ‘Agreement’ are hereby
executive and legislative branches of the incorporated by reference; x x x”
government agreed to enact a special law
appropriating P1 billion for purposes of relief and A copy of the Agreement was not attached to the
rehabilitation for the provinces. In view of the urgent Presidential Decree.
nature of the legislative enactment, it is provided in
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P.D. No. 755 was published in the Official of proof as to the foreign law, it is presumed that
Gazette but the text of the Agreement described the same is the same as Philippine law.
in Section 1 was not published. Can the
Agreement in question be accorded the status of
a law? Explain. (2016 Bar) Waiver of rights

SUGGESTED ANSWER: Mabuhay Elementary School organized a field trip

No, the Agreement cannot be given the status of for its Grade VI students in Fort Santiago, Manila
a law. Under the Civil Code, laws shall take Zoo, and Star City. To be able to join, the parents of
effect after fifteen days following the the students had to sign a piece of paper that reads
COMPLETION OF THEIR PUBLICATION, either in as follows:
the Official Gazette or in a newspaper of general
circulation in the Philippines. In Tañada v. “I allow my child (name of
Tuvera, the Supreme Court declared that all student), Grade - Section, to join the
statutes must be published as a condition for school's field trip on February 14,
their effectivity. More, publication must be of the 2014.
full text of the law since the purpose of
publication is to inform the public of the I will not file any claim
contents of the law. A mere statement of the against the school, administrator or
number of the law, its title and its date of teacher in case something happens
effectivity will not satisfy the publication to my child during the trip.”
requirement. In the instant case, while the
Agreement is mentioned in PD755, its content Joey, a 7-year-old student of Mabuhay Elementary
was never published. Accordingly, the same School was bitten by a snake while the group was
cannot be considered as having the status of a touring Manila Zoo. The parents of Joey sued the
law (see Cojuangco, Jr. v. Republic, 686 SCRA school for damages. The school, as a defense,
472). presented the waiver signed by Joey's parents.

Was there a valid waiver of right to sue the school?

Effect and application of laws; knowledge of law Why? (2014 Bar)

Is there any difference in their legal effect between SUGGESTED ANSWER:

ignorance of the law and ignorance or mistake of No, the waiver is invalid. While the Civil Code
fact? (1996 Bar) allows the waiver of rights, the waiver cannot be
contrary to law, public order, public policy,
SUGGESTED ANSWER: morals, good customs or prejudicial to a third
Yes, there is a difference. While ignorance of the person with a right recognized by law. In the
law is not an excuse for not complying with it, instant case, the waiver is contrary to public
ignorance of fact eliminates criminal intent as policy, as to allow the same would be to
long as there is no negligence (Art, Civil Code). encourage schools not to exercise any sort of
In addition, mistake on a doubtful or difficult diligence at all in the care and custody of
question of law may be the basis of good faith schoolchildren under their responsibility. Under
(Art. 526, Civil Code). Mistake of fact may, the Family Code, schools, their administrators
furthermore, vitiate consent in a contract and and teachers exercise special parental authority
make it voidable (Art. 1390, Civil Code). over minor schoolchildren in their custody and
are obligated to exercise the diligence of a good
ALTERNATIVE ANSWER: father of a family over said children. The said
Yes, ignorance of the law differs in legal effect waiver negates such a responsibility, and would
from ignorance or mistake of fact. The former then be contrary to public policy, hence invalid.
does not excuse a party from the legal
consequences of his conduct while the latter DON, an American businessman, secured parental
does constitute an excuse and is a legal consent for the employment of five minors to play
defense. certain roles in two movies he was producing at
home in Makati. They worked at odd hours of the
TRUE or FALSE. The doctrine of “processual day and night, but always accompanied by parents
presumption” allows the court of the forum to or other adults. The producer paid the children talent
presume that the foreign law applicable to the case fees at rates better than adult wages.
is the same as the local or domestic law. (2009 Bar) But the social worker, DEB, reported to OSWD that
these children often missed going to school. They
SUGGESTED ANSWER: sometimes drank wine, aside from being exposed to
TRUE. Foreign laws must be pleaded and proved drugs. In some scenes, they were filmed naked or in
in Philippine courts as our courts do not take revealing costumes. In his defense, DON contended
notice of foreign laws. However, in the absence
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all these were part of artistic freedom and cultural collateral subjects: a dissenting opinion affirms
creativity. None of the parents complained, said or overrules a claim, right or obligation. It
DON. He also said they signed a contract containing neither disposes nor awards anything it merely
a waiver of their right to file any complaint in any expresses the view of the dissenter (Civil Code,
office or tribunal concerning the working conditions Paras)
of their children acting in the movies.
Is the waiver valid and binding? Why or why not? c) A Supreme Court decision may be set aside
Explain. (2004 Bar) by a contrary ruling of the Supreme Court itself
or by a corrective legislative act of Congress,
SUGGESTED ANSWER: although said laws cannot adversely affect those
The waiver is not valid. Although the contracting favored prior to the Supreme Court decision
parties may establish such stipulations, clauses, (Civil Code, Paras).
terms and conditions as they may deem
convenient, they may not do so if such are
contrary to law, morals, good customs, public Justice and equity
order, or public policy (Article 1306, Civil Code).
The parents’ waiver to file a complaint It is said that “equity follows the law” What do you
concerning the working conditions detrimental understand by this phrase, and what are its basic
to the moral well-being of their children acting in implications? (2003 Bar)
the movies is in violation of the Family Code and
Labor laws. Thus, the waiver is invalid and not SUGGESTED ANSWER:
binding. “Equity follows the law” means that courts
The Child Labor Law is a mandatory and exercising equity jurisdiction are bound by rules
prohibitory law and the rights of the child cannot of law and have no arbitrary discretion to
be waived as it is contrary to law and public disregard them. (Arsenal v. IAC, 143 SCRA 40).
policy. Equity is applied only in the absence of but
never against statutory law. (Toyota Motor Phil.
v. CA 216 SCRA 236).
Judicial decisions

a) Are decisions of the Court of Appeals considered Theory of Personal Law

laws?
b) What are the binding effects of an obiter dictum Juan is a Filipino citizen residing in Tokyo, Japan.
and a dissenting opinion? State what laws govern:
c) How can a decision of the Supreme Court be set a) His capacity to contract marriage in Japan.
aside? (1994 Bar) b) His successional rights as regards his deceased
Filipino father’s property in Texas, U.S.A.
SUGGESTED ANSWER: c) The extrinsic validity of the last will and testament
a) No, but decisions of the Court of Appeals may which Juan executed while sojourning in
serve as precedents for inferior courts on points Switzerland.
of law not covered by any Supreme Court d) The intrinsic validity of said will. (1998 Bar)
decision, and a ruling of the Court of Appeals
may become a doctrine. (Miranda v. Imperial, 77 SUGGESTED ANSWER:
Phil. 1066). a) Juan’s capacity to contract marriage is
governed by Philippine law - i.e., the Family
ANOTHER ANSWER: Code - pursuant to Art. 15, Civil Code, which
No. Decisions of the Court of Appeals merely provides that our laws relating to, among others,
have persuasive, and therefore no mandatory legal capacity of persons are binding upon
effect. However, a conclusion or pronouncement citizens of the Philippines even though living
which covers a point of law still undecided may abroad.
still serve as judicial guide and it is possible that
the same maybe raised to the status of doctrine, b. By way of exception to the general rule of lex
if after it has been subjected to test in the rei sitae prescribed by the first paragraph of Art.
crucible of analysis, the Supreme Court should 16, Civil Code, a person’s successional rights
find that it has merits and qualities sufficient for are governed by the national law of the decedent
its consideration as a rule of jurisprudence (Civil (2nd par., Art. 16). Since Juan’s deceased father
Code, Paras). was a Filipino citizen, Philippine law governs
Juan’s successional rights.
b) None. Obiter dictum and opinions are not
necessary to the determination of a case. They ANOTHER ANSWER:
are not binding and cannot have the force of b. Juan’s successional rights are governed by
official precedents. It is as if the Court were Philippine law, pursuant to Article 1039 and the
turning aside from the main topic of the case to second paragraph of Article 16, both of the Civil
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Code. Article 1039, Civil Code, provides that b) Since capacity to contract is governed by the
capacity to succeed shall be governed by the personal law of an individual, the Japanese
“law of the nation” of the decedent, i.e., his seller’s capacity should be governed either by
national law. Article 16 provides in paragraph his national law (Japanese law) or by the law of
two that the amount of successional rights, his domicile, depending upon whether Japan
order of succession, and intrinsic validity of follows the nationality or domiciliary theory of
testamentary succession shall be governed by personal law for its citizens.
the “national law” of the decedent who is
identified as a Filipino in the present problem. c) Philippine law governs the capacity of the
Filipino to buy the land. Article 15 of the Civil
c. The extrinsic validity of Juan’s will is Code specifically provides that Philippine laws
governed by (1) Swiss law, it being the law relating to legal capacity of persons are binding
where the will was made (Art. 17, 1st par. Civil upon citizens of the Philippines no matter where
Code), or (2) Philippine law, by implication from they are.
the provisions of Art. 816, Civil Code, which
allows even an alien who is abroad to make a BONI and ANNE met while working overseas. They
will in conformity with our Civil Code, or (3) by became sweethearts and got engaged to be married
Japanese law, he being a resident of Tokyo, on New Year’s Eve aboard a cruise ship in the
again by implication of Art. 816, Civil Code, Caribbean. They took the proper license to marry in
which allows an alien who is abroad to make a New York City, where there is a Filipino consulate.
will in conformity with his domiciliary law. If our But as planned the wedding ceremony was
law allows aliens to do so, with more reason officiated by the captain of the Norwegian-registered
should the same law grant the same privilege to vessel in a private suite among selected friends.
a Filipino. Back in Manila, Anne discovered that Boni had been
married in Bacolod City 5 years earlier but divorced
d. The intrinsic validity of his will is governed by in Oslo only last year. His first wife was also a
Philippine law, it being his national law. (Art. 16, Filipina but now based in Sweden. Boni himself is a
Civil Code) resident of Norway where he and Anne plan to live
permanently.
While in Afghanistan, a Japanese by the name of Anne retains your services to advise her on whether
Sato sold to Ramoncito, a Filipino, a parcel of land her marriage to Boni is valid under Philippine law? Is
situated in the Philippines which Sato inherited from there anything else she should do under the
his Filipino mother. circumstances? (2004 Bar)
a) What law governs the formality in the execution of
the contract of sale? Explain your answer and give SUGGESTED ANSWER:
its legal basis. If Boni is still a Filipino citizen, his legal capacity
b) What law governs the capacity of the Japanese to is governed by Philippine Law (Art. 15 Civil
sell the land? Explain your answer and give its legal Code). Under Philippine Law, his marriage to
basis. Anne is void because of a prior existing
c) What law governs the capacity of the Filipino to marriage which was not dissolved by the divorce
buy the land? Explain your answer and give its legal decreed in Oslo. Divorce obtained abroad by a
basis. (1995 Bar) Filipino is not recognized.
If Boni was no longer a Filipino citizen, the
SUGGESTED ANSWER: divorce is valid. Hence, his marriage to Anne is
a) Afghanistan law governs the formal valid if celebrated in accordance with the law of
requirements of the contract since the execution the place where it was celebrated. Since the
is in Afghanistan. Art. 17 of the Civil Code marriage was celebrated aboard a vessel of
provides that the forms and solemnities of Norwegian registry, Norwegian law applies. If the
contracts, wills, and other public instruments Ship Captain has authority to solemnize the
shall be governed by the laws of the country in marriage aboard his ship, the marriage is valid
which they are executed. However, if the and shall be recognized in the Philippines.
contract was executed before the diplomatic or As to the second question, if Boni is still a
consular officials of the Republic of the Filipino, Anne can file an action for declaration
Philippines in Afghanistan, Philippine law shall of nullity of her marriage to him.
apply.
Gene and Jane, Filipinos, met and got married in
b) Japanese law governs the capacity of the England while both were taking up post-graduate
Japanese to sell the land being his personal law courses there. A few years after their graduation,
on the basis of an interpretation of Art. 15, Civil they decided to annul their marriage. Jane filed an
Code. action to annul her marriage to Gene in England on
the ground of the latter’s sterility, a ground for
ADDITIONAL ANSWER: annulment of marriage in England. The English
court decreed the marriage annulled. Returning to
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the Philippines, Gene asked you whether or not he condition, and capacity of aliens will be
would now be free to marry his former girlfriend. governed by their national law, if American law
What would your legal advice be? (2003 Bar) states that the grounds for annulment of the law
of the place where the marriage was celebrated
SUGGESTED ANSWER: is applicable to its nationals, then the Philippine
No, Gene is not free to marry his former court may grant the annulment. However, if
girlfriend. His marriage to Jane if valid according American law does not provide that the laws of
to the forms and solemnities of British law, is the place of marriage are applicable to questions
valid here (Article 17, 1st par., Civil Code). involving the intrinsic validity of the marriage,
However, since Gene and Jane are still Filipinos, then the suit will not prosper.
although living in England, the dissolution of
their marriage is still governed by Philippine law b) No, the marriage may not be annulled. If they
(Article 15, Civil Code). Since, sterility is not one are both Filipinos, Philippine laws will govern
of the grounds for the annulment of a marriage any question involving the intrinsic validity of
under Article 45 of the Family Code, the the marriage. Under Philippine law, sterility is
annulment of Gene’s marriage to Jane on that not one of the grounds for annulment of
ground is not valid in the Philippines (Article 17, marriage, hence the suit will not prosper, being
par., Civil Code). based on a ground not provided for by law.

ALTERNATIVE ANSWER: Alma, a Filipino citizen went to the United States on

Yes, Gene is free to marry his girlfriend because a tourist visa. Wanting to legalize her stay and
his marriage was validly annulled in England. obtain permanent employment, she married John,
The issue of whether or not a marriage is an American citizen, for a fee, with the
voidable, including the grounds therefor, is understanding that after a year, John would divorce
governed by the law of the place where the her. As agreed upon the two obtained a divorce in
marriage was solemnized (lex loci celebrationis). Reno, Nevada.
Hence, even if sterility is not a ground to annul
the marriage under Philippine law, the marriage (a) Suppose that after the divorce Alma consults you
is nevertheless voidable because sterility makes on the question of how she can now marry her
the marriage voidable under English law. childhood sweetheart Rene, in the Philippines
Therefore, annulment of the marriage in England preferably, or if that cannot be done, in some other
is valid in the Philippines. country where Alma and Rene are prepared to go so
that they can be joined in wedlock and live the life
Emmanuel and Margarita, American citizens and they had dreamed about. What advice will you give
employees of the U.S. State Department, got Alma. Explain.
married in the African state of Kenya where sterility (b) Suppose on the other hand that Alma and John
is a ground for annulment of marriage. Thereafter, decided to give their marriage a try. They had seven
the spouses were assigned to the U.S. Embassy in years of marriage. Alma eventually became an
Manila. On the first year of the spouses’ tour of duty American citizen, but the marriage soured and
in the Philippines, Margarita filed an annulment case ended up in a divorce, just the same.
against Emmanuel before a Philippine court on the
ground of her husband’s sterility at the time of the This time Alma wants a marriage for keeps, so she
celebration of the marriage. comes back to the Philippines to Rene who, ever
a) Will the suit prosper? Explain your answer. faithful, has waited for seven long years. Can she
b) Assume Emmanuel and Margarita are both and Rene contract a valid marriage? Explain. (1987
Filipinos. After their wedding in Kenya, they come Bar)
back and take up residence in the Philippines. Can
their marriage be annulled on the ground of SUGGESTED ANSWER:
Emmanuel’s sterility? Explain. (2009 Bar)
a. I would advise Alma to either file a petition for
SUGGESTED ANSWER: declaration of nullity of her marriage to John on
a) It depends. Firstly, it must be pointed out that the ground of psychological incapacity of either
while Emmanuel and Margarita are American or both parties, or that she obtain American
citizens, the court can take cognizance of the citizenship; and in both cases, marry Rene
case since they are domiciled here, it being an afterwards. Under the law, so long as all the
accepted principle in conflicts of law that the requisites of a valid marriage are present, the
court where any of the parties are domiciled has said marriage will be valid. Accordingly, even if
jurisdiction to annul the marriage. the marriage of Alma to John was for the sole
purpose of legalizing her stay, and obtaining
As to whether the husband’s sterility can be employment, in the United States the same
used as a ground for annulment of the marriage, would be valid. The law likewise provides that
this is a question involving the intrinsic validity the status of Filipino citizens will be governed by
of the marriage. Since the rule is that the status, Philippine law even if they are abroad.
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Accordingly, since Philippine law does not validly terminated, Mario and Juana can freely
recognize a divorce obtained by a Filipino many each other.
abroad, the divorce obtained by Alma and John
will not be recognized in the Philippines, and b) No. The renvoi doctrine is relevant in cases
Alma will still be considered as validly married where one country applies the domiciliary theory
to John. Consequently, for Alma to validly marry and the other the nationality theory, and the
Rene her marriage to John must first be issue involved is which of the laws of the two
declared invalid. On way would be for her to countries should apply to determine the order of
obtain a decree of nullity of her marriage to succession, the amount of successional rights,
John; and the ground available to her would be or, the intrinsic validity of testamentary
psychological incapacity of either or both of the provisions. Such issue is not involved in this
parties thereto at the time of the celebration of case.
the marriage [psychological incapacity would be
indicated by their cavalier treatment of the ALTERNATIVE ANSWER:
sacrament of marriage as a mere business Yes. “Renvoi” - which means “referring back” is
transaction, to legalize Alma’s stay in the US]. relevant because here, we are applying U.S. law
Another way would be for her to continue to Mario, being already its citizen, although the
staying in the United States and become an formalities of the second marriage will be
American citizen. In that way, her status would governed by Philippine law under the principle
now be governed by American law, which of lex loci celebrationis.
recognizes the divorce as valid. Accordingly, she
would then have capacity to marry Rene. A, a citizen of California, U.S.A. but domiciled in the
Philippines, died testate in Manila, survived by two
b. Yes, Alma and Rene can validly contract acknowledged natural children, B and C. In his will,
marriage. Under the law, the status of Filipinos he left more than P500,000.00 to B and only
are governed by Philippine law; while the status P3,000.00 to C. It is admitted that under the Civil
of foreigners are governed by their national law. Code of California, the domiciliary law of the
Since Alma is now an American citizen and decedent shall govern questions involving the
obtained a divorce at the time she was already validity of testamentary provisions. C, who is
an American, her divorce, which is valid under contesting the validity of the disposition in favor of B
American law, will be recognized as valid by now contends that the Philippine laws with respect
Philippine law. Accordingly, she has capacity to to succession are applicable. Is this correct? Give
marry under her national law, and therefore, your reasons. (1988 Bar)
Alma can validly marry Rene when she comes
back to the Philippines. SUGGESTED ANSWER:
Yes, this is correct. The doctrine of renvoi is
In 1977, Mario and Clara, both Filipino citizens, were applicable in the instant case. Although the Civil
married in the Philippines. Three years later, they Code in Art. 16 states that the intrinsic validity of
went to the United States of America and testamentary provisions shall be regulated by
established their residence in San Francisco, the decedent’s national law, nevertheless, the
California. In 1987, the couple applied for, and were Civil Code of California declares that the
granted. U.S. citizenship. In 1989, Mario, claiming to decedent’s domiciliary law shall govern. Hence,
have been abandoned by Clara, was able to secure the question shall be referred back to the
a decree of divorce in Reno, Nevada, U.S.A. decedent’s domicile. In other words, the laws of
In 1990, Mario returned to the Philippines and the Philippines with respect to succession shall
married Juana who knew well Mario’s past life. govern. Consequently, in the partition of the
a) Is the marriage between Mario and Juana valid? estate, C shall be given a share which must not
b) Would the renvoi doctrine have any relevance to be less than his legitime. (Aznar v. Garcia, 7
the case? (1997 Bar) SCRA 95).

SUGGESTED ANSWER: Francis Albert, a citizen and resident of New Jersey.

a) Yes. In relation to Art. 15 of the Civil Code, U.S.A., under whose law he was still a minor, being
Conflict of Laws provides that the recognition of only 20 years of age, was hired by ABC Corporation
an absolute divorce granted in another State of Manila to serve for two years as its chief
rests on the citizenship of the parties at the time computer programmer. But after serving for only four
the divorce was granted (Paras, PhiL Conflict of months, he resigned to join XYZ Corporation, which
Laws, p. 259). Applied in this case, the divorce enticed him by offering more advantageous terms.
decree issued to Clara and Mario will be His first employer sues him in Manila for damages
recognized as valid here considering that at the arising from the breach of his contract of
time the foreign decree was granted. both Clara employment. He sets up his minority as a defense
and Mario are citizens of the U.S.A., a country and asks for annulment of the contract on that
which grants/allows absolute divorce. Since the ground. The plaintiff disputes this by alleging that
marriage between Mario and Clara has been since the contract was executed in the Philippines
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under whose law the age of majority is 18 years, he ANOTHER ANSWER:

was no longer a minor at the time of perfection of b) No liability arises. The statement of the
the contract. problem does not in any way suggest intent,
a) Will the suit prosper? malice, or even knowledge, on the part of XYZ
b) Suppose XYZ Corporation is impleaded as a co- Corporation as to the contractual relations
defendant, what would be the basis of its liability, if between Albert and ABC Corporation.
any? (1998 Bar)
PH and LV are HK Chinese. Their parents are now
SUGGESTED ANSWER: Filipino citizens who live in Manila. While still
1. The suit will not prosper under Article 15, Civil students in MNS State, they got married although
Code. New Jersey law governs Francis Albert’s they are first cousins. It appears that both in HK and
capacity to act, being his personal law from the in MNS State first cousins could marry legally.
standpoint of both his nationality and his They plan to reside and set up business in the
domicile. He was, therefore, a minor at the time Philippines. But they have been informed, however,
he entered into the contract. that the marriage of first cousins here is considered
void from the beginning by reason of public policy.
ALTERNATIVE ANSWER: They are in a dilemma. They don’t want to break
a) The suit will not prosper. Being a U.S. Philippine law, much less their marriage vow. They
national, Albert’s capacity to enter into a seek your advice on whether their civil status will be
contract is determined by the law of the State of adversely affected by Philippine domestic law? What
which he is a national, under which he is still a is your advice? (2004 Bar)
minor. This is in connection with Article 15 of the
Civil Code which embodies the said nationality SUGGESTED ANSWER:
principle of lex patriae. While this principle My advise is as follows:
intended to apply to Filipino citizens under that The civil status of PH and LV will not be
provision, the Supreme Court in Recto v. Harden adversely affected by Philippine law because
is of the view that the status or capacity of they are nationals of Hong Kong and not Filipino
foreigners is to be determined on the basis of citizens. Being foreigners, their status,
the same provision or principle, i.e., by U.S. law conditions and legal capacity in the Philippines
in the present problem. are governed by the law of Hong Kong, the
Plaintiffs argument does not hold true, because country of which they are citizens. Since their
status or capacity is not determined by lex loci marriage is valid under Hong Kong law, it shall
contractus but by lex patriae. be valid and respected in the Philippines.

ANOTHER ANSWER: TRUE OR FALSE. Roberta, a Filipino, 17 years of

a) Article 17 of the Civil Code provides that the age, without the knowledge of his parents, can
forms and solemnities of contracts, wills and acquire a house in Australia because Australian
other public instruments shall be governed by Laws allow aliens to acquire property from the age
the laws of the country in which they are of 16. (2007 Bar)
executed.
Since the contract of employment was executed SUGGESTED ANSWER:
in Manila, Philippine law should govern. Being TRUE. Since Australian Law allows aliens to
over 18 years old and no longer a minor acquire property from the age of 16, Roberta
according to Philippine Law, Francis Albert can may validly own a house in Australia, following
be sued. Thus, the suit of ABC Corporation the principle of lex rei sitae enshrined in Article
against him for damages will prosper. 16, Civil Code which states: “Real property as
well as personal property is subject to the law of
b) XYZ Corporation, having enticed Francis the country where it is situated.” Moreover, even
Albert to break his contract with the plaintiff, assuming that legal capacity of Roberta in
may be held liable for damages under Art. 1314, entering the contract in Australia is governed by
Civil Code. Philippine law under Article 15, Civil Code, the
contract of sale is not void but merely voidable
ALTERNATIVE ANSWER: under the Civil Code. Hence, even under
b) The basis of liability of XYZ Corporation Philippine law, she will acquire ownership over
would be Article 28 of the Civil Code which the property she bought until the contract is
states that: annulled.
“Unfair competition in agricultural, commercial,
or industrial enterprises or in labor through the ALTERNATIVE ANSWER:
use of force, intimidation, deceit, machination or FALSE. Laws relating to family rights and duties,
any other unjust, oppressive or highhanded or to the status, condition and legal capacity of
method shall give rise to a right of action by the persons are binding upon the citizens of the
person who thereby suffers damage.” Philippines, even though living abroad (Art. 15,
Civil Code). The age of majority under Philippine
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law is 18 years (Rep. Act No. 6809); hence, work. Two of his oldest children are farmers in Sulu,
Roberta, being only 17 years old, has no legal while the two middle-aged children are employees in
capacity to acquire and own land. Zamboanga City. Finding that the deceased left no
will, the youngest son wanted to file intestate
a) If Ligaya, a Filipino citizen residing in the United proceedings before the Regional Trial Court of Cebu
States, files a petition for change of name before the City. Two other siblings objected, arguing that it
District Court of New York, what law shall apply? should be in Jolo before a Shari’a court since his
Explain. lands are in Sulu. But Adil’s sisters in Pakistan want
b) If Henry, an American citizen residing in the the proceedings held in Lahore before a Pakistani
Philippines, files a petition for change of name court.
before a Philippine court, what law shall apply? Which court has jurisdiction and is the proper venue
Explain. (2009 Bar) for the intestate proceedings? The law of which
country shall govern succession to his estate? (2004
SUGGESTED ANSWER: Bar)
a) The name of a person is part of his status,
hence changing the same must be determined in SUGGESTED ANSWER:
accordance with the personal law of the person In so far as the properties of the decedent
who is applying for the change of the same. located in the Philippines are concerned, they
There are, however, two theories of personal law are governed by Philippine law (Article 16, Civil
– the domiciliary theory and the nationality Code). Under Philippine law, the proper venue
theory. The first states that the personal law of a for the settlement of the estate is the domicile of
person is the law of his domicile, while the the decedent at the time of his death. Since the
second holds that the personal law of a person decedent last resided in Cebu City, that is the
is the law of his domicile. If the courts of New proper venue for the intestate settlement of his
York follow the domiciliary theory, since Ligaya estate.
is residing in the United States, then U.S. law
must be applied to her petition for change of However, the successional rights to the estate of
name. Conversely, if the courts of New York ADIL are governed by Pakistani law, his national
follow the nationality theory, since Ligaya is a law, under Article 16 of the Civil Code.
Filipino national, then Philippine law should be
applied to her petition for change of name. Michelle, the French daughter of Penreich, a
German national, died in Spain leaving real
b) Philippine courts follow the nationality theory, properties in the Philippines as well as valuable
hence foreigners will be governed by their personal properties in Germany.
national law, as provided for by implication a) What law determines who shall succeed the
under Art. 15 of the Civil Code. Consequently, deceased? Explain your answer and give its legal
Henry’s petition will be governed by American basis.
law, he being an American citizen. b) What law regulates the distribution of the real
properties in the Philippines? Explain your answer
and give its legal basis.
Succession, Governing Law c) What law governs the distribution of the personal
properties in Germany? Explain your answer and
What are the four aspects of succession which are give its legal basis. (1995 Bar)
governed by the national law of the decedent if he is
a foreigner? (1988 Bar) SUGGESTED ANSWER:
a) Assuming that the estate of the decedent is
SUGGESTED ANSWER: being settled in the Philippines, the national law
The four aspects of succession which are of the decedent (French law) shall govern in
governed by the national law of the decedent if determining who will succeed to his estate. The
he is a foreigner are: first, the order of legal basis is Art. 16 par. 2, Civil Code.
succession; second, the amount of successional
rights; third, the intrinsic validity of testamentary ALTERNATIVE ANSWER:
provisions; and fourth, the capacity to succeed: French law shall govern the distribution of his
(Arts. 16, par. 2, 1039, CC; see Bellis v. Bellis, 20 real properties in the Philippines except when
SCRA 358.) the real property is land which may be
transmitted to a foreigner only by hereditary
In his lifetime, a Pakistani citizen, ADIL, married succession.
three times under Pakistani law. When he died an
old widower, he left behind six children, two sisters, b) The distribution of the real properties in the
three homes, and an estate worth at least 30 million Philippines shall be governed by French law.
pesos in the Philippines. He was born in Lahore but The legal basis is Art. 16, Civil Code.
last resided in Cebu City, where he had a mansion
and where two of his youngest children now live and c) The distribution of the personal properties in
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Germany shall be governed by French law. The decided to reside in the Philippines. Jacob
legal basis is Art. 16, Civil Code. subsequently acquired several properties in the
a) If a will is executed by a testator who is a Filipino Philippines with the money he inherited from his
citizen, what law will govern if the will is executed in parents. Forty years later, Jacob died intestate, and
the Philippines? What law will govern if the will is is survived by several legitimate children and duly
executed in another country? Explain your answers. recognized illegitimate daughter Jane, all residing in
b) If a will is executed by a foreigner, for instance, a the Philippines.
Japanese, residing in the Philippines, what law will
govern if the will is executed in the Philippines? And a) Suppose that Swiss law does not allow
what law will govern if the will is executed in Japan, illegitimate children to inherit, can Jane, who is a
or some other country, for instance, the U.S.A.? recognized illegitimate child, inherit part of the
Explain your answers. (1990 Bar) properties of Jacob under Philippine law?
b) Assuming that Jacob executed a will leaving
SUGGESTED ANSWER: certain properties to Jane as her legitime in
a) 1. If the testator who is a Filipino citizen accordance with the law of succession in the
executes his will in the Philippines, Philippine Philippines, will such testamentary disposition be
law will govern the formalities. valid? (1991 Bar)

2. If said Filipino testator executes his will in SUGGESTED ANSWER:

another country, the law of the country where he a) Yes. As stated in the problem, Swiss law does
may be or Philippine law will govern the not allow illegitimate children to inherit. Hence,
formalities. (Article 815, Civil Code). Should he Jane cannot inherit the property of Jacob under
be domiciled in a country other than the Philippine law.
Philippines, he may also use the law of his
domicile in making a will. If a foreigner abroad is b) The testamentary disposition will not be valid
allowed to make a will in accordance with the if it would contravene Swill law; otherwise, the
law of his domicile (Art. 816, Civil Code), with disposition would be valid. Unless the Swiss law
more reason should a Filipino citizen be able to is proved, it would be presumed to be the same
do so. A foreigner cannot have more rights than as that of Philippine law under the doctrine of
a Filipino under Philippine laws. processual presumption.

b) 1. If the testator is a foreigner residing in the Felipe and Felisa, both Filipino citizens, were
Philippines and he executes his will in the married in Malolos, Bulacan on June 1, 1950. In
Philippines, the law of the country of which he is 1960, Felipe went to the United States, becoming a
a citizen or Philippine law will govern the U.S. citizen in 1975. In 1980, he obtained a divorce
formalities. He may also the law of his domicile from Felisa, who was duly notified of the
in making a will. If a foreigner who is abroad, proceedings. The divorce decree became final
where the Philippines has no jurisdiction, is under California law. Coming back to the Philippines
allowed to make a will in accordance with the in 1982, Felipe married Segundina, a Filipino citizen.
law of his domicile (Art. 816, Civil Code), with In 2001, Felipe, then domiciled in Los Angeles,
more reason should a foreigner be allowed to do California, died, leaving one child by Felisa, and
so in the Philippines, when he is already under another one by Segundina. He left a will which was
Philippine jurisdiction. executed in Manila, under which he left his estate to
Segundina and his two children and nothing to
2. If the testator is a foreigner and executes his Felisa.
will in a foreign country, the law of his place of
residence or the law of the country of which he Segundina files a petition for the probate of Felipe’s
is a citizen or the law of the place of execution, will. Felisa questions the intrinsic validity of the will,
or Philippine law will govern the formalities arguing that her marriage to Felipe subsisted
(Articles 17, 816, 817, Civil Code). despite the divorce obtained by Felipe because said
divorce is not recognized in the Philippines. For this
ADDITIONAL ANSWERS: reason, she claims that the properties left by Felipe
a) In the case of a Filipino citizen, Philippine law are their conjugal properties and that Segundina has
shall govern substantive validity whether he no successional rights.
executes his will in the Philippines or in a b) What law governs the formalities of the will?
foreign country. Explain.
b) In the case of a foreigner, his national law c) Will Philippine law govern the intrinsic validity of
shall govern substantive validity whether he the will? Explain. (2002 Bar)
executes his will in the Philippines or in a
foreign country. SUGGESTED ANSWER:
b) The foreigner who executes his will in the
Jacob, a Swiss national, married Lourdes, a Filipina, Philippines may observe the formalities
in Berne, Switzerland. Three years later, the couple prescribed in:
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 10

1) the law of the country of which he is a citizen residing, the same would be valid.
under Article 817 of the Civil Code, or Consequently, the same would produce legal
2) the law of the Philippines being the law of the effect in the Philippines in the sense that the
place of execution under Article 17 of the Civil properties of Alden and Stela found in the
Code. Philippines would have to be distributed in
accordance with its terms. In sum, the property
b) Philippine law will not govern the instrinsic of Alden and Stela in the Philippines would be
validity of the will. Article 16 of the Civil Code divided equally into 12 shares to be equally
provides that intrinsic validity of testamentary distributed among the five siblings of Alden and
provisions shall be governed by the national law seven siblings of Stela.
of the person whose succession is under
consideration. California law will govern the A, a Filipino, executed a will in Kuwait while there as
intrinsic validity of the will. a contract worker. Assume that under the laws of
Kuwait, it is enough that the testator affix his
Alden and Stela were both former Filipino citizens. signature in the presence of two witnesses and that
They were married in the Philippines but they later the will need not be acknowledged before a notary
migrated to the United States where they were public. May the will be probated in the Philippines?
naturalized as American citizens. In their union they (1993 Bar)
were able to accumulate several real properties
both in the US and in the Philippines. Unfortunately, SUGGESTED ANSWER:
they were not blessed with children. In the US, they Yes. Under Articles 815 and 17 of the Civil Code,
executed a joint will instituting as their common the formality of the execution of a will is
heirs to divide their combined estate in equal governed by the law of the place of execution. If
shares, the five siblings of Alden and the seven the will was executed with the formalities
siblings of Stela. Alden passed away in 2013 and a prescribed by the laws of Kuwait and valid there
year later, Stela also died. The siblings of Alden who as such, the will is valid and may be probated in
were all citizens of the US instituted probate the Philippines.
proceedings in a US court impleading the siblings of
Stela who were all in the Philippines. On December 1, 2000, Dr. Juanito Fuentes
executed a holographic will, wherein he gave
a) Was the joint will executed by Alden and Stela nothing to his recognized illegitimate son, Jay. Dr.
who were both former Filipinos valid? Explain with Fuentes left for the United States, passed the New
legal basis. York medical licensure examinations, resided
b) Can the joint will produce legal effect in the therein, and became a naturalized American citizen.
Philippines with respect to the properties of Alden He died in New York in 2007. The laws of New York
and Stela found here? If so, how? (2015 Bar) do not recognize holographic wills or compulsory
heirs.
SUGGESTED ANSWER: b) Assuming that the will is probated in the
a) The validity of the joint will depends on the Philippines, can Jay validly insist that he be given
law of the US state where Alden and Stela his legitime? Why or why not? (2009 Bar)
resides. Article 16 of the Civil Code provides
that the intrinsic validity of testamentary SUGGESTED ANSWER:
provisions shall be regulated by the national law b) No, Jay may not validly insist that he be given
of the person whose succession is under his legitime. This is a question relating to
consideration, whatever may be the nature of amount of successional rights. Under the Civil
the property and regardless of the country Code, amount of successional rights is a
where said property may be found. Since Alden question to be answered by the national law of
and Stela had become naturalized American the decedent whose succession is under
citizens, the intrinsic validity of their joint will consideration. As Dr. Fuentes is already an
would be governed by their national law — American citizen residing in New York, the
American law. As each American state has its amount of successional rights of his heirs is
own law, the American law applicable would be governed by New York law. Since said law does
the law of the US state where Alden and Stela not recognize compulsory heirs, there would be
were residing. Accordingly, if the law of the said no legitimes under said law, hence Jay may not
American state considers a joint will as valid, insist that he is entitled to one.
then the same would be valid. However, if the
applicable state law prohibits joint wills, then Alex was born a Filipino but was a naturalized
the same would be invalid. Philippine law, which Canadian citizen at the time of his death on
prohibits joint wills, would be inapplicable, as December 25, 1998. He left behind a last will and
Alden and Stela are no longer Filipinos. testament in which he bequeathed all his properties,
real and personal, in the Philippines to his
b) As stated earlier, if the joint will is allowed by acknowledged illegitimate Filipina daughter and
the US state where Alden and Stela were nothing to his two legitimate Filipino sons. The sons
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 11

sought the annulment of the last will and testament invoke the U.S. Code on the ground that the ticket
on the ground that it deprived them of their legitimes was purchased in Manila, hence, Philippine law
but the daughter was able to prove that there were should apply, under which Vanessa can recover
no compulsory heirs or legitimes under Canadian damages for breach of contract of carriage. Decide.
law. Who should prevail? Why? (2001 Bar) Discuss fully. (1995 Bar)

SUGGESTED ANSWER: SUGGESTED ANSWER:

The daughter should prevail because Article 16 Vanessa can recover damages under Philippine
of the Civil Code provides that intestate and law for breach of contract of carriage. Philippine
testamentary succession shall be governed by law should govern as the law of the place where
the national law of the person whose succession the plane tickets were bought and the contract
is under consideration. of carriage was executed. In Zalamea v. Court of
Appeals (228 SCRA 23) the Supreme Court
applied Philippine law in recovery of damages
Governing law, real and personal property for breach of contract of carriage for the reason
that it is the law of the place where the contract
Pursuant to private international law or conflict of was executed.
laws, to what law is real property as well as personal
property subject? Are there any exceptions to the ALTERNATIVE ANSWER:
rule? If there are, name them. (1988 Bar) If the violation of the contract was attended with
bad faith, there is a ground to recover moral
SUGGESTED ANSWER: damages. But since there was a federal
Real property as well as personal property is regulation which was the basis of the act
subject to the law of the country where it is complained of, the airline cannot be in bad faith.
situated (Art. 16, par. 1, CC). There are, however, Hence, only actual damages can be recovered.
two exceptions to this rule. They are: (1) under The same is true with regards to exemplary
the second paragraph of Art. 16, which declares damages.
that testamentary and intestate succession, both
with respect to the order of succession, the
amount of successional rights and the intrinsic Human Relations, Arts. 19-21
validity of testamentary provisions shall be
regulated by the national law of the decedent; Spouses Biong and Linda wanted to sell their house.
and (2) under No. 2 Art. 124, which declares that They found a prospective buyer, Ray. Linda
if the husband is a foreigner and the wife is a negotiated with Ray for the sale of the property.
Filipino, their property relations shall be They agreed on a fair price of P2 Million. Ray sent
governed by the husband’s national law, without Linda a letter confirming his intention to buy the
prejudice to the provisions of the Civil Code with property. Later, another couple, Bernie and Elena,
regard to immovable property. offered a similar house at a lower price of P1.5
Million. But Ray insisted on buying the house of
Biong and Linda for sentimental reason. Ray
Intrinsic validity of contracts, governing law prepared a deed of sale to be signed by the couple
and a manager’s check of P2 Million. After receiving
On 8 December 1991 Vanessa purchased from the the P2 Million, Biong signed the deed of sale.
Manila office of Euro-Aire an airline ticket for its However, Linda was not able to sign it because she
Flight No. 710 from Dallas to Chicago on 16 January was abroad. On her return she refused to sign the
1992. Her flight reservation was confirmed. On her document saying she changed her mind. Linda filed
scheduled departure Vanessa checked in on time at suit for nullification of the deed of sale and for moral
the Dallas airport. However, at the check-in counter and exemplary damages against Ray.
she discovered that she was waitlisted with some Does Ray have any cause of action against Biong
other passengers because of intentional and Linda? Can he also recover damages from the
overbooking, a Euro-Aire policy and practice. Euro- spouses? Explain. (2006 Bar)
Aire admitted that Vanessa was not advised of such
policy when she purchased her plane ticket. SUGGESTED ANSWER:
Vanessa was only able to fly two days later by taking Yes, Ray has a cause of action against Linda and
another airline. Biong for the return of the 2 million pesos he
Vanessa sued Euro-Aire in Manila for breach of paid for the property. He may recover damages
contract and damages. Euro-Aire claimed that it from the spouses, if it can be proven that they
cannot be held liable for damages because its were in bad faith in backing out from the
practice of overbooking passengers was allowed by contract, as this is an act contrary to morals and
the U.S. Code of Federal Regulations. Vanessa on good customs under Articles 19 and 21 of the
the other hand contended that assuming that the Civil Code.
U.S. Code of Federal Regulations allowed
intentional overbooking, the airline company cannot ANOTHER SUGGESTED ANSWER:
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Assuming that the contract of sale has been Tobacco Corporation is an entity engaged in the
perfected, Ray may file a counterclaim against manufacture of different brands of cigarettes, among
Linda and Biong for specific performance or which are “Champion,” “Hope,” and “More”
rescission, with damages in either case. Linda cigarettes. Fortune filed a complaint against
has breached the obligation created by the Vinzons-Chato to recover damages for the alleged
contract when she filed an action for nullification violation of its constitutional rights arising from
of sale. On account of Linda’s bad faith or fraud, Vinzons-Chato’s issuance of Revenue
Ray may ask for damages under Article 1170 of Memorandum Circular No. 37-934 (which re-
the Civil Code. classified Fortune cigarettes as locally manufactured
with foreign brands and thereby imposed higher
Roberto was in Nikko Hotel when he bumped into a taxes), which the Supreme Court later declared
friend who was then on her way to a wedding invalid. Vinzons-Chato filed a Motion to Dismiss
reception being held in said hotel. Roberto alleged arguing that she cannot be held liable for damages
that he was then invited by his friend to join her at for acts she performed while in the discharge of her
the wedding reception and carried the basket full of duties as BIR Commissioner. Is she correct?
fruits which she was bringing to the affair. At the Explain. (2012 Bar)
reception, the wedding coordinator of the hotel
noticed him and asked him, allegedly in a loud SUGGESTED ANSWER:
voice, to leave as he was not in the guest list. He Yes. As a general rule, a public officer is not
retorted that he had been invited to the affair by his liable for acts performed in the discharge of his
friend, who however denied doing so. Deeply duties. The exceptions are when he acted with
embarrassed by the incident, Roberto then sued the malice, bad faith, or gross negligence in the
hotel for damages under Articles 19 and 21 of the performance of his duty, or when his act is in
Civil Code. Will Roberto’s action prosper? Explain. violation of a Constitutional guaranteed right
(2012 Bar) and liberties of a person under Art. 32 of the
Civil Code. The public officer is not
SUGGESTED ANSWER: automatically considered to have violated the
No. Roberto’s action will not prosper. From the rights or liberties of a person simply because
facts given in the problem, the wedding the rule the public officer issued was declared
coordinator did not abuse her right when she invalid by the court. The complainant must still
asked him to leave the wedding reception allege and prove the particular injury or
because he was not in the guest list. Hotel Nikko prejudice he has suffered from the violation of
could not be held liable for damages as its liable his constitutional right by the issuance of the
spring from the liability of its employee (Nikko invalidated rule. The problem does not state any
Hotel Manila Garden v. Reyes, 452 SCRA 532). fact from which any malice, bad faith or gross
negligence on the part of Vinzons-Chato may be
ALTERNATIVE ANSWER: inferred, or the particular injury or prejudice the
It depends. While the hotel has the right to complainant may have suffered as a result of the
exclude an uninvited guest from the wedding violation of his constitutional right. Hence, she
reception, that does not give the hotel the cannot be held liable. The facts presented are
license to humiliate Roberto. If the wedding similar to facts of the case of Vinzons-Chato v.
coordinator of the hotel acted wrongfully e.g. Fortune, 575 SCRA 23.
with the abuse of right, unfairly, or in a matter
that exposed Roberto to unnecessary ridicule or
shame, his action will prosper. Otherwise, Independent Civil Actions
Roberto’s action will not prosper. The hotel is
liable for the wrongful acts of its employees. A driver of a bus owned by company Z ran
over a boy who died instantly. A criminal case for
NOTE: The facts of the problem are almost similar reckless imprudence resulting in homicide was filed
to the facts of Nikko Hotel Manila Garden v. Reyes, against the driver. He was convicted and was
452 SCRA 532. In the said case, however, there is a ordered to pay P2 Million in actual and moral
categorical finding that the hotel employee did not damages to the parents of the boy who was an
expose the complainant to ridicule, shame or honor student and had a bright future. Without even
embarrassment; hence, did not commit any abuse trying to find out if the driver had assets or means to
of right. The present problem makes no such pay the award of damages, the parents of the boy
statement. To the contrary, the problem states that it filed a civil action against the bus company to make
is a mere allegation. it directly liable for the damages.

a) Will their action prosper?

Civil liability of public officers b) If the parents of the boy do not wish to file a
separate civil action against the bus company, can
Liwayway Vinzons-Chato was then the they still make the bus company liable if the driver
Commissioner of Internal Revenue while Fortune cannot pay the award for damages? If so, what is
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the nature of the employer's liability and how may operator of the bus even if the driver had been
civil damages be satisfied? (2015 Bar) acquitted in the criminal action, because it is
clear that the action to recover is based on culpa
SUGGESTED ANSWER: contractual and not on the act or omission
a) Yes, the action will prosper. Article 33 of the complained of as a felony (Bernaldez v. Bohol
Civil Code provides that in cases of defamation, Trans. Co., 7 SCRA 276). According to Article 31
fraud, and physical injuries a civil action for of the Civil Code, when the civil action is based
damages, entirely separate and distinct from the on an obligation not arising from the act or
criminal action, may be brought by the injured omission complained of as a felony, such civil
party. Such civil action shall proceed action may proceed independently of the
independently of the criminal prosecution, and criminal proceedings and regardless of the
shall require only a preponderance of evidence. result of the latter.
In the instant case, the death of the boy involves
a case of physical injuries for which the law As a rule, once the criminal action has been
allows an independent civil action. Moreover, the commenced, the civil action for damages arising
same is filed against the bus company, not the from the offense charged shall be suspended until
driver, hence the civil action should proceed the final termination of the criminal action. What are
regardless of the result of the criminal case filed the exceptions to said rule as provided by the Civil
against the driver. Finally, it can be seen that the Code? (1988 Bar)
civil case filed by the parents against the bus
company is based on quasi-delict or tort, not the SUGGESTED ANSWER:
felony committed by the driver. Having a The exceptions are as follows:
different basis therefor, the same should be (1) Where the civil action is based on an
allowed to proceed regardless of the result of obligation not arising from the act or omission
the criminal case filed against the driver. complained of as a felony, such as when the
basis of the civil action is culpa contractual,
b) Yes, the parents can still make the bus culpa aquiliana, etc. (Arts. 31, 2177, CC).
company liable if the driver cannot pay the (2) Where the law grants to the injured party the
award of damages. Article 103 of the Revised right to institute a civil action which is entirely
Penal Code provides that employers, teachers, separate and independent from the criminal
persons, and corporations engaged in any kind action, such as when the action is based on (a)
of industry shall be subsidiary liable for felonies interferences by public officers or employees or
committed by their servants, pupils, workmen, by private individuals with civil rights and
apprentices, or employees in the discharge of liberties; (b) defamation; (c) fraud; (d) physical
their duties. In the instant case, company Z, injuries; or (e) refusal or neglect of a city or
being a transportation company, is engaged in municipal police officer to render aid or
industry. It also appears that the driver was protection in case of danger to life or property
performing his duties as a driver of the bus (Arts. 32, 33, 34, CC).
company when he run over the boy. The driver (3) Where the question to be resolved in the civil
was convicted for reckless imprudence. Finally, action is prejudicial to the criminal action (Art.
the driver cannot pay the damages awarded. 36, CC).
Plainly, the subsidiary liability provided for by
Article 103 of the Revised Penal Code applies to
company Z as to allow the parents of the boy to Prejudicial Question
recover the damages awarded in the criminal
case from company Z, the driver’s employer. In the context that the term is used in Civil Law,
state the (a) concept, (b) requisites and (c)
Mojar, a passenger in a bus operated by Times consequences of a prejudicial question.
Transit Co., suffered serious physical injuries as a
result of a vehicular accident. An information was SUGGESTED ANSWER:
filed against Ailes, driver of the bus, for serious a) Concept
physical injuries through reckless imprudence. Ailes A prejudicial question is one which must be
was, however, acquitted on the merits of the case decided first before a criminal action may be
because, according to the judgment of acquittal, he instituted or may proceed because a decision
was not negligent. Subsequently, Mojar instituted an therein is vital to the judgement in the criminal
action against Times Transit Co., to recover case. In the case of People v. Adelo Aragon (L-
damages. Will the action prosper? Give your 5930, Feb. 17, 1954), the Supreme Court defined
reasons. (1988 Bar) it as one which arises in a case the resolution of
which question is a logical antecedent of the
SUGGESTED ANSWER: issues involved in said case and the cognizance
If Mojar can prove the negligence of Ailes by of which pertains to another tribunal (Paras, Vol.
preponderance of evidence, the action will 1, Civil Code Annotation, 1989 ed. p. 194).
prosper. He can still recover damages from the b) Requisites
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 14

1. The prejudicial question must be the latter is active, (b) the former is inherent in a
determinative of the case before the court. person while the latter is merely acquired, (c) the
2. Jurisdiction to try said question must be former is lost only through death while the latter
lodged in another tribunal. may be lost through death or restricted by
causes other than death, and (d) the former can
ADDITIONAL ANSWER: exist without capacity to act while the latter
1. The civil action involves an issue similar or cannot exist without juridical capacity.
intimately related to the issue raised in the
criminal action, and
2. the resolution of such issue determines Civil personality, natural persons
whether or not the criminal action may proceed.
Ricky donated P 1 Million to the unborn child of his
c) Consequences pregnant girlfriend, which she accepted. After six (6)
The criminal case must be suspended. Thus, in a months of pregnancy, the fetus was born and
criminal case for damages to one’s property, a baptized as Angela. However, Angela died 20 hours
civil action that involves the ownership of said after birth. Ricky sought to recover the P 1 Million. Is
property should first be resolved (De Leon v. Ricky entitled to recover? Explain. (2012 Bar)
Mabanag, 38 Phil. 202)
SUGGESTED ANSWER:
What is a prejudicial question? What are its Yes, Ricky is entitled to recover the
elements? What is its effect upon a criminal action? P1,000,000.00. The Civil Code considers a fetus
(1988 Bar) a person for purposes favorable to it provided it
is born later in accordance with the provision of
SUGGESTED ANSWER: the Civil Code. While the donation is favorable to
a) A prejudicial question is a question which the fetus, the donation did not take effect
arises in a case, the resolution of which is a because the fetus was not born in accordance
logical antecedent of the issue involved in said with the Civil Code. To be considered born, the
case, and the cognizance of which pertains to fetus that had an intrauterine life of less than
another tribunal (People v. Aragon 94 Phil. 357; seven (7) months should live for 24 hours from
Jimenez v. Aceria, 22 SCRA 1380). its complete delivery from the mother’s womb.
It has two elements. They are: First, that it must Since Angela had an intrauterine life of less than
be determinative of the guilt or innocence of the seven (7) months but did not live for 24 hours,
accused in the criminal case; and second, she was not considered born and, therefore, did
jurisdiction to try said question must be lodged not become a person. Not being a person, she
in another tribunal (Ibid.) has no juridical capacity to be a donee, hence,
Its effect upon a criminal case is to suspend it if the donation to her did not take effect. The
one has already been commenced (Article 36, donation not being effective, the amount
CC). This is of course, the reverse of the donated may be recovered. To retain it will be
ordinary rule of procedure. The reason for this is unjust enrichment.
that the resolution of the question is
determinative of the guilt or innocence of the On her third month of pregnancy, Rosemarie,
accused in the criminal case. married to Boy, for reasons known only to her, and
without informing Boy, went to the clinic of X, a
known abortionist, who, for a fee, removed and
BOOK ONE - PERSONS expelled the foetus from her womb. Boy learned of
the abortion six (6) months later.
Juridical capacity and capacity to act Availing of that portion of Section 12 of Article II of
the 1987 Constitution which reads:
Distinguish juridical capacity from capacity to act. The State xxx shall equally protect the life of the
(1996 Bar) mother and the life of the unborn from conception. “x
x x”
SUGGESTED ANSWER: which he claims confers a civil personality on the
Juridical capacity is the fitness to be the subject unborn from the moment of conception, Boy filed a
of legal relations while capacity to act is the case for damages against the abortionist, praying
power or to do acts with legal effect. The former therein that the latter be ordered to pay him: (1)
is inherent in every natural person and is lost P30,000.00 as indemnity for the death of the foetus,
only through death while the latter is merely (2) P100,000.00 as moral damages for the mental
acquired and may be lost even before death (Art. anguish and anxiety he suffered, (3) P50,000.00 as
37, Civil Code). exemplary damages, (4) P20,000.00 as nominal
damages, and (5) P25;000.00 as attorney’s fees.
ALTERNATIVE ANSWER: Is Boy’s interpretation of the above constitutional
Juridical capacity, as distinguished from provision correct? (1991 Bar)
capacity to act: (a) the former is passive while
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 15

SUGGESTED ANSWER: inherited, by operation of law, the estate of the

No. While the Constitution may recognize that child consisting of its 5 Million inheritance from
the foetus is already alive from the moment of Mr. Luna. In the hands of Mrs. Luna, what she
conception, the same does not necessarily inherited from her child was subject to reserva
confer personality on the foetus as to entitle the troncal for the benefit of the relatives of the child
father thereof to damages for the death of a within the third degree of consanguinity and
person. Under the Civil Code, while the foetus who belong to the family of Mr. Luna, the line
shall be considered born for favorable to it, the where the property came from.
same is subject to the requirement that it be When Mrs. Luna died, she was survived by her
born alive at the time of the complete delivery parents as her only heirs. Her parents will inherit
from the mother’s womb. The foetus never her estate consisting of the 5 Million she
having been born, it never became a person as inherited from Mr. Luna. The other 5 Million she
to entitle Boy to claim damages for the death of inherited from her child will be delivered to the
a person. parents of Mr. Luna as beneficiaries of the
reserved property.
Elated that her sister who had been married for five
years was pregnant for the first time, Alma donated In sum, 5 Million Pesos of Mr. Luna’s estate will
P100,000.00 to the unborn child. Unfortunately, the go to the parents of Mrs. Luna, while the other 5
baby died one hour after delivery. May Alma recover Million Pesos will go to the parents of Mr. Luna
the P100,000.00 that she had donated to said baby as reservatarios.
before it was born considering that the baby died?
Stated otherwise, is the donation valid and binding? ALTERNATIVE ANSWER:
Explain. (1999 Bar) If the child had an intra-uterine life of not less
than 7 months, it inherited from the father. In
SUGGESTED ANSWER: which case, the estate of 10M will be divided
The donation is valid and binding, being an act equally between the child and the widow as legal
favorable to the unborn child, but only if the heirs. Upon the death of the child, its share of
baby had an intra-uterine life of not less than 5M shall go by operation of law to the mother,
seven months and provided there was due which shall be subject to reserva troncal. Under
acceptance of the donation by the proper person Art. 891, the reserva is in favor of relatives
representing said child. If the child had less than belonging to the paternal line and who are within
seven months of intra-uterine life, it is not 3 degrees from the child. The parents of Mr.
deemed born since it died less than 24 hours Luna are entitled to the reserved portion which
following its delivery, in which case the donation is 5M as they are 2 degrees related from child.
never became effective since the donee never The 5M inherited by Mrs. Luna from Mr. Luna will
became a person, birth being determinative of be inherited from her by her parents.
personality. However, if the child had intra-uterine life of less
than 7 months, half of the estate of Mr. Luna, or
Mr. Luna died, leaving an estate of Ten Million 5M, will be inherited by the widow (Mrs. Luna),
(P10,000,000.00) Pesos. His widow gave birth to a while the other half, or 5M, will be inherited by
child four months after Mr. Luna’s death, but the the parents of Mr. Luna. Upon the death of Mrs.
child died five hours after birth. Two days after the Luna, her estate of 5M will be inherited by her
child’s death, the widow of Mr. Luna also died own parents.
because she had suffered from difficult childbirth.
The estate of Mr. Luna is now being claimed by his Isidro and Irma, Filipinos, both 18 years of age, were
parents, and the parents of his widow. Who is passengers of Flight No. 317 of Oriental Airlines.
entitled to Mr. Luna’s estate and why? (1999 Bar) The plane they boarded was of Philippine registry.
While en route from Manila to Greece some
SUGGESTED ANSWER: passengers hijacked the plane, held the chief pilot
Half of the estate of Mr. Luna will go to the hostage at the cockpit and ordered him to fly instead
parents of Mrs. Luna as their inheritance from to Libya. During the hijacking Isidro suffered a heart
Mrs. Luna, while the other half will be inherited attack and was on the verge of death. Since Irma
by the parents of Mr. Luna as the reservatarios was already eight months pregnant by Isidro, she
of the reserved property inherited by Mrs. Luna pleaded to the hijackers to allow the assistant pilot
from her child. to solemnize her marriage with Isidro. Soon after the
When Mr. Luna died, his heirs were his wife and marriage, Isidro expired. As the plane landed in
the unborn child. The unborn child inherited Libya Irma gave birth. However, the baby died a few
because the inheritance was favorable to it and minutes after complete delivery. Back in the
it was born alive later though it lived only for five Philippines Irma immediately filed a claim for
hours. Mrs. Luna inherited half of the 10 Million inheritance. Does Irma have any successional rights
estate while the unborn child inherited the other at all? Discuss fully.
half. When the child died, it was survived by its
mother, Mrs. Luna. As the only heir, Mrs. Luna SUGGESTED ANSWER:
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Irma succeeded to the estate of Isidro as his hence, whether Mario’s will is a notarial one or a
surviving spouse to the estate of her legitimate holographic one, the same would be valid proof
child. When Isidro died, he was succeeded by of filiation. Likewise, the donation mortis causa
his surviving wife Irma, and his legitimate would be valid as the same is favorable to the
unborn child. They divided the estate equally foetus. A conceived child is considered born for
between them, the child excluding the parents of all purposes favorable to it, provided it is born
Isidro. An unborn child is considered born for all later under the conditions laid down by Art. 41
purposes favorable to it provided it is born later. of the Civil Code, i.e. it is alive at the time of its
The child was considered born because, having complete separation from the maternal womb
an intra-uterine life of more than seven months, (however, if it had an intra-uterine life of less
it lived for a few minutes after its complete than seven months, it must survive for 24 hours
delivery. It was legitimate because it was born to be considered born). Accordingly, the
within the valid marriage of the parents. acknowledgment and the donation mortis causa
Succession is favorable to it. When the child would be valid so long as the foetus is born
died, Irma inherited the share of the child. later. Should it not be born, it never becomes a
However, the share of the child in the hands of person and the acknowledgment and the
Irma is subject to reserva troncal for the benefit donation mortis causa would be ineffective.
of the relatives of the child within the third
degree of consanguinity and who belong to the
line of Isidro. Death, natural persons, survivorship, transmittal of
rights
ALTERNATIVE ANSWER:
If the marriage is void, Irma has no successional Dr. Lopez, a 70-year old widower, and his son
rights with respect to Isidro but she would have Roberto both died in a fire that gutted their home
successional rights with respect to the child. while they were sleeping in their air-conditioned
rooms. Roberto’s wife, Marilyn, and their two
If a pregnant woman passenger of a bus were to children were spared because they were in the
suffer an abortion following a vehicular accident due province at the time. Dr. Lopez left an estate worth
to the gross negligence of the bus driver, may she P20M and a life insurance policy in the amount of
and her husband claim damages from the bus P1M with his three children – one of whom is
company for the death of their unborn child? Roberto – as beneficiaries.
Explain. (2003 Bar)
Marilyn is now claiming for herself and her children
SUGGESTED ANSWER: her husband’s share in the estate left by Dr. Lopez,
No, the spouses cannot recover actual damages and her husband’s share in the proceeds of Dr.
in the form of indemnity for the loss of life of the Lopez’s life insurance policy. Rule on the validity of
unborn child. This is because the unborn child is Marilyn’s claims with reasons. (2009 Bar)
not yet considered a person and the law allows
indemnity only for loss of life of persons. The SUGGESTED ANSWER:
mother, however, may recover damages for the Marilyn may not claim Roberto’s purported
bodily injury she suffered from the loss of the share in the estate of his father Dr. Lopez. Under
fetus which is considered part of her internal the Civil Code, when two or more persons who
organs. The parents may also recover damages are called to succeed each other die and there is
for injuries that are inflicted directly upon them, no proof as to which of them died first, it is
e.g., moral damages for mental anguish that presumed that they died at the same time and
attended the loss of the unborn child. Since there shall be no transmission of rights from one
there is gross negligence, exemplary damages to the other. In the instant case, Dr. Lopez and
can also be recovered. (Geluz v. CA, 2 SCRA Roberto, being father and son, are called to
801) succeed each other, hence in the absence of
proof as to which of them died first, there is no
Mario executed his last will and testament where he transmission of rights between them.
acknowledges the child being conceived by his live- Consequently, Marilyn cannot claim that Roberto
in partner Josie as his own child; and that his house inherited a portion of Dr. Lopez’s estate.
and lot in Baguio City be given to his unborn
conceived child. Are the acknowledgment and the As to the life insurance policy, Dr. Lopez and
donation mortis causa valid? Why? (2014 Bar) Roberto are not called to succeed each other,
hence the above rule will not apply. Rather, it will
SUGGESTED ANSWER: be the presumption on survivorship in the Rules
The filiation of an illegitimate child can be of Court that will apply. Under said rules, where
proven by an admission of such filiation in a one party is between the age of fifteen and sixty
public document or a private handwritten and the other is over sixty, the former is deemed
instrument signed by the parent concerned, to have survived. Thus, in the absence of proof
as to who died first, it is presumed that Dr.
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Lopez, being 70 years old, died ahead of c) Will Pietro, as surviving biological father of the
Roberto, hence the latter would have been baby, be entitled to claim the proceeds of the life
entitled to a share in the life insurance proceeds insurance on the life of Marian? (2008 Bar)
of his father. Marilyn would be entitled to collect
said life insurance proceeds. SUGGESTED ANSWER:
a) An unborn child may be designated as the
Jaime, who is 65, and his son, Willy, who is 25, died beneficiary in the insurance policy of the mother.
in a plane crash. There is no proof as to who died An unborn child shall be considered a person
first. Jaime’s only surviving heir is his wife, Julia, for purposes favorable to it provided it is born
who is also Willy’s mother. Willy’s surviving heirs are later in accordance with the Civil Code. There is
his mother, Julia and his wife, Wilma. no doubt that the designation of the unborn
a) In the settlement of Jaime’s estate, can Wilma child as a beneficiary is favorable to the child.
successfully claim that her late husband, Willy had a
hereditary share since he was much younger than b) If the baby was not alive when completely
his father and, therefore, should be presumed to delivered from the mother’s womb, it was not
have survived longer? born as a person, then the question of who
b) Suppose Jaime had a life insurance policy with between two persons survived will not be an
his wife, Julia, and his son, Willy, as the issue. Since the baby had an intra-uterine life of
beneficiaries. Can Wilma successfully claim that more than 7 months, it would be considered
one-half of the proceeds should belong to Willy’s born if it was alive, at the time of its complete
estate? (1998 Bar) delivery from the mother’s womb. We can gather
from the facts that the baby was completely
SUGGESTED ANSWER: delivered. But whether or not it was alive has to
a) No, Wilma cannot successfully claim that be proven by evidence.
Willy had a hereditary share in his father’s
estate. Under Art. 43, Civil Code, two persons If the baby was alive when completely delivered
“who are called to succeed each other” are from the mother’s womb, then it was born as a
presumed to have died at the same time, in the person and the question of who survived as
absence of proof as to which of them died first. between the baby and the mother shall be
This presumption of simultaneous death applies resolved by the provisions of the Rules of Court
in cases involving the question of succession as on survivorship. This is because the question
between the two who died, who in this case are has nothing to do with succession. Obviously,
mutual heirs, being father and son. the resolution of the question is needed just for
the implementation of an insurance contract.
b) Yes, Wilma can invoke the presumption of Under Rule 13, Sec. 3, (jj), (5) as between the
survivorship and claim that one-half of the baby who was under 15 years old and Marian
proceeds should belong to Willy’s estate, under who was 18 years old, Marian is presumed to
Sec. 3 W) par. 5 Rule 131, Rules of Court, as the have survived.
dispute does not involve succession. Under this
presumption, the person between the ages of 15 In both cases, therefore, the baby never
and 60 years is deemed to have survived one acquired any right under the insurance policy.
whose age was over 60 at the time of their The proceeds of the insurance will then go to the
deaths. The estate of Willy endowed with estate of Marian.
juridical personality stands in place and stead of
Willy, as beneficiary. c) Since the baby did not acquire any right under
the insurance contract, there is nothing for
At age 18, Marian found out that she was pregnant. Pietro to inherit.
She insured her own life and named her unborn
child as her sole beneficiary. When she was already Mr. and Mrs. Cruz, who are childless, met with a
due to give birth, she and her boyfriend Pietro, the serious motor vehicle accident with Mr. Cruz at the
father of her unborn child, were kidnapped in a wheel and Mrs. Cruz seated beside him, resulting in
resort in Bataan where they were vacationing. The the instant death of Mr. Cruz. Mrs. Cruz was still
military gave chase and after one week, they were alive when help came but she also died on the way
found in an abandoned hut in Cavite. Marian and to the hospital. The couple acquired properties worth
Pietro were hacked with bolos. Marian and the baby One Million (P1,000,000.00) Pesos during their
she delivered were both found dead, with the baby’s marriage, which are being claimed by the parents of
umbilical cord already cut. Pietro survived. both spouses in equal shares.
a) Is the claim of both sets of parents valid and why?
a) Can Marian’s baby be the beneficiary of the b) Suppose in the preceding question, both Mr. and
insurance taken on the life of the mother? Mrs. Cruz were already dead when help came, so
b) Between Marian and the baby, who is presumed that nobody could say who died ahead of the other,
to have died ahead? would you answer be the same to the question as to

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who are entitled to the properties of the deceased own right as she is not a legal heir of her
couple? (1999 Bar) mother-in-law. The survivorship provision of
Rule 131 of the Rules of Court does not apply to
SUGGESTED ANSWER: the problem. It applies only to those cases
a) No, the claim of both parents is not valid. where the issue involved is not succession.
When Mr. Cruz died, he was succeeded by his
wife and his parents as his intestate heirs who
will share his estate equally. His estate was 0.5 Citizenship
Million pesos which is his half share in the
absolute community amounting to 1 Million Miss Universe, from Finland, came to the Philippines
Pesos. His wife, will, therefore, inherit 0.25 on a tourist visa. While in this country, she fell in
Million Pesos and his parents will inherit 0.25 love with and married a Filipino doctor. Her tourist
Million Pesos. visa having expired and after the maximum
When Mrs. Cruz died, she was succeeded by her extension allowed therefor, the Bureau of
parents as her intestate heirs. They will inherit Immigration and Deportation (BID) is presently
all of her estate consisting of her 0.5 Million half demanding that she immediately leave the country
share in the absolute community and her 0.25 but she refuses to do so, claiming that she is already
Million inheritance from her husband, or a total a Filipino citizen by her marriage to a Filipino citizen.
of 0.750 Million Pesos. Can the BID still order the deportation of Miss
In sum, the parents of Mr. Cruz will inherit Universe? Explain. (2003 Bar)
250,000 Pesos while the parents of Mrs. Cruz will
inherit 750,000 Pesos. SUGGESTED ANSWER:
Yes, the BID can order the deportation of Miss
(b) This being a case of succession, in the Universe. The marriage of an alien woman to a
absence of proof as to the time of death of each Filipino does not automatically make her a
of the spouses, it is presumed they died at the Filipino citizen. She must first prove in an
same time and no transmission of rights from appropriate proceeding that she does not have
one to the other is deemed to have taken place. any disqualification for Philippine citizenship.
Therefore, each of them is deemed to have an (Yung Uan Chu v. Republic of the Philippines,
estate valued at P500,000.00, or one-half of their 159 SCRA 593). Since Miss Universe is still a
conjugal property of P1 million. Their respective foreigner, despite her marriage to a Filipino
parents will thus inherit the entire P1 Million in doctor, she can be deported upon expiry of her
equal shares, or P500,000.00 per set of parents. allowable stay in the Philippines.

Cristy and her late husband Luis had two children, ANOTHER SUGGESTED ANSWER:
Rose and Patrick. One summer, her mother-in-law, No, the Bureau of Immigration cannot order her
aged 70, took the two children, then aged 10 and deportation. An alien woman marrying a Filipino,
12, with her on a boat trip to Cebu. Unfortunately, native-born or naturalized, becomes ipso facto a
the vessel sank en route, and the bodies of the three Filipino if she is not disqualified to be a citizen
were never found. None of the survivors ever saw of the Philippines. (Mo Ya Lim v. Commissioner
them on the water. On the settlement of her mother- of Immigration, 41 SCRA 292; Sec. 4,
in-law’s estate; Cristy files a claim for a share of her Naturalization Law). All that she has to do is
estate on the ground that the same was inherited by prove in the deportation proceeding is the fact of
her children from their grandmother in her marriage and that she is not disqualified to
representation of their father, and she inherited the become a Filipino citizen.
same from them. Will her action prosper? (2000 Bar)
ANOTHER SUGGESTED ANSWER:
SUGGESTED ANSWER: It depends. If she is disqualified to be a Filipino
No, her action will not prosper. Since there was citizen, she may be deported. If she is not
no proof as to who died first, all the three are disqualified to be a Filipino citizen, she may not
deemed to have died at the same time and there be deported. An alien woman who marries a
was no transmission of rights from one to Filipino citizen becomes a Filipino citizen only
another, applying Article 43 of the Civil Code. when she proves that she is not disqualified to
become one. The marriage of Miss Universe to
ALTERNATIVE ANSWER: the Filipino doctor did not automatically make
No, her action will not prosper. Under Article 43 her a Filipino citizen. She still has to prove that
of the Civil Code, inasmuch as there is no proof she is not disqualified to become a citizen.
as to who died first, all the three are presumed
to have died at the same time and there could be
no transmission of rights among them. Her Marriage, constitutional provisions
children not having inherited from their
grandmother, Cristy has no right to share in her a) How does the 1987 Constitution strengthen the
mother-in-law’s estate. She cannot share in her family as an institution?
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 19

social institution. Accordingly, parties to the

b) Do the Constitutional policy on the family and the marriage cannot be allowed to decide by
provision that marriage is the foundation of the themselves that they can live separately from
family and shall be protected by the State bar each other. Such a provision would be void for
Congress from enacting a law allowing divorce in being contrary to law and public policy.
the Philippines? (1991 Bar) 2. The provision for the extra-judicial liquidation
of their conjugal assets would also be void, as
SUGGESTED ANSWER: dissolution of property regimes not cuased by
a) Sec. 2, Article II of the Constitution provides death of one of the parties can only be allowed
that: through judicial authorization.
The State recognizes the sanctity of family life 3. The agreement to live separately is void, being
and shall protect and strengthen the family as a contrary to law and public policy. Emphatically,
basic autonomous social institution. It shall Art. 68 of the Family Code states that husband
equally protect the life of the mother and the life and wife are obliged to live together.
of the unborn from conception. The natural and 4. The agreement that should either spouse find
primary right and duty of parents in the rearing a more compatible partner, the other would raise
of the youth for civic efficiency and the no objection and would refrain from taking any
development of moral character shall receive the judicial action against the other is void, as the
support of the Government. same is contrary to the requirement of fidelity
Section I, Article XV, further provides that: between the spouses; andis contrary to law and
The State recognizes the Filipino family as the public policy.
foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its
total development. Requisites of Marriage, sex

(Note: The Committee recommends that a citation After undergoing sex reassignment in a foreign
of either one of the provisions be credited as a country, Jose, who is now using the name of
complete answer). “Josie,” married his partner Ador. Is the marriage
valid?
b) No, the Constitutional policy, as well as the a) Yes, the marriage is valid for as long as it is
supporting provision, does not amount to a valid in the place where it is celebrated
prohibition to Congress to enact a law on following Article 17 of the Civil Code.
divorce. The Constitution only meant to help the b) Yes, the marriage is valid if all the essential and
marriage endure, to “strengthen its solidarity formal elements of marriage under the Family
and actively promote its total development.” Code are present.
c) No, the marriage is not valid because one
ALTERNATIVE ANSWER: essential element of marriage is absent.
b) Yes, Congress is barred from enacting a law d) No, the marriage is not valid but is voidable
allowing divorce, since Section 2 of Article XV because “Josie” concealed her real identity.
provides: (2014 Bar)
“Sec. 2. Marriage, as an inviolable social
institution, is the foundation of the family and SUGGESTED ANSWER:
shall be protected by the State.” c) No, the marriage is not valid because one
Since marriage is “inviolable”, it cannot be essential element of marriage is absent.
dissolved by an absolute divorce.
Silverio was a woman trapped in a man’s
Manny and Nita, husband and wife, decided to body. He was born male and his birth certificate
separate by mutual agreement. They had a contract indicated his gender as male, and his name as
prepared, signed it and had it notarized, providing Silverio Stalon. When he reached the age of 21, he
for their separation and for the extra-judicial had a sex reassignment surgery in Bangkok, and,
liquidation of their conjugal assets. They likewise from then on, he lived as a female. On the basis of
agreed to live separately and that if either spouse his sex reassignment, he filed an action to have his
should find a more compatible partner, the other first name changed to Shelley, and his gender, to
would raise no objection and would refrain from female. While he was following up his case with the
taking any judicial action against the other. Regional Trial Court of Manila, he met Sharon Ston,
who also filed a similar action to change her first
Determine the validity of each of the provisions of name to Shariff, and her gender, from female to
the agreement. Explain briefly. (1987 Bar) male.
SUGGESTED ANSWER: Sharon was registered as a female upon
1. The provision for their separation is void. birth. While growing up, she developed male
Marriage is a special contract of permanent characteristics and was diagnosed to have
union. Moreover, it is considered an inviolable
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 20

congenital adrenal hyperplasia (“CAH”) which is a her petition for correction of entry is
condition where a person possesses both male and meritorious, and should, accordingly, be
female characteristics. At puberty, tests revealed approved.
that her ovarian structures had greatly minimized,
and she had no breast or menstrual development. c) No, the marriage of Silverio and Shariff may
Alleging that for all intents and appearances, as well not be legally recognized in the Philippines.
as mind and emotion, she had become a male she
prayed that her birth certificate be corrected such Under Philippine law, only a male and a female
that her gender should be changed from female to can marry each other. A marriage between
male, and that her first name should be changed Filipinos of the same sex, even if valid in the
from Sharon to Shariff. country where it is celebrated, will not be
recognized in the Philippines, as prohibitive
Silverio and Sharon fell in love and decided laws concerning persons, as well as laws which
to marry. Realizing that their marriage will be have for their object public policy, and good
frowned upon in the Philippines, they travelled to customs cannot be rendered nugatory by laws
Las Vegas, USA where they got married based on or judgments agreed upon in a foreign country.
the law of the place of celebration of the marriage.
They, however, kept their Philippine citizenship. As stated earlier, Silverio, despite his sex
reassignment procedure, is still considered to
a) Is there any legal bases for the court to approve be male by Philippine law. Consequently, his
Silverio’s petition for correction of entries in his marriage to Sharon would be a marriage
birth certificate? between two Filipino males, which is not
b) Will your answer be the same in the case of recognized under Philippine law. Even if the
Sharon’s petition? same is valid in the USA, the same will not be
c) Can the marriage of Silverio (Shelley) and recognized here as our laws prohibiting same
Sharon (Shariff) be legally recognized as valid in sex marriages cannot be rendered ineffective by
the Philippines? (2018 Bar) a foreign law or agreement.

SUGGESTED ANSWER:
a) No, there are no legal bases for the court to Requisites of Marriage, relationship
approve Silverio’s petition for correction of
entry. Despite several relationships with different women,
Andrew remained unmarried. His first relationship
In a decided case, the Supreme Court has ruled with Brenda produced a daughter, Amy, now 30
that correction of entry of gender in one’s birth years old. His second, with Carla, produced two
certificate based on a sex reassignment sons: Jon and Ryan. His third, with Donna, bore him
procedure may not be granted, as there is no two daughters: Vina and Wilma. His fourth, with
error that was made in the entry at the time it Elena, bore him no children although Elena has a
was made; male and female must be understood daughter Jane, from a previous relationship. His
in the ordinary sense of producing sperm and last, with Fe, produced no biological children but
ova, respectively, which is not a result of a sex they informally adopted without court proceedings,
reassignment procedure; and there is no law Sandy, now 13 years old, whom they consider as
providing for correction of entry based on a sex their own. Sandy was orphaned as a baby and was
reassignment procedure. In other words, entrusted to them by the midwife who attended to
correction of entry of gender based on artificial Sandy’s birth. All the children, including Amy, now
or mechanical means cannot be the basis for live with Andrew in his house. Can Jon and Jane
correction of entries as to gender. Accordingly, legally marry? (2008 Bar)
Silverio’s petition must be denied.
SUGGESTED ANSWER:
b) No, my answer would not be the same, as Jon and Jane can legally marry because they are
Sharon’s petition should be granted. not related to each other. Jane is not a daughter
of Andrew.
In a decided case, the Supreme Court has ruled
that where the change in gender is brought TRUE OR FALSE. Amor gave birth to Thelma when
about by natural means, the birth certificate of she was 15 years old. Thereafter, Amor met David
the individual involved may be correspondingly and they got married when she was 20 years old.
corrected. David had a son, Julian, with his ex-girlfriend
Sandra. Julian and Thelma can get married. (2007
In Sharon’s case, while her gender was Bar)
originally entered as “female”, natural changes
in her body, brought about by a congenital SUGGESTED ANSWER:
condition, has changed her gender from female TRUE. Julian and Thelma can get married.
to male. Being brought about by natural causes, Marriages between stepbrothers and stepsisters
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 21

are not among the marriages prohibited under By reason of Art. 15 in relation to Article 38 of
the Family Code. the Civil Code, which applies to Filipinos
wherever they are, the marriage is void.

Requisites of marriage d) It depends. Under Art. 17 of the Civil Code, the

forms and solemnities of contracts, to include
What is the status of the following marriages and marriage, shall be governed by the law of the
why? country where it is executed. If the marriage
a) A marriage between two 19-year olds without before the notary public is valid under
parental consent. Hongkong law, the marriage is valid in the
b) A marriage between two 21-year olds without Philippines. Otherwise, the marriage that is
parental advice. invalid in Hongkong will be invalid in the
c) A marriage between two Filipino first cousins in Philippines.
Spain where such marriage is valid.
d) A marriage between two Filipinos in Hongkong e) The marriage is valid. Under the Local
before a notary public. Government Code, there is no territorial
e) A marriage solemnized by a town mayor three restriction on the authority of a mayor to
towns away from his jurisdiction. (1999 Bar) solemnize marriage. However, by analogy with
the authority of members of the judiciary to
SUGGESTED ANSWER: solemnize a marriage, it would seem that the
a) The marriage is voidable. The consent of the mayor does not have the requisite authority to
parties to the marriage was defective. Being solemnize a marriage outside of his territorial
below 21 years old, the consent of the parties is jurisdiction. However, the same is still valid
not full without the consent of their parents. The because solemnizing the marriage outside said
consent of the parents of the parties to the municipality is a mere irregularity, applying by
marriage is indispensable for its validity. analogy Navarro v. Domagtoy (259 SCRA 129). In
b) Between 21-year olds, the marriage is valid said case, the Supreme Court held that the
despite the absence of parental advice. Lack of celebration by a judge of a marriage outside the
parental advice merely delays the issuance of jurisdiction of his court is a mere irregularity
the marriage license for 90 days after the that did not affect the validity of the marriage
publication of the application therefor. And notwithstanding Article 7 of the Family Code
should the marriage license have been issued which provides that an incumbent member of
without waiting for the lapse of said 90-day the judiciary is authorized to solemnize
period, the same is merely an irregularity marriages only within the court’s jurisdiction.
affecting a formal requisite-i.e., the marriage
license-and does not affect the validity of the Paul, a 17-year old Filipino and a permanent
marriage itself. This is without prejudice to the resident in the United States, married Jean, a 16-
civil, criminal, or administrative liability of the year old American in Las Vegas, Nevada. The
party responsible therefor. parents of both gave their consent to the marriage.
c) By reason of public policy, the marriage The marriage is valid in Nevada. Is its also valid in
between Filipino first cousins is void [Art. 38, the Philippines? Give your reasons. (1989 Bar)
par. (1), Family Code], and the fact that it is
considered a valid marriage in a foreign country SUGGESTED ANSWER:
in this case, Spain - does not validate it, being No, the marriage is not valid. Under the Family
an exception to the general rule in Art. 26 of said Code, for a contracting party to have capacity to
Code which accords validity to all marriages contract marriage, he must be at least eighteen
solemnized outside the Philippines x x x and (18) years of age. And while Art. 26 of the Family
valid there as such. Code provides that that a marriage solemnized
outside the Philippines, in accordance with the
ALTERNATIVE ANSWER: law in force in the country where they were
The marriage is void. Under Article 26 of the solemnized, and valid there as such, shall be
Family Code, a marriage valid where celebrated valid in the Philippines, it expressly excludes
is valid in, the Philippines except those marriages which are void under Article 35.
marriages enumerated in said Article which Notably, under Article 35, marriages contracted
marriages will remain void even though valid by persons below 18 years of age are declared
where solemnized. The marriage between first void ab initio. In this case, Paul was only 17
cousins is one of those marriages enumerated years old, hence he does not have capacity to
therein, hence, it is void even though valid in marry. Even if the marriage was valid in Nevada,
Spain where it was celebrated. it is not valid hre in the Philippines, as expressly
provided for by Article 26, in relation to Article
ANOTHER ALTERNATIVE ANSWER: 35, of the Family Code.

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 22

Isidro and Irma, Filipinos, both 18 years of age, were

passengers of Flight No. 317 of Oriental Airlines. a) The complete publication of the Family Code was
The plane they boarded was of Philippine registry. made on August 4, 1987. On September 4, 1987,
While en route from Manila to Greece some Junior Cruz and Gemma Reyes were married before
passengers hijacked the plane, held the chief pilot a municipal mayor. Was the marriage valid?
hostage at the cockpit and ordered him to fly instead b) Suppose the couple got married on September 1,
to Libya. During the hijacking Isidro suffered a heart 1994 at the Manila Hotel before the Philippine
attack and was on the verge of death. Since Irma Consul General to Hongkong, who was on vacation
was already eight months pregnant by Isidro, she in Manila. The couple executed an affidavit
pleaded to the hijackers to allow the assistant pilot consenting to the celebration of the marriage at the
to solemnize her marriage with Isidro. Soon after the Manila Hotel. Is the marriage valid? (1994 Bar)
marriage, Isidro expired. As the plane landed in
Libya Irma gave birth. However, the baby died a few SUGGESTED ANSWER:
minutes after complete delivery. a) Yes, the marriage is valid. The Family Code
Back in the Philippines Irma immediately filed a took effect on August 3, 1988. At the time of the
claim for inheritance. The parents of Isidro opposed marriage on September 4, 1987, municipal
her claim contending that the marriage between her mayors were empowered to solemnize marriage
and Isidro was void ab initio on the following under the Civil Code of 1950.
grounds: (1) they had not given their consent to the
marriage of their son; (2) there was no marriage (NOTE: Up to the present, mayors are authorized to
license; (3) the solemnizing officer had no authority solemnize marriage. See Arts. 444 & 455, Local
to perform the marriage; and, (4) the solemnizing Government Code).
officer did not file an affidavit of marriage with the
proper civil registrar. Resolve each of the b) The marriage is not valid. Consuls and vice-
contentions ([1] to [4]) raised by the parents of consuls are empowered to solemnize marriages
Isidro. Discuss fully. (1995 Bar) between Philippine citizens abroad in the
consular office of the foreign country to which
SUGGESTED ANSWER: they were assigned and have no power to
[1] The fact that the parents of Isidro and of Irma solemnize marriage on Philippine soil.
did not give their consent to the marriage did not Consequently, the marriage in question is void,
make the marriage void ab initio. The marriage is unless either or both of the contracting parties
merely voidable under Art 45 of the FC. believed in good faith that the consul general
[2] Absence of marriage license did not make the had authority to solemnize their marriage in
marriage void ab initio. Since the marriage was which case the marriage is valid.
solemnized in articulo mortis, it was exempt
from the license requirement under Art. 31 of the While “X”, an Associate Justice of the Court of
FC. Appeals, was vacationing in Cebu City, he was
[3] On the assumption that the assistant pilot requested to solemnize the marriage of Serge and
was acting for and in behalf of the airplane chief Joan in the residence of Serge’s parents. “X” could
who was under disability, and by reason of the not refuse the request of both the parents of the
extraordinary and exceptional circumstances of couple because they were his relatives. On the day
the case (i.e. hostage situation), the marriage set for the wedding, there were so many visitors at
was solemnized by an authorized officer under the residence of Serge’s parents so that “X” decided
Art. 7 (3) and Art. 31, of the FC. Note also that in to solemnize the marriage at the kiosk of the public
case of doubt as to the validity of marriage, the plaza located nearby. Is the marriage of Serge and
same must be resolved in favor of its validity. Joan valid? Give your reasons. (1989 Bar)
Likewise, the good faith provision for
solemnizing officers would be applicable. SUGGESTED ANSWER:
[4] Failure of the solemnizing officer to file the Yes, the marriage is valid. Under the Family
affidavit of marriage did not affect the validity of Code, marriages may be solemnized by an
the marriage. It is merely an irregularity which incumbent member of the judiciary within the
may subject the solemnizing officer to court’s jurisdiction. Firstly, as a Justice of the
sanctions. Court of Appeals, “X” is an authorized
solemnizing officer, being an incumbent member
ALTERNATIVE ANSWER: of the judiciary. Notably, even if “X” was not a
Considering that the solemnizing officer has no Court of Appeals Justice assigned to the
authority to perform the marriage because under Visayas, that would be a mere irregularity which
Art. 7 the law authorizes only the airplane chief, does not affect the validity of the marriage (Beso
the marriage is void, hence, a, c, and d are v. Daguman, 323 SCRA 566). Accordingly, X
immaterial. could validly solemnize the marriage. Secondly,
the requirement that the marriage be solemnized
in a public place is not an essential requisite of
Requisites of Marriage, solemnizing officer the law. Thus, the fact that the marriage was
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 23

solemnized at a kiosk of the public plaza would hence their marriage, even if without a marriage
likewise not affect the validity of the marriage. license, is valid.

On May 1, 1975, Facundo married Petra, by whom

Requisites of Marriage, marriage license he had a son Sotero. Petra died on July 1, 1996,
while Facundo died on January 1, 2002. Before his
Roderick and Faye were high school sweethearts. demise, Facundo had married, on July 1, 2000,
When Roderick was 18 and Faye, 16 years old, they Querica. Having lived together as husband and wife
started to live together as husband and wife without since July 1, 1990, Facundo and Querica did not
the benefit of marriage. When Faye reached 18 secure a marriage license but executed the requisite
years of age, her parents forcibly took her back and affidavit for the purpose.
arranged for her marriage to Brad. Although Faye
lived with Brad after the marriage, Roderick To ensure that his inheritance rights are not
continued to regularly visit Faye while Brad was adversely affected by his father’s second marriage,
away at work. During their marriage, Faye gave birth Sotero now brings a suit to seek a declaration of the
to a baby girl, Laica. When Faye was 25 years old, nullity of the marriage of Facundo and Querica,
Brad discovered her continued liaison with Roderick grounded on the absence of a valid marriage
and in one of their heated arguments, Faye shot license. Querica contends that there was no need
Brad to death. She lost no time in marrying her true for a marriage license in view of her having lived
love Roderick, without a marriage license, claiming continuously with Facundo for five years before their
that they have been continuously cohabiting for marriage and that Sotero has no legal personality to
more than 5 years. Was the marriage of Roderick seek a declaration of nullity of the marriage since
and Faye valid? (2008 Bar) Facundo is now deceased.

SUGGESTED ANSWER: a) Is the marriage of Facundo and Querica valid,

The marriage was void because there was no despite the absence of a marriage license? Explain.
marriage license. Their marriage was not exempt b) Does Sotero have the personality to seek a
from the requisite of a marriage license because declaration of nullity of the marriage, especially now
Roderick and Faye have not been cohabiting for that Facundo is already deceased? Explain. (2002
at least 5 continuous years before the Bar)
celebration of their marriage. Their lovers’ trysts
and brief visitations did not amount to SUGGESTED ANSWER:
“cohabitation”. Moreover, the Supreme Court a) The marriage with Querica is void. The
held that for the marriage to be exempt from a exemption from the requirement of a marriage
license, there should be no impediment for them license under Art. 34, Family Code, requires that
to marry each other during the entire 5 years of the man and woman must have lived together as
cohabitation. Roderick and Faye could not have husband and wife for at least five years and
cohabited for 5 continuous years without without any legal impediment to marry each
impediment because Faye was then legally other during those five years. The cohabitation
married to Brad (Niñal v. Bayadog, 328 SCRA of Facundo and Querica for six years from 1990
122). to July 1, 1996 when Petra died was one with a
legal impediment hence, not in compliance with
State whether the following marital unions are valid, the requirement of law. On the other hand, the
void, or voidable, and give the corresponding cohabitation thereafter until the marriage on July
justifications for your answer: 1, 2000, although free from legal impediment, did
not meet the 5-year cohabitation requirement.
e) Marriage of Zoren and Carmina who did not
secure a marriage license prior to their wedding, but On Valentine’s Day, 1996, Elias and Fely, both
lived together as husband and wife for 10 years single and 25 years of age, went to the city hall
without any legal impediment to marry. (2017 Bar) where they sought out a fixer to help them obtain a
quickie marriage. For a fee, the fixer produced an
SUGGESTED ANSWER: ante-dated marriage license for them, issued by the
e) Zoren and Carmina’s marriage is valid. Under Civil Registrar of a small remote municipality. He
the Family Code, a marriage between parties can then brought them to a licensed minister in a
be validly solemnized without obtaining a restaurant behind the city hall, and the latter
marriage license if the parties have lived solemnized their marriage right there and then.
together as husband and wife for five years prior a) Is their marriage valid, void or voidable? Explain.
to the marriage, and during the said five year b) Would your answer be the same if it should turn
period the parties had no impediment to marry out that the marriage license was spurious? Explain.
each other. Since Zoren and Carmina have been (1996 Bar)
living together for more than five years as
husband and wife without impediment to marry SUGGESTED ANSWER:
each other, they clearly fall under said provision,
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 24

a) The marriage is valid. The irregularity in the nullity of the first marriage, there being no
issuance of a valid license does not adversely express provision in the Civil Code requiring a
affect the validity of the marriage. The marriage judicial declaration of nullity of a previous
license is valid because it was in fact issued by marriage for such. Accordingly, a person under
a Civil Registrar (Arts. 3 and 4, FC). a marriage which is null and void ab initio may
just remarry, and his subsequent marriage will
b) No, the answer would not be the same. The be valid. On the other hand, for marriages
marriage would be void because of the absence solemnized during the effectivity of the Family
of a fonnal requisite. In such a case, there was Code, there being an express provision, Article
actually no valid marriage license. 40, it is required, for purposes of remarriage,
that a party first obtain a judicial declaration of
Brad and Angelina had a secret marriage before a nullity of his prior marriage, otherwise his
pastor whose office is located in Arroceros Street, subsequent marriage shall also be void ab
City of Manila. They paid money to the pastor who initio.
took care of all the documentation. When Angelina
wanted to go to the U.S., she found out that there
was no marriage license issued to them before their Requisites of Marriage, marriage ceremony
marriage. Since their marriage was solemnized in
1995 after the effectivity of the Family Code, In December 2000, Michael and Anna, after
Angelina filed a petition for judicial declaration of obtaining a valid marriage license, went to the Office
nullity on the strength of a certification by the Civil of the Mayor of Urbano, Bulacan, to get married.
Registrar of Manila that, after a diligent and The Mayor was not there, but the Mayor’s secretary
exhaustive search, the alleged marriage license asked Michael and Anna and their witnesses to fill
indicated in the marriage certificate does not appear up and sign the required marriage contract forms.
in the records and cannot be found. The secretary then told them to wait, and went out to
a) Decide the case and explain. look for the Mayor who was attending a wedding in a
b) In case the marriage was solemnized in 1980 neighboring municipality.
before the effectivity of the Family Code, is it
required that a judicial petition be filed to declare When the secretary caught up with the Mayor at the
the marriage null and void? Explain. (2016 Bar) wedding reception, she showed him the marriage
contract forms and told him that the couple and their
SUGGESTED ANSWER: witnesses were waiting in his office. The Mayor
a) Angelina’s petition should be granted. Under forthwith signed all the copies of the marriage
the Family Code, one of the formal requisites of contract, gave them to the secretary who returned to
marriage is a valid marriage license. The Family the Mayor’s office. She then gave copies of the
Code further provides that absence of an marriage contract to the parties, and told Michael
essential or formal requisite shall render the and Anna that they were already married.
marriage void ab initio. In the instant case, there Thereafter, the couple lived together as husband
was no marriage license at the time Brad and and wife, and had three sons.
Angelina married each other. Accordingly, their Is the marriage of Michael and Anna valid, voidable,
marriage should be declared void ab initio. Note or void? Explain your answer. (2009 Bar)
also that the Supreme Court, in a decided case
(Republic v. CA, 236 SCRA 257), has said that a SUGGESTED ANSWER:
certification by the civil registrar that after The marriage of Michael and Anna is void. Under
diligent search it could not find the marriage the Family Code, one of the formal requisites of
license in its records is competent and marriage is a marriage ceremony, which takes
sufficient proof of the non-existence of said place with the parties appearing personally
license. Being the custodian of marriage before the solemnizing officer and their personal
licenses, such a certification by the civil declaration that they take each other as husband
registrar has probative value and is sufficient and wife in the presence of not less than two
proof that said office did not, indeed, issue such witnesses of legal age. The Family Code further
a license. provides that the absence of a formal requisite
renders the marriage void. In the instant case,
b) In cases of marriages solemnized before the no marriage ceremony took place, as the parties
effectivity of the Family Code, it is not never personally appeared before the
necessary that a judicial petition be filed to solemnizing officer. Since there was no marriage
declare the marriage null and void. In Castillo v. ceremony, there is an absence of a formal
Castillo (G.R. No. 189607, 18 April 2016), the requisite, hence the marriage is void ab initio.
Supreme Court said that for marriages
contracted during the effectivity of the Civil Robert and Evelyn, both Filipinos, met in Los
Code, for purposes of remarriage, there is no Angeles, California. They agreed to get married on
need to obtain a judicial declaration of the June 10, 1989. On June 7, 1989, Robert flew to New
York due to an urgent business matter but intended
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 25

to return to Los Angeles on June 9, 1989, in time for in a public place is not an essential requisite of
the wedding. The business emergency of Robert, the law. Thus, the fact that the marriage was
however, lasted longer than he expected so that he solemnized at a kiosk of the public plaza would
failed to return to Los Angeles as planned. In order likewise not affect the validity of the marriage.
not to postpone the wedding, Robert immediately
called his brother Val who was also residing at Los
Angeles to stand as his proxy at the wedding which Marriages solemnized outside of the Philippines
the latter did. Is the marriage of Robert and Evelyn
valid in the Philippines? Give your reasons. (1989 Paul, a 17-year old Filipino and a permanent
Bar) resident in the United States, married Jean, a 16-
year old American in Las Vegas, Nevada. The
SUGGESTED ANSWER: parents of both gave their consent to the marriage.
Art. 26 of the Family Code states that a marriage The marriage is valid in Nevada. Is its also valid in
solemnized outside the Philippines, in the Philippines? Give your reasons. (1989 Bar)
accordance with the law in force in the country
where they were solemnized, and valid there as SUGGESTED ANSWER:
such, shall be valid in the Philippines. No, the marriage is not valid. Under the Family
Accordingly, even if proxy marriages are not Code, for a contracting party to have capacity to
recognized here in the Philippines, if the proxy contract marriage, he must be at least eighteen
marriage was performed in accordance with the (18) years of age. And while Art. 26 of the Family
laws of California and is valid there, then the Code provides that that a marriage solemnized
marriage is likewise valid in the Philippines. outside the Philippines, in accordance with the
law in force in the country where they were
ALTERNATIVE ANSWER: solemnized, and valid there as such, shall be
Since the problem does not state the California valid in the Philippines, it expressly excludes
law on marriage by proxy, the presumption in marriages which are void under Article 35.
Private International Law is that the California Notably, under Article 35, marriages contracted
law is the same as Philippine law. Under by persons below 18 years of age are declared
Philippine law, marriage by proxy is not void ab initio. In this case, Paul was only 17
recognized as parties to a marriage must appear years old, hence he does not have capacity to
personally before the solemnizing officer and marry. Even if the marriage was valid in Nevada,
declare in the presence of not less than two it is not valid hre in the Philippines, as expressly
witnesses of legal age that they take each other provided for by Article 26, in relation to Article
as husband and wife. As one of the contracting 35, of the Family Code.
parties did not appear during the marriage
ceremony, the marriage would be void. Robert and Evelyn, both Filipinos, met in Los
Angeles, California. They agreed to get married on
While “X”, an Associate Justice of the Court of June 10, 1989. On June 7, 1989, Robert flew to New
Appeals, was vacationing in Cebu City, he was York due to an urgent business matter but intended
requested to solemnize the marriage of Serge and to return to Los Angeles on June 9, 1989, in time for
Joan in the residence of Serge’s parents. “X” could the wedding. The business emergency of Robert,
not refuse the request of both the parents of the however, lasted longer than he expected so that he
couple because they were his relatives. On the day failed to return to Los Angeles as planned. In order
set for the wedding, there were so many visitors at not to postpone the wedding, Robert immediately
the residence of Serge’s parents so that “X” decided called his brother Val who was also residing at Los
to solemnize the marriage at the kiosk of the public Angeles to stand as his proxy at the wedding which
plaza located nearby. Is the marriage of Serge and the latter did. Is the marriage of Robert and Evelyn
Joan valid? Give your reasons. (1989 Bar) valid in the Philippines? Give your reasons. (1989
Bar)
SUGGESTED ANSWER:
Yes, the marriage is valid. Under the Family SUGGESTED ANSWER:
Code, marriages may be solemnized by an Art. 26 of the Family Code states that a marriage
incumbent member of the judiciary within the solemnized outside the Philippines, in
court’s jurisdiction. Firstly, as a Justice of the accordance with the law in force in the country
Court of Appeals, “X” is an authorized where they were solemnized, and valid there as
solemnizing officer, being an incumbent member such, shall be valid in the Philippines.
of the judiciary. Notably, even if “X” was not a Accordingly, even if proxy marriages are not
Court of Appeals Justice assigned to the recognized here in the Philippines, if the proxy
Visayas, that would be a mere irregularity which marriage was performed in accordance with the
does not affect the validity of the marriage (Beso laws of California and is valid there, then the
v. Daguman, 323 SCRA 566). Accordingly, X marriage is likewise valid in the Philippines.
could validly solemnize the marriage. Secondly,
the requirement that the marriage be solemnized ALTERNATIVE ANSWER:
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 26

Since the problem does not state the California Wilma is already a foreigner and is now
law on marriage by proxy, the presumption in governed by her new national law. Since her
Private International Law is that the California national recognizes her divorce to be valid, the
law is the same as Philippine law. Under Philippines, with respect to the status of Wilma,
Philippine law, marriage by proxy is not will recognize the same as valid.
recognized as parties to a marriage must appear
personally before the solemnizing officer and b) Being a decree promulgated in a foreign
declare in the presence of not less than two country, the authenticity and due execution of
witnesses of legal age that they take each other the decree of divorce still needs to be proven.
as husband and wife. As one of the contracting Not only that, being a foreign judgment, it does
parties did not appear during the marriage not automatically take effect in the Philippines. I
ceremony, the marriage would be void. will advise Harry to get a copy of the divorce
decree from Wilma’s country, attested by the
officer therein having legal custody of the
Divorce document, and authenticated by the proper
Philippine diplomatic or consular officer
Do the Constitutional policy on the family and the stationed in said foreign country in which the
provision that marriage is the foundation of the record is kept. The Philippine diplomatic or
family and shall be protected by the State bar consular official must also authenticate the
Congress from enacting a law allowing divorce in decree by the seal of his office. After obtaining
the Philippines? (1991 Bar) such a copy, I will advise Harry to file a petition
for enforcement of foreign judgment with the
SUGGESTED ANSWER: Regional Trial Court so that the same can be
No, the Constitutional policy, as well as the given effect here in the Philippines
supporting provision, does not amount to a
prohibition to Congress to enact a law on c) Yes, Harry may legally marry Elizabeth. Under
divorce. The Constitution only meant to help the Art. 26, when a foreigner married to a Filipino
marriage endure, to “strengthen its solidarity obtains a divorce capacitating him or her to
and actively promote its total development.” remarry, the Filipino spouse also has capacity to
remarry. In Republic v. Orbecido (472 SCRA 114),
ALTERNATIVE ANSWER: the Supreme Court declared that even if at the
Yes, Congress is barred from enacting a law time of marriage both parties were Filipinos, if at
allowing divorce, since Section 2 of Article XV the time of the divorce, one of them was already
provides: a foreigner, and it was that party who obtained
“Sec. 2. Marriage, as an inviolable social the divorce, Art. 26 would apply. In the instant
institution, is the foundation of the family and case, Wilma became a naturalized alien prior to
shall be protected by the State.” her obtention of divorce, hence Art. 26 would
Since marriage is “inviolable”, it cannot be apply. Harry has capacity to remarry. However,
dissolved by an absolute divorce. he must, as stated earlier, first obtain a judgment
for the enforcement of the foreign decree of
Harry married Wilma, a very wealthy woman. Barely divorce before he marries Elizabeth.
five (5) years into the marriage, Wilma fell in love
with Joseph. Thus, Wilma went to a small country in Ben and Eva were both Filipino citizens at the time
Europe, became a naturalized citizen of that country, of their marriage in 1987. When their marriage
divorced Harry, and married Joseph. A year turned sour, Ben went to a small country in Europe,
thereafter, Wilma and Joseph returned and got himself naturalized there, and then divorced Eva
established permanent residence in the Philippines. in accordance with the law of that country. Later, he
a) Is the divorce obtained by Wilma from Harry returned to the Philippines with his new wife. Eva
recognized in the Philippines? Explain your answer. now wants to know what action or actions she can
b) If Harry hires you as his lawyer, what legal file against Ben. She also wants to know if she can
recourse would you advise him to take? Why? likewise marry again. What advice can you give her?
c) Harry tells you that he has fallen in love with (1999 Bar)
another woman, Elizabeth, and wants to marry her
because, after all, Wilma is already married to SUGGESTED ANSWER:
Joseph. Can Harry legally marry Elizabeth? Explain. Eva has no cause of action against Ben as the
(2009 Bar) divorce obtained by the latter is valid. Ben is
already a foreigner. Foreigners are governed by
SUGGESTED ANSWER: their national law, as provided for by implication
a) Yes, the divorce obtained by Wilma from Harry under Art. 15 of the Civil Code, hence given that
will be recognized here in the Philippines. Under his country recognizes the divorce, for Ben the
our law, the status of Filipinos is governed by same is valid, and Eva may not complain of the
Philippine law; conversely, foreigners will be divorce obtained by the former.
governed by their national law. In this instance,
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 27

As for Eva, under Art. 26, when a foreigner Flor still needs to be proven. Not only that, being
married to a Filipino obtains a divorce a foreign judgment, it does not automatically
capacitating him or her to remarry, the Filipino take effect in the Philippines. Virgilio must get a
spouse also has capacity to remarry. In Republic copy of the divorce decree from Canada,
v. Orbecido (472 SCRA 114), the Supreme Court attested by the officer therein having legal
declared that even if at the time of marriage both custody of the document, and authenticated by
parties were Filipinos, if at the time of the the proper Philippine diplomatic or consular
divorce, one of them was already a foreigner, officer stationed there. After obtaining such a
and it was that party who obtained the divorce, copy, Virgilio must file a petition for enforcement
Art. 26 would apply. In the instant case, Ben of foreign judgment with the Regional Trial Court
became a naturalized alien prior to his obtention so that the same can be given effect here in the
of divorce, hence Art. 26 would apply. Eva would Philippines. Only after the petition is granted can
thus have capacity to remarry. Virgilio remarry.
I would advise Eva that being a decree
promulgated in a foreign country, the (Note: The answer assumes that the divorce was
authenticity and due execution of the decree of obtained after August 3, 1988, the effectivity of the
divorce still needs to be proven. Not only that, Family Code.)
being a foreign judgment, it does not
automatically take effect in the Philippines. She In 1977, Mario and Clara, both Filipino citizens, were
must get a copy of the divorce decree from married in the Philippines. Three years later, they
Ben’s country, attested by the officer therein went to the United States of America and
having legal custody of the document, and established their residence in San Francisco,
authenticated by the proper Philippine California. In 1987, the couple applied for, and were
diplomatic or consular officer stationed in said granted. U.S. citizenship. In 1989, Mario, claiming to
foreign country in which the record is kept. After have been abandoned by Clara, was able to secure
obtaining such a copy, I will advise Eva to file a a decree of divorce in Reno, Nevada, U.S.A.
petition for enforcement of foreign judgment In 1990, Mario returned to the Philippines and
with the Regional Trial Court so that the same married Juana who knew well Mario’s past life. Is
can be given effect here in the Philippines. Only the marriage between Mario and Juana valid? (1997
after the petition is granted can Eva remarry. Bar)

(Note: The answer assumes that the divorce was SUGGESTED ANSWER:
obtained after August 3, 1988, the effectivity of the Yes. In relation to Art. 15 of the Civil Code,
Family Code.) Conflict of Laws provides that the recognition of
an absolute divorce granted in another State
Flor and Virgilio were married to each other in rests on the citizenship of the parties at the time
Roxas City in 1980. In 1984, Flor was offered a the divorce was granted (Paras, PhiL Conflict of
teaching job in Canada, which she accepted. In Laws, p. 259). Applied in this case, the divorce
1989, she applied for and was granted Canadian decree issued to Clara and Mario will be
citizenship. The following year. she sued for divorce recognized as valid here considering that at the
from Virgilio in a Canadian court. After Virgilio was time the foreign decree was granted. both Clara
served with summons, the Canadian court tried the and Mario are citizens of the U.S.A., a country
case and decreed the divorce. Shortly thereafter, which grants/allows absolute divorce. Since the
Flor married a Canadian. Can Virgilio marry again in marriage between Mario and Clara has been
the Philippines? Explain. (1996 Bar) validly terminated, Mario and Juana can freely
many each other.
SUGGESTED ANSWER:
Virgilio can remarry. Under Art. 26, when a In 1989, Maris, a Filipino citizen, married her boss
foreigner married to a Filipino obtains a divorce Johnson, an American citizen, in Tokyo in a wedding
capacitating him or her to remarry, the Filipino ceremony celebrated according to Japanese laws.
spouse also has capacity to remarry. In Republic One year later, Johnson returned to his native
v. Orbecido (472 SCRA 114), the Supreme Court Nevada, and he validly obtained in that state an
declared that even if at the time of marriage both absolute divorce from his wife Maris.
parties were Filipinos, if at the time of the After Maris received the final judgment of divorce,
divorce, one of them was already a foreigner, she married her childhood sweetheart Pedro, also a
and it was that party who obtained the divorce, Filipino citizen, in a religious ceremony in Cebu City
Art. 26 would apply. In the instant case, Flor celebrated according to the formalities of Philippine
became a naturalized alien prior to her obtention law. Pedro later left for the United States and
of divorce, hence Art. 26 would apply. Virgilio became naturalized as an American citizen. Maris
would thus have capacity to remarry. followed Pedro to the United States, and after a
Note however that being a decree promulgated serious quarrel, Maris filed a suit and obtained a
in a foreign country, the authenticity and due divorce decree issued by the court in the state of
execution of the decree of divorce obtained by Maryland.
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Maris then returned to the Philippines and in a civil

ceremony celebrated in Cebu City according to the ALTERNATIVE ANSWER:
formalities of Philippine law, she married her former b) The marriage of Maris and Pedro is void. The
classmate Vincent likewise a Filipino citizen. decree of divorce is a foreign judgment which
a) Was the marriage of Maris and Johnson valid does not automatically become effective here in
when celebrated? Is their marriage still validly the Philippines. For Art. 26 to apply, Maris must
existing now? Reasons. first file a petition for enforcement of the foreign
b) Was the marriage of Maris and Pedro valid when judgment of divorce with the RTC. Not having
celebrated? Is their marriage still valid existing now? done so, she is still considered as validly
Reasons. married to Johnson, hence she could not marry
c) Was the marriage of Maris and Vincent valid Pedro
when celebrated? Is their marriage still validly The marriage of Maris and Pedro, being void ab
existing now? Reasons. initio, does not exist. The Maryland divorce
d) At this point in time, who is the lawful husband of obtained by Maris is immaterial.
Maris? Reasons. (1992 Bar)
c) The marriage of Maris and Vincent is void ab
SUGGESTED ANSWER: initio because 1) even if Maris’ marriage to
a) The marriage of Maris and Johnson was valid Johnson no longer subsists, she still has not
when celebrated because all marriages obtained a decree enforcing the divorce decree
solemnized outside the Philippines (Tokyo) in promulgated therein; and 2) even if the marriage
accordance with the laws in force in the country of Maris and Pedro is void ab initio, the absolute
where they are solemnized (Japan), and valid nullity of Maris’ marriage to Pedro may be
there as such, are also valid in the Philippines. invoked for purposes of remarriage solely on the
basis of a final judgment declaring such
Their marriage no longer validly subsists, previous marriage void (Art. 40, Family Code).
because it has been dissolved by the absolute Without any such final judgment, any
divorce validly obtained by Johnson which subsequent marriage contracted by Maris shall
capacitated Maris to remarry (Art. 26, Family likewise be void ab initio.
Code).
d) At this point in time, Johnson is still
b) The marriage of Maris and Pedro was valid considered the lawful husband of Maris because
when celebrated because the divorce validly their divorce decree has yet to be effective in the
obtained by Johnson in Manila capacitated Maris Philippines.
to marry Pedro.
The marriage of Maris and Pedro is still validly BONI and ANNE met while working overseas. They
existing, because the marriage has not been became sweethearts and got engaged to be married
validly dissolved by the Maryland divorce (Art. on New Year’s Eve aboard a cruise ship in the
26, Family Code). Caribbean. They took the proper license to marry in
New York City, where there is a Filipino consulate.
(NOTE: This is on the assumption that Maris, upon But as planned the wedding ceremony was
receipt of the final judgment of divorce, filed a officiated by the captain of the Norwegian-registered
petition for enforcement of the foreign judgment of vessel in a private suite among selected friends.
divorce with the RTC, which petition was granted by Back in Manila, Anne discovered that Boni had been
the Court. It is only after the petition is granted that married in Bacolod City 5 years earlier but divorced
Maris can avail of Art. 26 of the Family Code) in Oslo only last year. His first wife was also a
Filipina but now based in Sweden. Boni himself is a
c) The marriage of Maris and Vincent is void ab resident of Norway where he and Anne plan to live
initio because it is a bigamous marriage permanently.
contracted by Maris during the subsistence of Anne retains your services to advise her on whether
her marriage with Pedro (Art. 25 and 41, Family her marriage to Boni is valid under Philippine law? Is
Code). there anything else she should do under the
circumstances? (2004 Bar)
The marriage of Maris and Vincent does not
validly exist because Article 26 does not apply. SUGGESTED ANSWER:
The divorce abroad (in Maryland) was initiated a) If Boni is still a Filipino citizen, his legal
and obtained not by the alien spouse, but by the capacity is governed by Philippine Law (Art. 15
Filipino spouse. Hence, the Maryland divorce did Civil Code). Under Philippine Law, his marriage
not capacitate Maris to marry Vincent. to Anne is void because of a prior existing
marriage which was not dissolved by the divorce
d) At this point in time, Pedro is still the lawful decreed in Oslo. Divorce obtained abroad by a
husband of Maris because their valid marriage Filipino is not recognized.
has not been dissolved by any valid cause (Art. If Boni was no longer a Filipino citizen, the
26, Family Code). divorce is valid. Hence, his marriage to Anne is
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valid if celebrated in accordance with the law of brief courtship and complying with all the
the place where it was celebrated. Since the requirements, they got married in Hongkong to avoid
marriage was celebrated aboard a vessel of publicity, it being Marvin’s second marriage. Is his
Norwegian registry, Norwegian law applies. If the marriage to Manel valid? Explain. (2006 Bar)
Ship Captain has authority to solemnize the
marriage aboard his ship, the marriage is valid SUGGESTED ANSWER:
and shall be recognized in the Philippines. Yes, the marriage of Marvin and Manel is valid.
As to the second question, if Boni is still a While Marvin was previously married to Shelley,
Filipino, Anne can file an action for declaration the divorce from Marvin obtained by Shelley in
of nullity of her marriage to him. California capacitated Marvin to contract the
subsequent marriage to Manel under the 2nd
Ted, married to Annie, went to Canada to work. paragraph of Article 26 of the Family Code which
Five (5) years later, Ted became a naturalized provides that where a marriage between a
Canadian citizen. He returned to the Philippines to Filipino citizen and a foreigner is validly
convince Annie to settle in Canada. Unfortunately, celebrated and a divorce is thereafter validly
Ted discovered that Annie and his friend Louie were obtained abroad by the alien spouse
having an affair. Deeply hurt, Ted returned to capacitating him or her to remarry, the Filipino
Canada and filed a petition for divorce which was spouse shall likewise have capacity to remarry
granted. In December 2013, Ted decided to marry under Philippine law.
his childhood friend Corazon in the Philippines. In
preparation for the wedding, Ted went to the Local NOTE: Marvin must first file an action to enforce the
Civil Registry of Quezon City where his marriage foreign judgment of divorce before the RTC, which
contract with Annie was registered. He asked the action must be granted by the Court before the
Civil Register to annotate the decree of divorce on divorce decree will be recognized as valid here in
his marriage contract with Annie. However, he was the Philippines. The question, however, states that
advised by the National Statistics Office (NSO) to he had complied with all the requirements, so it may
file a petition for judicial recognition of the decree of be reasonably presumed that Marvin has complied
divorce in the Philippines. with this procedural requirement.)
Is it necessary for Ted to file a petition for judicial
recognition of the decree of divorce he obtained in Felipe and Felisa, both Filipino citizens, were
Canada before he can contract a second marriage married in Malolos, Bulacan on June 1, 1950. In
in the Philippines? (2014 Bar) 1960, Felipe went to the United States, becoming a
U.S. citizen in 1975. In 1980, he obtained a divorce
SUGGESTED ANSWER: from Felisa, who was duly notified of the
No, it is not necessary for Ted to file a petition proceedings. The divorce decree became final
for judicial recognition of the decree of divorce under California law. Coming back to the Philippines
he obtained in Canada. A foreigner who wants in 1982, Felipe married Segundina, a Filipino citizen.
to get married in the Philippines only needs to In 2001, Felipe, then domiciled in Los Angeles,
get a certification from his diplomatic or California, died, leaving one child by Felisa, and
consular officials that he has capacity to marry, another one by Segundina. He left a will which was
in order to be able to obtain a marriage license. executed in Manila, under which he left his estate to
It is his ex-wife, Annie, who needs to get a Segundina and his two children and nothing to
judicial recognition of the decree of divorce Ted Felisa.
obtained in Canada, if she wants to get a
marriage license in order to remarry. Segundina files a petition for the probate of Felipe’s
will. Felisa questions the intrinsic validity of the will,
Note, however, that nothing prevents Ted from arguing that her marriage to Felipe subsisted
filing a petition for judicial recognition of the despite the divorce obtained by Felipe because said
decree of divorce he obtained in Canada, if he divorce is not recognized in the Philippines. For this
wants to have the same REGISTERED with the reason, she claims that the properties left by Felipe
Civil Registry where his first marriage is are their conjugal properties and that Segundina has
recorded, the decree of divorce being no successional rights.
presumptive evidence of a right that clothes him Is the divorce secured by Felipe in California
with legal interest to petition for its recognition recognizable and valid in the Philippines? How does
in the Philippines. it affect Felipe’s marriage to Felisa? Explain. (2002
Bar)
Marvin, a Filipino, and Shelley, an American, both
residents of California, decided to get married in SUGGESTED ANSWER:
their local parish. Two years after their marriage, The divorce secured by Felipe in California is
Shelley obtained a divorce in California. While in recognizable and valid in the Philippines
Boracay, Marvin met Manel, a Filipina, who was because he was no longer a Filipino at the time
vacationing there. Marvin fell in love with her. After a he secured it. Aliens may obtain divorces abroad
which may be recognized in the Philippines
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provided that they are valid according to their The petition should be denied. Admittedly,
national law (Van Dorn v. Romillo, Jr., 139 SCRA under Article 26 of the Family Code, if a
139; Quita v. Court of Appeals, 300 SCRA 406; marriage between a Filipino citizen and a
Llorente v. Court of Appeals, 345 SCRA 592). foreigner is validly celebrated and a divorce
The divorce is valid, both to Felipe and Felisa. is thereafter validly obtained abroad by the
Even if Felipe and Felisa were both Filipinos at foreigner spouse capacitating him or her to
the time of their marriage, the reckoning point remarry, the Filipino spouse shall have
for Art. 26 of the Family Code to be applicable is capacity to remarry. Notably, Article 26
their nationality at the time they got the divorce. applies to marriages contracted by Filipino
Since Felipe was already an alien at the time he spouses, so long as the person obtaining the
obtained his divorce, Art. 26 applies and Felisa divorce was already an alien at the time he
would have capacity to remarry (Republic v. obtains the divorce. However, a decree of
Orbecido, 472 SCRA 114). divorce is a foreign judgment, and foreign
judgments do not automatically take effect in
In 1985, Sonny and Lulu, both Filipino citizens, were the Philippines. One must first file a petition
married in the Philippines. In 1987, they separated, for recognition of a foreign judgment of
and Sonny went to Canada, where he obtained a divorce, which must be granted by the court,
divorce in the same year. He then married another before said divorce decree can take effect in
Filipina, Auring, in Canada on January 1, 1988. They the Philippines. This has to be done in order
had two sons, James and John. In 1990, after failing to check whether the foreign judgment is
to hear from Sonny, Lulu married Tirso, by whom consistent with domestic public policy and
she had a daughter, Verna. In 1991, Sonny visited other mandatory laws. the In the instant case,
the Philippines where he succumbed to heart attack. it does not appear that Romeo has submitted
a) Discuss the effect of the divorce obtained by an authentic copy of the divorce decree
Sonny and Lulu in Canada. obtained by Juliet to the court. Nor has he
b) Explain the status of the marriage between Sonny proven that, indeed, Juliet was already an
and Auring. American when she obtained the divorce.
c) Explain the status of the marriage between Lulu Absent proof of Juliet’s nationality at the time
and Tirso. (2005 Bar) she obtained the divorce; as well as proof of
the divorce decree itself, the petition should
SUGGESTED ANSWER: be denied.
a) The divorce obtained by Sonny in Canada was
not valid because he and his wife were both TRUE OR FALSE. Under Article 26 of the Family
Filipino citizens. Divorce between a Filipino Code, when a foreign spouse divorces his/her
couple is not valid under Philippine law even Filipino spouse, the latter may re-marry by proving
though they are living abroad. (Art. 15, Civil only that the foreign spouse has obtained a divorce
Code) against her or him abroad. (2010 Bar)

b) Since the divorce obtained by Sonny was SUGGESTED ANSWER:

void, his marriage to Auring is necessarily void FALSE, In Garcia v. Recio, 366 SCRA 437 (2001),
ab initio because of his subsisting marriage to the SC held that for a Filipino spouse to have
Lulu. (Art. 41, Family Code) capacity to contract a subsequent marriage, it
must also be proven that the foreign divorce
c) The marriage between Lulu and Tirso is also obtained abroad by the foreigner spouse give
void ab initio because Lulu is still validly married such foreigner spouse capacity to remarry.
to Sonny. Furthermore, a decree of divorce is a foreign
judgment. A foreign judgment is not immediately
Romeo and Juliet, both Filipinos, got married. effective in the Philippines. It takes effect only
After a few years, Juliet got word from her after a petition for recognition of a foreign
mother that she can go to the United States for judgment is filed, and granted by the Court.
naturalization. Juliet promised she will be back Accordingly, the Filipino spouse must also file a
the moment she becomes an American. After petition for recognition of the foreign decree of
sometime, Romeo learned from a friend that divorce before he/she can remarry (Corpuz v.
Juliet already became a U.S. citizen and even Sto. Tomas, 628 SCRA 266).
divorced him to marry a wealthy American
businessman. Romeo filed a petition before the Cipriano and Lady Miros married each other. Lady
Regional Trial Court praying that an order be Miros then left for the US and there, she obtained
issued authorizing him to remarry pursuant to American citizenship. Cipriano later learned all
Article 26 of the Family Code. Decide the about this including the fact that Lady Miros has
petition with reasons. (2016 Bar) divorced him in America and that she had remarried
there. He then filed a petition for authority to
SUGGESTED ANSWER: remarry, invoking Par. 2, Art. 26 of the Family Code.
Is Cipriano capacitated to re-marry by virtue of the
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divorce decree obtained by his Filipino spouse who will not be recognized in the Philippines, and
was later naturalized as an American citizen? Alma will still be considered as validly married
Explain. (2012 Bar) to John. Consequently, for Alma to validly marry
Rene her marriage to John must first be
SUGGESTED ANSWER: declared invalid. On way would be for her to
Yes, he is capacitated to remarry. While the obtain a decree of nullity of her marriage to
second paragraph of Art 26 of the Family Code John; and the ground available to her would be
is applicable only to a Filipino who married a psychological incapacity of either or both of the
foreigner at the time of marriage, the Supreme parties thereto at the time of the celebration of
Court ruled in the case of Republic v. Orbecido, the marriage [psychological incapacity would be
472 SCRA 114, that the said provision equally indicated by their cavalier treatment of the
applies to a Filipino who married another sacrament of marriage as a mere business
Filipino at the time of the marriage, but who was transaction, to legalize Alma’s stay in the US].
already a foreigner when the divorce was Another way would be for her to continue
obtained. staying in the United States and become an
American citizen. In that way, her status would
Alma, a Filipino citizen went to the United States on now be governed by American law, which
a tourist visa. Wanting to legalize her stay and recognizes the divorce as valid. Accordingly, she
obtain permanent employment, she married John, would then have capacity to marry Rene.
an American citizen, for a fee, with the
understanding that after a year, John would divorce b. Yes, Alma and Rene can validly contract
her. As agreed upon the two obtained a divorce in marriage. Under the law, the status of Filipinos
Reno, Nevada. are governed by Philippine law; while the status
of foreigners are governed by their national law.
(a) Suppose that after the divorce Alma consults you Since Alma is now an American citizen and
on the question of how she can now marry her obtained a divorce at the time she was already
childhood sweetheart Rene, in the Philippines an American, her divorce, which is valid under
preferably, or if that cannot be done, in some other American law, will be recognized as valid by
country where Alma and Rene are prepared to go so Philippine law. Accordingly, she has capacity to
that they can be joined in wedlock and live the life marry under her national law, and therefore,
they had dreamed about. What advice will you give Alma can validly marry Rene when she comes
Alma. Explain. back to the Philippines.
(b) Suppose on the other hand that Alma and John
decided to give their marriage a try. They had seven
years of marriage. Alma eventually became an Void and Voidable Marriages
American citizen, but the marriage soured and
ended up in a divorce, just the same. A petition for declaration of nullity of a void marriage
can only be filed by either the husband or the wife?
This time Alma wants a marriage for keeps, so she Do you agree? Explain your answer. (2012 Bar)
comes back to the Philippines to Rene who, ever
faithful, has waited for seven long years. Can she SUGGESTED ANSWER:
and Rene contract a valid marriage? Explain. (1987 Yes, I agree. Under the rules promulgated by the
Bar) Supreme Court, a direct action for declaration of
nullity may only be filed by any of the spouses.
SUGGESTED ANSWER: Note, however, that a void marriage may be
attacked directly or collaterally. While the rules
a. I would advise Alma to either file a petition for promulgated by the Supreme Court allows only
declaration of nullity of her marriage to John on the husband or wife to file a direct action for
the ground of psychological incapacity of either declaration of nullity of marriage, in cases
or both parties, or that she obtain American involving a collateral attack on the nullity of a
citizenship; and in both cases, marry Rene void marriage, the same may be filed by persons
afterwards. Under the law, so long as all the other than the husband or the wife, so long as
requisites of a valid marriage are present, the the person filing has a material interest in the
said marriage will be valid. Accordingly, even if validity of the said marriage.
the marriage of Alma to John was for the sole
purpose of legalizing her stay, and obtaining On May 1, 1975, Facundo married Petra, by whom
employment, in the United States the same he had a son Sotero. Petra died on July 1, 1996,
would be valid. The law likewise provides that while Facundo died on January 1, 2002. Before his
the status of Filipino citizens will be governed by demise, Facundo had married, on July 1, 2000,
Philippine law even if they are abroad. Querica. Having lived together as husband and wife
Accordingly, since Philippine law does not since July 1, 1990, Facundo and Querica did not
recognize a divorce obtained by a Filipino secure a marriage license but executed the requisite
abroad, the divorce obtained by Alma and John affidavit for the purpose.
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 32

trust and commitment. It must be characterized

To ensure that his inheritance rights are not by juridical antecedence, gravity and incurability
adversely affected by his father’s second marriage, and its root causes must be clinically identified
Sotero now brings a suit to seek a declaration of the or examined (Santos v. CA, 240 SCRA 20).
nullity of the marriage of Facundo and Querica,
grounded on the absence of a valid marriage b) In the case of Santos v. Court of Appeals (240
license. Querica contends that there was no need SCRA 20), the Supreme Court held that being of
for a marriage license in view of her having lived unsound mind, drug addiction, habitual
continuously with Facundo for five years before their alcoholism, lesbianism or homosexuality may be
marriage and that Sotero has no legal personality to indicia of psychological incapacity, depending
seek a declaration of nullity of the marriage since on the degree of severity of the disorder.
Facundo is now deceased. However, the concealment of drug addiction,
habitual alcoholism, lesbianism or
a) Is the marriage of Facundo and Querica valid, homosexuality is s ground for annulment of
despite the absence of a marriage license? Explain. marriage.
b) Does Sotero have the personality to seek a
declaration of nullity of the marriage, especially now Gemma filed a petition for the declaration of nullity
that Facundo is already deceased? Explain. (2002 of her marriage with Arnell on the ground of
Bar) psychological incapacity. She alleged that after 2
months of their marriage, Arnell showed signs of
SUGGESTED ANSWER: disinterest in her, neglected her and went abroad.
a) The marriage with Querica is void. The He returned to the Philippines after 3 years but did
exemption from the requirement of a marriage not even get in touch with her. Worse, they met
license under Art. 34, Family Code, requires that several times in social functions but he snubbed her.
the man and woman must have lived together as When she got sick, he did not visit her even if he
husband and wife for at least five years and knew of her confinement in the hospital. Meanwhile,
without any legal impediment to marry each Arnell met an accident which disabled him from
other during those five years. The cohabitation reporting for work and earning a living to support
of Facundo and Querica for six years from 1990 himself. Will Gemma’s suit prosper? Explain. (2006
to July 1, 1996 when Petra died was one with a Bar)
legal impediment hence, not in compliance with
the requirement of law. On the other hand, the SUGGESTED ANSWER:
cohabitation thereafter until the marriage on July Gemma’s suit will not prosper. The acts of Arnell
1, 2000, although free from legal impediment, did complained about do not by themselves
not meet the 5-year cohabitation requirement. constitute psychological incapacity. It is not
enough to prove the commission of those acts
b) A void marriage may be questioned by any or the existence of his abnormal behavior. It
interested party in any proceeding where the must be shown that those acts or that behavior
resolution of the issue is material. Being a was manifestation of a serious mental disorder
compulsory heir, Sotero has the personality to and that it is the root cause why he was not able
question the validity of the marriage of Facundo to perform the essential duties of married life. It
and Querica. Otherwise, his participation in the must also be shown that such psychological
estate of Facundo would be affected (Niñal v. incapacity, as manifested in those acts or that
Bayadog, 328 SCRA 122). behavior, was existing at the time of the
celebration of the marriage. In this case, there
was no showing that Arnell was suffering from a
Psychological incapacity serious mental disorder, that his behavior was a
manifestation of that disorder, and that such
a) Give a brief definition or explanation of the term disorder prevented him from complying with his
“psychological incapacity” as a ground for the duties as a married person.
declaration of nullity of a marriage.
b) If existing at the inception of marriage, would the Kardo met Glenda as a young lieutenant and after a
state of being of unsound mind or the concealment whirlwind courtship, they were married. In the early
of drug addiction, habitual alcoholism, part of his military career, Kardo was assigned to
homosexuality or lesbianism be considered indicia different places all over the country but Glenda
of psychological incapacity? Explain. (2002 Bar) refused to accompany him as she preferred to live
in her hometown. They did not live together until the
SUGGESTED ANSWER: 12th year of their marriage when Kardo had risen up
a) “Psychological incapacity” is a mental the ranks and was given his own command. They
disorder of the most serious type showing the moved to living quarters in Fort Gregorio. One day,
incapability of one or both spouses to comply while Kardo was away on official business, one of
with the essential marital obligations of love, his military aides caught Glenda having sex with the
respect, cohabitation, mutual help and support, corporal assigned as Kardo's driver. The aide
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 33

immediately reported the matter to Kardo who Lina who told him that Lina suffers from dementia
rushed home to confront his wife. Glenda readily praecox, a form of psychosis where the afflicted
admitted the affair and Kardo sent her away in person is prone to commit homicidal attacks. Leo
anger. Kardo would later come to know the true was once stabbed by Lina but fortunately he only
extent of Glenda's unfaithfulness from his aides, his suffered minor injuries. Will a Petition for
household staff, and former neighbors who informed Declaration of Nullity of Marriage filed with the court
him that Glenda has had intimate relations with prosper? Explain. (2016 Bar)
various men throughout their marriage whenever
Kardo was away on assignment. SUGGESTED ANSWER:
No, a petition for declaration of nullity will not
Kardo filed a petition for declaration of nullity of prosper in court. From a reading of the problem,
marriage under Article 36. Based on interviews from it appears that such a petition would be based
Kardo, his aide, and the housekeeper, a on the supposed psychological incapacity of
psychologist testified that Glenda's habitual infidelity Lina to comply with the essential marital
was due to her affliction with Histrionic Personality obligations of marriage. For psychological
Disorder, an illness characterized by excessive incapacity to become a ground for declaration of
emotionalism and uncontrollable attention-seeking nullity of a marriage, the same must exhibit the
behavior rooted in Glenda's abandonment as a characteristics of gravity, antecedence, and
child by her father. Kardo himself, his aide, and his incurability. It must be grave, psychological
housekeeper also testified in court. The RTC incapacity being limited to the most serious
granted the petition, relying on the liberality cases of psychological disorders indicative of a
espoused by Te v. Te and Azcueta v. Republic. failure to give meaning and significance to the
However, the OSG filed an appeal, arguing that marriage; it must be existing even before the
sexual infidelity was only a ground for legal celebration of the marriage; and it must be
separation and that the RTC failed to abide by the incurable, as public policy mandates that
guidelines laid down in the Molina case. How would marriage be protected (If the disorder is curable,
you decide the appeal? (2015 Bar) the solution is to cure the person afflicted, not
declare his marriage as non-existent from the
SUGGESTED ANSWER: beginning). In the instant case, there is no
I would grant the OSG’s appeal and dismiss showing that Lina’s supposed incapacity was
Kardo’s petition for declaration of nullity of already existing even before her marriage, as in
marriage. For psychological incapacity to be a fact the evidence would show that her behavior
ground for nullity of marriage, the same must be changed only after the marriage. Similarly, there
characterized by gravity, antecedence, and is no showing that Lina’s supposed disorder is
incurability. More, under the guidelines laid incurable. Since there is no evidence showing
down in the Molina case, the burden of proof is that Lina’s supposed psychological incapacity
on the petitioner to prove the nullity of the was already existing before her marriage, and
marriage. In the instant case, the evidence relied that the same is incurable, the petition for
on by the psychologist consists of interviews declaration of nullity of her marriage must be
from Kardo, his aide, and the housekeeper. The dismissed.
aide and the housekeeper do not have personal
knowledge of Glenda’s past prior to her Article 36 of the Family Code provides that a
marriage to Kardo. Kardo’s knowledge of marriage contracted by any party who, at the time of
Glenda’s past is no better, having married her the celebration, was psychologically incapacitated to
after a whirlwind courtship. Accordingly, the comply with the essential marital obligations of
claim that Glenda’s psychological incapacity is marriage, shall be void.
rooted in Glenda’s abandonment as a child by Choose the spouse listed below who is
her father would be mere hearsay, the same psychologically incapacitated. Explain. (2006 Bar)
being based on the testimony of persons who a) Nagger
have no personal knowledge of her family b) Gay or lesbian
history. It cannot thus be said that Glenda’s c) Congenital sexual pervert
psychological incapacity has been proven to be d) Gambler
in existence prior to the celebration of her e) Alcoholic
marriage to Kardo as to justify the declaration of
nullity of the same. SUGGESTED ANSWER:
The gay or lesbian is psychologically
Leo married Lina and they begot a son. incapacitated. Being gay or lesbian is a mental
After the birth of their child, Lina exhibited unusual disorder which prevents the afflicted person
behavior and started to neglect her son; she from performing the essential duties of married
frequently went out with her friends and gambled in life. He or she will not be able to perform his or
casinos. Lina later had extra-marital affairs with her duty of sexual consortium with his or her
several men and eventually abandoned Leo and spouse due to his or her sexual preference for a
their son. Leo was able to talk to the psychiatrist of person of the same sex. However, the law
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requires that the disorder or state of being gay To support her petition, Maria presented three
or lesbian incapacitating such person must be witnesses – herself, Dr. Elsie Chan, and Ambrosia.
existing at the time of the celebration of the Dr. Chan testified on the psychological report on Neil
marriage. that she prepared. Since Neil never acknowledged
nor responded to her invitation for interviews, her
NOTE: I disagree with the above answer. report is solely based on her interviews with Maria
Psychological incapacity refers to the most serious and the spouses’ minor children. Dr. Chan
cases of personality disorders clearly demonstrative concluded that Neil is suffering from Narcissistic
of an utter insensitivity or inability to give meaning Personality Disorder, an ailment that she found to be
and significance to the marriage (Santos v. Bedia- already present since Neil’s early adulthood and one
Santos). Homosexuality, as a disorder, has been that is grave and incurable. Maria testified on the
removed from The Diagnostic and Statistical Manual specific instances when she found Neil drunk, with
of Mental Disorders as early as 1974. The World another woman, or squandering the family’s
Health Organization, likewise, does not consider a resources in a casino. Ambrosia, the spouses’
particular sexual orientation as a mental disorder by current household help, corroborated Maria’s
and of itself. Of the five choices, all could be testimony. On the basis of the evidence presented,
considered psychologically incapacitated if their will you grant the petition? (2013 Bar)
behavior can be shown to be symptoms of a most
serious personality disorder clearly demonstrative of SUGGESTED ANSWER:
an utter insensitivity or inability to give meaning and No. The petition should be denied. The
significance to the marriage. If forced to choose, psychological incapacity under Art. 36 of the
however, it is believed that the congenital sexual Family Code must be characterized by (a)
pervert would be the most appropriate multiple gravity, (b) juridical antecedence, and (c)
choice answer. incurability. It is not enough to prove that the
parties failed to meet their responsibilities and
The petitioner filed a petition for declaration of nullity duties as married persons; it is essential that
of marriage based allegedly on the psychological they must be shown to be incapable of doing so,
incapacity of the respondent, but the psychologist due to some physiological (not physical) illness
was not able to personally examine the respondent (Republic v. CA and Molina, 268 SCRA 198). In
and the psychological report was based only on the this case, the pieces of evidence presented are
narration of petitioner. Should the annulment not sufficient to conclude that indeed Neil is
[petition for declaration of nullity] be granted? suffering from psychological incapacity
Explain. (2012 Bar) [Narcissistic Personality Disorder] existing
already before the marriage, incurable and
SUGGESTED ANSWER: serious enough to prevent Neil from performing
The annulment cannot be guaranteed solely on his essential marital obligations. Dr. Chan’s
the basis of the psychological report. While it is report contains mere conclusions. Being a
not an absolute requirement that the psychiatrist drunkard, a womanizer, a gambler and a mama’s
personally examine the respondent (Marcos v. boy, merely shows Neil’s failure to perform his
Marcos, 343 SCRA 755), the psychological report marital obligations. In a number of cases, the
should be based on the psychologist’s Supreme Court did not find the existence of
independent assessment of the facts as to psychological incapacity in cases where the
whether or not the respondent is respondent showed habitual drunkenness
psychologically incapacitated. Since, the (Republic v. Cuison-Melgar, 486 SCRA 177),
psychologist based his report solely on the blatant display of infidelity and irresponsibility
story of the petitioner who has an interest in the (Dedel v. CA, 421 SCRA 461) or being hooked to
outcome of the petition, the same can hardly be gambling and drugs (Republic v. Tanyag-San
considered competent evidence of the Jose, 517 SCRA 123).
psychological makeup of the respondent. The
marriage cannot be annulled on the ground of Ariz and Paz were officemates at Perlas ng
respondent’s psychological incapacity if the Silangan Bank (PSB). They fell in love with each
said report is the only evidence of such. other and had a civil and church wedding.
Meanwhile, Paz rapidly climbed the corporate
You are a Family Court judge and before you is a ladder of PSB and eventually became its Vice-
Petition for the Declaration of Nullity of Marriage President, while Ariz remained one of its bank
(under Article 36 of the Family Code) filed by Maria supervisors, although he was short of 12 units to
against Neil. Maria claims that Neil is finish his Masters of Business Administration (MBA)
psychologically incapacitated to comply with the degree.
essential obligations of marriage because Neil is a
drunkard, a womanizer, a gambler, and a mama’s Ariz became envious of the success of his wife. He
boy – traits that she never knew or saw when Neil started to drink alcohol until he became a drunkard.
was courting her. Although summoned, Neil did not He preferred to join his “barkadas”; became a wife-
answer Maria’s petition and never appeared in court. beater; would hurt his children without any reason;
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and failed to contribute to the needs of the family. their marriage, Jose was employed in an oil refinery
Despite rehabilitation and consultation with a in Saudi Arabia for a period of three years. When he
psychiatrist, his ways did not change. returned to the Philippines, Marina was no longer
living in their house, but in Zamboanga City, working
After 19 years of marriage, Paz, a devout Catholic, in a hospital. He asked her to come home, but she
decided to have their marriage annulled by the refused to do so, unless he agreed not to work
church. Through the testimony of Paz and a overseas anymore because she cannot stand living
psychiatrist, it was found that Ariz was a spoiled alone. He could not agree as, in fact, he had signed
brat in his youth and was sometimes involved in another three year contract. When he returned in
brawls. In his teens, he was once referred to a 1989, he could not locate Marina anymore. In 1992,
psychiatrist for treatment due to his violent Jose filed an action served by publication in a
tendencies. In due time, the National Appellate newspaper of general circulation. Marina did not file
Matrimonial Tribunal (NAMT) annulled the union of any answer. A possible collusion between the parties
Ariz and Paz due to the failure of Ariz to perform was ruled out by the Public Prosecutor. Trial was
and fulfill his duties as a husband and as a father to conducted, and Marina neither appeared nor
their children. The NAMT concluded that it is for the presented evidence in her favor. If you were the
best interest of Paz, Ariz and their children to have judge, will you grant the annulment. Explain.
the marriage annulled.
SUGGESTED ANSWER:
In view of the NAMT decision, Paz decided to file a As judge, I will not grant the annulment. An
Petition for Declaration of Nullity of Marriage of their action for annulment presupposes the existence
civil wedding before the Regional Trial Court (RTC) of grounds making the marriage a voidable one.
of Makati City using the NAMT decision and the The facts do not show the existence of any of
same evidence adduced in the church annulment the grounds for a voidable marriage under Art.
proceedings as basis. 45 of the Family Code.
Assuming that the action is one for declaration
If you are the judge, will you grant the petition? of nullity on the ground of psychological
Explain. (2014 Bar) incapacity, there is likewise no proof of the
existence of a personality disorder on the part of
SUGGESTED ANSWER: any of the parties. In Santos v. CA (240 SCRA
If I were the judge, I would not grant the petition. 20), it was held that psychological incapacity
It appears that the ground used for asking for refers only to the most serious cases of
declaration of nullity of Paz and Ariz’s wedding personality disorders clearly demonstrative of
is the supposed psychological incapacity of Ariz an utter sensitivity or inability to give meaning
to comply with the essential marital obligations and significance to the marriage. Marina’s
of marriage. Psychological incapacity refers to refusal to come home to her husband unless he
the MOST SERIOUS CASES OF agreed not to work overseas, far from being
PSYCHOLOGICAL DISORDERS indicative of a indicative of an insensitivity to the meaning of
failure to give meaning and significance to the marriage, or of a personality disorder, actually
marriage. In the instant case, the violent shows a sensitive awareness on her part of the
tendencies of Ariz, while testified to by a marital duty to live together as husband and
psychiatrist, have not been shown to be due to a wife. Mere refusal to rejoin her husband when he
psychological disorder. The same observation did not accept the condition imposed by her
applies to his being a drunkard and his does not furnish any basis for concluding that
preference for his barkada. Parenthetically, while she was suffering from psychological incapacity
the guidelines laid down by the Supreme Court to discharge the essential marital obligations. As
in Rep. v. Molina states that decisions rendered to Jose’s refusal to live together with Marina,
by the NAMT should be given great weight and absent proof that the same is a symptom of a
respect, again, there is no showing that the most serious personality disorder, the same may
decision of the NAMT annulled the marriage of not likewise be characterized as psychological
Ariz and Paz due to a psychological disorder on incapacity. Notably, there is likewise no proof
the part of Ariz, hence the same may not be that the alleged psychological incapacity was
given credence by the Court. There being no already existing at the time of the marriage.
proof that Ariz’s actuations are due to a Accordingly, the action of Jose should be
psychological disorder, and that the NAMT denied.
decision was based on a psychological disorder
on the part of Ariz, the petition should be If drug addiction, habitual alcoholism, lesbianism or
denied. homosexuality should occur only during the
marriage, would these constitute grounds for a
On April 15, 1983, Jose, an engineer, and Marina, a declaration of nullity or for legal separation, or would
nurse, were married to each other in a civil they render the marriage voidable? (2002 Bar)
ceremony in Boac, Marinduque. Six months after
SUGGESTED ANSWER:
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c) In accordance with law, if drug addiction, in order to live with Carlos, their marriage falls
habitual alcoholism, lesbianism or under said provision, hence it is void ab initio.
homosexuality should occur only during the
marriage, they: Article 40
(1) will not constitute as grounds for declaration
of nullity (Art. 36, Family Code); In June 1985, James married Mary. In September
(2) will constitute as grounds for legal 1988, he also married Ophelia with whom he begot
separation (Art. 55, FC); and two (2) children, A and B. In July 1989, Mary died. In
(3) will not constitute as grounds to render the July 1990, he married Shirley and abandoned
marriage voidable (Art. 45 and 46, FC). Ophelia. During their union, James and Ophelia
acquired a residential lot worth P300,000.00.
Under what conditions, respectively, may drug
addiction be a ground, if at all, (a) for a declaration Ophelia sues James for bigamy and prays that his
of nullity of marriage, (b) for an annulment of the marriage with Shirley be declared null and void.
marriage contract, and (c) for legal separation James, on the other hand, claims that since his
between the spouses? (1997 Bar) marriage to Ophelia was contracted during the
existence of his marriage with Mary, the former is
SUGGESTED ANSWER: not binding upon him, the same being void ab initio;
a) Declaration of nullity of marriage: he further claims that his marriage to Shirley is valid
1. The drug addiction must be a symnptom of a and binding as he was already legally capacitated at
most serious personality disorder incapacitating the time he married her.
the person so addicted from complying with the Is the contention of James correct? (1991 Bar)
essential obligations of marriage;
2. The personality disorder must be antecedent SUGGESTED ANSWER:
(existing at the time of marriage), grave and No. The contention of James is not correct.
incurable; Article 40 of the Family Code provides that the
(Add additional Molina guidelines) absolute nullity of a previous marriage may be
invoked for purposes of remarriage soly on the
b) Annulment of the Marriage Contract: basis of a final judgment declaring such
1. The drug addiction must be concealed; previous marriage void. In Tenebro v. CA (423
2. It must exist at the time of marriage; SCRA 272), the Supreme Court declared that
3. There should be no cohabitation with full contracting a subsequent marriage without first
knowledge of the drug addiction; having an existing marriage declared void not
4. The case is filed within five (5) years from only renders the person so remarrying liable for
discovery of the concealment. bigamy, his subsequent marriage will likewise be
void ab initio for failure to comply with Art. 40.
c) Legal Separation:
1. Drug addiction arises during the marriage and Thus, while James’ marriage to Ophelia is void
not at the time of marriage. ab initio because of his subsisting prior
2. There should be no condonation or consent to marriage to Mary, he should have first had said
the drug addiction; marriage declared void before remarrying. Not
3. The action must be filed within five (5) years having done so, he is guilty of bigamy. More, his
from the occurrence of the cause. marriage to Shirley is also void ab initio due to
non-compliance with Art. 40 of the Family Code.
Void marriage, public policy
ALTERNATIVE ANSWER:
State whether the following marital unions are valid, No. The contention of James is not correct. He
void, or voidable, and give the corresponding cannot set up as a defense his own criminal act
justifications for your answer: or wrongdoing.

b) Carlos’ marriage to Dina which took place after Lina married Hugo in a church ceremony. Hugo
Dina had poisoned her previous husband Edu in discovered that five years before, Lina married Sixto
order to free herself from any impediment in order to in a civil ceremony. Lina however, did not know at
live with Carlos. (2017 Bar) the time she married Sixto that the latter was
already married. Upon learning that Sixto was
SUGGESTED ANSWER: already married Lina immediately left Sixto and
b) Carlos’ and Dina’s marriage is void ab initio. since then had not seen nor heard from him. Lina,
Under Article 38 of the Family Code, a marriage however, did not take any step to have her marriage
where one of the parties kills his or her own with Sixto annuled before she married Hugo.
spouse, or the other’s spouse, in order to marry
the other party, is void ab initio by reason of Could Hugo successfully sue for a declaration of
public policy. Since Dina killed her husband Edu nullity of his marriage with Lina? Explain. (1987 Bar)

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SUGGESTED ANSWER: registrar has probative value and is sufficient

Yes, Hugo can successfully file for declaration of proof that said office did not, indeed, issue such
nullity of his marriage to Lina. Article 40 of the a license.
Family Code provides that the absolute nullity of
a previus marriage may be invoked for purposes b) In cases of marriages solemnized before the
of remarriage on the basis solely of a final effectivity of the Family Code, it is not
judgment declaring such previous marriage necessary that a judicial petition be filed to
void. Accordingly, even if a person’s marriage is declare the marriage null and void. In Castillo v.
void ab initio, he must first obtain a decree of Castillo (G.R. No. 189607, 18 April 2016), the
nullity of the same prior to remarrying. Supreme Court said that for marriages
Furthermore, the Supreme Court has declared contracted during the effectivity of the Civil
that a subsequent marriage, by a person who did Code, for purposes of remarriage, there is no
not first obtain a judicial declaration of nullity of need to obtain a judicial declaration of the
his previous marriage, is likewise void. In the nullity of the first marriage, there being no
instant case, even if Lina’s marriage to Sixto was express provision in the Civil Code requiring a
void, due to the fact that Sixto was already judicial declaration of nullity of a previous
married at the time he married Lina, the latter marriage for such. Accordingly, a person under
cannot contract a subsequent marriage without a marriage which is null and void ab initio may
first obtaining a judicial declaration of nullity of just remarry, and his subsequent marriage will
her previous marriage. Since she did so without be valid. On the other hand, for marriages
first obtaining such a judgment, her subsequent solemnized during the effectivity of the Family
marriage would also be null and void. Code, there being an express provision, Article
40, it is required, for purposes of remarriage,
Brad and Angelina had a secret marriage before a that a party first obtain a judicial declaration of
pastor whose office is located in Arroceros Street, nullity of his prior marriage, otherwise his
City of Manila. They paid money to the pastor who subsequent marriage shall also be void ab
took care of all the documentation. When Angelina initio.
wanted to go to the U.S., she found out that there
was no marriage license issued to them before their
marriage. Since their marriage was solemnized in Art. 41, valid bigamous marriage
1995 after the effectivity of the Family Code,
Angelina filed a petition for judicial declaration of Ana Rivera had a husband, a Filipino citizen like her,
nullity on the strength of a certification by the Civil who was among the passengers on board a
Registrar of Manila that, after a diligent and commercial jet plane which crashed in the Atlantic
exhaustive search, the alleged marriage license Ocean ten (10) years earlier and had never been
indicated in the marriage certificate does not appear heard of ever since. Believing that her husband had
in the records and cannot be found. died, Ana married Adolf Cruz Staedtler, a divorced
a) Decide the case and explain. German national born of a German father and a
b) In case the marriage was solemnized in Filipino mother residing in Stuttgart. To avoid being
1980 before the effectivity of the Family required to submit the required certificate of capacity
Code, is it required that a judicial petition be to marry from the German Embassy in Manila, Adolf
filed to declare the marriage null and void? stated in the application for marriage license that he
Explain. (2016 Bar) was a Filipino citizen. With the marriage license
stating that Adolf was a Filipino, the couple got
SUGGESTED ANSWER: married in a ceremony officiated by the Parish Priest
a) Angelina’s petition should be granted. Under of Calamba, Laguna in a beach in Nasugbu,
the Family Code, one of the formal requisites of Batangas, as the local parish priest refused to
marriage is a valid marriage license. The Family solemnize marriages except in his church. Is the
Code further provides that absence of an marriage valid? Explain fully. (2008 Bar)
essential or formal requisite shall render the
marriage void ab initio. In the instant case, there SUGGESTED ANSWER:
was no marriage license at the time Brad and The issue hinges on whether or not the missing
Angelina married each other. Accordingly, their husband was dead or alive at the time of the
marriage should be declared void ab initio. Note second marriage.
also that the Supreme Court, in a decided case
(Republic v. CA, 236 SCRA 257), has said that a If the missing husband was in fact dead at the
certification by the civil registrar that after time the second marriage was celebrated, the
diligent search it could not find the marriage second marriage was valid. Actual death of a
license in its records is competent and spouse dissolves the marriage ipso facto
sufficient proof of the non-existence of said whether or not the surviving spouse had
license. Being the custodian of marriage knowledge of such fact. A declaration of
licenses, such a certification by the civil presumptive death even if obtained will not
make the marriage voidable because
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 38

presumptive death will not prevail over the fact

of death. SUGGESTED ANSWER:
c) Eli’ and Fely’s marriage is valid. The Supreme
If the missing husband was in fact alive when Court has declared that if there is circumstantial
the second marriage was celebrated, the second evidence to show that a person is actually dead,
marriage was void ab initio because of a prior he need no longer be considered as
subsisting marriage. Had Ana obtained a presumptively dead, but must be considered as
declaration of presumptive death, the second actually dead. In this case, Chona is known to
marriage would have been voidable. have boarded the plane; which itself is known to
have crashed in the West Philippine Sea. More,
In both cases, the fact that the German seven years has already elapsed from the crash
misrepresented his citizenship to avoid having without Chona reappearing. The circumstances
to present his Certificate of Legal Capacity, or clearly show that Chona is already dead, not just
the holding of the ceremony outside the church missing. Since Chona is already dead, there is
or beyond the territorial jurisdiction of the no need to have her declared as presumptively
solemnizing officer, are all irregularities which dead first before Eli can remarry. Accordingly,
do not affect the validity of the marriage. since Eli is already a widower, he can validly
marry Fely.
ALTERNATIVE ANSWER:
The marriage is valid. As stated in the problem,
Ana Rivera’s husband was among the Voidable marriage, lack of parental consent
passengers on board a commercial jet plane
which crashed in the Atlantic Ocean ten (10) A and B, both 18 years old, were sweethearts
years earlier and said husband has never been studying in Manila. On August 3, 1988, while in first
heard of ever since. There is, thus, a year college, they eloped. They stayed in the house
preponderance of evidence on hand to show of a mutual friend in town X, where they were able to
that Ana Rivera’s husband is actually dead. obtain a marriage license. On August 30, 1988, their
Being actually dead, there is no more need for marriage was solemnized by the town mayor of X in
Ana Rivera to have the latter declared his office. Thereafter, they returned to Manila and
presumptively dead, hence she would now be continued to live separately in their respective
free to contract a subsequent marriage, which boarding houses, concealing from their parents, who
she did. were living in the province what they had done. In
1992, after graduation from college, A and B decided
The fact that the German misrepresented his to break their relation and parted ways. Both went
citizenship to avoid having to present his home to their respective towns to live and work.
Certificate of Legal Capacity, or the holding of a) Was the marriage of A and B solemnized on
the ceremony outside the church or beyond the August 30, 1988 by the town mayor of X in his office
territorial jurisdiction of the solemnizing officer, a valid marriage? Explain your answer.
are all irregularities which do not affect the b) Can either or both of them contract marriage with
validity of the marriage. another person without committing bigamy? Explain
your answer. (1993 Bar)
While there might be an issue as to the validity
of Adolf Cruz Staedtler’s divorce, as he is also a SUGGESTED ANSWER:
Filipino (his mother being a Filipino citizen) who a) The marriage of A and B is voidable because
has obtained a divorce abroad, the same should the marriage between the parties, both below 21
be held valid on the ground that under the years of age, was solemnized without the
theory of effective nationality, Adolf Cruz consent of the parents. (Art. 35, par. (2) and 45
Staedtler is effectively a German national, he par. (1), Family Code)
being a resident of Stuttgart, Germany. More,
whenever there is a doubt as to the validity of a b) Either or both of the parties cannot contract
marriage, the doubt should be construed in marriage in the Philippines with another person
favor of the marriage. In this case, any doubt as without committing bigamy. Article 40 of the
to the capacity of Adolf Cruz Staedtler to marry Family Code provides that the absolute nullity of
should be resolved in favor of his capacity. a previous marriage may be invoked for
purposes of remarriage soly on the basis of a
State whether the following marital unions are valid, final judgment declaring such previous marriage
void, or voidable, and give the corresponding void. In Tenebro v. CA (423 SCRA 272), the
justifications for your answer: Supreme Court declared that contracting a
subsequent marriage while a subsisting
c) Eli and Fely’s marriage solemnized seven years marriage exists is a ground for bigamy. Plainly,
after the disappearance of Chona, Eli’s previous the parties must first have their marriage
spouse, after the plane she had boarded crashed in declared void before they remarry, otherwise
the West Philippine Sea. (2017 Bar) they can be held guilty of bigamy.
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 39

parental consent in the case of G, a teenaged

Sidley and Sol were married with one (1) daughter, student of an exclusive college for girls. Three years
Solenn. Sedfrey and Sonia. were another couple later, her parents wanted to seek judicial annulment
with one son, Sonny. Sol and Sedfrey both perished on that ground. You were consulted and asked to
in the same plane accident. Sidley and Sonia met prepare the proper complaint. What advice would
when the families of those who died sued the you give G’s parents? Explain your answer. (1990
airlines and went through grief-counseling sessions. Bar)
Years later, Sidley and Sonia got married. At that
time, Solenn was four (4) years old and Sonny was SUGGESTED ANSWER:
five (5) years old. These two (2) were then brought G himself should file the complaint under Article
up in the same household. Fifteen (15) years later, 45 of the Family Code, and no longer the parents
Solenn and Sonny developed romantic feelings because G is already 22 years of age.
towards each other, and eventually eloped. On their
own and against their parents’ wishes they procured Maria and Luis, both Filipinos, were married by a
a marriage license and got married in church. Catholic priest in Lourdes Church, Quezon City in
1976. Luis was drunk on the day of his wedding. In
a) Is the marriage of Solenn and Sonny valid, fact, he slumped at the altar soon after the
voidable, or void? (2018 Bar) ceremony. After marriage, Luis never had a steady
b) If the marriage is defective, can the marriage be job because he was drunk most of the time. Finally,
ratified by free cohabitation of the parties? he could not get employed at all because of
drunkenness. Hence, it was Maria who had to earn
SUGGESTED ANSWER: a living to support herself and her child begotten
a) The marriage of Solenn and Sonny is with Luis. In 1986, Maria filed a petition in the church
voidable. matrimonial court in Quezon City to annul her
marriage with Luis on the ground of psychological
Under the Family Code, a marriage between incapacity to comply with his marital obligation. Her
parties who are 18 years of age or over but petition was granted by the church matrimonial
below 21 must have the consent of the parents court.
of the parties, otherwise the same shall be a) Can Maria now get married legally to another
voidable. man under Philippine laws after her marriage to Luis
was annulled by the church matrimonial court?
In the instant case, Solenn is only 19 years old, Explain.
while Sonny is only 20 years old. They married b) What must Maria do to enable her to get married
each other against their parents’ wishes. Clearly, lawfully to another man under Philippine laws?
their marriage did not have their parent’s (1993 Bar)
consent, hence the same is voidable.
SUGGESTED ANSWER:
Notably, the fact that their parents married each a) No, Maria cannot validly contract a
other has no effect on their marriage, as Solenn subsequent marriage without a court declaration
and Sonny remain unrelated to each other, even of nullity of the first marriage. The law does not
if they grew up together. recognize the church declaration of nullity of a
marriage.
b) The marriage of Solenn and Sonny can be b) To enable Maria to get married lawfully to
ratified by free cohabitation. another man, she must obtain a judicial
declaration of nullity of the prior marriage under
Under the Family Code, a marriage between Article 36 of the Family Code (if Luis’
parties who are 18 years of age or over but drunkenness is a symptom of a most serious
below 21, who did not obtain the consent of their personality disorder), or a decree of annulment
parents to the marriage is ratified if the parties, under Art. 45 (if Luis’ drunkenness constitutes
upon reaching the age of 21, continue to cohabit habitual alcoholism that was was concealed at
with each other and live together as husband the time of the celebration of the marriage).
and wife.
TRUE OR FALSE. The day after John and Marsha
In the instant case, Solenn and Sonny, who are got married, John told her that he was impotent.
19 and 20 respectively, got married against their Marsha continued to live with John for 2 years.
parents’ wishes. Their marriage may thus be Marsha is now estopped from filing an annulment
ratified by their continuing to cohabit with each case against John. (2007 Bar)
other when they both reach the age of 21.
SUGGESTED ANSWER:
FALSE. Marsha is not estopped from filing an
B and G, age 20 and 19. respectively, and both annulment case against John on the ground of
single, eloped and got married to each other without his impotence, because she learned of his
impotence after the celebration of the marriage
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 40

and not before. Physical incapability to b) Suppose that both parties at the time of their
consummate the marriage is a valid ground for marriage were similarly afflicted with sexually-
the annulment of marriage if such incapacity transmissible diseases, serious and incurable, and
was existing at the time of the marriage, both knew of their respective infirmities, can Bethel
continues and appears to be incurable. The or James sue for annulment of their marriage?
marriage may be annulled on this ground within (1991 Bar)
five years from its celebration (Art. 45 [5], Family
Code). SUGGESTED ANSWER:
a) The marriage can be annulled, because good
faith is not a defense when the ground is based
Voidable marriage, sexually transmissible disease upon sexually-transmissible disease on the part
of either party.
Yvette was found to be positive for HIV virus, b) Yes, the marriage can still be annulled
considered sexually transmissible, serious and because the fact that both of them are afflicted
incurable. Her boyfriend Joseph was aware of her with sexually-transmissible diseases does not
condition and yet married her. After two (2) years of efface or nullity the ground.
cohabiting with Yvette, and in his belief that she
would probably never be able to bear him a healthy ALTERNATIVE ANSWER:
child, Joseph now wants to have his marriage with b) No, the marriage can no longer be annulled,
Yvette annulled. Yvette opposes the suit contending because the fact that both were afflicted and that
that Joseph is estopped from seeking annulment of both knew of their respective infirmities
their marriage since he knew even before their constitutes a waiver of that ground.
marriage that she was afflicted with HIV virus.
Can the action of Joseph for annulment of his State whether the following marital unions are valid,
marriage with Yvette prosper? Discuss fully. (1995 void, or voidable, and give the corresponding
Bar) justifications for your answer:

SUGGESTED ANSWER: a) Ador and Becky’s marriage wherein

No. Joseph knew that Yvette was HIV positive at Ador was afflicted with AIDS prior to
the time of the marriage. He is, therefore, not an the marriage. (2017 Bar)
injured party. The FC gives the right to annul the
marriage only to an injured party. (Art. 47 (5), FC) SUGGESTED ANSWER:
a) Ador’ and Becky’s marriage is voidable. Under
ALTERNATIVE ANSWER: Article 45 of the Family Code, a marriage where
The action for annulment can prosper. Even if either party was, at the time of the marriage,
Joseph knew that Yvette was HIV positive, afflicted with a sexually transmissible disease
knowledge, or lack thereof, is not a requirement found to be serious and appears to be incurable
for a party to be able to file a petition for nullity is voidable. Since Ador was afflicted with AIDS
on the basis of a serious and apparently at the time of their marriage, a serious sexually
incurable sexually transmissible disease under transmissible disease which appears incurable
Art. 45 of the Family Code. Thus, so long as one at present, their marriage falls exactly under said
party to the marriage is thus afflicted, the other provision, hence, their marriage is voidable.
party would have a ground to file for annulment,
more so that the ailment is a continuing threat to Gigi and Ric, Catholics, got married when they were
the health of the unafflicted spouse. 18 years old. Their marriage was solemnized on
August 2, 1989 by Ric’s uncle, a Baptist Minister, in
One of the grounds for annulment of marriage is that Calamba, Laguna. He overlooked the fact that his
either party, at the time of their marriage was license to solemnize marriage expired the month
afflicted with a sexually-transmissible disease, found before and that the parties do not belong to his
to be serious and appears incurable. Two (2) years congregation. After 5 years of married life and
after their marriage, which took place on 10 October blessed with 2 children, the spouses developed
1988, Bethel discovered that her husband James irreconcilable differences, so they parted ways.
has a sexually-transmissible disease which he
contracted even prior to their marriage although While separated, Ric fell in love with Juliet, a 16
James did not know it himself until he was examined year-old sophomore in a local college and a
two (2) years later when a child was already born to Seventh-Day Adventist. They decided to get married
them. Bethel sues James for annulment of their with the consent of Juliet’s parents. She presented
marriage. James opposes the annulment on the to him a birth certificate showing she is 18 years old.
ground that he did not even know that he had such a Ric never doubted her age much less the
disease so that there was no fraud or bad faith on authenticity of her birth certificate. They got married
his part. in a Catholic church in Manila a year after, Juliet
Decide. gave birth to twins, Aissa and Aretha.

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(1) What is the status of marriage between Gigi and not have any effect on the validity of the
Ric - valid, voidable or void? Explain. marriage because Ric and Gigi can be presumed
(2) What is the status of the marriage between Ric to have believed in good faith that the Minister
and Juliet - valid, voidable or void? Explain. had a valid license.
(3) Suppose Ric himself procured the falsified birth
certificate to persuade Juliet to marry him despite (2) The marriage between Ric and Juliet is void
her minority and assured her that everything is in because Juliet was below 18 years of age. Under
order. He did not divulge to her his prior marriage the Family Code, the requisite age for legal
with Gigi. What action, if any, can Juliet take against capacity to contract marriage is 18 years old and
him? Explain. a marriage by a party who is below 18 years old
(4) If you were the counsel for Gigi, what action/s is void under all circumstances. Hence, even
will you take to enforce and protect her interests? though Juliet’s parents have given their consent
Explain. (2006 Bar) to the marriage and even though Ric believed in
good faith that she was 18 years old, the
SUGGESTED ANSWER: marriage is void.
(1) The marriage between Gigi and Ric is void
because a minister has no authority to (3) a) Juliet may file an action to declare her
solemnize a marriage between contracting marriage to Ric null and void on the ground that
parties who were both not members of the she was not of marrying age. (b) She may also
minister’s religious sect. Under the Family Code, file a criminal case against Ric for bigamy
a minister or a priest has authority to solemnize because he contracted the marriage with her
a marriage but only if one or both contracting without a judicial declaration of nullity of his first
parties are members of the religious sect of the marriage to Gigi. (c) She may also file a criminal
priest or minister. Since neither Ric or Gigi was a case for falsification, perjury, or illegal marriage
member of the Baptist Church because both of as the case may be. (d) In case the facts and the
them were Catholic, the Baptist Minister did not evidence will warrant, she may also file a
have authority to solemnize their marriage. criminal case for seduction. In all these cases,
Ric and Gigi cannot claim that they believed in Juliet may recover damages.
good faith and that the Baptist Minister had the
authority to solemnize the marriage and invoke (4) As counsel for Gigi, I will file an action for the
Article 35 (2) of the Family Code to make the declaration of nullity of Gigi’s marriage to Ric on
marriage valid. The provision of the Family Code the ground of absence of authority of the Baptist
applies only to a mistake of fact, and not to a Minister to solemnize the marriage between Ric
mistake of law. Hence, the fact that the and Gigi who were both non-members of the
Minister’s license was expired will not affect the Baptist Church.
validity of the marriage if Ric or Gigi believed in
good faith that the Minister had a valid license. ANOTHER SUGGESTED ANSWER:
That would be a mistake of fact. However, As counsel for Gigi, and on the basis of the legal
believing that the Minister had authority to presumption that her marriage to Ric is valid, I
solemnize the marriage even if none of the will file the following actions:
contracting parties was a member of the (1) Legal separation on the grounds of
Minister’s religious sect is a mistake of law. This subsequent bigamous marriage and sexual
is because the law expressly provides that the infidelity,
Minister has authority only if one or both (2) Receivership of the conjugal or community
contracting parties are members of the property,
Minister’s religious sect. A mistake of law does (3) Judicial separation of property,
not excuse from noncompliance therewith. (4) Petition for sole administration of the
conjugal or community property,
ANOTHER SUGGESTED ANSWER: (5) Action for damages for abuse of right, and
The marriage between Ric and Gigi is valid. (6) Action to declare the marriage of Ric and
Assuming that the parents of Ric and Gigi did Juliet as null and void and to recover her share
not give their consent to the marriage, the in her community of property with Ric,
marriage would have been voidable. However, it consisting of the portion shared by Ric in
was ratified when Ric and Gigi continued whatever property was commonly or jointly
cohabiting for 2 years after they attained the age acquired by Ric and Juliet.
of 21. It must be noted that they had 5 years of
married life or until they were 23 years old. Which of the following remedies, i.e., (a) declaration
The fact that neither Ric nor Gigi was a Baptist of nullity of marriage, (b) annulment of marriage, (c)
would be just a mere irregularity in the authority legal separation, and/or (d) separation of property,
of the Baptist Minister to solemnize the can an aggrieved spouse avail himself/herself of-
marriage. Hence, it would have no adverse effect (i) If the wife discovers after the marriage that her
on the validity thereof. Also, the fact that the husband has “AIDS”
license of the Baptist Minister was expired will
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(iii) If the husband discovers after the marriage that partition and distribution of properties under
his wife has been a prostitute before they got Article 147 of the Code. The Family Code
married. (2003 Bar) provisions requiring the liquidation, partition
and distribution of properties after a marriage is
SUGGESTED ANSWER: declared null and void ab initio or annulled,
(i) Since AIDS is a serious and incurable apply only to marriages declared null and void
sexually-transmissible disease, the wife may file ab initio under Art. 40 or annulled under Art. 45,
an action for annulment of the marriage on this it does not apply to marriages declared null and
ground whether such fact was concealed or not void under Art. 36 of the Family Code.
from the wife, provided that the disease was
present at the time of the marriage. The marriage
is voidable even though the husband was not Marriage declared void, dissolution, presumptive
aware that he had the disease at the time of legitimes
marriage.
(iii) If the husband discovers after the marriage What do you understand by “presumptive legitime”,
that his wife was a prostitute before they got in what case or cases must the parent deliver such
married, he has no remedy. No legitime to the children, and what are the legal
misrepresentation or deceit as to character, effects in each case if the parent fails to do so?
health, rank, fortune or chastity shall constitute (1999 Bar)
fraud as legal ground for an action for the
annulment of marriage (Article 46 FC). SUGGESTED ANSWER:
Presumptive legitime is not defined in the law.
Its definition must have been taken from Act
2710, the Old Divorce Law, which required the
Marriage void under Art. 36, dissolution delivery to the legitimate children of “the
equivalent of what would have been due to them
Miko and Dinah started to live together as husband as their legal portion if said spouse had died
and wife without the benefit of marriage in 1984. intestate immediately after the dissolution of the
Ten (10) years after, they separated. In 1996, they community of property.” As used in the Family
decided to live together again, and in 1998, they got Code, presumptive legitime is understood as the
married. equivalent of the legitimate children’s legitimes
assuming that the spouses had died
On February 17, 2001, Dinah filed a complaint for immediately after the dissolution of the
declaration of nullity of her marriage with Miko on community of property.
the ground of psychological incapacity under Article Presumptive legitime is required to be delivered
36 of the Family Code. The court rendered the to the common children of the spouses when the
following decision: marriage is annulled or declared void ab initio
and possibly, when the conjugal partnership or
1. Declaring the marriage null and absolute community is dissolved as in the case
void; of legal separation. Failure of the parents to
2. Dissolving the regime of absolute deliver the presumptive legitime will make their
community of property; and subsequent marriage null and void under Article
3. Declaring that a decree of 53 of the Family Code.
absolute nullity of marriage shall
only be issued after liquidation, Is there any law which allows the delivery to
partition and distribution of the compulsory heirs of their presumptive legitimes
parties' properties under Article 147 during the lifetime of their parents? If so, in what
of the Family Code.” instances? (1991 Bar)

Dinah filed a motion for partial reconsideration SUGGESTED ANSWER:

questioning the portion of the decision on the Yes, under Arts. 51 and 52 of the New Family
issuance of a decree of nullity of marriage only after Code, in, case of legal separation, annulment of
the liquidation, partition and distribution of marriage, declaration of nullity of marriage and
properties under Article 147 of the Code. the automatic termination of a subsequent
marriage by the reapperance of the absent
If you are the judge, how will you decide petitioner's spouse, the common or community property of
motion for partial reconsideration? Why? (2014 Bar) the spouses shall be dissolved and liquidated.
Art. 51. In said partition, the value of the
presumptive legitimes of all common children,
SUGGESTED ANSWER: computed as of the date of the final judgment of
The motion should be granted, with the decree the trial court, shall be delivered in cash,
of nullity to be issued upon finality of the property or sound securities, unless the parties,
decision, without waiting for the liquidation,

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by mutual agreement, judicially approved, had wanted to be married as soon as possible, i.e., after
already provided for such matters. a few months of courtship. As a young lawyer, you
The children of their guardian, or the trustee of were consulted by H.
their property, may ask for the enforcement of
the judgment. How soon can H be joined in lawful wedlock to his
The delivery of the presumptive legitimes herein girlfriend S? Under existing laws, are there certain
prescribed shall in no way prejudice the ultimate requisites that must be complied with before he can
successional rights of the children accruing remarry? What advice would you give H? (1990
upon the death of either or both of the parents; Bar)
but the value of the properties already received
under the decree of annulment or absolute SUGGESTED ANSWER:
nullity shall be considered as advances on their a) H, or either spouse for that matter, can marry
legitime. again after complying with the provisions of
Art. 52. The judgment of annulment or of Article 52 of the Family Code, namely, there
absolute nullity of the marriage, the partition and must be a partition and distribution of the
distribution of the properties of the spouses, properties of the spouses, and the delivery of
and the delivery of the children’s presumptive the children’s presumptive legitimes, which
legitimes shall be recorded in the appropriate should be recorded in the appropriate civil
civil registry and registries of property: registry and registries of property. H should be
otherwise, the same shall not affect third so advised.
persons.
ALTERNATIVE ANSWER:
The following are the requisites prescribed by
Voidable marriage, drug addiction law and the advice to H is to comply with them,
namely:
Bert and Baby were married to each other on (1) If either spouse contracted the marriage in
December 23, 1988. Six months later, she bad faith, his or her share of the net profits of
discovered that he was a drug addict. Efforts to have the community property or conjugal partnership
him rehabilitated were unsuccessful. Can Baby ask property shall be forfeited in favor of the
for annulment of marriage, or legal separation? common children or, if there are none, the
Explain. (1996 Bar) children of the guilty spouse by a previous
marriage or, in default of children, the innocent
SUGGESTED ANSWER: spouse;
No, Baby cannot ask for annulment of her (2) Donations by reason of marriage shall remain
marriage or for legal separation because both valid, except that if the donee contracted the
these actions had already prescribed. marriage in bad faith, such donations made to
While concealment of drug addiction existing at said donee are revoked by operation of law;
the time of marriage constitutes fraud under Art. (3) The spouse who contracted the subsequent
46 of the FC which makes the marriage voidable marriage in bad faith shall be disqualified to
under Art. 45 of the FC, the action must, inherit from the innocent spouse by testate and
however, be brought within 5 years from the intestate succession;
discovery thereof under Article 47(3), FC. Since (4) If both spouses of the subsequent marriage
the drug addiction of Bert was discovered by acted in bad faith all donations by reason of
Baby in June 1989, the action had already marriage and testamentary dispositions made by
prescribed in June of 1994. one in favor of the other are revoked by
operation of law.
Although drug addiction is a ground for legal (5) The judgment of annulment of the marriage,
separation under Art. 55(5) and Art. 57 of the FC the partition and distribution of the properties of
requires that the action must be brought within 5 the spouses, and the delivery of the children’s
years from the occurrence of the cause. Since presumptive legitimes shall be recorded in the
Bert had been a drug addict from the time of the appropriate civil registry and registers of
celebration of the marriage, the action for legal property. (Articles 53, 52, 43, 44, Family Code))
separation must have been brought not later
than 23 December 1993. Hence, Baby cannot, State whether the following marital unions are valid,
now, bring the action for legal separation. void, or voidable, and give the corresponding
justifications for your answer:

Article 53 d) David who married Lina immediately the day after

obtaining a judicial decree annulling his prior
The marriage of H and W was annulled by the marriage to Elisa. (2017 Bar)
competent court. Upon finality of the judgment of
nullity, H began looking for his prospective second SUGGESTED ANSWER:
mate. He fell in love with a sexy woman S who
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 44

d) David and Lina’s marriage is void ab initio. properties and the delivery of the legitime to be
Under Art. 52 of the Family Code, a party who made with the appropriate civil registry and
has had his marriage declared null and void registries of property. It further provides that
must have the judgment registered with the Civil failure to comply with the said requirement shall
Registrar; and if the judgment orders the render the marriage null and void. If there was
dissolution of the said marriage’s property such a recording, the marriage is valid.
regime, and the delivery of legitimes to the Otherwise, the marriage is void. Nevertheless,
children, the same must likewise be recorded in child “Y” is a legitimate child because it was
the Civil Registry and the proper registries of born during the marriage of Cesar and Rosa.
property. Furthermore, according to Art. 53 of b) Since the problem does not state that there
the Family Code, failure to comply with this will was compliance with the requirements as to
render a parties’ subsequent marriage null and recording of judgment of nullity and the
void. Since David married Lina the day liquidation and delivery of the presumptive
immediately after obtaining the decree of legitime of the child “X”, the marriage of Cesar
annulment of his previous marriage, he has and Rosa is void. However, the child “Y” is
clearly not complied with the registration legitimate because it was born during the
requirement, thereby failing to comply with marriage of Cesar and Rosa.
Article 52. Consequently, his marriage to Lina
would be null and void.
Legal Separation
Cesar and Baby contracted marriage on June 15,
1983. A year later, Baby bore a child, “X” The If drug addiction, habitual alcoholism, lesbianism or
following year, the couple acquired a car and a homosexuality should occur only during the
residential lot in Metro Manila. On September 1, marriage, would these constitute grounds for a
1988, the marriage was declared void from the declaration of nullity or for legal separation, or would
beginning by a competent court because Cesar was they render the marriage voidable? (2002 Bar)
below 16 years of age at the time of the marriage.
Sometime in December, 1988, Cesar met Rosa with SUGGESTED ANSWER:
whom he fell in love. Cesar married Rosa on In accordance with law, if drug addiction,
January 15, 1989. On September 1, 1989, Rosa habitual alcoholism, lesbianism or
gave birth prematurely to a child, “Y”. Is the homosexuality should occur only during the
marriage of Cesar and Rosa valid? What is the marriage, they:
status of the child “Y?” Give your reasons. (1989 (1) will not constitute as grounds for declaration
Bar) of nullity (Art. 36, Family Code);
(2) will constitute as grounds for legal
SUGGESTED ANSWER: separation (Art. 55, FC); and
Article 52 of the Family Code requires that the (3) will not constitute as grounds to render the
judgment of annulment or of absolute nullity of marriage voidable (Art. 45 and 46, FC).
the marriage, the partition and distribution of the
properties of the spouses and the delivery of the Cadio and Corona contracted marriage on June 1,
children's presumptive legitimes be recorded in 1982. A few days after the marriage, Corona
the appropriate civil registry and registries of discovered that Cadio was a homosexual. As
property. Article 53 of the same Code further homosexuality was not a ground for legal separation
provides that failure to comply with Art. 52 shall under the Civil Code, there was nothing that Corona
render a subsequent marriage null and void ab could do but bear with her problem. The couple,
initio. Accordingly, if there was a partition and however, stated to live separately. With the
liquidation of the properties of the first marriage enactment of the Family Code, Corona decided to
and the presumptive legitime of “X” was duly be legally separated from Cadio based on the new
delivered, and the judgment, partition and ground of homosexuality. Corona brought her action
delivery of legitimes were recorded in the proper for legal separation on September 15, 1988. Will the
civil registry and registries of property, the action prosper? Give your reasons. (1989 Bar)
second marriage is valid. If there was no such
compliance, then the subsequent marriage is SUGGESTED ANSWER:
void. Whether the marriage between Cesar and Yes, the action will prosper because the “cause”
Rosa is declared valid or not, “Y” would be arose only on August 3, 1988, the effectivity of
legitimate, as Article 54 of the Family Code the Family Code, and the action had not yet
states that “children conceived or born of the prescribed.
subsequent marriage under Article 53 shall
likewise be legitimate.” ALTERNATIVE ANSWER:
The action will prosper. The offense of
ALTERNATIVE ANSWERS: homosexuality as a continuing offense can be a
a) The Family Code requires the registration of ground for legal separation. The prescriptive
the judgment of nullity, the partition of the period of five years will apply only when the
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 45

offense has a fixed period of time and, therefore, (3) If you were the judge, how will you decide the
the date of its occurrence can be computed. case? (2006 Bar)

Which of the following remedies, i.e., (a) declaration SUGGESTED ANSWER:

of nullity of marriage, (b) annulment of marriage, (c) (1) If I were the counsel for Saul, I would argue
legal separation, and/or (d) separation of property, that attempt by one spouse against the life of the
can an aggrieved spouse avail himself/herself of- other is a valid ground for legal separation and
(ii) If the wife goes abroad to work as a nurse and that there is no need for conviction in a criminal
refuses to come home after the expiration of her case.
three-year contract there.
(iv) If the husband has a serious affair with his (2) If I were the lawyer of Cecile, I will interpose
secretary and refuses to stop notwithstanding advice the defense that the attempt on his life was
from relatives and friends. without criminal intent but was impelled solely
(v) If the husband beats up his wife every time he by passion and obfuscation. This is the reason
comes home drunk. (2003 Bar) why under the Revised Penal Code, even killing
him when caught in the act would be justified. To
SUGGESTED ANSWER: be a ground for legal separation, the attempt
(ii) If the wife refuses to come home for three (3) must be intentional and wrongful.
months from the expiration of her contract, she
is presumed to have abandoned the husband (3) As judge, I will deny the petition. A petition
and he may file an action for judicial separation for legal separation may be filed only by the
of property. If the refusal continues for more aggrieved spouse. Since Saul was unfaithful and
than one year from the expiration of her was in fact caught in flagrante by his wife, he is
contract, the husband may file the action for not an “aggrieved” spouse entitled to the relief.
legal separation under Art. 55 (10) of the Family He who comes to court must come with clean
Code on the ground of abandonment of hands. And even assuming that the attempt on
petitioner by respondent without justifiable his life by the wife is a ground for legal
cause for more than one year. The wife is separation, he is still not entitled to the relief
deemed to have abandoned the husband when because of his infidelity. The law does not allow
she leaves the conjugal dwelling without any legal separation if both parties have given
intention of returning (Article 101, FC). The ground for legal separation.
intention not to return cannot be presumed
during the 3-year period of her contract. After they got married, Nikki discovered that
(iv) The wife may file an action for legal Christian was having an affair with another woman.
separation. The husband’s sexual infidelity is a But Nikki decided to give it a try and lived with him
ground for legal separation (Article 55, FC). She for two (2) years. After two (2) years, Nikki filed an
may also file an action for judicial separation of action for legal separation on the ground of
property for failure of her husband to comply Christian’s sexual infidelity. Will the action prosper?
with his marital duty of fidelity (Article 135(4), Explain. (2012 Bar)
101, FC).
(v) The wife may file an action for legal SUGGESTED ANSWER:
separation on the ground of repeated physical The action will not prosper on account of
violence on her person (Article 55(1), FC). She condonation. Under Art. 56 of the Family Code,
may also file an action for judicial separation of the petition for legal separation shall be denied
property for failure of the husband to comply where the aggrieved party has condoned the
with his marital duty of mutual respect (Article offense or act complained of. By deciding to live
135(4), Article 101, FC). She may also file an with Christian after discovering his affair with
action for declaration of nullity of the marriage if another woman, Nikki has basically condoned
the husband’s behavior constitutes the sexual infidelity of Christian, hence
psychological incapacity existing at the time of Nikki’s action will not prosper on account of
the celebration of marriage. condonation Note, however, that this assumes
that Christian ended his affair after Nikki’s
Saul, a married man, had an adulterous relation with discovery of the same. If such affair is still
Tessie. In one of the trysts, Saul’s wife, Cecile, continuing, Nikki’s action would prosper
caught them in flagrante. Armed with a gun, Cecile because condonation only covers Christian’s
shot Saul in a fit of extreme jealousy, nearly killing sexual infidelity up to the discovery of his affair.
him. Four (4) years after the incident, Saul filed an The acts of sexual infidelity after such discovery
action for legal separation against Cecille on the would not be covered, and would be grounds for
ground that she attempted to kill him. legal separation.
(1) If you were Saul’s counsel, how will you argue
his case? Rosa and Ariel were married in the Catholic Church
(2) If you were the lawyer of Cecile, what will be of Tarlac, Tarlac on January 5, 1988. In 1990, Ariel
your defense? went to Saudi Arabia to work. There, after being
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 46

converted into Islam, Ariel married Mystica. Rosa 46 of the FC which makes the marriage voidable
learned of the second marriage of Ariel on January under Art. 45 of the FC, the action must,
1, 1992 when Ariel returned to the Philippines with however, be brought within 5 years from the
Mystica. Rosa filed an action for legal separation on discovery thereof under Article 47(3), FC. Since
February 5, 1994. the drug addiction of Bert was discovered by
a) Does Rosa have legal grounds to ask for legal Baby in June 1989, the action had already
separation? prescribed in June of 1994.
b) Has the action prescribed? (1994 Bar)
Although drug addiction is a ground for legal
SUGGESTED ANSWER: separation under Art. 55(5) and Art. 57 of the FC
a) Yes. The contracting of a subsequent requires that the action must be brought within 5
bigamous marriage whether in the Philippines or years from the occurrence of the cause. Since
abroad is a ground for legal separation under Bert had been a drug addict from the time of the
Article 55(7) of the Family Code. Whether the celebration of the marriage, the action for legal
second marriage is valid or not, Ariel having separation must have been brought not later
converted into Islam, is immaterial. than 23 December 1993. Hence, Baby cannot,
now, bring the action for legal separation.
(NOTE: The second marriage is actually void. Rosa
and Ariel are governed by the Family Code. Given
that marriage is a contract, one of the parties cannot Property Relations Between Husband And Wife
unilaterally change the terms of the contract, to
include the law governing the same, without the TRUE or FALSE. If there is no marriage settlement,
consent of the other. Ariel’s conversion to Islam, is the salary of a “spouse” in an adulterous marriage
an attempt to change the terms of the contract belongs to the conjugal partnership of gains. (2009
without the consent of Rosa, hence void. Bar)

2) No. Under Article 57 of the Family Code, the SUGGESTED ANSWER:

aggrieved spouse must file the action within five FALSE. If there is no marriage settlement, the
(5) years from the occurrence of the cause. The spouses will be governed by a property regime
subsequent marriage of Ariel could not have of absolute community of property, hence if one
occurred earlier than 1990, the time he went to of the spouses to the marriage enter into a
Saudi Arabia. Hence, Rosa has until 1995 to subsequent marriage during the subsistence of
bring the action under the Family Code. the same, salaries earned by said party during
the 2nd “marriage” will belong to the absolute
If a man commits several acts of sexual infidelity, community of the 1st marriage (Art. 148, Family
particularly in 2002, 2003, 2004, 2005, the Code).
prescriptive period to file for legal separation runs
from 2002. (2007 Bar) After finding out that his girlfriend Sandy was
four (4) months pregnant, Sancho married Sandy.
SUGGESTED ANSWER: Both were single and had never been in any serious
FALSE. The five-year prescriptive period for relationship in the past. Prior to the marriage, they
filing legal separation runs from the occurrence agreed in a marriage settlement that the regime of
of each act of sexual infidelity. Hence, the conjugal partnership of gains shall govern their
prescriptive period for the sexual infidelity property relations during marriage. Shortly after the
committed in 2002 runs from 2002; for the sexual marriage, their daughter, Shalimar, was born.
infidelity committed in 2003, the prescriptive
period runs from 2003 and so on. The action for Before they met and got married, Sancho
legal separation for the last act of sexual purchased a parcel of land on installment, under a
infidelity in 2005 will prescribe in 2010. Contract of Sale, with the full purchase price
payable in equal annual amortizations over a period
Bert and Baby were married to each other on often (10) years, with no down payment, and
December 23, 1988. Six months later, she secured by a mortgage on the land. The full
discovered that he was a drug addict. Efforts to have purchase price was PhP1 million, with interest at the
him rehabilitated were unsuccessful. Can Baby ask rate of 6% per annum. After paying the fourth (4th)
for annulment of marriage, or legal separation? annual installment, Sancho and Sandy got married,
Explain. (1996 Bar) and Sancho completed the payments in the
subsequent years from his salary as an accountant.
SUGGESTED ANSWER: The previous payments were also paid out of his
No, Baby cannot ask for annulment of her salary. During their marriage, Sandy also won
marriage or for legal separation because both PhP1million in the lottery and used it to purchase
these actions had already prescribed. jewelry. When things didn’t work out for the couple,
While concealment of drug addiction existing at they filed an action for declaration of nullity of their
the time of marriage constitutes fraud under Art. marriage based on the psychological incapacity of
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 47

both of them. When the petition was granted, the because it is contrary to law. Stipulation (2) is
parcel of land and the jewelry bought by Sandy were valid up to 1/5 of their respective present
found to be the only properties of the couple. properties but void as to the excess (Art. 84,
Family Code).
(b) What system of property relationship will be c) No, on September 15, 1991, the marriage
liquidated following the declaration of nullity of settlement is not yet valid and enforceable until
their marriage? (2.5%) the celebration of the marriage, to take place
before the last day of the 1991 Bar
SUGGESTED ANSWER: Examinations.
The property regime to be liquidated between
the spouses is the regime of conjugal On 10 September 1988 Kevin, a 26-year old
partnership of gains. businessman, married Karla, a winsome lass of 18.
Without the knowledge of their parents or legal
Under the Family Code, parties are free to guardians, Kevin and Karla entered into an
choose what property regime will govern their antenuptial contract the day before their marriage
property relations during the marriage, so long stipulating that conjugal partnership of gains shall
as they do so in a marriage settlement executed govern their marriage. At the time of their marriage
in writing, and signed by the parties, before the Kevin’s estate was worth 50 Million while Karla’s
marriage. was valued at 2 Million.
A month after their marriage Kevin died in a freak
In the instant case, it appears that Sancho and helicopter accident. He left no will, no debts, no
Sandy entered into a written marriage settlement obligations. Surviving Kevin, aside from Karla, are
prior to their marriage wherein they chose his only relatives: his brother Luis and first cousin
conjugal partnership of gains as the property Lilia.
regime that would govern their marriage. On the a) What property regime governed the marriage of
assumption that they had signed the marriage Kevin and Karla? Explain.
settlement, their subsequent marriage would b) Determine the value of the estate of Kevin.
then be governed by the regime of conjugal c) Who are Kevin’s heirs?
partnership of gains. d) How much is each of Kevin’s heirs entitled to
inherit? (1995 Bar)
Bar Candidates Patricio Mahigugmaon and Rowena
Amor decided to marry each other before the last SUGGESTED ANSWER:
day of the 1991 Bar Examinations. They agreed to a) Since the marriage settlement was entered
execute a Marriage Settlement. Rowena herself into without the consent and without the
prepared the document in her own handwriting. participation of the parents (they did not sign the
They agreed on the following: (1) a conjugal document), the marriage settlement is invalid
partnership of gains; (2) each donates to the other applying Art. 78, F.C. which provides that a
fifty percent (50%) of his/her present property; (3) minor who according to law may contract
Rowena shall administer the conjugal partnership marriage may also enter into marriage
property; and (4) neither may bring an action for the settlements but they shall be valid only if the
annulment or declaration of nullity of their marriage. person who may give consent to the marriage
Both signed the agreement in the presence of two are made parties to the agreement. (Karla was
(2) witnesses. They did not, however, acknowledge still a minor at the time the marriage settlement
it before a notary public. was executed in September 1988 because the
a) As to form, is the Marriage Settlement valid? May law, R.A. 6809, reducing the age of majority to 18
it be registered in the registry of property? If not, years took effect on 18 December 1989). The
what steps must be taken to make it registerable? marriage settlement being void, the property
b) Are the stipulations valid? regime governing the marriage is, therefore,
c) If the Marriage Settlement is valid as to form and absolute community of property, under Art. 75 of
the above stipulations are likewise valid, does it now the FC.
follow that said Marriage Settlement is valid and
enforceable? (1991 Bar) (NOTE: At present, it is believed that Art. 78 is
already defunct, as a “minor who may contract
SUGGESTED ANSWER: marriage” no longer exists, given the lowering of the
a) Yes, it is valid as to form, because it is in age of majority to 18.).
writing, signed by the parties, and executed
prior to the marriage. b) All the properties which Kevin and Karla
No, it cannot be registered in the registry of owned at the time of marriage became
property because it is not a public document. To community property which shall be divided
make it registerable, it must be notarized. equally between them at dissolution. Since
b) Stipulations (1) and (3) are valid because they Kevin owned 50 Million and Karla, 2 Million, at
are not contrary to law. Stipulation (4) is void the time of the marriage, 52 Million constituted
their community property. Upon the death of
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Kevin, the community was dissolved and half of

the 52 Million or 26 Million is his share in the SUGGESTED ANSWER:
community. This 26 Million therefore is his b) Since the marriage settlement was binding
estate. between the parties, conjugal partnership of
gains was the regime of their property relations.
c) Karla and Luis are the intestate heirs of Kevin. Under the regime of conjugal partnership of
gains, all properties acquired by the spouses
d) They are entitled to share the estate equally during the marriage, jointly or by either one of
under Article 1001 of the Civil Code. Therefore, them, through their work or industry are
Karla gets 13 Million and Luis gets 13 Million. conjugal. Therefore, the residential house and
lot, and the condominium unit are conjugal
Gabby and Mila got married at Lourdes Church in having been jointly acquired by the couple
Quezon City on July 10, 1990. Prior thereto, they during the marriage. Inasmuch as the
executed a marriage settlement whereby they subsequent agreement on dissolution of the
agreed on the regime of conjugal partnership of conjugal partnership and separation of property
gains. The marriage settlement was registered in the was invalid, conjugal partnership subsisted
Register of Deeds of Manila, where Mila is a between the parties. Therefore, the mansion and
resident. In 1992, they jointly acquired a residential the agricultural land are also conjugal having
house and lot, as well as a condominium unit in been acquired by one of the spouses during the
Makati. In 1995, they decided to change their marriage.
property relations to the regime of complete
separation of property. Mila consented, as she was c) What properties may be held answerable for
then engaged in a lucrative business. The spouses Mila’s obligations? Explain.
then signed a private document dissolving their
conjugal partnership and agreeing on a complete SUGGESTED ANSWER:
separation of property. c) The marriage settlement cannot prejudice
third parties, such as the creditors, because it
Thereafter, Gabby acquired a mansion in Baguio was not registered with the local civil registrar
City, and a 5-hectare agricultural land in Oriental where the marriage was recorded. To bind third
Mindoro, which he registered exclusively in his parties, the Family Code requires registration of
name. the marriage settlement not only with the proper
registers of deeds but also with the local civil
In the year 2000, Mila’s business venture failed, and registrar where the marriage was recorded.
her creditors sued her for P10,000,000.00. After Hence, if the rules on conjugal partnership will
obtaining a favorable judgment, the creditors sought prejudice the creditors, the rules on absolute
to execute on the spouses’ house and lot and community will be applied instead. However,
condominium unit, as well as Gabby’s mansion and insofar as debts contracted by one spouse
agricultural land. without the consent of the other are concerned,
a) Discuss the status of the first and the amended the rule is the same for both conjugal
marriage settlements. (2005 Bar) partnership and absolute community. The
partnership or community is liable for debts
SUGGESTED ANSWER: contracted by one spouse but only to the extent
a) 1) The first marriage settlement was valid that it benefited the family. Therefore, if the
because it was in writing, signed by the parties debts contracted by Mila redounded to the
and executed before the celebration of the benefit of the family, all the conjugal partnership
marriage. properties are liable to pay them but only to the
2) The subsequent agreement of the parties was extent the family was benefited. The separate
void as a modification of their marriage properties of Mila may be held answerable for
settlement. To be valid, the modification must be Mila’s debts and obligations that did not
executed before the celebration of the marriage. redound to the benefit of the family.
The subsequent agreement of the parties,
having been executed after the celebration of Marco and Gina were married in 1989. Ten years
their marriage, did not effect a dissolution of later, or in 1999, Gina left Marco and lived with
their conjugal partnership and a separation of another man, leaving their two children of school
their properties, more so that it was not age with Marco. When Marco needed money for
approved by the court. To be valid, an agreement their children's education he sold a parcel of land
by the parties to dissolve their conjugal registered in his name, without Gina's consent,
partnership and to separate their properties which he purchased before his marriage. Is the sale
during the marriage has to be approved by the by Marco valid, void or voidable? Explain with legal
court. basis. (2015 Bar)

b) Discuss the effect/s of the said settlements on the SUGGESTED ANSWER:

properties acquired by the spouses.
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The sale is void. Under the Family Code, when a) Yes. The Family Code provides that all
persons marry without entering into a marriage property acquired during the marriage, whether
settlement prior thereto, the spouses will be the acquisition appears to have been made,
governed by a property regime of absolute contracted or registered in the name of one or
community of property. Under said regime, both spouses, is presumed to be absolute
property owned by one spouse before the community property unless the contrary is
marriage shall form part of the absolute proved. Paulita’s physical separation from her
community of property. Furthermore, under said husband did not dissolve the community of
regime, should one spouse want to dispose or property. Hence, the husband has a right to
sell absolute community property, he must share in the shares of stock. Alberto’s right to
obtain the written consent of the other spouse claim his share will only arise, however, at
or authorization of the court, otherwise the dissolution.
disposition or sale will be void. In this case, the
parcel of land purchased by Marco before his b) Under a community of property, whether
marriage became absolute community property absolute or relative, the disposition of property
upon his marriage, hence the same could be belonging to such community is void if done by
disposed of by him only with the written consent just one spouse without the written consent of
of Gina. As he did so without the latter’s the other or authority of the proper court.
consent, the same is void. However, the land was registered in the name of
Paulita as “widow”. Hence, the buyer has the
right to rely upon what appears in the record of
Donations propter nuptias the Register of Deeds and should, consequently,
be protected. Alberto cannot recover the land
On the occasion of Digna’s marriage to George, her from Rafael but would have the right of recourse
father gave her a donation propter nuptias of a car. against his wife.
Subsequently, the marriage was annulled because
of the psychological immaturity of George. May ANOTHER ANSWER:
Digna’s father revoke the donation and get back the The parcel of land is absolute community
car? Explain. (1996 Bar) property having been acquired during the
marriage and through Paulita’s industry despite
SUGGESTED ANSWER: the registration being only in the name of
Yes, the donation can be revoked. The ground Paulita. The land being community property, its
used in dissolving the marriage was the sale to Rafael without the consent of Alberto is
psychological immaturity of George, which is void. However, since the land is registered in the
not a ground for annulment of marriage. If this name of Paulita as widow, there is nothing in the
term is equated with psychological incapacity as title which would raise a suspicion for Rafael to
used in Art. 36 of the Family Code, then it is a make inquiry. He, therefore, is an innocent
ground for declaration of nullity of the marriage, purchaser for value from whom the land may no
Consequently, par. (1) of Art. 86, FC, is the longer be recovered.
applicable law. Since Art. 86 of the FC makes no
qualification as to who furnished the ground or What properties are excluded from the regime of
who was in bad faith in connection with the absolute community of property between spouses?
nullification of the marriage, the conclusion is (1989 Bar)
that Digna’s father may revoke the donation and
get back the car. SUGGESTED ANSWER:
The following shall be excluded from the
Absolute Community of Property community property:
(1) Property acquired during the marriage by
Paulita left the conjugal home because of the gratuitous title by either spouse, and the fruits
excessive drinking of her husband, Alberto. Paulita, as well as the income thereof, if any, unless it is
out of her own endeavor, was able to buy a parcel of expressly provided by the donor, testator or
land which she was able to register under her name grantor that they shall form part of the
with the addendum “widow.” She also acquired community property;
stocks in a listed corporation registered in her name. (2) Property for personal and exclusive use of
Paulita sold the parcel of land to Rafael, who first either spouse; however, jewelry shall form part
examined the original of the transfer certificate of of the community property;
title. (3) Property acquired before the marriage by
1) Has Alberto the right to share in the shares of either spouse who has legitimate descendants
stock acquired by Paulita? by a former marriage, and the fruits as well as
2) Can Alberto recover the land from Rafael? (1994 the income, if any, of such property.
Bar)
Spouses Martin and Tecla bought a parcel of land
SUGGESTED ANSWER: on installment. At the time the total sale price was
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paid, Martin had left the conjugal abode and was property under Art. 91 of the Family Code which
cohabiting with Tina. Notwithstanding such took effect in 1988 while the house and lot here
separation, Tecla religiously paid the installments as involved was purchased in 1990. There is no
they fell due out of her earnings from a small sari- indication that the spouse who bought the
sari store. After the total purchase price had been property had legitimate descendants by a former
paid, Martin had the property titled in the name of marriage, which would exclude the house and
“Martin married to Tina.” Tecla died and her two lot from the community property, (Art. 92[3],
children by Martin demanded partition of the Family Code). If the spouses established a
property and their mother’s share. Martin and Tina conjugal partnership, the property belongs to
refused, claiming that the property belonged to their the individual spouse if full ownership was
“conjugal partnership.” No proof was presented that vested before the marriage. (Art. 118, Family
Martin married Tina during or after the death of Code).
Tecla.
To whom does the property titled in the name of Mr. ZY lost P100,000 in a card game called Russian
“Martin married to Tina” belong? How would the poker, but he had no more cash to pay in full the
property be divided among Martin, the two children winner at the time session ended. He promised to
of Martin and Tecla and Tina? Explain. (1987 Bar) pay PX, the winner, two weeks thereafter. But he
failed to do so despite the lapse of two months, so
SUGGESTED ANSWER: PX filed in court a suit to collect the amount of
The property belongs to the absolute community of P50,000 that he won but remained unpaid. Could
Martin and Tecla. Article 91 of the Family Code Mrs. ZY file a suit against PX to recover the
states that the community property shall consist of P100,000 that her husband lost? Reason. (2004
all the property owned by the spouses at the time of Bar)
the celebration of the marriage or acquired
thereafter. Since the property was acquired during SUGGESTED ANSWER:
the marriage of Martin and Tecla, and using Tecla’s If the money paid by ZY to PX was conjugal or
earnings, which is likewise absolute community community property, the wife of ZY could sue to
property, the same belongs to their absolute recover it because Article 117(7) of the Family
community. The fact that the property was registered Code provides that losses in gambling or betting
in the name of “Martin married to Tina” is of no are borne exclusively by the loser-spouse.
moment; the same would still belong to the absolute Hence, conjugal or community funds may not be
community of Martin and Tecla. Likewise, the fact used to pay for such losses. If the money were
that Martin and Tecla were separated has no effect exclusive property of ZY, his wife may also sue
on the ownership of the property, Article 100 of the to recover it under Article 2016 of the Civil Code
Family Code stating that separation in fact between if she and the family needed the money for
the spouses has no effect on the regime of absolute support.
community.
Being absolute community property, one-half would ALTERNATIVE ANSWER:
belong to Martin and the other half to Tecla, with the Mrs. ZY cannot file a suit to recover what her
half belonging to Tecla being divided between Martin husband lost. Art 2014 of the Civil Code
and the two children. Each of them gets 1/3 of provides that any loser in a game of chance may
Tecla’s share in the property. Tina would have no recover his loss from the winner, with legal
share in the property. interest from the time he paid the amount lost.
This means that only he can file the suit. Mrs. ZY
Charges and Obligations of the Absolute Community cannot recover as a spouse who has interest in
the absolute community property or conjugal
TRUE OR FALSE. An individual, while single, partnership of gains, because under Art. 117(7)
purchases a house and lot in 1990, and borrows of the Family Code, losses are borne exclusively
money in 1992 to repair it. In 1995, such individual by the loser-spouse. Therefore, these cannot be
gets married while the debt is still being paid. After charged against absolute community property or
the marriage, the debt is still the responsibility of conjugal partnership of gains. This being so,
such individual. Mrs. ZY has no interest in law to prosecute and
recover as she has no legal standing in court to
SUGGESTED ANSWER: do.
FALSE. The absolute community of property is
liable for the ante-nuptial debts of either spouse Ato was the registered owner of a passenger
in so far as the same redounded to the benefit of jeepney, which was involved in a collision accident
the family (Art. 94[7], Family Code). with a vegetable truck, resulting in the death of four
passengers and injuries to three. At the time of the
ALTERNATIVE ANSWER: accident, Ato was legally married to Maria but was
FALSE. The debt is already the responsibility of cohabiting with Tonia in a relationship akin to that of
the community property, because the property husband and wife.
already constitutes absolute community of
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Could the heirs of the dead passengers and the marriage becomes absolute community
injured persons recover damages from: property. Finally, the Family Code states that
(a) Ato? dispositions of absolute community property
(b) Maria? without the written consent of the other spouse,
(c) Tonia? or authorization from the court is VOID. In the
Explain each case. (1987 Bar) instant case, the parcel of land, even if
registered in Danny’s name alone, is absolute
SUGGESTED ANSWER: community property, being property he owned at
a. Yes, the heirs and injured persons can recover the time of the celebration of the marriage.
from Ato. Insofar as the dead passengers are Consequently, its sale, without Elsa’s written
concerned, the heirs can recover damages on consent, or authorization from the court, is void.
the basis of culpa contractual. If the injured Notably, the purpose for which the proceeds of
persons are also passengers, Ato is likewise the sale were used is irrelevant, as the law does
liable on the same basis of culpa contractual. not provide for any exceptions. Where the law
However, if the injured are not passengers, then does not distinguish, we should not distinguish.
the liability for damages of Ato will be on the
basis of a quasi-delict. Note, however, that Spouses Biong and Linda wanted to sell their house.
damages adjudged may be charged to the They found a prospective buyer, Ray. Linda
absolute community property of Ato and Maria, negotiated with Ray for the sale of the property.
as the oiperation of the jeepney same is They agreed on a fair price of P2 Million. Ray sent
presumed to be for the benefit of the family. Linda a letter confirming his intention to buy the
b. The heirs and injured persons can recover property. Later, another couple, Bernie and Elena,
from Maria, to the extent that she has a share in offered a similar house at a lower price of P1.5
the absolute community property between her Million. But Ray insisted on buying the house of
and her husband Ato. Even if Ato was cohabiting Biong and Linda for sentimental reason. Ray
with Tonia, he remains married to Maria, hence prepared a deed of sale to be signed by the couple
the jeepney would still belong to the absolute and a manager’s check of P2 Million. After receiving
community. Since the operation of the same is the P2 Million, Biong signed the deed of sale.
presumed to be for the benefit of the family, the However, Linda was not able to sign it because she
absolute community between Ato and Maria was abroad. On her return she refused to sign the
would be liable for damages sustained by the document saying she changed her mind. Linda filed
heirs and injured passenegers. Maria’s suit for nullification of the deed of sale and for moral
paraphernal property may not be held and exemplary damages against Ray.
answerable, however. a) Will the suit prosper? Explain.
c. The heirs and injured persons may not (2) Does Ray have any cause of action against
recover from Tonia. As Tonia has no share in the Biong and Linda? Can he also recover damages
jeepney, she may not be held liable for damages from the spouses? Explain. (2006 Bar)
arising from the accident involving the jeepney.
SUGGESTED ANSWER:
a) The suit will prosper. The sale was void
Ownership, Administration, Enjoyment and because Linda did not give her written consent
Disposition of the Community Property to the sale. In Jader-Manalo v. Camaisa, 374
SCRA 498 (2002), the
Danny and Elsa were married in 2002. In 2012, Elsa Supreme Court has ruled that the sale of
left the conjugal home and her two minor children conjugal property is void if both spouses have
with Danny to live with her paramour. In 2015, not given their written consent to it and even if
Danny sold without Elsa’s consent a parcel of land the spouse who did not sign the Deed of Sale
registered in his name that he had purchased prior participated in the negotiation of the contract. In
to the marriage. Danny used the proceeds of the Abalos v. Macatangay, 439 SCRA 649 (2004), the
sale to pay for his children’s tuition fees. Supreme Court even held that for the sale to be
Is the sale valid, void or voidable? Explain your valid, the signatures of the spouses to signify
answer. (2017 Bar) their written consent must be on the same
document. In this case, Linda, although she was
SUGGESTED ANSWER: the one who negotiated the sale, did not give her
The sale is void. Since Danny and Elsa married written consent to the sale. Hence, the sale is
each other in 2002, they are governed by the void. However, Linda will not be entitled to
Family Code, which took effect in 1988. Under damages because Ray is not in any way in bad
the Family Code, persons who marry without faith.
entering into a marriage settlement will be
governed by the regime of absolute community ANOTHER SUGGESTED ANSWER:
of property. The Family Code further provides The suit will not prosper because the contract of
that under said regime, all properties owned by a sale has already been perfected and partly
party at the time of the celebration of the consummated. The contract of sale is perfected
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upon the meeting of the minds of the buyer and annulment of marriage and it may be urged that
seller on to the thing to be sold and on the price the land itself is not the object of the litigation,
thereof. In this case, Linda had a meeting of the annulment of marriage, if granted, will carry
minds with Ray when they agreed that the with it the liquidation of the absolute community
property will be sold for 2 million pesos at the or conjugal partnership of the spouses as the
conclusion of her negotiations with him, while case may be (Art. 50 in relation to Art 43 of the
Biong had a meeting of minds with Ray when he Family Code). Richard purchased the land with
signed the Deed of Sale and accepted the 2 his lotto winnings during the pendency of the
million-peso payment by Ray. Linda is estopped suit for annulment and on the assumption that
from questioning the validity of the contract she the parties are governed by the regime of
herself negotiated with Ray. absolute community or conjugal partnership,
winnings from gambling or betting will form part
b) Yes, Ray has a cause of action against Linda thereof. Also, since the land is part of the
and Biong for the return of the 2 million pesos absolute community or conjugal partnership of
he paid for the property. He may recover Richard and Rica, it may not be sold or alienated
damages from the spouses, if it can be proven without the consent of the latter and any
that they were in bad faith in backing out from disposition or encumbrance of the property of
the contract, as this is an act contrary to morals the community or the conjugal property without
and good customs under Articles 19 and 21 of the consent of the other spouse is void (Art 96
the Civil Code. and Art 124, Family Code).

ANOTHER SUGGESTED ANSWER: Can a husband and wife form a limited partnership
Assuming that the contract of sale has been to engage in real estate business, with the wife
perfected, Ray may file a counterclaim against being a limited partner? (1994 Bar)
Linda and Biong for specific performance or
rescission, with damages in either case. Linda SUGGESTED ANSWER:
has breached the obligation created by the Yes. The Civil Code prohibits a husband and
contract when she filed an action for nullification wife from constituting a universal partnership.
of sale. On account of Linda’s bad faith or fraud, Since a limited partnership is not a universal
Ray may ask for damages under Article 1170 of partnership, a husband and wife may validly
the Civil Code. form one.

Rica petitioned for the annulment of her ten-year old ANOTHER ANSWER:
marriage to Richard. Richard hired Atty. Cruz to Yes. While spouses cannot enter into a universal
represent him in the proceedings. In payment for partnership, they can enter into a limited
Atty. Cruz’s acceptance and legal fees, Richard partnership or be members thereof (CIR v. Suter,
conveyed to Atty. Cruz a parcel of land in Taguig that et al., 27 SCRA 152).
he recently purchased with his lotto winnings. The
transfer documents were duly signed and Atty. Cruz
immediately took possession by fencing off the Conjugal Partnership of Gains
property’s entire perimeter. Desperately needing
money to pay for his mounting legal fees and his Maria, wife of Pedro, withdrew P 5 Million from their
other needs and despite the transfer to Atty. Cruz, conjugal funds. With this money, she constructed a
Richard offered the same parcel of land for sale to building on a lot which she inherited from her father.
the spouses Garcia. After inspection of the land, the Is the building conjugal or paraphernal? Reasons.
spouses considered it a good investment and (2012 Bar)
purchased it from Richard. Immediately after the
sale, the spouses Garcia commenced the SUGGESTED ANSWER:
construction of a three-story building over the land, It depends. If the value of the building is more
but they were prevented from doing this by Atty. than the value of the land, the building is
Cruz who claimed he has a better right in light of the conjugal and the land becomes conjugal
prior conveyance in his favor. Is Atty. Cruz’s claim property under Art. 120 of the Family Code. This
correct? (2013 Bar) is a case of reverse accession, where the
building is considered as the principal and the
SUGGESTED ANSWER: land, the accessory. If, on the other hand, the
No. Atty. Cruz is not correct. At first glance, it value of the land is more than the value of the
may appear that Atty. Cruz is the one who has building, then the ordinary rule of accession
the better right because he first took possession applies where the land is the principal and the
of the property. However, a lawyer is prohibited building, the accessory. In such case, the land
under Art 1491 of the Civil Code from acquiring remains paraphernal property and the building
the property and rights which may be the object becomes paraphernal property.
of any litigation in which they may take part by
virtue of their profession. While the suit is for
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 53

Note: The rule on reverse accession is applicable the law that governed their property relations
only to the regime of conjugal partnership of gains in was the Civil Code. Under the Civil Code, as
both the Family Code and the Civil Code. The interpreted by the Supreme Court in Heirs of
foregoing answer assumes that CPG is the regime Felipe v. Aldon, 100 SCRA 628 and reiterated in
of the property relations of the spouses. Heirs of Ayuste v. Malabonga, 313 SCRA 493, the
sale executed by the husband without the
consent of the wife is voidable. The husband has
Charges Upon and Obligations of the Conjugal already acquired a vested right on the voidable
Partnership nature of dispositions made without the consent
of the wife. Hence, Article 124 of the Family
As finance officer of K and Co., Victorino arranged a Code which makes the sale void does not apply.
loan of P5 Million from PNB for the corporation.
However, he was required by the bank to sign a In 1970, Bob and Issa got married without executing
Continuing Surety Agreement to secure the a marriage settlement. In 1975, Bob inherited from
repayment of the loan. The corporation failed to pay his father a residential lot upon which, in 1981, he
the loan, and the bank obtained a judgment against constructed a two- room bungalow with savings from
it and Victorino, jointly and severally. To enforce the his own earnings. At that time, the lot was worth
judgment, the sheriff levied on a farm owned by the P800,000.00 while the house, when finished cost
conjugal partnership of Victorino and his wife Elsa. P600,000.00. In 1989, Bob died, survived only by
Is the levy proper or not? (2000 Bar) his wife, Issa and his mother, Sofia. Assuming that
the relative values of both assets remained at the
SUGGESTED ANSWER: same proportion:
The levy is not proper there being no showing a) State whether Sofia can rightfully claim that the
that the surety agreement executed by the house and lot are not conjugal but exclusive
husband redounded to the benefit of the family. property of her deceased son.
An obligation contracted by the husband alone b) Will your answer be the same if Bob died before
is chargeable against the conjugal partnership August 3, 1988? (1998 Bar)
only when it was contracted for the benefit of the
family. When the obligation was contracted on SUGGESTED ANSWER:
behalf of the family business the law presumes a) Since Bob and Sofia got married in 1970, then
that such obligation will redound to the benefit the law that governs is the Civil Code (Persons),
of the family. However, when the obligation was in which case, the property relations that should
to guarantee the debt of a third party, as in the be applied u regards the property of the spouses
problem, the obligation is presumed for the is the system of relative community or conjugal
benefit of the third party, not the family. Hence, partnership of gains (Article 119, Civil Code). By
for the obligation under the surety agreement to conjugal partnership of gains, the husband and
be chargeable against the partnership it must be the wife place in a common fund the fruits of
proven that the family was benefited and that the their separate property and the income from
benefit was a direct result of such agreement. their work or industry (Article 142, Civil Code). In
(Ayala Investment v. Ching, 286 SCRA 272) this instance, the lot inherited by Bob in 1975 is
his own separate property, he having acquired
the same by lucrative title (par. 2, Art. 148, Civil
Administration of the Conjugal Partnership Property Code). The lot is also separate property of Bob,
the value of the land being more than the cost of
On April 15, 1980, Rene and Angelina were married the improvement (Art. 120, Family Code), but the
to each other without a marriage settlement. In conjugal partnership is entitled to
1985, they acquired a parcel of land in Quezon City. reimbursement for the cost of the house
On June 1, 1990. when Angelina was away in constructed thereon.
Baguio, Rene sold the said lot to Marcelo. Is the
sale void or voidable? (2000 Bar) b) If Bob died before August 3. 1988, which is
the date the Family Code took effect, the answer
SUGGESTED ANSWER: will not be the same. Art. 158, Civil Code, would
The sale is void. Since the sale was executed in then apply. The land would then be deemed
1990, the Family Code is the law applicable. conjugal, along with the house, since conjugal
Under Article 124 of the FC, the sale of a funds were used in constructing it. The
conjugal property by a spouse without the husband’s estate would be entitled to a
consent of the other is void. reimbursement of the value of the land from
conjugal partnership funds.
ALTERNATIVE ANSWER:
The sale is voidable. The provisions of the
Family Code may apply retroactively but only if Dissolution of the Conjugal Partnership Regime
such application will not impair vested rights.
When Rene and Angelina got married in 1980,
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After finding out that his girlfriend Sandy was c) The parcel of land will belong to Sancho. The
four (4) months pregnant, Sancho married Sandy. jewelry, on the other hand, will belong to both
Both were single and had never been in any serious spouses, in equal shares.
relationship in the past. Prior to the marriage, they
agreed in a marriage settlement that the regime of Under the Family Code, in conjugal partnership
conjugal partnership of gains shall govern their of gains, all property which a spouse owns prior
property relations during marriage. Shortly after the to the marriage remains his exclusive property.
marriage, their daughter, Shalimar, was born. More, when property is bought on installment,
with installment payments made starting before
Before they met and got married, Sancho the marriage and completed during the marriage
purchased a parcel of land on installment, under a using conjugal funds, the property will be
Contract of Sale, with the full purchase price exclusive property of the purchaser if ownership
payable in equal annual amortizations over a period vested in him before the marriage, or will be
often (10) years, with no down payment, and property of the conjugal partnership if
secured by a mortgage on the land. The full ownership vested during the marriage. In both
purchase price was PhP1 million, with interest at the cases, there will be a right of reimbursement for
rate of 6% per annum. After paying the fourth (4th) the exclusive funds used or conjugal funds
annual installment, Sancho and Sandy got married, used, depending on who becomes the owner of
and Sancho completed the payments in the the property.
subsequent years from his salary as an accountant.
The previous payments were also paid out of his The Family Code likewise provides that winnings
salary. During their marriage, Sandy also won from gambling and sweepstakes always forms
PhP1million in the lottery and used it to purchase part of conjugal partnership property.
jewelry. When things didn’t work out for the couple,
they filed an action for declaration of nullity of their In the instant case, the parcel of land was
marriage based on the psychological incapacity of purchased by Sancho before the marriage on
both of them. When the petition was granted, the installment, under a Contract of Sale, although
parcel of land and the jewelry bought by Sandy were the installment payments were completed only
found to be the only properties of the couple. during the marriage. Plainly, ownership already
vested in Sancho when he purchased the
a) What system of property relationship will be property, as the contract he entered into was
liquidated following the declaration of nullity of one of sale. Accordingly, the parcel of land
their marriage? (2018 Bar) would be his exclusive property. However, the
b) In the liquidation, who should get the parcel of salaries used to make the installment payments
land? The jewelry? during the marriage is conjugal property, being
c) Is Shalimar entitled to payment of presumptive products of his labor or industry, hence must be
legitime? If yes, how much should be her share reimbursed by Sancho to the conjugal
and from where should this be taken? (2.5%) partnership.

SUGGESTED ANSWER: As for the jewelry, the same were purchased

b) The property regime to be liquidated between using lottery winnings. The lottery winnings,
the spouses is the regime of conjugal having come from gambling, belong to the
partnership of gains. conjugal partnership. The jewelry, having been
purchased using conjugal funds, would, likewise
Under the Family Code, parties are free to be conjugal partnership property, owned equally
choose what property regime will govern their by the spouses.
property relations during the marriage, so long
as they do so in a marriage settlement executed d) Yes, Shalimar is entitled to a presumptive
in writing, and signed by the parties, before the legitime.
marriage.
Under the law, legitimate children are entitled to
In the instant case, it appears that Sancho and a legitime of ½ of the estate of their parents.
Sandy entered into a written marriage settlement
prior to their marriage wherein they chose Sine Shalimar is a legitimate child, she is
conjugal partnership of gains as the property entitled to a presumptive legitime of ½ of the
regime that would govern their marriage. On the properties of her respective parents, if the latter
assumption that they had signed the marriage have their marriage declared void.
settlement, their subsequent marriage would Consequently, she is entitled to ½ of the
then be governed by the regime of conjugal properties of Sancho and Sandy. Thus, upon the
partnership of gains. liquidation and partition of the conjugal property
of gains between Sancho and Sandy, Shalimar
gets, as her presumptive legitime from Sancho,

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½ of the parcel of land, as well as ½ of the category. The properties acquired by Michael
jewelry allocated to Sancho (or ¼ of the total and Anna would thus be governed by Article
jewelries). She also gets, as presumptive 147.
legitime from Sandy, ½ of the jewelries allocated
to Sandy (or another ¼ of the total jewelries). In Luis and Rizza, both 26 years of age and single, live
sum, Shalimar gets ½ of the land and ½ of the exclusively with each other as husband and wife
jewelries. without the benefit of marriage. Luis is gainfully
employed. Rizza is not employed, stays at home,
and takes charge of the household chores.
Complete Separation of Property After living together for a little over twenty years,
Luis was able to save from his salary earnings
When should the property relations of the spouses during that period the amount of P200,000.00
be mandatorily governed by the regime of complete presently deposited in a bank. A house and lot worth
separation of property? (1989 Bar) P500,000.00 was recently purchased for the same
amount by the couple. Of the P500,000.00 used by
SUGGESTED ANSWER: the common-law spouses to purchase the property,
Should the surviving spouse contract a P200,000.00 had come from the sale of palay
subsequent marriage without complying with the harvested from the hacienda owned by Luis and
requirement that the community or conjugal P300,000.00 from the rentals of a building belonging
property be liquidated judicially or extra- to Rizza. In fine, the sum of P500,000.00 had been
judicially within one year from the death of the part of the fruits received during the period of
deceased spouse, a mandatory regime of cohabitation from their separate property. A car
complete separation of property shall govern the worth P100,000.00, being used by the common-law
property relations of the subsequent marriage. spouses, was donated just months ago to Rizza by
her parents.
Luis and Rizza now decide to terminate their
Property Regime of Unions Without Marriage cohabitation, and they ask you to give them your
legal advice on the following:
In December 2000, Michael and Anna, after a) How, under the law, should the bank deposit of
obtaining a valid marriage license, went to the Office P200,000.00, the house and lot valued at
of the Mayor of Urbano, Bulacan, to get married. P500,000.00 and the car worth P100,000.00 be
The Mayor was not there, but the Mayor’s secretary allocated to them?
asked Michael and Anna and their witnesses to fill b) What would your answer be (to the above
up and sign the required marriage contract forms. question) had Luis and Rizza been living together all
The secretary then told them to wait, and went out to the time, i.e., since twenty years ago, under a valid
look for the Mayor who was attending a wedding in a marriage? (1997 Bar)
neighboring municipality.
SUGGESTED ANSWER
When the secretary caught up with the Mayor at the a) Art. 147 of the Family Code, provides in part
wedding reception, she showed him the marriage that when a man and a woman who are
contract forms and told him that the couple and their capacitated to many each other, live exclusively
witnesses were waiting in his office. The Mayor with each other as husband and wife without the
forthwith signed all the copies of the marriage benefit of marriage or under a void marriage,
contract, gave them to the secretary who returned to their wages and salaries shall be owned by them
the Mayor’s office. She then gave copies of the in equal shares and the property acquired by
marriage contract to the parties, and told Michael both of them through their work or industry shall
and Anna that they were already married. be governed by the rules of co- ownership.
Thereafter, the couple lived together as husband In the absence of proof to the contrary,
and wife, and had three sons. properties acquired while they lived together
shall be presumed to have been obtained by
What property regime governs the properties their joint efforts, work or industry, and shall be
acquired by the couple? Explain. (2009 Bar) owned by them in equal shares. A party who did
not participate in the acquisition by the other
SUGGESTED ANSWER: party of any property shall be deemed to have
Under the Family Code, when a man and a contributed jointly in the acquisition thereof if
woman capacitated to marry each other, live the former’s efforts consisted in the care and
exclusively with each other as husband and wife maintenance of the family and of the household.
under a void marriage, their property relations Thus:
shall be governed by Article 147 of the said 1) the wages and salaries of Luis in the amount
Code. Michael and Anna, being capacitated to of P200,000.00 shall be divided equally between
marry each other and living exclusively with Luis and Rizza.
each other under a void marriage [since there 2) the house and lot valued at P500,000.00
was no marriage ceremony], falls in this having been acquired by both of them through
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work or industry shall be divided between them acquisition thereof. Being capacitated to marry
in proportion to their respective contribution, in each other, but merely living together without
consonance with the rules on co-ownership. the benefit of marriage, the regime that applies
Hence, Luis gets 2/5 while Rizza gets 3/5 of P500 to their cohabitation is that of co-ownership
000.00. under Art. 147 of the Family Code. Under said
3) the car worth P100,000.00 shall be exclusively Article, property acquired by both parties
owned by Rizza, the same having been donated through their work or industry shall be governed
to her by her parents. by the rules on co-ownership.
b) The property relations between Luis and (Optional Addendum: However, after Rico’s
Rizza, their marriage having been celebrated 20 marriage to Letty, the interest of Rico in the
years ago (under the Civil Code) shall be riceland will then become absolute community
governed by the conjugal partnership of gains. property of Rico and Letty.)
under which the husband and wife place in a
common fund the proceeds, products, fruits and b) Rico is the exclusive owner of the coconut
income from their separate properties and those land. As Mabel was only 16 years old, she is not
acquired by either or both spouses through their capacitated to marry Rico, hence Art. 148 of the
efforts or by chance, and upon dissolution of the Family Code is applicable. Under said article,
marriage or of the partnership, the net gains or only the properties acquired by both of the
benefits obtained by either or both spouse shall parties through their actual joint contribution of
be divided equally between them (Art. 142, Civil money, property, or industry shall be owned by
Code). them in common in proportion to their
respective contributions. Since Mabel has not
Thus: contributed anything to the acquisition of the
1) The salary of Luis deposited in the bank in the coconut land, the same pertains solely to Rico.
amount of P200,000.00 and the house and lot (Optional Addendum: However, after Rico’s
valued at P500,000.00 shall be divided equally marriage to Letty, the coconut land of Rico will
between Luis and Rizza. then become absolute community property of
2) However, the car worth P100,000.00 donated Rico and Letty.)
to Rizza by her parents shall be considered to
her own paraphernal property, having been c) Rico and Letty are co-owners of the mango
acquired by lucrative title (par. 2, Art. 148, Civil orchard. Their regime would be Absolute
Code). Community of Property (Arts. 75, 90 and 91,
Family Code), as the same applies when two
In 1989, Rico, then a widower forty (40) years of persons marry each other without entering into a
age, cohabited with Cora, a widow thirty (30) years marriage settlement prior thereto. Under said
of age. While living together, they acquired from regime, all property acquired by onerous title
their combined earnings a parcel of riceland. during the marriage shall belong to both
spouses.
After Rico and Cora separated, Rico lived together
with Mabel, a maiden sixteen (16) years of age. Bernard and Dorothy lived together as common-law
While living together, Rico was a salaried employee spouses although they are both capacitated to
and Mabel kept house for Rico and did full-time marry. After one year of cohabitation, Dorothy went
household chores for him. During their cohabitation, abroad to work in Dubai as a hair stylist and
a parcel of coconut land was acquired by Rico from regularly sent money to Bernard. With the money,
his savings. Bernard bought a lot. For a good price, Bernard
sold the lot. Dorothy came to know about the
After living together for one (1) year, Rico and Mabel acquisition and sale of the lot and filed a suit to
separated. Rico then met and married Letty, a single nullify the sale because she did not give her
woman twenty-six (26) years of age. During the consent to the sale.
marriage of Rico and Letty, Letty bought a mango a) Will Dorothy’s suit prosper? Decide with
orchard out of her own personal earnings. reasons.
b) Suppose Dorothy was jobless and did not
a) Who would own the riceland, and what property contribute money to the acquisition of the lot
regime governs the ownership? Explain. and her efforts consisted mainly in the care and
b) Who would own the coconut land, and what maintenance of the family and household, is her
property regime governs the ownership? Explain. consent to the sale a prerequisite to its validity?
c) Who would own the mango orchard, and what Explain. (2016 Bar)
property regime governs the ownership? Explain.
(1992 Bar) SUGGESTED ANSWER:
a) Yes, Dorothy’s petition will prosper. Under the
SUGGESTED ANSWER: Family Code, when two persons capacitated to
a) Rico and Cora are the co-owners of the marry each other live exclusively with each other
riceland in proportion to their contribution in the
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without the benefit of marriage, their property and wages shall be owned by them in equal
regime shall be governed by Article 147. Said shares.
Article provides that the salaries and wages of
the parties shall be owned by them in equal In the instant case, the house and lot in Cavite,
shares and that neither party can encumber or as well as the personal properties, including
dispose by acts inter vivos of his or her share in cash on bank, were acquired using Semuel’s
the property acquired during cohabitation and salaries and wages. Since these salaries and
owned in common, without the consent of the wages are owned by both Semuel and Sofia in
other, until after the termination of their equal shares, whatever was acquired using
cohabitation. In the instant case, the lot these salaries and wages will still be owned by
purchased by Bernard is owned by both of them them in equal shares. Accordingly, said
in common, having been purchased using the properties should be partitioned equally
wages of Dorothy, which wages belong to both between them.
of them in equal shares. The lot having been
acquired during their cohabitation and being
owned in common, Bernard cannot dispose of G and B were married on July 3, 1989. On March 4,
the same without the consent of Dorothy. 2001, the marriage, which bore no offspring, was
Accordingly, Dorothy may bring an action to declared void ab initio under Article 36 of the Family
nullify said sale. Code. At the time of the dissolution of the marriage,
the couple possessed the following properties:
b) Yes, even if Dorothy was jobless, her consent  a house and lot acquired by B on
is still necessary for the validity of the sale of August 3, 1988, one third (1/3) of
the lot. Under Article 147, which governs their the purchase price (representing
property relations, if one party just stays at downpayment) of which he paid;
home and takes care and maintains the family one third (1/3) was paid by G on
and the household, this will be considered an February 14, 1990 out of a cash gift
equal and joint contribution in the acquisition of given to her by her parents on her
any property acquired while they lived together. graduation on April 6, 1989; and the
Accordingly, even if Dorothy was jobless, she balance was paid out of the
would be deemed to have jointly contributed to spouses’ joint income; and
the acquisition of the lot and would own the lot  an apartment unit donated to B by
in common with Bernard. Being owned in an uncle on June 19, 1987.
common, Bernard would still need her consent
to dispose of the property. a. Who owns the foregoing properties? Explain.
b. If G and B had married on July 3, 1987 and their
Sofia and Semuel, both unmarried, lived together for marriage was dissolved in 2007, who owns the
many years in the Philippines and begot three properties? Explain. (2010 Bar)
children. While Sofia stayed in the Philippines with
the children, Semuel went abroad to work and SUGGESTED ANSWER:
became a naturalized German citizen. He met a) Since the marriage was declared void ab initio
someone in Germany whom he wanted to marry. in 2001, no Absolute Community or Conjugal
Semuel thereafter came home and filed a petition Partnership was ever established between B and
with the Regional Trial Court (RTC) for partition of G. Their property relation is governed by a
the common properties acquired during his union “special co-ownership” under Article 147 of the
with Sofia in the Philippines. The properties acquired Family Code because they were capacitated to
during the union consisted of a house and lot in marry each other. Under that Article 147, wages
Cavite worth PhP2 million and some personal and salaries of the “former spouses” earned
properties, including cash in bank amounting to during their cohabitation shall be owned by
PhP1 million’ All these properties were acquired them in equal shares while properties acquired
using Semuel’s salaries and wages since Sofia was thru their work for industry shall be owned by
a stay-at-home mother. In retaliation, Sofia filed an them in proportion to their respective
action, on behalf of their minor children, for support. contributions. Care and maintenance of the
a) How should the properties be partitioned? (2018 family is recognized as a valuable contribution.
Bar) In the absence of proof as to the value of their
respective contributions, they shall share
SUGGESTED ANSWER: equally. If ownership of the house and lot was
The properties should be divided equally acquired by B on August 3, 1988 at the time he
between Sofia and Semuel. bought it on installment before he got married,
he shall remain owner of the house and lot but
Under Art. 147 of the Family Code, when a man he must reimburse G for all the amounts she
and a woman capacitated to marry each other, advanced to pay the purchase price and for one-
live exclusively together as husband and wife half share in the last payment from their joint
without the benefit of marriage, their salaries income. In such case, the house and lot were not
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acquired during their cohabitation, hence, are lot and house in a plush subdivision. However. after
not co-owned by B and G. But if the ownership five years, Tony and Susan decided to separate.
of the house and lot was acquired during the a) Who will be entitled to the house and lot?
cohabitation, the house and lot will be owned as b) Would it make any difference if Tony could not
follows: (1) 1/3 of the house and lot is owned by marry Susan because he was previously married to
B. He is an undivided co-owner to that extent for Alice from whom he is legally separated? (2000 Bar)
his contributions in its acquisition in the form of
the down payment he made before the SUGGESTED ANSWER:
celebration of the marriage. The money he used a) Tony and Susan are entitled to the house and
to pay the down payment was not earned during lot as co-owners in equal shares. Under Article
the cohabitation, hence, it is his exclusive 147 of the Family Code, when a man and a
property. (2) 1/3 of the house and lot is owned by woman who are capacitated to many each other
G. She is an undivided co-owner to the extent for lived exclusively with each other as husband
her contribution in its acquisition when she paid and wife, the property acquired during their
1/3 of the purchase price using the gift from her cohabitation are presumed to have been
parents. Although the gift was acquired by G obtained by their joint efforts, work or industry
during her cohabitation with B, it is her and shall be owned by them in equal shares.
exclusive property. It did not consist of wage or This is true even though the efforts of one of
salary or fruit of her work or industry. (3) 1/3 of them consisted merely in his or her care and
the house is co-owned by B and G because the maintenance of the family and of the household.
payment came from their co-owned funds, i.e.,
their joint income during their cohabitation b) Yes, it would make a difference. Under Article
which is shared by them equally in the absence 148 of the Family Code, when the parties to the
of any proof to the contrary. After summing up cohabitation could not marry each other
their prospective shares, B and G are undivided because of an impediment, only those properties
co-owners of the house and lot in equal shares. acquired by both of them through their actual
As to the apartment, it is owned exclusive by B joint contribution of money, property, or industry
because he acquired it before their cohabitation. shall be owned by them in common in
Even if he acquired it during their cohabitation, it proportion to their respective contributions. The
will still be his exclusive property because it did efforts of one of the parties in maintaining the
not come from his wage or salary, or from his family and household are not considered
work or industry. It was acquired gratuitously adequate contribution in the acquisition of the
from his uncle. properties.

b) The answer is the same as in letter A. Since Since Susan did not contribute to the acquisition
the parties to the marriage which was later of the house and lot, she has no share therein. If
declared void ab initio were capacitated to marry Tony cohabited with Susan after his legal
each other, the applicable law under the Civil separation from Alice, the house and lot is his
Code was Article 144.This Article is substantially exclusive property. If he cohabited with Susan
the same as Article 147 of the Family Code. before his legal separation from Alice, the house
Hence, the determination of ownership will and lot belongs to his community or partnership
remain the same as in question A. And even with Alice.
assuming that the two provisions are not the
same, Article 147 of the Family Code is still the In June 1985, James married Mary. In September
law that will govern the property relations of B 1988, he also married Ophelia with whom he begot
and G because under Article 256, the Family two (2) children, A and B. In July 1989, Mary died. In
Code has retroactive effect insofar as it does not July 1990, he married Shirley and abandoned
prejudice or impair vested or acquired rights Ophelia. During their union, James and Ophelia
under the Civil Code or other laws. Applying acquired a residential lot worth P300,000.00.
Article 147 retroactively to the case of G and B
will not impair any vested right. Until the Ophelia sues James for bigamy and prays that his
declaration of nullity of the marriage under the marriage with Shirley be declared null and void.
Family Code, B and G have not as yet acquired James, on the other hand, claims that since his
any vested right over the properties acquired marriage to Ophelia was contracted during the
during their cohabitation. existence of his marriage with Mary, the former is
not binding upon him, the same being void ab initio;
For five years since 1989, Tony, a bank Vice- he further claims that his marriage to Shirley is valid
President, and Susan, an entertainer, lived together and binding as he was already legally capacitated at
as husband and wife without the benefit of marriage the time he married her.
although they were capacitated to marry each other. a) What property regime governed the union of
Since Tony’s salary was more than enough for their James and Ophelia?
needs, Susan stopped working and merely “kept
house”. During that period, Tony was able to buy a
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b) Is the estate of Mary entitled to a share in the Jambrich and Descallar were not capacitated to
residential lot acquired by James and Ophelia? marry each other Art. 148-co-ownership governs
(1991 Bar) their property relations. Under this regime,
Jambrich and Descallar are co-owners of the
SUGGESTED ANSWER: properties but only if both of them contributed in
a) The provisions of Art. 148 of the Family Code, their acquisition. If all the funds used in
shall govern: acquiring the properties in question came from
Art. 148. In cases of cohabitation not falling Jambrich, the entire property is his even though
under the preceding Article, only the properties he is disqualified from owning it. His subsequent
acquired by both of the parties through their transfer to Borromeo, however, is valid as it
actual joint contribution of money, property, or removed the disqualification. In such case, all
industry shall be owned by them in common in the properties are owned by Borromeo. If, on the
proportion to their respective contributions. In other hand Descallar contributed to their
the absence of proof to the contrary, their acquisition, the properties are co-owned by
contributions and corresponding shares are Descallar and Borromeo in proportion to the
presumed to be equal. The same rule and respective contributions of the Descallar and
presumption shall apply to joint deposits of Jambrich. Note: The facts of the problem are not
money and evidences of credit. exactly the same as in the case of Borromeo v.
b) It should be distinguished when the property Descallar, 580 SCRA 175, hence, the difference
was acquired. in the resulting answer.
If it was acquired before Mary’s death, the estate
of Mary is entitled to ½ of the share of James. In 1997, B and G started living together without the
If it was acquired after Mary’s death, there will be benefit of marriage. The relationship produced one
no share at all for the estate of Mary. offspring, Venus. The couple acquired a residential
lot in Parañaque. After four (4) years or in 2001, G
Jambrich, an Austrian, fell in love and lived together having completed her 4-year college degree as a
with Descallar and bought their houses and lots at fulltime student, she and B contracted marriage
Agro-Macro Subdivision. In the Contracts to Sell, without a license. The marriage of B and G was, two
Jambrich and Descallar were referred to as the years later, declared null and void due to the
buyers. When the Deed of Absolute Sale was absence of a marriage license.
presented for registration before the Register of
Deeds, it was refused because Jambrich was an If you were the judge who declared the nullity of the
alien and could not acquire alienable lands of the marriage, to whom would you award the lot? Explain
public domain. After Jambrich and Descallar briefly. (2010 Bar)
separated, Jambrich purchased an engine and
some accessories for his boat from Borromeo. To SUGGESTED ANSWER:
pay for his debt, he sold his rights and interests in I would award the property to B and G in equal
the Agro-Macro properties to Borromeo. Borromeo shares. Since the marriage was null and void, no
discovered that titles to the three (3) lots have been Absolute Community or Conjugal Partnership
transfereed in the name of Descallar. Who is the was established between B and G. Their
rightful owner of the properties? Explain. (2012 Bar) properties are governed by the “special co-
ownership” provision of Article 147 of the Family
SUGGESTED ANSWER: Code because both B and G were capacitated to
It depends. On the assumption that the Family marry each other. The said Article provides that
Code is the applicable law, the ownership of the when a man and a woman who are capacitated
properties depends on whether or not, Jambrich to marry each other, live exclusively with each
and Descallar are capacitated to marry each other as husband and wife without the benefit of
other during their cohabitation, and whether or marriage, or under a void marriage: (1) their
not both have contributed funds for the wages and salaries shall be owned by them in
acquisition of the properties. If both of them are equal shares; and (2) property acquired by both
capacitated to marry each other, Art 147- co- of them through their work or industry shall be
ownership will apply to their property relations governed by the rules on co-ownership. In co-
and the properties in question are owned by ownership, the parties are co-owners if they
them in equal shares even though all the funds contributed something of value in the
used in acquiring the properties came only from acquisition of the property. Their share is in
the salaries or wages, or the income of Jambrich proportion to their respective contributions. In
from his business or profession. In such case, an ordinary co- ownership the care and
while Jambrich is disqualified to own any part of maintenance of the family is not recognized as a
the properties, his subsequent transfer of all his valuable contribution for the acquisition of a
interest therein to Borromeo, a Filipino, was property. In the Article 147 “special co-
valid as it removed the disqualification. In such ownership” however, care and maintenance is
case, the properties are owned by Borromeo and recognized as a valuable contribution which will
Descallar in equal shares. If, on the other hand, entitle the contributor to half of the property
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acquired. Having been acquired during their Under Article 148 of the Family Code, which
cohabitation, the residential lot is presumed applies to bigamous marriages, only the
acquired through their joint work and industry properties acquired by both parties through their
under Article 147, hence, B and G are co-owners actual joint contribution of money, property or
of the said property in equal shares. Article 147 industry shall be owned by them in common in
also provides that when a party to the void proportion to their respective contributions.
marriage was in bad faith, he forfeits his share in Moreover, if one of the parties is validly married
the co-ownership in favor of the common to another, his share in the co-ownership shall
children or descendants, the default of children accrue to the absolute community/conjugal
or descendants, the forfeited share shall belong partnership existing in such valid marriage.
to the innocent party. In the foregoing problem, Thus, in this case, since Erlinda failed to prove
there is no showing that one party was in bad that she used her own money to buy the riceland
faith. Hence, both shall be presumed in good and house and lot, she cannot claim to be the
faith and no forfeiture shall take place. co-owner of the riceland nor the exclusive owner
of the house and lot. Such properties are
Bert and Joe, both male and single, lived together Mauricio’s. And since his share accrues to the
as common law spouses and agreed to raise a son conjugal partnership with Carol, Carol can
of Bert's living brother as their child without legally validly claim such properties to the exclusion of
adopting him. Bert worked while Joe took care of Erlinda. (Art. 144, Civil Code).
their home and the boy. In their 20 years of
cohabitation they were able to acquire real estate
assets registered in their names as co-owners. The Family Home
Unfortunately, Bert died of cardiac arrest, leaving no
will. Bert was survived by his biological siblings, What is “Family Home” and when is it deemed
Joe, and the boy. constituted? Who are the beneficiaries thereof?
(1989 Bar)
a) Can Article 147 on co-ownership apply to Bert
and Joe, whereby all properties they acquired will SUGGESTED ANSWER:
be presumed to have been acquired by their joint The “Family Home” is the dwelling house where
industry and shall be owned by them in equal the husband, the wife, and their family including
shares? (2015 Bar) the unmarried head of the family reside and the
land on which it is situated.
SUGGESTED ANSWER:
No, Article 147 of the Family Code may not be The “Family Home” is deemed constituted on a
applied to Bert and Joe. Article 147 expressly house and lot from the time it is occupied as a
declares that it applies to a man and a woman family residence.
capacitated to marry each other, living
exclusively with each other without the benefit The beneficiaries of a family home are:
of marriage or under a void marriage. Plainly, (1) The husband and wife, or an unmarried
the same does not apply to a same sex person who is the head of a family; and
relationship, the parties therein not being a man (2) Their parents, ascendants, descendants,
and a woman. brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the
In 1973, Mauricio, a Filipino pensioner of the U.S. family home and who depend upon the head of
Government, contracted a bigamous marriage with the family for legal support.
Erlinda, despite the fact that his first wife, Carol, was
still living. In 1975, Mauricio and Erlinda jointly On March 30, 2000, Mariano died intestate and was
bought a parcel of riceland, with the title being survived by his wife, Leonora, and children, Danilo
placed jointly in their names. Shortly thereafter, they and Carlito. One of the properties he left was a
purchased another property (a house and lot) which piece of land in Alabang where he built his
was placed in her name alone as the buyer. In 1981, residential house.
Mauricio died, and Carol promptly filed an action
against Erlinda to recover both the riceland and the After his burial, Leonora and Mariano's children
house and lot, claiming them to be conjugal property extrajudicially settled his estate. Thereafter,
of the first marriage. Erlinda contends that she and Leonora and Danilo advised Carlito of their intention
the late Mauricio were co-owners of the riceland: to partition the property. Carlito opposed invoking
and with respect to the house and lot, she claims Article 159 of the Family Code. Carlito alleged that
she is the exclusive owner: Assuming she fails to since his minor child Lucas still resides in the
prove that she had actually used her own money in premises, the family home continues until that minor
either purchase, how do you decide the case? (1998 beneficiary becomes of age. Is the contention of
Bar) Carlito tenable? (2014 Bar)

SUGGESTED ANSWER:
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SUGGESTED ANSWER: love Roderick, without a marriage license, claiming

No, the contention of Carlito is untenable. While that they have been continuously cohabiting for
it is true that so long as a minor beneficiary more than 5 years.
resides in the family home, the same continues
as such and cannot be partitioned, Lucas is not b) What is the filiation status of Laica?
a beneficiary of a family home. To be considered c) Can Laica bring an action to impugn her own
as a beneficiary of the family home, a status on the ground that based on DNA results,
descendant must reside on the premises AND Roderick is her biological father? (2008 Bar)
be dependent upon the head of the family for
support. There is no showing that Lucas was SUGGESTED ANSWER:
dependent upon Mariano and Leonora, the b) Having been born during the marriage of Faye
persons who constituted the family home, as in and Brad, she is presumed to be the legitimate
fact, it appears that he is dependent on his child of Faye and Brad. This presumption had
father Carlito rather than on Mariano and/or become conclusive because the period of time
Leonora. to impugn her filiation had already prescribed.
c) No, she cannot impugn her own filiation. The
Note, however, that a family home law does not allow a child to impugn his or her
continues for ten years after the death of one of own filiation. In the problem, Laica’s legitimate
the spouses, and may not be partitioned within filiation was accorded to her by operation of law
that period, hence Leonora and Danilo may not which may be impugned only by Brad, or his
partition the same during the said period, unless heirs in the cases provided by law within the
they get judicial authorization. prescriptive period.

In 1991, Victor established judicially out of conjugal After finding out that his girlfriend Sandy was
property, a family home in Manila worth four (4) months pregnant, Sancho married Sandy.
P200,000.00 and extrajudicially a second family Both were single and had never been in any serious
home in Tagaytay worth P50,000.00. Victor leased relationship in the past. Prior to the marriage, they
the family home in Manila to a foreigner. Victor and agreed in a marriage settlement that the regime of
his family transferred to another house of his in conjugal partnership of gains shall govern their
Pasig. property relations during marriage. Shortly after the
Can the two family homes be the subject of marriage, their daughter, Shalimar, was born.
execution on a judgment against Victor’s wife for
non-payment of the purchase in 1992 of household Before they met and got married, Sancho
appliances? (1994 Bar) purchased a parcel of land on installment, under a
Contract of Sale, with the full purchase price
SUGGESTED ANSWER: payable in equal annual amortizations over a period
The two (2) so-called family homes can be the often (10) years, with no down payment, and
subject of execution. Neither of the abodes are secured by a mortgage on the land. The full
considered family homes because for purposes purchase price was PhP1 million, with interest at the
of availing the benefits under the Family Code, rate of 6% per annum. After paying the fourth (4th)
there can only be one (1) family home which is annual installment, Sancho and Sandy got married,
defined as the “dwelling house” where the and Sancho completed the payments in the
husband and the wife and their family actually subsequent years from his salary as an accountant.
“reside” and the land on which it is situated. The previous payments were also paid out of his
(Arts. 152 and 161, Family Code) salary. During their marriage, Sandy also won
PhP1million in the lottery and used it to purchase
jewelry. When things didn’t work out for the couple,
Legitimate Children they filed an action for declaration of nullity of their
marriage based on the psychological incapacity of
Roderick and Faye were high school sweethearts. both of them. When the petition was granted, the
When Roderick was 18 and Faye, 16 years old, they parcel of land and the jewelry bought by Sandy were
started to live together as husband and wife without found to be the only properties of the couple.
the benefit of marriage. When Faye reached 18
years of age, her parents forcibly took her back and d) What is the filiation status of Shalimar? (2018
arranged for her marriage to Brad. Although Faye Bar)
lived with Brad after the marriage, Roderick
continued to regularly visit Faye while Brad was SUGGESTED ANSWER:
away at work. During their marriage, Faye gave birth Shalimar is a legitimate child of Sancho and
to a baby girl, Laica. When Faye was 25 years old, Sandy.
Brad discovered her continued liaison with Roderick
and in one of their heated arguments, Faye shot Under the law, legitimate children are those
Brad to death. She lost no time in marrying her true conceived or born during the marriage of the

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parents. More, if the marriage of the parents is

subsequently declared null and void due to ANOTHER SUGGESTED ANSWER:
psychological incapacity of the parent/s, the To establish Ed’s paternity over Alvin, two
children conceived or born during said marriage requirements must obtain: (1) both spouses
remain legitimate. authorized or ratified the insemination in a
written document executed and signed by them
In the instant case, Shalimar was born when her before the birth of the child; and (2) the
parents were already married to each other. instrument is recorded in the civil registry
Having been born during the marriage of her together with the birth certificate of the child.
parents, she is a legitimate child, even if the
marriage of her parents is later on declared null What are the grounds for impugning the legitimacy
and void ab initio due to psychological of a child? (1989 Bar)
incapacity.
SUGGESTED ANSWER:
Ed and Beth have been married for 20 years without Legitimacy of a child may be impugned only on
children. Desirous to have a baby, they consulted the following grounds:
Dr. Jun Canlas, a prominent medical specialist on (1) That it was physically impossible for the
human fertility. He advised Beth to undergo artificial husband to have sexual intercourse with his wife
insemination. It was found that Ed’s sperm count within the first 120 days of the 300 days which
was inadequate to induce pregnancy. Hence, the immediately preceded the birth of the child
couple looked for a willing donor. Andy, the brother because of:
of Ed, readily consented to donate his sperm. After a a) the physical incapacity of the husband to
series of tests, Andy’s spenn was medically have sexual intercourse with his wife;
introduced into Beth’s ovary. She became pregnant b) the fact that the husband and wife were living
and 9 months later, gave birth to a baby boy named separately in such a way that sexual intercourse
Alvin. was not possible: or
a) Who is the father of Alvin? Explain. c) serious illness of the husband, which
b) What are the requirements, if any, in order for Ed absolutely prevented sexual intercourse:
to establish his paternity over Alvin? (2006 Bar) (2) That it is proved that for biological or other
scientific reasons, the child could not have been
SUGGESTED ANSWER: that of the husband, except in the instance
a) Ed is the father of Alvin because Alvin was provided in the second paragraph of Art. 164; or
conceived and born during the marriage of his (3) That in case of children conceived through
mother to Ed. Under the law, the child born artificial insemination, the written authorization
during the marriage of the mother to her or ratification of either parent was obtained
husband is presumed to be the legitimate child through mistake, fraud, violence, intimidation, or
of the husband (Concepcion v. Almonte, 468 undue influence.
SCRA 438). While it is true that there was no
written consent by the husband to the artificial B and G (college students, both single and not
insemination, absence of such consent may only disqualified to marry each other) had a romantic
give the husband a ground to impugn the affair. G was seven months in the family way as of
legitimacy of the child but will not prevent the the graduation of B. Right after graduation B went
child from acquiring the status of legitimate home to Cebu City. Unknown to G, B had a
child of the husband at the time of its birth. commitment to C (his childhood sweetheart) to
marry her after getting his college degree. Two
ANOTHER SUGGESTED ANSWER: weeks after B’s marriage in Cebu City, G gave birth
Ed is the father of Alvin if he gave his written to a son E in Metro Manila.
consent to the artificial insemination of his wife.
Otherwise, the child is the illegitimate child of After ten years of married life in Cebu, B became a
Andy. Under the Family Code, children widower by the sudden death of C in a plane crash.
conceived as a result of artificial insemination of Out of the union of B and C, two children, X and Y,
the wife with the sperm of the husband or that of were born. Unknown to C, while on weekend trips to
a donor or both are legitimate children of the Manila during the last 5 years of their marriage, B
husband and the wife, provided that both of invariably visited G and lived at her residence and
them authorized or ratified such insemination in as a result of which, they renewed their relationship.
a written instrument executed and signed by A baby girl F was born to B and G two years before
both of them before the birth of the child. the death of C. Bringing his family later to Manila, B
finally married G. Recently, G died.
b) To establish Ed’s paternity over Alvin, only
two requirements must concur: (1) the fact that What are the rights of B’s four children: X and Y of
Ed and the mother of Alvin are validly married, his first marriage; and E and F, his children with G?
and (2) the fact that Alvin was conceived or born Explain your answer. (1990 Bar)
during the subsistence of such marriage.
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SUGGESTED ANSWER: nullity, H began looking for his prospective second

Under the facts stated, X and Y are legitimate mate. He fell in love with a sexy woman S who
children of B and G. E is the legitimate children wanted to be married as soon as possible, i.e., after
of B and G. E is the legitimated child of B & G. F a few months of courtship. As a young lawyer, you
is the illegitimate child of B and C. As legitimate were consulted by H.
children of B and C, X and Y have the following a) Suppose that children were born from the union
rights: of H and W, what would be the status of said
(1) To bear the surnames of the father and the children? Explain your answer.
mother, in conformity with the provisions of the b) If the subsequent marriage of H to S was
Civil Code on Surnames; contracted before compliance with the statutory
(2) To receive support from their parents, their condition for its validity, what are the rights of the
ascendants. and in proper cases, their brothers children of the first marriage (i.e., of H and W) and of
and sisters, in conformity with the provisions of the children of the subsequent marriage (of H and
the Family Code on Support; and S)? (1990 Bar)
(3) To be entitled to the legitime and other
successional rights granted to them by the Civil SUGGESTED ANSWER:
Code. (Article 174, Family Code). E is the a) The children born from the union of H and W
legitimated child of B and G. Under Art. 177 of would be legitimate children if conceived or born
the Family Code, only children conceived and before the decree of annulment of the marriage
born outside of wedlock of parents who, at the (under Art. 45 of the Family Code) has become
time of the conception of the former, were not final and executory (Art. 54, Family Code).
disqualified by any impediment to marry each
other may be legitimated. E will have the same b) The children of the first marriage shall be
rights as X and Y. F is the illegitimate child of B considered legitimate children if conceived or
and G. F has the right to use the surname of G, born before the judgment of annulment of the
her mother, and is entitled to support as well as marriage of H and W has become final and
the legitime consisting of ½ of that of each of X, executory. Children conceived or born of the
Y and E. (Article 176, Family Code). Note also subsequent marriage shall likewise be legitimate
that under RA 9255, an illegitimate child even if the marriage of H and S be null and void
acknowledged by his father may use his father’s for failure to comply with the requisites of Article
surname. F appears to have been acknowledged 52 of the Family Code (Article 53, Family Code).
by B, hence may use the surname of B if she
wants. As legitimate children, they have the following
rights:
(NOTE: Under RA 9858, children conceived and (1) To bear the surnames of the father and the
born outside of wedlock of parents who, at the time mother in conformity with the provisions of the
of conception of the former, were not disqualified by Civil Code on Surnames:
any impediment to marry each other, or were so (2) To receive support from their parents, their
disqualified only because either or both of them ascendants, and in proper cases, their brothers
were below eighteen (18) years of age, may be and sisters, in conformity with the provisions of
legitimated) this Code on Support; and
(3) To be entitled to the legitime and other
Two (2) months after the death of her husband who successional rights granted to them by the Civil
was shot by unknown criminal elements on his way Code (Article 174, Family Code).
home from office, Rose married her childhood
boyfriend, and seven (7) months after said marriage, Cesar and Baby contracted marriage on June 15,
she delivered a baby. In the absence of any 1983. A year later, Baby bore a child, “X” The
evidence from Rose as to who is her child’s father, following year, the couple acquired a car and a
what status does the law give to said child? Explain. residential lot in Metro Manila. On September 1,
(1999 Bar) 1988, the marriage was declared void from the
beginning by a competent court because Cesar was
SUGGESTED ANSWER: below 16 years of age at the time of the marriage.
The child is legitimate of the second marriage Sometime in December, 1988, Cesar met Rosa with
under Article 168(2) of the Family Code which whom he fell in love. Cesar married Rosa on
provides that a “child born after one hundred January 15, 1989. On September 1, 1989, Rosa
eighty days following the celebration of the gave birth prematurely to a child, “Y”. Is the
subsequent marriage is considered to have been marriage of Cesar and Rosa valid? What is the
conceived during such marriage, even though it status of the child “Y?” Give your reasons. (1989
be born within three hundred days after the Bar)
termination of the former marriage.”
SUGGESTED ANSWER:
The marriage of H and W was annulled by the Article 52 of the Family Code requires that the
competent court. Upon finality of the judgment of judgment of annulment or of absolute nullity of
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the marriage, the partition and distribution of the pay Majorette P2 million and, in return, she would
properties of the spouses and the delivery of the give custody of the baby to him.
children's presumptive legitimes be recorded in After Majorette gives birth and delivers the baby to
the appropriate civil registry and registries of Gigolo following her receipt of P2 million, she
property. Article 53 of the same Code further engages your services as her lawyer to regain
provides that failure to comply with Art. 52 shall custody of the baby.
render a subsequent marriage null and void ab
initio. Accordingly, if there was a partition and a) What legal action can you file on behalf of
liquidation of the properties of the first marriage Majorette? Explain.
and the presumptive legitime of “X” was duly b) Can Gigolo demand from Majorette the return of
delivered, and the judgment, partition and the P2 million if he returns the baby? Explain.
delivery of legitimes were recorded in the proper c) Who of the two can exercise parental authority
civil registry and registries of property, the over the child? Explain.
second marriage is valid. If there was no such d) Is the child entitled to support and inheritance
compliance, then the subsequent marriage is from Gigolo? Explain. (2010 Bar)
void. Whether the marriage between Cesar and
Rosa is declared valid or not, “Y” would be SUGGESTED ANSWER:
legitimate, as Article 54 of the Family Code a) As her lawyer, I can file a petition for habeas
states that “children conceived or born of the corpus on behalf Majorette to recover custody of
subsequent marriage under Article 53 shall her child. Since she is the mother of the child
likewise be legitimate.” that was born out of wedlock, she has exclusive
parental authority and custody over the child.
Spouses B and G begot two offspring. Albeit they Gigolo, therefore, has no right to have custody
had serious personality differences, the spouses of the child and his refusal to give up custody
continued to live under one roof. B begot a son by will constitute illegal detention for which habeas
another woman. G also begot a daughter by another corpus is the proper remedy.
man. ALTERNATIVE ANSWER:
The action to regain custody will not prosper. In
a. If G gives the surname of B to her daughter by the first place Majorette cannot regain custody
another man, what can B do to protect their of the baby. As surrogate mother she merely
legitimate children's interests? Explain. (2010 Bar) carries the child in her womb for its
development. The child is the child of the natural
SUGGESTED ANSWER: parents - Gigolo and his partner. The agreement
B can impugn the status of G’s daughter by between Gigolo and Majorette is a valid
another man as his legitimate daughter on the agreement.
ground that for biological reason he could not
have been the father of the child, a fact that may b) No, he cannot. Both he and Majorette are
be proven by the DNA test. Having been born guilty of violating the provision of the Anti-Child
during the marriage between B and G, G’s Abuse Law (RA7610) on child trafficking. Being
daughter by another man is presumed as the in pari delicto, the partners shall be left where
child of B under Article 164 of the Family Code. they are and Gigolo cannot demand the return of
In the same action to impugn, B can pray for the what he paid.
correction of the status of the said daughter in
her record of birth. ALTERNATIVE ANSWER:
The agreement between Gigolo and Majorette is
b. If B acquiesces to the use of his surname by G’s a valid agreement.
daughter by another man, what is/are the
consequence/s? Explain. (2010 Bar) c) Majorette, the mother, can exercise parental
authority. Since the child was born out of
SUGGESTED ANSWER: wedlock, the child is illegitimate and the mother
If B acquiesces and does not file the action to has the exclusive parental authority and custody
impugn the legitimacy of the child within the over the child.
prescriptive period for doing so in Article 170 of
the Family Code, G’s daughter by another man ALTERNATIVE ANSWER:
shall be conclusively presumed as the legitimate Gigolo can exercise parental authority over the
daughter of B by G. child. Majorette has no blood relation to the
child. She is just a “carrier” of the child.
Gigolo entered into an agreement with Majorette for
her to carry in her womb his baby via in vitro d) If Gigolo voluntarily recognized the child as
fertilization. Gigolo undertook to underwrite his illegitimate child in accordance with Article
Majorette’s pre-natal expenses as well as those 175 in relation to Article 172 of the Family Code,
attendant to her delivery. Gigolo would thereafter the child is entitled to support and inheritance
from Gigolo.
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and Anna that they were already married.

ALTERNATIVE ANSWER: Thereafter, the couple lived together as husband
Yes, because Gigolo is the natural and biological and wife, and had three sons.
parent of the baby. What is the status of the three children of Michael
and Anna? Explain your answer. (2009 Bar)

Proof of Filiation SUGGESTED ANSWER:

Under the Family Code, children conceived and
Four children, namely: Alberto, Baldomero, Caridad, born outside of a valid marriage are illegitimate.
and Dioscoro, were born to the spouses Conrado Michael and Anna’s marriage being void ab initio
and Clarita de la Costa. The children’s birth [since there was no marriage ceremony], their
certificates were duly signed by Conrado, showing children were conceived and born outside of a
them to be the couple’s legitimate children. valid marriage, hence, the three are illegitimate.

Later, one Edilberto de la Cruz executed a notarial Sinclair and Steffi had an illicit relationship while
document acknowledging Alberto and Baldomero as Sinclair was married to another. The relationship
his illegitimate children with Clarita. Edilberto died produced a daughter Sabina, who grew up with her
leaving substantial properties. In the settlement of mother. For most parts of Sabina’s youth, Steffi
his estate, Alberto and Baldomero intervened spent for her support and education. When Sabina
claiming shares as the deceased’s illegitimate was 21 years old, Sinclair’s wife of many years died.
children. The legitimate family of Edilberto opposed Sinclair and Steffi lost no time in legitimizing their
the claim. relationship. After the 40-day prayers for Sinclair’s
late wife, Sinclair and Steffi got married without a
Are Alberto and Baldomero entitled to share in the marriage license, claiming that they have been
estate of Edilberto? Explain. (2009 Bar) cohabiting for the last 20 years.

SUGGESTED ANSWER: After graduating from college, Sabina decided to

No, Alberto and Baldomero are not entitled to enroll in law school. Sinclair said that he was not
share in the estate of Edilberto. To allow Alberto willing to pay for her school fees since she was no
and Baldomero to inherit from Edilberto on the longer a minor. Sinclair claimed that, if Sabina
basis of the notarial document executed by wanted to be a lawyer, she had to work and spend
Edilberto would be to allow them to indirectly for her law education.
impugn their status as legitimate children of a) What is Sabina’s filiation status? (2018 Bar)
Conrado. Under the Family Code, only the
husband is allowed to impugn the legitimacy of SUGGESTED ANSWER:
a child. Clearly, it is only Conrado, not Alberto Sabina is an illegitimate child.
and Baldomero, who may impugn their
legitimacy. Consequently, Alberto and Under the Family Code, a child conceived and
Baldomero’s action to claim shares in the estate born outside a valid marriage is illegitimate.
of Baldomero, being actions to impugn their
legitimacy, should not be allowed. Sabina was conceived and born at a time when
her father, Sinclair, was still married to another
woman. She would thus be illegitimate. Notably,
Illegitimate Children the marriage of her parents to each other did not
make Sabina a legitimated child since 1) only a
In December 2000, Michael and Anna, after child whose parents, at the time of his
obtaining a valid marriage license, went to the Office conception, had no impediment to marry each
of the Mayor of Urbano, Bulacan, to get married. other (or the only impediment was that they were
The Mayor was not there, but the Mayor’s secretary underage) can be legitimated. Since Sinclair had
asked Michael and Anna and their witnesses to fill an impediment at the time Sabina was
up and sign the required marriage contract forms. conceived, the latter may not be legitimated; 2)
The secretary then told them to wait, and went out to legitimation requires a valid marriage between
look for the Mayor who was attending a wedding in a the parents of the child. Since Sinclair and Steffi
neighboring municipality. had not actually lived together for 5 years prior
to their marriage, their marriage, without a
When the secretary caught up with the Mayor at the marriage license is void, hence could not have
wedding reception, she showed him the marriage legitimated Sabina.
contract forms and told him that the couple and their
witnesses were waiting in his office. The Mayor Nestor is the illegitimate son of Dr. Perez. When Dr.
forthwith signed all the copies of the marriage Perez died, Nestor intervened in the settlement of
contract, gave them to the secretary who returned to his father’s estate, claiming that he is the illegitimate
the Mayor’s office. She then gave copies of the son of said deceased, but the legitimate family of Dr.
marriage contract to the parties, and told Michael Perez is denying Nestor’s claim. What evidence or
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evidences should Nestor present so that he may as petitioner’s alleged parent died when he was
receive his rightful share in his father’s estate? already 18.
(1999 Bar)
Abraham died intestate on 7 January 1994 survived
SUGGESTED ANSWER: by his son Braulio. Abraham’s older son Carlos died
b) To be able to inherit, the illegitimate filiation of on 14 February 1990.
Nestor must have been admitted by his father in Danilo who claims to be an adulterous child of
any of the following: (1) the record of birth Carlos intervenes in the proceedings for the
appearing in the civil register, (2) a final settlement of the estate of Abraham in
judgment, (3) a public document signed by the representation of Carlos. Danilo was legally adopted
father, or (4) a private handwritten document on 17 March 1970 by Carlos with the consent of the
signed by the father (Article 175 in relation to latter’s wife.
Article 172 of the Family Code). a) Under the Family Code, how may an illegitimate
While the Family Code also allows an illegitimate filiation be proved? Explain.
child to prove his filiation through (1) The open b) As lawyer for Danilo, do you have to prove
and continuous possession of the status of a Danilo’s illegitimate filiation? Explain.
legitimate child; or (2) Any other means allowed (1995 Bar)
by the Rules of Court and special laws, the
Family Code allows an action based on such SUGGESTED ANSWER:
proof only during the lifetime of the alleged a) Under Art. 172 in relation to Art. 173 and Art.
parent. Given that Dr. Perez, his alleged father, is 175 of the FC, the filiation of illegitimate children
already dead, an action based on said proof may may be established in the same way and by the
no be availed of by Nestor. same evidence as legitimate children. Art. 172
provides that the filiation of legitimate children
Julie had a relationship with a married man who had is established by any of the following: (1) the
legitimate children. A son was born out of that illicit record of birth appearing in the civil register or a
relationship in 1981. Although the putative father did final judgment; or (2) an admission of legitimate
not recognize the child in his certificate of birth, he filiation in a public document or a private
nevertheless provided the child with all the support handwritten instrument and signed by the parent
he needed and spent time regularly with the child concerned. In the absence of the foregoing
and his mother. When the man died in 2000, the evidence, the legitimate filiation shall be proved
child was already 18 years old so he filed a petition by: (1) the open and continuous possession of
to be recognized as an illegitimate child of the the status of a legitimate child; or (2) any other
putative father and sought to be given a share in his means allowed by the Rules of Court and special
putative father's estate. The legitimate family laws. Note, however, that for the last two classes
opposed, saying that under the Family Code his of evidence, the Family Code allows an action
action cannot prosper because he did not bring the based on such proof only during the lifetime of
action for recognition during the lifetime of his the alleged parent.
putative father.
a) If you were the judge in this case, how would you b) No. Since Danilo has already been adopted by
rule? (2015 Bar) Carlos, he ceased to be an illegitimate child,
hence there is no more need to prove Danilo’s
SUGGESTED ANSWER: illegitimate filiation. An adopted child acquires
I would rule in favor of the legitimate family. all the rights of a legitimate child under Art. 189
Under the Family Code, if an illegitimate child of the FC.
wants to file an action to be recognized as such
using as proof, his open and continuous Mario executed his last will and testament where he
possession of the status of an illegitimate child, acknowledges the child being conceived by his live-
the same must be filed during the lifetime of the in partner Josie as his own child; and that his house
putative parent. In the instant case, the and lot in Baguio City be given to his unborn
petitioner brought the action at a time when his conceived child. Are the acknowledgment and the
alleged father was already dead, hence his donation mortis causa valid? Why? (2014 Bar)
action is already barred.
SUGGESTED ANSWER:
Notably, the petitioner may not invoke the The acknowledgment and the donation mortis
provisions of the Civil Code, on the ground that causa made by Mario is valid. The filiation of an
when he was born, it was the Civil Code which illegitimate child can be proven by an admission
was still effective, as the rule is the same under of such filiation in a public document or a
the Civil Code — a natural child may bring an private handwritten instrument signed by the
action for recognition only during the lifetime of parent concerned. Accordingly, whether Mario’s
his alleged parent. The exception allowed under will is a notarial one or a holographic one, the
the Civil Code, that the alleged parent die during same would be a valid admission of filiation in a
the minority of the child, is not applicable here,
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public document or a private handwritten Family Code requires that because the
instrument signed by the parent concerned. As illegitimate child has no documentary proof of
for the donation mortis causa, Art. 41 of the Civil his filiation, the action to establish his filiation
Code provides that A conceived child is must be brought during the lifetime of his
considered born for all purposes favorable to it, alleged father, whose death occurred in 1993.
provided it is born later under the conditions Hence, the illegitimate child Joey has no cause
laid down by Art. 41 of the Civil Code, i.e. it is of action.
alive at the time of its complete separation from
the maternal womb (however, if it had an intra- b) Are the defenses set up by Tintin tenable?
uterine life of less than seven months, it must Explain.
survive for 24 hours to be considered born). As
the donation is favorable to the foetus, the latter SUGGESTED ANSWER:
is considered as already born, hence the b) The defenses of Tintin are not tenable. The
donation is likewise valid. Accordingly, so long fact that Joey’s birth certificate does not show
as the foetus is born later, the acknowledgment that Steve was his father is of no moment. The
and the donation mortis causa would be valid. law does not require such mention. Besides, the
However, should it not be born, it never Civil Code provides that when the father did not
becomes a person and the the acknowledgment sign the birth certificate, his name should not be
and the donation mortis causa would be disclosed therein. While it is true that capacity to
ineffective. inherit is determined at the time of the death of
the decedent and that filiation is an element of
Steve was married to Linda, with whom he had a capacity to inherit, filiation is determined not at
daughter, Tintin. Steve fathered a son with Dina, his the time of the death of the decedent but at the
secretary of 20 years, whom Dina named Joey, born time of the birth of the child who is born with a
on September 20, 1981. Joey’s birth certificate did status. Such status may subsequently change
not indicate the father’s name. Steve died on August such as in legitimation, but legitimation is
13, 1993, while Linda died on December 3, 1993, deemed to retroact to the time of birth. In the
leaving their legitimate daughter, Tintin, as sole heir. same manner, recognition when given
On May 16, 1994, Dina filed a case on behalf of voluntarily by the father, or decreed by the court,
Joey, praying that the latter be declared an retroacts to the time of the child’s birth.
acknowledged illegitimate son of Steve and that
Joey be given his share in Steve’s estate, which is c) Supposing that Joey died during the pendency of
now being solely held by Tintin. Tintin put up the the action, should the action be dismissed? Explain.
defense that an action for recognition shall only be
filed during the lifetime of the presumed parents and SUGGESTED ANSWER:
that the exceptions under Article 285 of the Civil c) If Joey filed the action and died when the Civil
Code do not apply to him since the said article has Code was still in force, his action would be
been repealed by the Family Code. In any case, dismissed because the action was not
according to Tintin, Joey’s birth certificate does not transmissible to the heirs of the illegitimate child
show that Steve is his father. (Conde v. Abaya, 13 Phil. 249 119091)). But if the
a) Does Joey have a cause of action against Tintin action was filed after effectivity of the Family
for recognition and partition? Explain. (2005 Bar) Code, and Joey died during the pendency of the
action for recognition, it should not be
SUGGESTED ANSWER: dismissed. Under the present Family Code, an
a) Yes, Joey has such a cause of action against action commenced by a legitimate child to claim
Tintin. While the Family Code has repealed the his legitimate filiation is not extinguished by his
provisions of the Civil Code on proof of filiation, death. The Family Code makes this provision
said repeal did not impair vested rights. Joey applicable to the action for recognition filed by
was born an illegitimate child in 1981. As an an illegitimate child. Joey has the right to invoke
illegitimate child, he had acquired, at birth, the this provision because it does not impair any
right to prove his filiation in accordance with the vested rights. (Art. 175, Family Code)
provisions of the Civil Code in force at that time.
Under the Civil Code, an illegitimate child may In 1997, B and G started living together without the
file an action to compel his recognition even benefit of marriage. The relationship produced one
after the death of the putative father when the offspring, Venus. The couple acquired a residential
father died during the minority of the child. lot in Parañaque. After four (4) years or in 2001, G
While the Family Code has repealed this having completed her 4-year college degree as a
provision, it will not operate to prejudice Joey fulltime student, she and B contracted marriage
who has already acquired a vested right thereto. without a license. The marriage of B and G was, two
years later, declared null and void due to the
ALTERNATIVE SUGGESTED ANSWER: absence of a marriage license.
a) The Family Code governs the capacity of his a. Is Venus legitimate, illegitimate, or
heirs to inherit, since Steve died in 1993. The legitimated? Explain briefly. (2010 Bar)
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Honorato filed a petition to adopt his minor

SUGGESTED ANSWER: illegitimate child Stephanie, alleging that Stephanie’s
Venus is illegitimate. She was conceived and mother is Gemma Astorga Garcia; that Stephanie
born outside a valid marriage. Thus, she is has been using her mother’s middle name and
considered illegitimate (Art 165, Family Code). surname; and that he is now a widower and qualified
While Venus was legitimated by the subsequent to be her adopting parent. He prayed that
marriage of her parents, such legitimation was Stephanie’s middle name be changed from
rendered ineffective when the said marriage was “Astorga” to “Garcia,” which is her mother’s surname
later on declared null and void due to absence of and that her surname “Garcia” be changed to
a marriage license. Under Article 178 of the “Catindig,” which is his surname. This the trial court
Family Code, “legitimation shall take place by a denied. Was the trial court correct in denying
subsequent valid marriage between parents. The Hororato’s request for Stephanie’s use of her
annulment of a voidable marriage shall not affect mother’s surname as her middle name? Explain.
the legitimation.” The inclusion of the (2012 Bar)
underscored portion in the Article necessarily
implies that the Article’s application is limited to SUGGESTED ANSWER:
voidable marriages. It follows that when the No, the trial court was not correct. There is no
subsequent marriage is null or void, the law prohibiting an illegitimate child adopted by
legitimation must also be null and void. In the his natural father to use as middle name his
present problem, the marriage between B and G mother’s surname. The law is silent as to what
was not voidable but void. Hence, Venus has middle name an adoptee may use. In case of In
remained an illegitimate child. re: Adoption of Stephanie Nathy Astorga Garcia,
454 SCRA 541, the Supreme Court ruled that the
In 1985, Sonny and Lulu, both Filipino citizens, were adopted child may use the surname of the
married in the Philippines. In 1987, they separated, natural mother as his middle name because
and Sonny went to Canada, where he obtained a there is no prohibition in the law against it.
divorce in the same year. He then married another Moreover, it will also be for the benefit of the
Filipina, Auring, in Canada on January 1, 1988. They adopted child who shall preserve his lineage on
had two sons, James and John. In 1990, after failing his mother’s side and reinforce his right to
to hear from Sonny, Lulu married Tirso, by whom inherit from his mother and her family. Lastly, it
she had a daughter, Verna. In 1991, Sonny visited will make the adopted child conform with the
the Philippines where he succumbed to heart attack. time-honored Filipino tradition of carrying the
a) Explain the respective filiation of James, John mother’s surname as the person’s middle name.
and Verna.
b) Who are the heirs of Sonny? Explain. (2005 Bar)
Legitimated Children
SUGGESTED ANSWER:
a) James and John are the illegitimate children TRUE or FALSE. A dead child can be legitimated.
of Sonny and Auring because they were (2009 Bar)
conceived and born outside a valid marriage.
Verna is an illegitimate child of Lulu and Tirso SUGGESTED ANSWER:
having been conceived and born to the invalid TRUE. Under the Family Code, “the legitimation
marriage of Lulu and Tirso. Verna cannot be of children who died before the celebration of
presumed as the legitimate child of Sonny the marriage shall benefit their descendants,”
because of the supervening marriage that was hence, by implication, a dead child can be
celebrated between Lulu and Tirso even though legitimated.
such marriage is void ab initio. The case of
Liyao v. Liyao is not applicable because in that RN and DM, without any impediment to marry each
case the wife begot a child by another man other had been living together without benefit of
during her marriage to her estranged husband church blessings. Their common-law union resulted
but no marriage was celebrated between the wife in the birth of ZMN. Two years later, they got married
and the father of the child. The child in that case in a civil ceremony. Could ZMN be legitimated?
was presumed to be the legitimate child of the Reason. (2004 Bar)
estranged husband.
SUGGESTED ANSWER:
b) The heirs of Sonny are his wife Lulu, and his 2 ZMN was legitimated by the subsequent
illegitimate children James and John. The void marriage of RN and DM because at the time he
remarriage of Lulu to Tirso did not incapacitate was conceived, RN and DM could have validly
her to succeed Sonny. married each other. Under the Family Code
children conceived and born outside of wedlock
of parents who, at the time of the former’s
Illegitimate Children, Surname conception, were not disqualified by any

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impediment to marry each other are legitimated Gianna was conceived and born before the court
by the subsequent marriage of the parents. has decreed the nullity of her mother’s previous
marriage.
Roderick and Faye were high school sweethearts.
When Roderick was 18 and Faye, 16 years old, they Sinclair and Steffi had an illicit relationship while
started to live together as husband and wife without Sinclair was married to another. The relationship
the benefit of marriage. When Faye reached 18 produced a daughter Sabina, who grew up with her
years of age, her parents forcibly took her back and mother. For most parts of Sabina’s youth, Steffi
arranged for her marriage to Brad. Although Faye spent for her support and education. When Sabina
lived with Brad after the marriage, Roderick was 21 years old, Sinclair’s wife of many years died.
continued to regularly visit Faye while Brad was Sinclair and Steffi lost no time in legitimizing their
away at work. During their marriage, Faye gave birth relationship. After the 40-day prayers for Sinclair’s
to a baby girl, Laica. When Faye was 25 years old, late wife, Sinclair and Steffi got married without a
Brad discovered her continued liaison with Roderick marriage license, claiming that they have been
and in one of their heated arguments, Faye shot cohabiting for the last 20 years.
Brad to death. She lost no time in marrying her true
love Roderick, without a marriage license, claiming After graduating from college, Sabina decided to
that they have been continuously cohabiting for enroll in law school. Sinclair said that he was not
more than 5 years. willing to pay for her school fees since she was no
longer a minor. Sinclair claimed that, if Sabina
Can Laica be legitimated by the marriage of her wanted to be a lawyer, she had to work and spend
biological parents? (2008 Bar) for her law education.
a) What is Sabina’s filiation status? (2018 Bar)
SUGGESTED ANSWER:
No she cannot be legitimated by the marriage of SUGGESTED ANSWER:
her biological parents. In the first place she is Sabina is an illegitimate child.
not, under the law, the child of Roderick. In the
second place, her biological parents could not Under the Family Code, a child conceived and
have validly married each other at the time she born outside a valid marriage is illegitimate.
was conceived and born simply because Faye
was still married to Roderick at that time. Under Sabina was conceived and born at a time when
Article 177 of the Family Code, only children her father, Sinclair, was still married to another
conceived or born outside of wedlock of parents woman. She would thus be illegitimate. Notably,
who, at the time of the conception of the child the marriage of her parents to each other did not
were not disqualified by any impediment to make Sabina a legitimated child since 1) only a
marry each other, may be legitimated. child whose parents, at the time of his
conception, had no impediment to marry each
Gianna was born to Andy and Aimee, who at the other (or the only impediment was that they were
time of Gianna’s birth were not married to each underage) can be legitimated. Since Sinclair had
other. While Andy was single at that time, Aimee an impediment at the time Sabina was
was still in the process of securing a judicial conceived, the latter may not be legitimated; 2)
declaration of nullity of her marriage to her ex- legitimation requires a valid marriage between
husband. Gianna’s birth certificate, which was the parents of the child. Since Sinclair and Steffi
signed by both Andy and Aimee, registered the had not actually lived together for 5 years prior
status of Gianna as “legitimate”, her surname to their marriage, their marriage, without a
carrying that of Andy’s, and that her parents were marriage license is void, hence could not have
married to each other. legitimated Sabina.

Assuming that Aimee is successful in declaring her Adoption, Republic Act No. 8552 (Domestic
former marriage void, and Andy and Aimee Adoption Act)
subsequently married each other, would Gianna be
legitimated? (2008 Bar) Rafael, a wealthy bachelor, filed a petition for the
adoption of Dolly, a one-year old foundling who had
SUGGESTED ANSWER: a severe heart ailment. During the pendency of the
No, Gianna will not be legitimated. While the adoption proceedings, Rafael died of natural
court may have declared the marriage void oh causes. The Office of the Solicitor General files a
initio and, therefore, no marriage took place in motion to dismiss the petition on the ground that the
the eyes of the law, Gianna will still not be case can no longer proceed because of the
legitimated. This is because at the time she was petitioner’s death.
conceived and born her biological parents could a) Should the case be dismissed? Explain.
not have validly married each other. For their b) Will your answer be the same if it was Dolly who
marriage to be valid, the court must first declare died during the pendency of the adoption
the first marriage null and void. In the problem, proceedings? Explain. (2009 Bar)
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b) Yes, he can still adopt his illegitimate child

SUGGESTED ANSWER: but with the consent of his spouse, of his 14-
a) No, the petition should not be dismissed. year-old legitimate child, of the illegitimate child,
Under Section 13 of the Domestic and of the biological mother of the illegitimate
Adoption Act, if the petitioner dies before child (Section 7 and 9, RA 8552).
the issuance of the decree of adoption,
the court should still issue the decree if Despite several relationships with different women,
it is convinced that the adoption will be Andrew remained unmarried. His first relationship
for the best interest of the child. In the with Brenda produced a daughter, Amy, now 30
instant case, granting the petition would years old. His second, with Carla, produced two
be for the best interest of Dolly, as she sons: Jon and Ryan. His third, with Donna, bore him
stands to inherit from Rafael, hence the two daughters: Vina and Wilma. His fourth, with
petition should not be dismissed. Elena, bore him no children although Elena has a
daughter Jane, from a previous relationship. His
b) No, my answer will not be the same. Adoption last, with Fe, produced no biological children but
statutes are intended for the benefit and welfare they informally adopted without court proceedings,
of the child sought to be adopted, i.e. in Sandy, now 13 years old, whom they consider as
adoption proceedings, the welfare of the child is their own. Sandy was orphaned as a baby and was
of paramount concern. If Dolly is already dead, entrusted to them by the midwife who attended to
the objective of the adoption – the betterment of Sandy’s birth. All the children, including Amy, now
her welfare – can no longer be met. Thus, given live with Andrew in his house.
that the adoption proceedings will no longer be
of benefit to Dolly, the same should be Is there any legal obstacle to the legal adoption of
dismissed. Amy by Andrew? To the legal adoption of Sandy by
Andrew and Elena? (2008 Bar)
Spouses Rex and Lea bore two children now aged
14 and 8. During the subsistence of their marriage, SUGGESTED ANSWER:
Rex begot a child by another woman. He is now 10 No, there is no legal obstacle to the legal
years of age. On Lea’s discovery of Rex’s fathering adoption of Amy by Andrew. While a person of
a child by another woman, she filed a petition for age may not be adopted, Amy falls within two
legal separation which was granted. Rex now wants exceptions: (1) she is an illegitimate child and
to adopt his illegitimate child. she is being adopted by her illegitimate father to
improve her status; and (2) even on the
a) Whose consent is needed for Rex’s adoption of assumption that she is not an illegitimate child
his illegitimate child? of Andrew, she may still be adopted, although of
b) If there was no legal separation, can Rex still legal age, because she has been consistently
adopt his illegitimate child? Explain. (2010 Bar) considered and treated by the adopter as his
own child since minority. In fact, she has been
SUGGESTED ANSWER: living with him until now.
a) The consent of the 14-year-old legitimate
child, of the 10-year-old illegitimate child and of There is a legal obstacle to the adoption of
the biological mother of the illegitimate child are Sandy by Andrew and Elena. Andrew and Elena
needed for the adoption (Section 7 and 9, RA cannot adopt jointly because they are not
8552). The consent of Lea is no longer required married.
because there was already a final decree of legal
separation. Note: Under RA 8552, if the adopter is married, he
and his spouse are required to jointly adopt. There
Note: Under RA 8552, if the adopter is married, both is nothing, however, in the law, which states that a
spouses are required to jointly adopt. However, if man and a woman jointly seeking to adopt a child
the spouses are legally separated, joint adoption is MUST be married to each other. Given that in all
no longer required. It would thus appear that the matters relating to the care, custody and adoption of
legal separation of Lea and Rex only results in Lea a child, his/her interest shall be the paramount
not needing to join Rex in adopting a child (which is consideration, it is respectfully posited that so long
actually already the case here, as the spouse need as the adoption will best serve the interest of the
not join the adoption if his or her spouse wants to child, a petition for adoption filed by a man and a
adopt his/her illegitimate child). Sections 7 and 9 do woman who are not married to each should be
not provide that if the spouses are legally separated, granted.
the consent of the other spouse is no longer
required, as in fact, Section 9(e) does not In 1980 spouses Felisa and George, both Filipino
distinguish between spouses who are legally citizens, migrated to the United States. Six years
separated and those who are not. later they became American citizens. In 1989 they
jointly filed a petition before the Regional Trial Court
of Malabon seeking to adopt Gilda, the 10-year old
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daughter of Helen, Felisa’s younger sister. The requires a joint adoption, the court may decree
government opposed the petition on the ground that the adoption of Gilda by Felisa.
Felisa and George were disqualified since they were d) Yes, the answer will be the same as in a).
already American citizens. Felisa remains qualified to adopt despite her
a) How will you resolve the petition? Explain. acquisition of American citizenship during the
b) Will your answer be the same if George were a pendency of the adoption case. As stated earlier,
natural-born American citizen? Explain. foreigners are allowed to adopt under the
c) Will your answer be the same if Felisa were the Domestic Adoption Act.
illegitimate parent of Gilda? Explain.
d) Going back to the basic facts, suppose Felisa Felix, a Filipino doctor of medicine, married
acquired her American citizenship during the Monique, an Italian nurse. It was later discovered
pendency of the petition for adoption, will your that Monique cannot bear a child so that the couple
answer be the same as in Question a)? Explain. decided to adopt one. Can they jointly adopt Marie,
(1995 Bar) the 19-year old niece of Monique? Explain. (1989
Bar, amended)
SUGGESTED ANSWER:
a) The petition should be granted, as foreigners SUGGESTED ANSWER:
are not disqualified to adopt under the Domestic No, they may not jointly adopt Marie. Under the
Adoption Act. Under the said law, foreigners are Domestic Adoption Act, an adult maybe adopted
allowed to adopt so long as they meet the only if 1) he has been consistently considered
requirements laid down therein. More, the 3-year and treated as a child by the appplicants prior
residency requirement and certification as to to the adoption; 2) is the illegitimate
capacity to adopt to be issued by the foreigner’s son/daughter of the prospective adopter; 3) is
consular or diplomatic officials may be waived in the legitimate son/daughter of the other spouse.
the instant case as the petitioners are former In the instant case, Marie is already 19 years old,
Filipino citizens who seek to adopt a relative an adult. Not being the child of Monique, and it
within the 4th degree, as to Felisa by appearing that she has never been treated prior
consanguinity, and as to George, by affinity. thereto as a child by the couple, she cannot be
Likewise, the 6-months trial custody period may adopted by the spouses.
be reduced due to said qualification of Felisa
and George. Eighteen-year old Filipina Patrice had a daughter
out of wedlock whom she named Laurie. At 26,
b) No, my answer would not be the same. Under Patrice married American citizen John who brought
the Domestic Adoption Act, if the prospective her to live with him in the United States of America.
adopter is married, he and his spouse must John at once signified his willingness to adopt
jointly adopt, with the further requirement that Laurie. Can John file the petition for adoption? If
both of the spouses must be qualified to adopt. yes, what are the requirements? If no, why? (2010
While the Domestic Adoption Act allows a Bar)
foreigner to adopt in the Philippines, he must
have been residing in the Philippines for at least SUGGESTED ANSWER:
3 years prior to the filing of the petition, unless Yes, John can file the petition to adopt. However,
he falls under any of the exceptions where the given that John and Patrice are living in the
residency requirement may be waived. In the USA, John cannot avail of adoption under the
instant case, it does not appear that Felisa and Domestic Adoption Act as the same requires at
George have resided in the Philippines for the least three years continuous residence in the
last 3 years. While the residency requirement Philippines prior to the filing of the petition, and
may be waived for Felisa, who is a former maintenance of the same until the decree is
Filipino citizen who wishes to adopt a relative by entered. John must thus file the petition for
consanguinity within the 4th degree, adoption under the Inter-Country Adoption Act.
unfortunately the said requirement cannot be Notably, the Inter-Country Adoption Act requires
waived for George, a natural-born American who that the prospective adoptee be a child below
does not fall in any of the instances for waiver to fifteen who has been legally declared available
apply. Since one of the spouses is disqualified, for adoption. Eight-year old Laurie must thus be
the petition for adoption should be denied. first declared available for adoption before John
can file a petition to adopt her. Likewise, John
c) No, my answer will be different. In such a must meet the requirements for an adopter
case, the petition should be granted as Felisa, a under the Inter-Country Adoption Act, thus, he
qualified adopter, is now allowed to adopt alone. must be:
Even if the prospective adopter is married, if he a) at least twenty-seven (27) years
seeks to adopt his own illegitimate child to raise of age and at least sixteen (16)
them to legitimacy, the law no longer requires a years older than the child to be
joint adoption. Thus, even if Felisa’s husband is adopted, at the time of
disqualified to adopt, since the law no longer application unless the adopter is
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the parent by nature of the child

to be adopted or the spouse of SUGGESTED ANSWER:
such parent: Yes, the trial court was correct. At the time the
b) his/her spouse must jointly file petitions for adoptions were filed, petitioner had
for the adoption; already remarried. Under the law, husband and
c) has the capacity to act and wife shall adopt jointly, except in the cases
assume all rights and enumerated in the law. The adoption cases of
responsibilities of parental Michelle and James do not fall in any of the
authority under his national laws, exceptions provided in the law where a spouse
and has undergone the is permitted to adopt alone. Hence, Monina
appropriate counseling from an should adopt jointly with her husband Angel
accredited counselor in his/her (Adoption of Michelle P. Lim, 588 SCRA 98).
country;
d) has not been convicted of a In 1984, Eva, a Filipina, went to work as a nurse in
crime involving moral turpitude; the USA. There she met and fell in love with Paul,
e) is eligible to adopt under his/her an American citizen, and they got married in 1985.
national law; Eva acquired American citizenship in 1987. During
f) is in a position to provide the their sojourn in the Philippines in 1990, they filed a
proper care and support and to joint petition for the adoption of Vicky, a 7-year-old
give the necessary moral values daughter of Eva’s sister. The government, through
and example to all his children, the Office of the Solicitor General, opposed the
including the child to be adopted; petition on the ground that the petitioners, being
g) agrees to uphold the basic rights both foreigners, are disqualified to adopt Vicky.
of the child as embodied under a) Is the government’s opposition tenable? Explain.
Philippine laws, the U.N. b) Would your answer be the same if they sought to
Convention on the Rights of the adopt Eva’s illegitimate daughter? Explain.
Child, and to abide by the rules c) Supposing that they filed the petition to adopt
and regulations issued to Vicky in the year 2000, will your answer be the
implement the provisions of this same? Explain. (2005 Bar)
Act;
h) comes from a country with whom SUGGESTED ANSWER:
the Philippines has diplomatic a) Yes, the position of the government is tenable.
relations and whose government Foreigners are disqualified to adopt unless they
maintains a similarly authorized fall in any of the exceptions provided for in the
and accredited agency and that law. Eva and Paul are both foreigners. Eva, falls
adoption is allowed under his/her in one of the exceptions. She is qualified to
national laws; and adopt because she is a former Filipino citizen
i) possesses all the qualifications who wishes to adopt a relative’by consanguinity.
and none of the disqualifications Unfortunately, Paul is not qualified to adopt
provided herein and in other because he does not fall in any of the
applicable Philippine laws. exceptions. Hence, they cannot adopt jointly.
When husband and wife are adopting jointly,
Spouses Primo and Monina Lim, childless, were both of them must be qualified to adopt in their
entrusted with the custody of two (2) minor children, own right, Eva cannot, alone by herself, adopt
the parents of whom were unknown. Eager of her niece because husband and wife must adopt
having children of their own, the spouses made it jointly unless they fall in any of the exceptions
appear that they were the children’s parents by provided for in the law. They cannot adopt
naming them Michelle P. Lim and Michael Jude Lim. separately because they do not fall in any of the
Subsequently, Monina married Angel Olario after exceptions. Hence, whether separately or jointly,
Primo’s death. She decided to adopt the children by Eva and Paul cannot adopt Vicky in the
availing the amnesty given under R.A. 8552 to those Philippines. (Domestic Adoption Act [RA 8552])
individuals who simulated the birth of a child. She
filed separate petitions for the adoption of Michelle, b) No, my answer would be different. Eva is
then 25 years old and Michael, 18. Both Michelle qualified to adopt her illegitimate daughter,
and Michael gave consent to the adoption. The trial because she falls in one of the exceptions that
court dismissed the petition and ruled that Monina allow foreigners to adopt. She is a former
should have filed the petition jointly with her new Filipino citizen adopting her relative by
husband. Monina, in a Motion for Reconsideration consanguinity. Eva can adopt separately her
argues that mere consent of her husband would illegitimate child because her case is also an
suffice and that joint adoption is not needed, for the exception to the rule that husband and wife
adoptees are already emancipated. Is the trial court should adopt jointly.
correct in dismissing the petitions for adoption?
Explain. (2012 Bar)
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c) Yes, my answer will be the same. The will. Bert was survived by his biological siblings,
Domestic Adoption Act allows a foreigner to Joe, and the boy.
adopt in the Philippines if he has been residing
in the Philippines for at least 3 years prior to the c) If Bert and Joe had decided in the early years of
filing of the petition unless the law waives that their cohabitation to jointly adopt the boy, would they
residency requirement. Paul and Eva have not have been legally allowed to do so? Explain with
resided in the Philippines for the last 3 years. legal basis. (2015 Bar)
However, Eva will qualify for waiver because she
was a former Filipino citizen who wishes to SUGGESTED ANSWER:
adopt a relative by consanguinity within the 4th Bert and Joe would not have been legally
degree. Unfortunately Paul will not qualify to allowed to jointly adopt the boy. Under the
adopt because he does not fall in any of the Domestic Adoption Act, joint adoption is
instances for waiver to apply. They cannot adopt required if the prospective adopter is married.
jointly because one of them is not qualified. Since the Philippines does not recognize same-
Neither may Eva adopt alone because she does sex relationships, Bert and Joe would not qualify
not fall in any of the exceptions that allow for joint adoption. In fact, given that same sex
husband and wife to adopt separately. marriage is proscribed under Philippine law,
public policy clearly does not favor the same. To
Spouses Esteban and Maria decided to raise their allow Bert and Joe to jointly adopt the boy, as if
two (2) nieces, Faith and Hope, both minors, as they were married to each other, would be to
their own children after the parents of the minors give legitimacy to their relationship. What
died in a vehicular accident. cannot be done directly cannot be done
indirectly, hence the same cannot be allowed.
Ten (10) years after, Esteban died. Maria later on
married her boss Daniel, a British national who had A Filipino couple, Mr. And Mrs. BM, Jr., decided to
been living in the Philippines for two (2) years. adopt YV, an orphan from St. Claire’s orphanage in
New York City. They loved and treated her like a
With the permission of Daniel, Maria filed a petition legitimate child for they have none of their very own.
for the adoption of Faith and Hope. She did not However, BM, Jr., died in an accident at sea,
include Daniel as her co-petitioner because for followed to the grave a year later by his sick father,
Maria, it was her former husband Esteban who BM, Sr. Each left a sizable estate consisting of bank
raised the kids. deposits, lands and buildings in Manila. May the
adopted child, YV, inherit from BM, Jr.? May she
If you are the judge, how will you resolve the also inherit from BM, Sr.? Is there a difference?
petition? (2014 Bar) Why? Explain. (2004 Bar)

SUGGESTED ANSWER: SUGGESTED ANSWER:

The petition should be denied. Under the a) YV can inherit from BM, Jr. The succession to
Domestic Adoption Act, if the prospective the estate of BM, Jr. is governed by Philippine
adopter is married, both spouses must jointly law because he was a Filipino when he died
adopt. The exceptions to the rule requiring joint (Article 16, Civil Code). Under Article 1039 of the
adoption are 1) when the prospective adopter is Civil Code, the capacity of the heir to succeed is
adopting his own illegitimate child to raise governed by the national law of the decedent
him/her to legitimacy; 2) when the prospective and not by the national law of the heir. Hence,
adopter is legally separated from his spouse; 3) whether or not YV can inherit from BM, Jr. is
when the prospective adopter is adopting the determined by Philippine law. Under Philippine
children of his spouse. law, the adopted inherits from the adopter as a
legitimate child of the adopter.
None of these exceptions apply in the instant YV, however, cannot inherit, in his own right,
case, hence, the general rule applies. Given that from the father of the adopter, BM, Sr., because
the petitioner is married, the failure of her he is not a legal heir of BM, Sr. The legal fiction
husband to join the petition for adoption is a of adoption exists only between the adopted and
fatal defect calling for the denial of the petition. the adopter. (Teotico v. Del Val 13 SCRA 406
(19651). Neither may he inherit from BM, Sr. by
Bert and Joe, both male and single, lived together representing BM, Jr. because in representation,
as common law spouses and agreed to raise a son the representative must be a legal heir not only
of Bert's living brother as their child without legally of the person he is representing but also of the
adopting him. Bert worked while Joe took care of decedent from whom the represented was
their home and the boy. In their 20 years of supposed to inherit (Article 973, Civil Code).
cohabitation they were able to acquire real estate
assets registered in their names as co-owners. Lina, a former Filipina who became an American
Unfortunately, Bert died of cardiac arrest, leaving no citizen shortly after her marriage to an American
husband, would like to adopt in the Philippines,
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jointly with her husband, one of her minor brothers. adoption of her three-year old nephew, one of the
Assuming that all the required consents have been eleven children of her destitute sister in Tondo. She
obtained, could the contemplated joint adoption in had been supporting the child since his birth, and
the Philippines prosper? Explain. (2003 Bar) being childless, she and her husband have come to
love him as their own son. They are both well-
SUGGESTED ANSWER: employed in the United States. If you were the
Yes. Lina and her American husband can jointly judge, will you grant the adoption? Explain. (1996
adopt a minor brother of Lina because she and Bar)
her husband are both qualified to adopt. Lina, as
a former Filipino citizen, can adopt her minor SUGGESTED ANSWER:
brother under Sec. 7(b)(i) of RA 8552 (Domestic It depends. If Gary has been residing in the
Adoption Act of 1998), or under Art. 184(3)(a) of Philippines for at least 3 years prior to the
the Family Code. The alien husband can now effectivity of RA 8552, the petition may be
adopt under Sec. 7[b] of RA 8552. The Supreme granted. Otherwise, the petition cannot be
Court has held in several cases that when granted because Gary, the American husband, is
husband and wife are required to adopt jointly, not qualified to adopt.
each one of them must be qualified to adopt in As Tess is married to Gary, they are required to
his or her own right (Republic v. Toledano, 233 jointly adopt. When husband and wife adopts
SCRA 9). However, the American husband must jointly, the Supreme Court has held in a line of
comply with the requirements of the law cases that both of them must be qualified to
including the residency requirement of three (3) adopt. While the 3-year residency requirement
years. Otherwise, the adoption will not be may be waived for Tess, being a former Filipino
allowed. citizen who seeks to adopt a relative within the
4th degree of consanguinity or affinity, the said
A German couple filed a petition for adoption of a requirement cannot be waived for Gary, because
minor Filipino child with the Regional Trial Court of he is neither a former Filipino citizen nor married
Makati under the provisions of the Child and Youth to a Filipino. Gary not being qualified to adopt,
Welfare Code which allowed aliens to adopt. Before their petition must be denied.
the petition could be heard, the Family Code, which However, if they have been residents of the
repealed the Child and Youth Welfare Code, came Philippines three years prior to the effectivity of
into effect. Consequently, the Solicitor General filed the Act and continues to reside here until the
a motion to dismiss the petition, on the ground that decree of adoption is entered, they are qualified
the Family Code prohibits aliens from adopting. If to adopt the nephew of Tess under Section 7(b)
you were the judge, how will you rule on the motion? thereof, and the petition may be granted.
(2002 Bar)
(Note: Being disqualified und er the Domestic
SUGGESTED ANSWER: Adoption Act, Tess and Gary may seek to adopt
The motion to dismiss the petition for adoption under the Inter-Country Adoption Act instead,
should be denied. The law that should govern provided they and the prospective adoptee meet the
the action is the law in force at the time of filing requirements of said law.)
of the petition. At that time, it was the Child and
Youth Welfare Code that was in effect, not the Sometime in 1990, Sarah, born a Filipino but by
Family Code. Petitioners have already acquired a then a naturalized American citizen, and her
vested right on their qualification to adopt which American husband Tom, filed a petition in the
cannot be taken away by the Family Code. Regional Trial Court of Makati, for the adoption of
(Republic v. Miller, 306 SCRA 183, citing the minor child of her sister, a Filipino. Can the
Republic v. Court of Appeals, 205 SCRA 356) petition be granted? (2000 Bar)

ALTERNATIVE ANSWER: SUGGESTED ANSWER:

The motion has to be granted. The new law shall It depends. If Tom and Sarah have been residing
govern their qualification to adopt and under the in the Philippines for at least 3 years prior to the
new law, the German couple is disqualified from effectivity of RA 8552, the petition may be
adopting. They cannot claim that they have granted. Otherwise, the petition cannot be
already acquired a vested right because granted because the American husband is not
adoption is not a right but a mere privilege. No qualified to adopt.
one acquires a vested right on a privilege.
(Note: If the examinee based his answer on the While the petition for adoption was filed in 1990,
current law, RA 8552, his answer should be it was considered refiled upon the effectivity of
considered correct. This question is based on the RA 8552, the Domestic Adoption Act of 1998.
repealed provision of the Family Code on Adoption.) This is the law applicable, the petition being still
pending with the lower court.
Tess, a former Filipina, now a naturalized American,
and Gary, her American husband, filed a petition for
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Under the Act, Sarah and Tom must adopt jointly 992 of the Civil Code from inheriting from his
because they do not fall in any of the exceptions illegitimate grandfather Abraham.
where one of them may adopt alone. When
husband and wife must adopt jointly, the ALTERNATIVE ANSWER:
Supreme Court has held in a line of cases that An adopted child’s successional rights do not
both of them must be qualified to adopt. While include the right to represent his deceased
Sarah, an alien, is qualified to adopt under adopter in the inheritance of the latter’s
Section 7(b)(1) of the Act for being a former legitimate parent, in view of Art. 973 which
Filipino citizen who seeks to adopt a relative provides that in order that representation may
within the 4th degree of consanguinity or take place, the representative must himself be
affinity, Tom, an alien, is not qualified because capable of succeeding the decedent. Adoption
he is neither a former Filipino citizen nor married by itself did not render Danilo an heir of the
to a Filipino. One of them not being qualified to adopter’s legitimate parent. Neither does his
adopt, their petition has to be denied. However, being a grandchild of Abraham render him an
if they have been residents of the Philippines heir of the latter because as an illegitimate child
three years prior to the effectivity of the Act and of Carlos, who was a legitimate child of
continues to reside here until the decree of Abraham, Danilo is incapable of succeeding
adoption is entered, they are qualified to adopt Abraham under Art. 992 of the Code.
the nephew of Sarah under Section 7(b) thereof,
and the petition may be granted.
Republic Act No. 8043 ( Inter-Country Adoption Act)
ALTERNATIVE ANSWER:
Since the petition was filed before the effectivity Hans Herber, a German national, and his Filipino
of the Domestic Adoption Act of 1998, the Family wife, Rhoda, are permanent residents of Canada.
Code is the law applicable. They desire so much to adopt Magno, an 8-year old
orphaned boy and a baptismal godson of Rhoda.
Under the FC, Sarah and Tom must adopt jointly Since the accidental death of Magno’s parents in
because they do not fall in any of the exceptions 2004, he has been staying with his aunt who,
where one of them may adopt alone. Under a however, could hardly afford to feed her own family.
long line of cases decided by the Supreme Unfortunately, Hans and Rhoda cannot come to the
Court, when husband and wife must adopt Philippines to adopt Magno although they possess
jointly, both of them must be qualified to adopt. all the qualifications as adoptive parents.
While Sarah is qualified to adopt under Article Is there a possibility for them to adopt Magno? How
184(3)(a) for being a former Filipino citizen who should they go about it? (2005 Bar)
seeks to adopt a relative by consanguinity, Tom
is not. He is not a former Filipino citizen and SUGGESTED ANSWER:
neither is he married to a Filipino. One of them Under R.A. 8043 establishing the rules for inter-
not being qualified to adopt, the petition must be country adoption of Filipino children, the
denied. spouses may file an application to adopt a
Filipino child with the Inter-country Adoption
Board (ICAB) after they have been determined
Adoption, effects of eligible and fit to adopt by the State Welfare
Agency or a licensed adoption agency in
Abraham died intestate on 7 January 1994 survived Canada. The Canadian agency will forward the
by his son Braulio. Abraham’s older son Carlos died required supporting documents to the ICAB for
on 14 February 1990. matching with a Filipino child. The spouses,
Danilo who claims to be an adulterous child of after filing a petition with the ICAB, shall be
Carlos intervenes in the proceedings for the issued the Placement Authority and when all the
settlement of the estate of Abraham in travel documents of the child who is declared
representation of Carlos. Danilo was legally adopted legally eligible for adoption as determined by the
on 17 March 1970 by Carlos with the consent of the ICAB, are ready the adoptive parents or any one
latter’s wife. of them shall personally fetch the child in the
Can Danilo inherit from Abraham in representation Philippines for adoption in the court of the
of his father Carlos? Explain. (1995 Bar) foreigner’s country.

SUGGESTED ANSWER: Selena was a single 18-year old when she got
No, he cannot. Danilo cannot represent Carlos pregnant and gave birth to Suri. She then left to
as the latter’s adopted child in the inheritance of work as a caregiver in Canada, leaving Suri with her
Abraham because adoption did not make Danilo parents in the Philippines. Selena, now 34 years old
a legitimate grandchild of Abraham. Adoption is and a permanent resident in Canada, met and
personal between Carlos and Danilo. He cannot married Sam who is a 24-year old Canadian citizen
also represent Carlos as the latter’s illegitimate who works as a movie star in Canada. Sam’s
child because in such case he is barred by Art. parents are of Filipino ancestry but had become
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 76

Canadian citizens before Sam was born. Wanting Sandy assuming that all of them have the means to
Suri to have all the advantages of a legitimate child, support him?
Selena and Sam decided to adopt her. Sam’s b) Can Amy, Jon, Ryan, Vina, Wilma and Sandy
parents, already opposed to the marriage of their legally claim support from each other? (2008 Bar)
son to someone significantly older, vehemently
objected to the adoption. They argued that Sam was SUGGESTED ANSWER:
not old enough and that the requisite age gap a) Andrew can claim support from them all,
required by the Inter-Country Adoption Act between except from Sandy, who is not his child,
Sam as adopter and Suri as adoptee was not met. legitimate, illegitimate or adopted.

Are Sam’s parents correct? (2018 Bar) b) Amy, Jon, Ryan, Vina and Wilma can ask
support from each other because they are half-
SUGGESTED ANSWER: blood brothers and sisters, and Vina and Wilma
No, Sam’s parents are incorrect. are full-blood sisters (Art. 195 [5], Family Code),
but not Sandy who is not related to any of them.
Under the Inter-Country Adoption Act,
Sofia and Semuel, both unmarried, lived
prospective adopters must be at least 27 years
together for many years in the Philippines and begot
old and must be at least 16 years older than the
three children. While Sofia stayed in the Philippines
person to be adopted, unless he is the biological
with the children, Semuel went abroad to work and
parent of the person to be adopted, or he is the
became a naturalized German citizen. He met
spouse of the biological parent of the person to
someone in Germany whom he wanted to marry.
be adopted.
Semuel thereafter came home and filed a petition
with the Regional Trial Court (RTC) for partition of
In the instant case, while Sam is only 24 years the common properties acquired during his union
old, he is married to the natural parent of Suri, with Sofia in the Philippines. The properties acquired
hence exempted from the 27-year age during the union consisted of a house and lot in
requirement and the 16-year age gap Cavite worth PhP2 million and some personal
requirement. Accordingly, Sam is qualified to properties, including cash in bank amounting to
adopt under the Inter-Country Adoption Act. PhP1 million’ All these properties were acquired
using Semuel’s salaries and wages since Sofia was
Note: The adoption will, however, be denied on a stay-at-home mother. In retaliation, Sofia filed an
another ground. Under the Inter-Country action, on behalf of their minor children, for support.
Adoption Act, only a child below fifteen years of
age may be the subject of inter-country (b) Should Semuel be required to support the minor
adoption. As Suri is already 16 years (Selena children? (2018 Bar)
was 18 at the time she gave birth to Suri, and is
now 34. Plainly, 16 years has elapsed since she SUGGESTED ANSWER:
gave birth to Suri), she is disqualified from being Yes, Semuel should be required to support his
adopted under the Inter-Country Adoption Act. minor children.

Under the Family Code, parents and their

Support illegitimate children are reciprocally obliged to
support each other. More, Art. 17 of the Civil
Despite several relationships with different women, Code states that prohibitive laws concerning
Andrew remained unmarried. His first relationship persons, as well as those which have for their
with Brenda produced a daughter, Amy, now 30 object public order and public policy cannot be
years old. His second, with Carla, produced two rendered nugatory by laws or judgments
sons: Jon and Ryan. His third, with Donna, bore him promulgated in a foreign country.
two daughters: Vina and Wilma. His fourth, with
Elena, bore him no children although Elena has a In the instant case, while Semuel may now be a
daughter Jane, from a previous relationship. His German citizen, his minor children are Filipinos,
last, with Fe, produced no biological children but subject to its laws as regards their rights and
they informally adopted without court proceedings, duties. Accordingly, Semuel’s children have the
Sandy, now 13 years old, whom they consider as right, under Philippine law, to be supported by
their own. Sandy was orphaned as a baby and was their father, Semuel. More, even if German laws
entrusted to them by the midwife who attended to excuse a parent from supporting his children,
Sandy’s birth. All the children, including Amy, now the same would be contrary to Philippine public
live with Andrew in his house. policy, hence may not be used by Semuel to
deny his children their right to support. Foreign
a) In his old age, can Andrew be legally entitled to law contrary to our public policy will not be
claim support from Amy, Jon, Ryan, Vina, Wilma and given effect or recognized in the Philippines.

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 77

G filed on July 8, 2000 a petition for declaration of them of their right to complete an education, or
nullity of her marriage to B. During the pendency of to extinguish the obligation of the parents to
the case, the couple entered into a compromise ensure the future of their children.
agreement to dissolve their absolute community of
property. B ceded his right to their house and lot and Sinclair and Steffi had an illicit relationship while
all his shares in two business firms to G and their Sinclair was married to another. The relationship
two children, aged 18 and 19. B also opened a bank produced a daughter Sabina, who grew up with her
account in the amount of P3 million in the name of mother. For most parts of Sabina’s youth, Steffi
the two children to answer for their educational spent for her support and education. When Sabina
expenses until they finish their college degrees. For was 21 years old, Sinclair’s wife of many years died.
her part, G undertook to shoulder the day-to-day Sinclair and Steffi lost no time in legitimizing their
living expenses and upkeep of the children. The relationship. After the 40-day prayers for Sinclair’s
Court approved the spouses’ agreement on late wife, Sinclair and Steffi got married without a
September 8, 2000. marriage license, claiming that they have been
cohabiting for the last 20 years.
a. Suppose the business firms suffered reverses,
rendering G unable to support herself and the After graduating from college, Sabina decided to
children. Can G still ask for support pendente lite enroll in law school. Sinclair said that he was not
from B? Explain. willing to pay for her school fees since she was no
b. Suppose in late 2004 the two children had longer a minor. Sinclair claimed that, if Sabina
squandered the P3 million fund for their education wanted to be a lawyer, she had to work and spend
before they could obtain their college degrees, can for her law education.
they ask for more support from B? Explain. (2010
Bar) b) Is Sinclair legally required to finance
Sabina’s law education? (2018 Bar)
SUGGESTED ANSWER:
Yes, G can still ask for support pendent lite from SUGGESTED ANSWER:
B. Under Art. 201 of the Family Code, the amount No, Sinclair is not legally required to finance
of support shall be in proportion to the Sabina’s law education.
resources or means of the giver and to the
necessities of the recipient. Because of this, any Under the law, a parent is obliged to support his
judgment for support is essentially provisional, child, to include the latter’s education even
for during the entire period that a person is beyond the age of majority, to enable the latter
entitled to support, the amount of support to finish a professional, vocational, or other
granted to him or her may be modified or course. Entitlement to support, however,
altered, in accordance with his increased or requires that the person asking for support be
decreased needs, and with the means of the unable to finance his needs, hence necessitating
giver. In the instant case, even if G had the asking of support from others.
undertaken to shoulder the day-to-day living
expenses and upkeep of the children, the firm’s In the instant case, while Sinclair may have the
business reverses render her unable to shoulder obligation to support Sabina’s pursuit of further
said expenses. Given her change of education, the same will arise only if Sabina
circumstances, she and her children clearly cannot finance her own studies. Notably,
needs to be supported, hence she may ask for Sabrina is already a college graduate. Plainly,
support from B, the spouse of B and father of she can be gainfully employed, and the salaries
their children, a person expressly obligated she can earn can now be used to finance her law
under the law to support them. education. Accordingly, her law education need
not to be supported by her father anymore.
SUGGESTED ANSWER:
Yes, the two children can still ask for support for
schooling or training for some professions, Parental Authority
trade or vocation, even beyond the age of
majority until they shall have finished or Distinguish briefly but clearly between: Substitute
completed their education (Art. 194, 2 nd parental authority and special parental authority.
paragraph, Family Code; Javier v. Lucero, 94 (2004 Bar)
Phil. 634). Under the Family Code, members of
the family who need not be supported are SUGGESTED ANSWER:
illegitimate brothers and sisters of age who The distinctions are as follows:
have, through their fault or negligence, caused In substitute parental authority, the parents lose
their own need for support (Art. 196, FC). Since their parental authority in favor of the substitute
the children do not fall under this category, who acquires it to the exclusion of the parents.
plainly, their having squandered the money
given to them for their education will not deprive
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 78

In special parental authority, the parents or least 18 years old, then she is no longer under
anyone exercising parental authority does not parental authority and neither Carol nor Norma
lose parental authority. Those who are charged can assert the prerogative to take custody.
with special parental authority exercise such However, if she was less than 18 years old, then
authority only during the time that the child is in Norma has a better right since the adoption by
their custody or supervision. Norma of Bing terminates the parental authority
Substitute parental authority displaces parental of Carol over Bing.
authority while special parental authority
concurs with parental authority. ALTERNATIVE ANSWER:
The natural mother, Carol, should have the
Rodolfo, married to Sharon, had an illicit affair with better right in light of the principle that the
his secretary, Nanette, a 19-year old girl, and begot child’s welfare is the paramount consideration in
a baby girl, Rona. custody rights. Obviously, Bing’s continued stay
When Rona reaches seven (7) years old, she tells in her adopting parents’ house, where
Rodolfo that she prefers to live with him, because he interaction with the call girls is inevitable, would
is better off financially than Nanette. If Rodolfo files be detrimental to her moral and spiritual
an action for the custody of Rona, alleging that he is development. This could be the reason for
Rona’s choice as custodial parent, will the court Bing’s expressed desire to return to her natural
grant Rodolfo’s petition? Why or why not? (2009 mother. It should be noted, however, that Bing is
Bar) no longer a minor, being 19 years of age now. It
is doubtful that a court can still resolve the
SUGGESTED ANSWER: question of custody over one who is sui juris
The court should not grant the petition. An and not otherwise incapacitated.
illegitimate child, as adverted to earlier, is under
the parental authority of the mother. The fact b) On the assumption that Bing is still a minor or
that the father is better off than the mother is otherwise incapacitated, Carol may petition the
insufficient to offset this rule, as the father may proper court for resolution or rescission of the
be ordered by the court to provide financial decree of adoption on the ground that the
support should the means of the mother be adopting parents have exposed, or are exposing,
insufficient to support the child. Again, while the the child to corrupt influence, tantamount to
choice of the child over seven years of age must giving her corrupting orders or examples. She
be taken into consideration in deciding who can also ask for the revesting in her of parental
should have custody over the child, in all authority over Bing. If, however, Bing is already
questions of custody of children, the welfare of 19 years of age and therefore no longer a minor,
the child is of paramount consideration. Since it is not Carol but Bing herself who can petition
Rodolfo is married to someone else, it would not the court for judicial rescission of the adoption,
be for the best interest of the child to see her provided she can show a ground for
father cohabiting with someone other than her disinheritance of an ascendant.
mother. Hence, it is submitted that the petition
should not be granted, the same being grounded ANOTHER ANSWER:
merely on the fact that the child is choosing the Carol may file an action to deprive Norma of
biological father because he is better off than parental authority underArticle 231 of the Family
the mother. Code or file an action for the rescission of the
adoption under Article 191 in relation to Article
In 1975, Carol begot a daughter Bing, out of 231 (2) of the Family Code.
wedlock. When Bing was ten years old, Carol gave
her consent for Bing’s legal adoption by Norma and Under Article 213 of the Family Code, no child under
Manuel, which was granted by the court in 1990. In 7 years of age shall be separated from the mother
1991, Carol learned that Norma and Manuel were unless the court finds compelling reasons to order
engaged in a call-girl-ring that catered to tourists. otherwise. Explain the rationale of this provision.
Some of the girls lived with Norma and Manuel. (2006 Bar)
Carol got Bing back, who in the first place wanted to
return to her natural mother. SUGGESTED ANSWER:
a) Who has a better right to the custody of Bing, The rationale of the provision is that a child
Carol or Norma? below 7 years old needs the love and care which
b) Aside from taking physical custody of Bing, what only its mother can give. The welfare of the child
legal actions can Carol take to protect Bing? (1994 is given the highest priority and the interest of
Bar) the child prevails over procedural rules.

SUGGESTED ANSWER: Give at least 3 examples of “compelling reasons”

a) It depends on whether or not Bing was at least which justify the taking away from the mother’s
18 years old at the time Carol asserts the custody of her child under 7 years of age. (2006
prerogative to take custody of Bing. If she was at Bar)
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 79

and teachers who are principally liable. Art. 219

SUGGESTED ANSWER: of the Family Code covers all acts or omissions
The following have been considered as of the minor causing damage, so long as the
“compelling reasons” to deprive a mother of same were committed while the minor was under
custody: (1) neglect, (2) abandonment, (3) special parental authority. As the collision
unemployment, (4) immorality (Espiritu v. CA, occurred during an authorized school activity,
242 SCRA 362), (5) alcoholism, (6) drug the school was exercising special parental
addiction, (7) maltreatment, (8) insanity, (9) authority and would thus be liable. The parents
highly communicable serious disease, (10) grave of Rozanno will still be subsidiarily liable
physical handicap, (11) serious and credible pursuant to Art 219 (FC), if they are likewise
threat by the child to harm herself if separated negligent.
from her custodial grandparents (Luna v. CA,
137 SCRA 7). c) Since Rozanno was 16 years old in 1989, if the
incident happened sometime in the middle of
1994, Rozanno have been 21 years old at the
Substitute and Special Parental Authority time. Hence, he was already of legal age. The law
reducing the age of majority to 18 years took
On May 5, 1989, 16-year old Rozanno, who was effect in December 1989. Being of legal age,
issued a student permit, drove to school a car, a gift articles 218, 219, and 221 of the Family Code are
from his parents. On even date, as his class was no longer applicable. In such case, only
scheduled to go on a field trip, his teacher requested Rozanno will be personally responsible for all
him to accommodate in his car, as he did, four (4) of the consequences of his act unless his school
his classmates because the van rented by the or his parents were themselves also negligent
school was too crowded. On the way to a museum and such negligence contributed to the
which the students were scheduled to visit, Rozanno happening of the incident. In that event, the
made a wrong maneuver, causing a collision with a school or his parents are not liable under Art
jeepney. One of his classmates died. He and the 218, 218 or 221 of the Family Code, but will be
three (3) others were badly injured. liable under general provision on the Civil Code
on quasi-delict.
a. Who is liable for the death of Rozanno’s
classmate and the injuries suffered by Rozanno and If during class hours, while the teacher was chatting
his 3 other classmates? Explain. with other teachers in the school corridor, a 7-year
b. How about the damage to the jeepney? Explain. old male pupil stabs the eye of another boy with a
c. Under the same facts, except the date of ballpen during a fight, causing permanent blindness
occurrence of the incident, this time in mid-1994, to the victim, who could be liable for damages for
what would be your answer? Explain. (2010 Bar) the boy’s injury: the teacher, the school authorities,
or the guilty boy’s parents? Explain. (2003 Bar)
SUGGESTED ANSWER:
a) The school, its administrators and teachers is SUGGESTED ANSWER:
principally liable for the death and damages The school, its administrators, and teachers
suffered by Rozanno’s classmates. At the time have special parental authority and
the incident occurred in May 1989, Rozanno was responsibility over the minor child while under
still a minor. Pursuant to Art 218, the school, its their supervision, instruction or custody (Article
administrators and teachers shall have special 218, FC). They are principally and solidarily
parental authority and responsibility over the liable for the damages caused by the acts or
minor child, and under Art. 219, shall be omissions of the unemancipated minor unless
principally and solidarily liable for damages they exercised the proper diligence required
caused by the acts or omissions of the minor. under the circumstances (Article 219, FC). In the
This authority and responsibility applies to all problem, the teacher and the school authorities
authorized activities, whether inside or outside are liable for the blindness of the victim,
the premises of the school, entity or institution. because the student who caused it was under
The field trip on which occasion Rozanno drove their special parental authority and they were
the car, was an authorized activity, and thus negligent. They were negligent because they
covered by the provision. It was clearly were chatting in the corridor during the class
negligent for the school to allow a minor, who period when the stabbing incident occurred. The
had been granted only a student permit, to drive incident could have been prevented had the
his classmates to the museum without teacher been inside the classroom at that time.
supervision. The parents of Rozanno will be The guilty boy’s parents are subsidiarily liable
subsidiarily liable pursuant to Art 219 (FC), if under Article 219 of the Family Code.
they are likewise negligent.

b) With respect to the damages caused to the Funerals

jeepney, it is still the school, its administrators
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TRUE or FALSE. A person can dispose of his will make the adopted child conform with the
corpse through an act inter vivos. (2009 Bar) time-honored Filipino tradition of carrying the
mother’s surname as the person’s middle name.
SUGGESTED ANSWER:
FALSE. A person’s body becomes a corpse only
upon death, hence any disposition made by a Republic Act No. 9048; change of first name
person of his corpse would only take effect upon
his death. Thus, any disposition by a person of Zirxthoussous delos Santos filed a petition for
his corpse would be an act mortis causa, taking change of name with the Office of the Civil Registrar
effect only upon his death. of Mandaluyong City under the administrative
proceeding provided in Republic Act No. 9048. He
alleged that his first name sounds ridiculous and is
Use of Surnames extremely difficult to spell and pronounce. After
complying with the requirements of the law, the Civil
May an illegitimate child, upon adoption by her Registrar granted his petition and changed his first
natural father, use the surname of her natural name Zirxthoussous to “Jesus.” His full name now
mother as her middle name? (2006 Bar) reads “Jesus delos Santos.”
Jesus delos Santos moved to General Santos City
SUGGESTED ANSWER: to work in a multi-national company. There, he fell in
Yes, an illegitimate child who is adopted by his love and married Mary Grace delos Santos. She
natural father may carry the surname of his requested him to have his first name changed
biological mother as his middle name. The because his new name “Jesus delos Santos” is the
Supreme Court has ruled that there is no law same as that of her father who abandoned her
allowing or prohibiting such child from doing so. family and became a notorious drug lord. She
What is not prohibited is allowed. Likewise, the wanted to forget him. Hence, Jesus filed another
use of the surname of the mother, even of petition with the Office of the Local Civil Registrar to
legitimate children is in accord with Filipino change his first name to “Roberto.” He claimed that
customs and traditions and will serve the best the change is warranted because it will eradicate all
interest of the child who will not be confused by vestiges of the infamy of Mary Grace’s father.
wondering why he has no middle name. (In Re: Will the petition for change of name of Jesus delos
Adoption of Stephanie Nathy Astorga Garcia, Santos to Roberto delos Santos under Republic Act
454 SCRA 541). No. 9048 prosper? Explain. (2006 Bar)

Honorato filed a petition to adopt his minor SUGGESTED ANSWER:

illegitimate child Stephanie, alleging that Stephanie’s No, the petition will not prosper. Under RA 9048,
mother is Gemma Astorga Garcia; that Stephanie the extrajudicial correction of entry or change of
has been using her mother’s middle name and first name may be availed of only once. Given
surname; and that he is now a widower and qualified that Delos Santos had already obtained a
to be her adopting parent. He prayed that change of first name previously, the 2 nd petition
Stephanie’s middle name be changed from is clearly no longer allowed.
“Astorga” to “Garcia,” which is her mother’s surname
and that her surname “Garcia” be changed to Rodolfo, married to Sharon, had an illicit affair with
“Catindig,” which is his surname. This the trial court his secretary, Nanette, a 19-year old girl, and begot
denied. Was the trial court correct in denying a baby girl, Rona. Nanette sued Rodolfo for
Hororato’s request for Stephanie’s use of her damages: actual, for hospital and other medical
mother’s surname as her middle name? Explain. expenses in delivering the child by caesarean
(2012 Bar) section; moral, claiming that Rodolfo promised to
marry her, representing that he was single when, in
SUGGESTED ANSWER: fact, he was not; and exemplary, to teach a lesson to
No, the trial court was not correct. There is no like-minded Lotharios.
law prohibiting an illegitimate child adopted by Suppose Rodolfo later on acknowledges Rona and
his natural father to use as middle name his gives her regular support, can he compel her to use
mother’s surname. The law is silent as to what his surname? Why or why not? (2009 Bar)
middle name an adoptee may use. In case of In
re: Adoption of Stephanie Nathy Astorga Garcia, SUGGESTED ANSWER:
454 SCRA 541, the Supreme Court ruled that the Rodolfo may not compel Rona to use his
adopted child may use the surname of the surname. Since Rodolfo was married to
natural mother as his middle name because somebody else at the time Rona was conceived
there is no prohibition in the law against it. and born to Nanette, Rona would be illegitimate.
Moreover, it will also be for the benefit of the Under Art. 176 of the Family Code, as amended
adopted child who shall preserve his lineage on by R.A. No. 9255, illegitimate children shall use
his mother’s side and reinforce his right to the surname and shall be under the parental
inherit from his mother and her family. Lastly, it authority of their mother. While the same article
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allows an illegitimate child to use the surname of

his father if his father has expressly recognized SUGGESTED ANSWER:
his filiation, the same is merely permissive on Under RA 9048, as amended by RA 10172,
the child, not mandatory. In fact, in Grande v. clerical or typographical errors, to include sex
Antonio (G.R. No. 206248, 18 February 2014), the and the day and month of the date of birth, may
Supreme Court declared that Art. 176 gives be corrected without judicial order. Likewise, the
illegitimate children the right to decide if they said law allows the change of first name or
want to use the surname of their father or not. It nickname without judicial order.
is not the father or the mother who is granted by
law the right to dictate the surname of their Gianna was born to Andy and Aimee, who at the
illegitimate children. Rather, it is the child who time of Gianna’s birth were not married to each
decides. From the foregoing, it is clear that other. While Andy was single at that time, Aimee
Rodolfo may not compel Rona to use his was still in the process of securing a judicial
surname. declaration of nullity of her marriage to her ex-
husband. Gianna’s birth certificate, which was
signed by both Andy and Aimee, registered the
Absence; Presumption of Death status of Gianna as “legitimate”, her surname
carrying that of Andy’s, and that her parents were
Mrs. L was married to a ship captain who worked for married to each other.
an international maritime vessel. For her and her
family's support, she would claim monthly a) Can a judicial action for correction of entries in
allotments from her husband's company. One day, Gianna’s birth certificate be successfully maintained
while en route from Hong Kong to Manila, the vessel to:
manned by Captain L encountered a severe i) Change her status from “legitimate” to
typhoon at sea. The captain was able to send radio “illegitimate”; and
messages of distress to the head office until all ii) Change her surname from that of Andy’s to
communications were lost. In the weeks that Aimee’s maiden surname?
followed, the search operations yielded debris of the b) Instead of a judicial action, can administrative
lost ship but the bodies of the crew and the proceedings be brought for the purpose of making
passengers were not recovered. The insurance the above corrections? (2008 Bar)
company thereafter paid out the death benefits to all
the heirs of the passengers and crew. Mrs. L filed a SUGGESTED ANSWER:
complaint demanding that her monthly allotments a) (i) A judicial action cannot be maintained to
continue for the next four years until her husband change the status of Gianna from “legitimate” to
may be legally presumed dead because of his “illegitimate” child of Andy and Aimee. While it
absence. If you were the magistrate, how would you is true that Gianna is the biological daughter of
rule? (2015 Bar) Andy and Aimee conceived and born without
marriage between them, Gianna is presumed,
SUGGESTED ANSWER: under the law as the legitimate child of Aimee
I would deny Mrs. L’s claim for monthly and her then husband. This filiation may be
allotments. In Eastern Shipping Lines v. Lucero impugned only by the husband. To correct the
(124 SCRA 425), the Supreme Court has status of Gianna in her birth certificate from
declared that the four-year requirement for “legitimate child of Andy and Aimee” to
presumptive death must yield to preponderance “illegitimate child of Andy and Aimee” will
of evidence showing proof of actual, rather than, amount to indirectly impugning her filiation as
presumptive death. In the instant case there is a the child of Aimee’s husband. This is not
preponderance of evidence showing that allowed unless brought by Aimee’s husband in a
Captain L’s vessel encountered a severe proper action. What cannot be done directly
typhoon, with radio messages showing that the cannot be done indirectly.
ship was in distress. Debris from the vessel was ii) A judicial action to change the surname of
also found in the weeks after the incident. All Gianna from the surname of Andy to the maiden
these show that the said vessel had sunk. surname of Aimee is also not allowed. Gianna,
Plainly, the preponderance of evidence on hand being presumed to be the legitimate child of
shows that Captain L is not merely absent but Aimee’s husband is required by law to be
has actually died. Accordingly, the petition for registered under the surname of Aimee’s
continuation of monthly allotments should be husband. While it is true that Gianna’s registered
denied. surname is erroneous, a judicial action for
correction of entry to change the surname of
Gianna to that of Aimee’s maiden surname will
Civil Register also be erroneous. A judicial action to correct an
entry in the birth certificate is allowed to correct
What entries in the Civil Registry may be changed or an error and not to commit another error.
corrected without a judicial order? (2006 Bar)
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b) Under R.A. 9048, only typographical errors are BOOK II - PROPERTY, OWNERSHIP, AND ITS
allowed to be corrected administratively. The MODIFICATIONS (414-711)
change of status from legitimate to illegitimate is
not a typographical error and even assuming Property
that it is, its administrative correction is not
allowed under R.A. 9048. Typographical errors TRUE or FALSE - Explain your answers.
involving status and citizenship are expressly a) All rights are considered as property. (2017 Bar)
excluded from what may be corrected
administratively. SUGGESTED ANSWER:
a) FALSE. Property consists of all things
The change of the surname is also not allowed susceptible of appropriation. Consequently, only
administratively. R.A. 9048 provides for an rights which are patrimonial in nature can be
administrative procedure for change of first considered as things. Non-patrimonial rights,
name only and not for change of surname. such as the right to liberty, cannot be
considered as property.
Celso Lim would like to correct an allegedly wrong
entry in the birth certificate of one of his sons, Celso
Jr., describing the latter as a Chinese national and Classification of Property
not as a Filipino. Among the evidence Celso Lim had
are his own birth certificate describing him as a Manila Petroleum Co. owned and operated a
Filipino, the birth certificate of his other children, all petroleum operation facility off the coast of Manila.
describing them as Filipinos and a court decision The facility was located on a floating platform made
describing his father (Celso, Jr.'s grandfather) as a of wood and metal, upon which was permanently
Filipino. attached the heavy equipment for the petroleum
(a) What action must Celso Lim take to ensure the operations and living quarters of the crew. The
effective correction of the allegedly wrong entry in floating platform likewise contained a garden area,
his son's birth certificate? where trees, plants and flowers were planted. The
(b) Who should be made parties to such action or platform was tethered to a ship, the MV 101, which
proceeding? (1987 Bar) was anchored to the seabed.

SUGGESTED ANSWER: a) Is the platform movable or immovable property?

a. Celso must file a petition for correction of b) Are the equipment and living quarters movable or
entry under Rule 108 of the Rules of Court, immovable property?
ensuring that the same is an adversarial c) Are the trees, plants and flowers immovable or
proceeding. While Republic Act 9048, as movable property?
amended by Republic Act 10172, allows the City Please briefly give the reason for your answers.
or Municipal Civil Registrar to correct (2007 Bar)
typographical errors in entries in the civil
register, it specifically excludes changes in SUGGESTED ANSWER:
nationality. Accordingly, corrections involving a) The platform is an immovable property under
nationality must still be filed with the court. Article 415 (9) Civil Code, which provides that
Moreover, court cases involving substantial “docks and structures which, though floating,
errors must be adversarial in nature, that is, the are intended by their nature and object to remain
civil registrar and all other parties who may be at a fixed place on a river, lake or coast.” Since
affected thereby must be made parties to the the floating platform is a petroleum operation
action. In the instant case, what Celso seeks to facility, it is intended to remain permanently
correct involves nationality, hence the same where it is situated, even if it is tethered to a
must be filed in court. ship which is anchored to the seabed.
b. Errors in entries in the civil register involving
nationality are substantial errors. According to ALTERNATIVE ANSWER:
the Supreme Court, a petition for correction of The platform is a movable property because it is
entry under Rule 108 of the Rules of Court would attached to a movable property, i.e. the vessel
be appropriate, so long as the same is which was merely anchored to the seabed. The
adversarial. To be adversarial, he should notify fact that the vessel is merely anchored to the
the Civil Registrar and all the persons affected sea bed only shows that it is not intended to
or who have an interest in the subject matter of remain at a fixed place; hence, it remains a
the petition. Accordingly, Celso must implead movable property. If the intention was to make
the Civil Registrar, the Solicitor General, his the platform stay permanently where it was
other children, and the City/Provincial moored, it would not have been simply tethered
Prosecutor. to a vessel but itself anchored to the seabed.

b) The equipment and living quarters of the crew

are immovable property under Article 415 (3)
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Civil Code, classifies as an immovable property. In 1988, the PNB sold the land to Pablo.
“everything attached to an immovable in a fixed The Deed of Sale was amended in 1989 to include
manner, in such a way that it cannot be the warehouse.
separated therefrom without breaking the Pedro, claiming ownership of the warehouse, files a
material or deterioration of the object”. Both the complaint to annul the amended Deed of Sale
equipment and the living quarters are before the Regional Trial Court of Quezon City,
permanently attached to the platform which is where he resides, against both the PNB and Pablo.
also an immovable. The PNB filed a motion to dismiss the complaint for
improper venue contending that the warehouse is
The equipment can also be classified as an real property under Article 415(1) of the Civil Code
immovable property under Article 415 (5) Civil and therefore the action should have instead been
Code because such equipment are “machinery, filed in Malolos, Bulacan. Pedro claims otherwise.
receptacles, instruments or implements The question arose as to whether the warehouse
intended by the owner of the tenement for an should be considered as real or as personal
industry or works which may be carried on in a property.
building or on a piece of land and which tend If consulted, what would your legal advice be? (1997
directly to meet the needs of the said industry or Bar)
works”. It is logically, assumed that the
petroleum industry may be carried on in a SUGGESTED ANSWER:
building or on a piece of land and the platform is The warehouse which is a construction adhered
analogous to a building. to the soil is an immovable by nature under Art.
415 (1), and the proper venue of any case to
ALTERNATIVE ANSWER: recover ownership of the same, which is what
The equipment and living quarters of the crew the purpose of the complaint to annul the
are movable properties since they are attached amended Deed of Sale amounts to, should be
to a platform which is also movable property, the place where the property is located, or the
because it is simply attached to a vessel is RTC of Bulacan.
likewise a movable property since it was merely
anchored to the seabed. The fact that the vessel ADDITIONAL ANSWERs:
is merely anchored on the sea- bed only shows 1. Buildings are always immovable property, and
that it is not intended to remain at a fixed place; even in the instances where the parties to a
hence, it remains a movable property. contract seem to have dealt with it separate and
apart from the land on which it stood in no wise
c) The trees, plants and flowers planted in the does it change its character as immovable
garden area of the platform are immovable property. A building is an immovable even if not
property under Article 415 (2) Civil Code which erected by the owner of the land. The only
classifies as an immovable property “trees, criterion is union or incorporation with the soil.
plants and growing fruits, while they are (Ladera v. Hodges (CA) 48 O.G. 4374) (Reyes and
attached to the land or form an integral part of Puno, Outline of Philippine Civil Law, Vol. 2, P.7)
an immovable.” The garden forms an integral
part of an immovable, the petroleum operation 2. The warehouse built by Pedro on the
facility. mortgaged property is real property within the
context of Article 415 of the New Civil Code.
ALTERNATIVE ANSWER: Although it was built by Pedro after the
The trees, plants and flowers planted in the foreclosure sale without the knowledge and
garden area of the platform are movable consent of the new owner which makes him a
property because they are not permanently builder in bad faith, this does not alter the
attached to the land and do not form an integral character of the warehouse as a real property by
part of an immovable. The platform is not an incorporation. It is a structure which cannot be
immovable property for the same reason already removed without causing injury to the land. So,
given in the Alternative Answer to Item (a) my advice to Pedro is to file the case with the
above. RTC of Bulacan, the situs of the property.

Pedro is the registered owner of a parcel of land Salvador, a timber concessionaire, built on his lot a
situated in Malolos, Bulacan. In 1973, he mortgaged warehouse where he processes and stores his
the land to the Philippine National Bank (PNB) to timber for shipment. Adjoining the warehouse is a
secure a loan of P100,000.00. For Pedro’s failure to furniture factory owned by NARRAMIX of which
pay the loan, the PNB foreclosed on the mortgage in Salvador is a majority stockholder. NARRAMIX
1980, and the land was sold at public auction to leased space in the warehouse where it placed its
PNB for being the highest bidder. PNB secured title furniture-making machinery.
thereto in 1987. a) How would you classify the furniture-making
In the meanwhile, Pedro, who was still in possession machinery as property under the Civil Code?
of the land, constructed a warehouse on the Explain.
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b) Suppose the lease contract between Salvador party to the chattel mortgage, it is not bound by
and NARRAMIX stipulates that at the end of the it. As far as the Bank is concerned, the chattel
lease the machinery shall become the property of mortgage does not exist. Moreover, the chattel
the lessor, will your answer be the same? Explain. mortgage is void because it was not registered.
(1995 Bar) Assuming that it is valid, it does not bind the
Bank because it was not annotated on the title of
SUGGESTED ANSWER: the land mortgaged to the bank. Z cannot
a) The furniture-making machinery is movable demand that the Bank pay him the loan Z
property because it was not installed by the extended to X, because the Bank was not privy
owner of the tenement. To become immovable to such loan transaction.
under Art. 415 (5) of the Civil Code, the
machinery must be installed by the owner of the ANOTHER SUGGESTED ANSWER:
tenement. No, Z’s demand against the bank is not valid. His
demand that the bank reconvey to him X’s house
ALTERNATIVE ANSWER: presupposes that he has a real right over the
It depends on the circumstances of the case. If house. All that Z has is a personal right against
the machinery was attached in a fixed manner, in X for damages for breach of the contract of loan.
such a way that it cannot be separated from the
tenement without breaking the material or The treatment of a house, even if built on rented
causing deterioration thereof, it is immovable land, as movable property is void insofar as
property [Art. 415 (3), Civil Code}. However, if the third persons, such as the bank, are concerned.
machinery can be transported from place to On the other hand, the Bank already had a real
place without impairment of the tenement to right over the house and lot when the mortgage
which they were fixed, then it is movable was annotated at the back of the Torrens title.
property. [Art. 416 (4), Civil Code} The bank later became the owner in the
foreclosure sale.
b) It is immovable property. When there is a
provision in the lease contract making the Z cannot ask the bank to pay for X’s loan plus
lessor, at the end of the lease, owner of the interest. There is no privity of contract between
machinery installed by the lessee, the said Z and the bank.
machinery is considered to have been installed
by the lessor through the lessee who acted ALTERNATIVE ANSWER:
merely as his agent. Having been installed by The answer hinges on whether or not the bank is
the owner of the tenement, the machinery an innocent mortgagee in good faith or a
became immovable under Art. 415 of the Civil mortgagee in bad faith. In the former case, Z’s
Code. (Davao Sawmill v. Castillo, 61 Phil. 709) demand is not valid. In the latter case, Z’s
demand against the bank is valid and
X constructed a house on a lot which he was leasing sustainable.
from Y. Later, X executed a chattel mortgage over
said house in favor of Z as security for a loan Under the Torrens system of land registration,
obtained from the latter. Still later, X acquired every person dealing with registered land may
ownership of the land where his house was rely on the correctness of the certificate of title
constructed, after which he mortgaged both house and the law will not in any way oblige him to
and land in favor of a bank, which mortgage was look behind or beyond the certificate in order to
annotated on the Torrens Certificate of Title. When X determine the condition of the title. He is not
failed to pay his loan to the bank, the latter, being bound by anything not annotated or reflected in
the highest bidder at the foreclosure sale, foreclosed the certificate. If he proceeds to buy the land or
the mortgage and acquired X’s house and lot. accept it as a collateral relying on the certificate,
Learning of the proceedings conducted by the bank, he is considered a buyer or a mortgagee in good
Z is now demanding that the bank reconvey to him faith. On this ground, the Bank acquires a clean
X’s house or pay X’s loan to him plus interests. Is title to the land and the house.
Z’s demand against the bank valid and sustainable? However, a bank is not an ordinary mortgagee.
Why? (2003 Bar) Unlike private individuals, a bank is expected to
exercise greater care and prudence in its
SUGGESTED ANSWER: dealings. The ascertainment of the condition of a
No, Z’s demand is not valid. A building is property offered as collateral for a loan must be
immovable or real property whether it is erected a standard and indispensable part of its
by the owner of the land, by a usufructuary, or operation. The bank should have conducted
by a lessee. It may be treated as a movable by further inquiry regarding the house standing on
the parties to a chattel mortgage but such is the land considering that it was already standing
binding only between them and not on third there before X acquired title to the land. The
parties (Evangelista v. Alto Surety Co., Inc. 103 bank cannot be considered as a mortgagee in
Phil. 401). In this case, since the bank is not a
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good faith. On this ground, Z’s demand against Fil-Estate as compensation for its services. The
the Bank is valid and sustainable. Solicitor General questioned the validity of the
agreement on the ground that it will mean reclaiming
Vini constructed a building on a parcel of land he land under the sea which is beyond the commerce
leased from Andrea. He chattel mortgaged the land of man. The City replies that this is authorized by
to Felicia. When he could not pay Felicia, Felicia R.A. 1899 because it authorizes the construction of
initiated foreclosure proceedings. Vini claimed that docks and harbors. Who is correct? (2000 Bar)
the building he had constructed on the leased land
cannot be validly foreclosed because the building SUGGESTED ANSWER:
was, by law, an immovable. Is Vini correct? (1994 The Solicitor General is correct. The authority of
Bar) the City of Cavite under RA 1899 to reclaim land
is limited to foreshore lands. The Act did not
SUGGESTED ANSWER: authorize it to reclaim land from the sea. The
If it was the land which Vini chattel mortgaged, reclamation being unauthorized, the City of
such mortgage would be void, or at least Cavite did not acquire ownership over the
unenforceable, since he was not the owner of reclaimed land. Not being the owner, it could not
the land. have conveyed any portion thereof to the
If what was mortgaged as a chattel is the contractor.
building, the chattel mortgage is valid as
between the parties only, on grounds of estoppel ALTERNATIVE ANSWER:
which would preclude the mortgagor from It depends. If the reclamation of the land from
assailing the contract on the ground that its the sea is necessary in the construction of the
subject-matter is an immovable. Therefore Vini’s docks and the harbors, the City of Cavite is
defense is untenable, and Felicia can foreclose correct. Otherwise, it is not. Since RA 1899
the mortgage over the building, observing, authorized the city to construct docks and
however, the procedure prescribed for the harbors, all works that are necessary for such
execution of sale of a judgment debtor’s construction are deemed authorized, including
immovable under Rule 39, Rules of Court, the reclamation of land from the sea. The
specifically, that the notice of auction sale reclamation being authorized, the city is the
should be published in a newspaper of general owner of the reclaimed land and it may convey a
circulation. portion thereof as payment for the services of
the contractor.
ANOTHER ANSWER:
The problem that Vini mortgaged the land by ANOTHER ALTERNATIVE ANSWER:
way of a chattel mortgage is untenable. Land On the assumption that the reclamation contract
can only be the subject matter of a real estate was entered into before RA 1899 was repealed
mortgage and only an absolute owner of real by PD 3-A, the City of Cavite is correct. Lands
property may mortgage a parcel of land. (Article under the sea are “beyond the commerce of
2085 (2) Civil Code). Hence, there can be no man” in the sense that they are not susceptible
foreclosure. of private appropriation, ownership or alienation.
But on the assumption that what was mortgaged The contract in question merely calls for the
by way of chattel mortgage was the building on reclamation of 300 hectares of land within the
leased land, then the parties are treating the coastal waters of the city. Per se, it does not
building as chattel. A building that is not merely vest, alienate or transfer ownership of land
superimposed on the ground is an immovable under the sea. The city merely engaged the
property and a chattel mortgage on said building services of Fil-Estate to reclaim the land for the
is legally void but the parties cannot be allowed city.
to disavow their contract on account of estoppel
by deed. However, if third parties are involved On March 27, 1980, Cornelio filed an application for
such chattel mortgage is void and has no effect. land registration involving a parcel of agricultural
land that he had bought from Isaac identified as Lot
No. 2716 with an area of one (1) hectare. During
Property In Relation To The Person To Whom It the trial, Cornelio claimed that he and his
Belongs predecessors-in-interest had been in open,
continuous, uninterrupted, public and adverse
Republic Act 1899 authorizes municipalities and possession and occupation of the land for more
chartered cities to reclaim foreshore lands bordering than thirty (30) years. He likewise introduced in
them and to construct thereon adequate docking evidence a certification dated February 12, 1981
and harbor facilities. Pursuant thereto, the City of citing a presidential declaration to the effect that on
Cavite entered into an agreement with the Fil-Estate June 14, 1980, agricultural lands of the public
Realty Company, authorizing the latter to reclaim domain, including the subject matter of the
300 hectares of land from the sea bordering the city, application, were declared alienable and disposable
with 30% of the land to be reclaimed to be owned by agricultural land.
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Can Cornelio acquire said agricultural land through sign the lease contract and to vacate the
acquisitive prescription, whether ordinary or premises after the period to vacate lapsed made
extraordinary? (2014 Bar) his occupation unlawful, hence, entitling George
to the remedy of unlawful detainer.
SUGGESTED ANSWER:
Cornelio cannot acquire the land through Spouses Magtanggol managed and operated a
acquisitive prescription. For land of the public gasoline station on a 1,000 sq. m. lot which they
domain to be acquired through acquisitive leased from Francisco Bigla-awa. The contract was
prescription, it is not enough that they be for a period of three (3) years. When the contract
declared as alienable and disposable, as the expired, Francisco asked the spouses to peacefully
Civil Code allows acquisitive prescription for vacate the premises. The spouses ignored the
patrimonial properties of the State. Even if land demand and continued with the operation of the
of the public domain has been declared as gasoline station.
alienable and disposable, the same is not One month after, Francisco, with the aid of a group
converted into patrimonial property. It is only of armed men, caused the closure of the gasoline
when the State declares that the land is 1) station by constructing fences around it. Was the
withdrawn from public service or the act of Francisco and his men lawful? Why? (2014
development of the national wealth or 2) is Bar)
declared as patrimonial, that it may be acquired
by acquisitive prescription; and the period of SUGGESTED ANSWER:
prescription begins running only from the time No, the action of Francisco was unlawful. While
of such declaration. Accordingly, in the absence the law allows an owner to use force as may be
of proof that the land subject of Cornelio’s reasonably necessary to repel or prevent an
application has been declared as patrimonial by unlawful usurpation of his property, the same
the State, he may not acquire the same by can be done only immediately during or after the
acquisitive prescription. dispossession, not after possession has already
been lost. In the instant case, Francisco has
already lost possession of the property, having
Ownership turned over the property to the Magtanggol
spouses at the start of the lease, hence he can
Alberto and Janine migrated to the United States of no longer take the law into his own hands, but
America, leaving behind their 4 children, one of rather, must invoke the aid of the courts in order
whom is Manny. They own a duplex apartment and to recover possession.
allowed Manny to live in one of the units. While in
the United States, Alberto died. His widow and all
his children executed an Extrajudicial Settlement of Ownership, jus vindicandi, remedies available
Alberto’s estate wherein the 2-door apartment was
assigned by all the children to their mother, Janine. Jacob has owned a farm land in Ramos, Tarlac. In
Subsequently, she sold the property to George. The 2012, Liz surreptitiously entered and cultivated the
latter required Manny to sign a prepared Lease property. In 2014, Jacob discovered Liz’s presence
Contract so that he and his family could continue in and cultivation of the property. Due to his being
occupying the unit. Manny refused to sign the busy attending to his business in Cebu, he tolerated
contract alleging that his parents allowed him and Liz’s cultivation of the property. Subsequently, in
his family to continue occupying the premises. If you December 2016, Jacob wanted to regain
were George’s counsel, what legal steps will you possession of the property; hence, he sent a letter
take? Explain. (2006 Bar) to Liz demanding that she vacate the property. Liz
did not vacate despite the demand.
SUGGESTED ANSWER: Jacob comes to enlist your legal assistance to bring
As George’s counsel, I will give Manny a written an action against Liz to recover the possession of
demand to vacate within a definite period, say 15 the property.
days. After the lapse of 15-day period, I will file What remedies are available to Jacob to recover
an action for unlawful detainer to recover the possession of his property under the
possession of the apartment from Manny. circumstances? Explain your answer. (2017 Bar)
Manny’s occupation of the premises was by
mere tolerance of his parents. When all the co- SUGGESTED ANSWER:
heirs/co-owners assigned the 2-door apartment Jacob should avail himself of the remedy of
to Janine in the extrajudicial partition, Janine accion publiciana. Under existing law and
became the sole owner of the same. He jurisprudence, there are three kinds of actions
continued to occupy it under the same familial available to recover possession of real property:
arrangement. Upon the sale of the property to i) accion interdictal; ii) accion publiciana; and
George, Manny’s lawful occupation of the iii) accion reivindicatoria. Accion interdictal
property was terminated and Manny’s refusal to comprises two actions - forcible entry and
unlawful detainer. Forcible entry cases must be
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filed within one year from the illegal entry; while not appear (Art. 439, Civil Code). The vault of the
unlawful detainer must be filed within one year Banco de las Islas Filipinas has been buried for
from the time possession, which was initially about a century and the Bank of the Philippine
lawful, becomes unlawful. Notably, unlawful Islands cannot succeed by inheritance to the
detainer requires that the possession must have property of Banco de las Islas Filipinas. The
been lawful from the very beginning. Both are ownership of the vault, together with the notes
filed with the inferior court. If the forcible entry and coins can now legally be considered as
or unlawful detainer has been for more than one hidden treasure because its ownership is no
year, accion publiciana is the proper remedy, longer apparent. The contractor, Adams is not a
filed with the Regional Trial Court. Accion trespasser and therefore entitled to one-half of
reivindicatoria, on the other hand, is an action the hidden treasure and Blas as owner of the
for the recovery of ownership, which is filed property, is entitled the other half (Art. 438, Civil
with the proper regional trial court. In the instant Code). Since the notes and coins have historical
case, while Jacob may have tolerated Liz’s value, the government may acquire them at their
possession of the property, since her entry was just price which in turn will be divided equally
unlawful from the very beginning, having been between Adam and Blas (Art. 438, par. 3, Civil
made through stealth, unlawful detainer would Code).
not be the proper action. Neither is forcible
entry proper since more than one year has ALTERNATIVE ANSWER:
elapsed from the time Liz entered the property. a) The Banco de las Islas Filipinas is the owner
Penultimately, since Jacob’s ownership of the of the vault. The finder and owner of the land
property is not in question, accion cannot share in the notes and coins, because
reivindicatoria is also an improper remedy. All in they are not buried treasure under the law, as
all, the remedy available to Jacob would be the ownership is known. Although under Art. 720
accion publiciana, entry to the property having of the Civil Code the finder shall be given a
been obtained by Liz through stealth, and more reward of one-tenth of the price of the thing
than one year having elapsed from the time of found, as a lost movable, on the principle of
her entry into the property. quasi-contract.

However, the notes and coins may have become

Hidden Treasure res nullius considering that Banco de las Islas
Filipinas is no longer a juridical person and has
Adam, a building contractor, was engaged by Blas to apparently given up looking for them and Adam,
construct a house on a lot which he (Blas) owns. the first one to take possession with intent to
While digging on the lot in order to lay down the possess shall become the sole owner.
foundation of the house, Adam hit a very hard
object. It turned out to be the vault of the old Banco b) Yes. The hidden treasure will be part of the
de las Islas Filipinas. Using a detonation device, absolute community or conjugal property, of the
Adam was able to open the vault containing old respective marriages (Arts. 91, 93 and 106,
notes and coins which were in circulation during the Family Code).
Spanish era. While the notes and coins are no
longer legal tender, they were valued at P100 million MULTIPLE CHOICE. O, owner of Lot A, learning
because of their historical value and the coins’ silver that Japanese soldiers may have buried gold and
and nickel content. The following filed legal claims other treasures at the adjoining vacant Lot B
over the notes and coins: belonging to spouses X & Y, excavated in Lot B
i) Adam, as finder; where she succeeded in unearthing gold and
ii) Blas, as owner of the property where they were precious stones. How will the treasures found by O
found; be divided?
iii) Bank of the Philippine Islands, as successor-in- 1. 100% to O as finder
interest of the owner of the vault; and 2. 50% to O and 50% to the spouses X and Y
iv) The Philippine Government because of their 3. 50% to O and 50% to the state
historical value. 4. None of the above (2010 Bar)

a) Who owns the notes and coins? SUGGESTED ANSWER: No. 4. None of the
b) Assuming that either or both Adam and Blas are above. The general rule is that the treasure shall
adjudged as owners, will the notes and coins be belong to the spouses X and Y, the owner of Lot
deemed part of their absolute community or conjugal B. Under Article 438 (Civil Code), the exception
partnership of gains with their respective spouses? is that when the discovery of a hidden treasure
(2008 Bar) is made on the property of another and by
chance, one-half thereof shall belong to the
SUGGESTED ANSWER: owner of the land and the other one-half is
a) Hidden treasure is money jewelry or other allowed to the finder. In the problem, the finding
precious objects the ownership of which does of the treasure was not by chance because O
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knew that the treasure was in Lot B. While a Tim came into possession of an old map showing
trespasser is also not entitled to any share, and where a purported cache of gold bullion was hidden.
there is no indication in the problem whether or Without any authority from the government Tim
not O was a trespasser, O is not entitled to a conducted a relentless search and finally found the
share because the finding was not “by chance.” treasure buried in a new river bed formerly part of a
parcel of land owned by spouses Tirso and Tessie.
Marcelino, a treasure hunter as just a hobby, has The old river which used to cut through the land of
found a map which appears to indicate the location spouses Ursula and Urbito changed its course
of hidden treasure. He has an idea of the land where through natural causes.
the treasure might possibly be found. Upon inquiry, a) To whom shall the treasure belong? Explain.
Marcelino learns that the owner of the land, b) Suppose Tirso and Tessie were married on 2
Leopoldo, is a permanent resident of Canada. August 1988 without executing any antenuptial
Nobody, however, could give him Leopoldo’s exact agreement. One year after their marriage, Tirso
address. Ultimately, anyway, he enters the land and while supervising the clearing of Tessie’s inherited
conducts a search. He succeeds. land upon the latter’s request, accidentally found the
Leopoldo, learning of Marcelino’s “find”, seeks to treasure not in the new river bed but on the property
recover the treasure from Marcelino but the latter is of Tessie. To whom shall the treasure belong?
not willing to part with it. Failing to reach an Explain. (1995 Bar)
agreement. Leopoldo sues Marcelino for the
recovery of the property. Marcelino contests the SUGGESTED ANSWER:
action. How would you decide the case? (1997 Bar) a) The entire treasure belongs to the State. The
main rule is that hidden treasure belongs to the
SUGGESTED ANSWER: owner of the land, building or other property on
I would decide in favor of Leopoldo. The main which it is found. If it is found by chance by a
rule is that hidden treasure belongs to the owner third person and he is not a trespasser, he is
of the land, building or other property on which entitled to one-half (½). If he is a trespasser, he
it is found. If it is found by chance by a third loses everything.
person and he is not a trespasser, he is entitled In the instant case, the treasure was found in a
to one-half (½). If he is a trespasser, he loses property of public dominion, the new river bed,
everything. hence ½ thereof pertains to the State as owner
Marcelino is a trespasser, not having obtained of the property. As to the other half, since Tim
permission to enter the land of Leopoldo, and did not have authority from the government and,
although there may be a question of whether he therefore, was a trespasser, he is not entitled to
found it by chance or not, as he has found the the one-half share allotted to a finder of hidden
hidden treasure by means of a treasure map, he treasure. Accordingly, all of it will go to the
will not be entitled to a finder’s share. The State.
hidden treasure shall belong to the owner. Incidentally, Tim is considered a finder by
chance of the hidden treasure. While Tim may
ANOTHER ANSWER: have had the intention to look for the hidden
I would decide in favor of Leopoldo. The main treasure, still he is a finder by chance since it is
rule is that hidden treasure belongs to the owner enough that he tried to look for it. By chance in
of the land, building or other property on which the law does not mean sheer luck such that the
it is found. If it is found by chance by a third finder should have no intention at all to look for
person and he is not a trespasser, he is entitled the treasure. By chance means good luck,
to one-half (½). If he is a trespasser, he loses implying that one who intentionally looks for the
everything. treasure is embraced in the provision. The
Marcelino is considered a finder by chance of reason is that it is extremely difficult to find
the hidden treasure. While Marcelino may have hidden treasure without looking for it
had the intention to look for the hidden treasure, deliberately. However, as stated earlier, even if
still he is a finder by chance since it is enough Tim is a finder of the treasure, given that he was
that he tried to look for it. By chance in the law a trespasser, he is not entitled to a share thereof.
does not mean sheer luck such that the finder
should have no intention at all to look for the ALTERNATIVE ANSWER:
treasure. By chance means good luck, implying The law grants a one-half share to a finder of
that one who intentionally looks for the treasure hidden treasure provided he is not a trespasser
is embraced in the provision. The reason is that and the finding is by chance. It is submitted that
it is extremely difficult to find hidden treasure Tim is not a trespasser despite his not getting
without looking for it deliberately. authority from the government, because the new
river bed where he found the treasure is
However, Marcelino is a trespasser, and would property for public use (Art. 420 Civil Code), to
thus not be entitled to a finder’s share. The which the public has legitimate access. The
hidden treasure shall belong to the owner. question, therefore, boils down to whether or not
the finding was by chance in view of the fact that
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Tim “conducted a relentless search” before in the treasure, as the Civil Code provides that
finding the treasure. The strict or literal view the bailee in commodatum merely acquires the
holds that deliberate or intentional search use of the thing loaned but not its fruits.
precludes entitlement to the one-half share
allotted by law to the finder since the phrase “by Accession, Building, planting, sowing, Builder in
chance” means “by accident”, meaning an good faith
unexpected discovery. The liberal view, however,
would sustain Tim’s right to the allocated share A owns a parcel of residential land worth
interpreting the phrase in question as meaning P500,000.00 Unknown to A, a residential house
“by a stroke of good fortune”, which does not costing P100,000.00 is built on the entire parcel by
rule out deliberate or intentional search. It is B who claims ownership of the land. Answer all the
submitted that the liberal view should prevail following questions based on the premise that B is a
since in practical reality, hidden treasure is builder in good faith and A is a landowner in good
hardly ever found without conscious effort to faith.
find it, and the strict view would tend to render a) May A acquire the house built by B? If so, how?
the codal provision in question illusory. b) If the land increased in value by P50,000.00 by
reason of the building of the house thereon, what
b) Since Tirso and Tessie were married before amount should be paid by A in order to acquire the
the effectivity of the Family Code, their property house from B?
relation is governed by conjugal partnership of c) Assuming that the cost of the house was
gains. Under Art. 54 of the Civil Code, the share P900,000.00 and not P100,000.00, may A require B
of the hidden treasure which the law awards to to buy the land?
the finder or the proprietor belongs to the d) If B voluntarily buys the land as desired by A,
conjugal partnership of gains. The one-half under what circumstances may A nevertheless be
share pertaining to Tessie as owner of the land, entitled to have the house removed?
and the one-half share pertaining to Tirso as e) In what situation may a “forced lease” arise
finder of the treasure, belong to the conjugal between A and B, and what terms and conditions
partnership of gains. would govern the lease?
Give reasons for your answers. (1992 Bar)
A congregation for religious women, by way of
commodatum, is using the real property owned and SUGGESTED ANSWER:
registered in the name of Spouses Manuel as a a) Yes, A may acquire the house build by B by
retreat house. paying indemnity to B. Article 448 of the Civil
Code provides that the owner of the land on
Maria, a helper of the congregation discovered a which anything has been built, sown or planted
chest in the backyard. When she opened the chest, in good faith, shall have the right to appropriate
it contained several pieces of jewelry and money. as his own the works, sowing or planting, after
a) Can the chest containing the pieces of jewelry payment of the indemnity provided for in
and money be considered as hidden treasure? Articles 546 and 545 of the Civil Code.
b) Who has the right to claim ownership of it? (2014 b) A should pay B the sum of P50,000.00. Article
Bar) 548 of the Civil Code provides that useful
expenses shall be refunded to the possessor in
SUGGESTED ANSWER: good faith with the right of retention, the person
a) Yes, the contents of the chest can be who has defeated him in the possession having
considered as hidden treasure. The Civil Code the option of refunding the amount of the
provides that hidden treasure is any hidden and expenses or of paying the increase in value
unknown deposit of money, jewelry or other which the thing may have acquired by reason
precious objects, the lawful ownership of which thereof. The increase in value amounts to
does not appear. These requisites are met by P50,000.00.
the jewelry and money in the chest, as it c) Yes, A may require B to buy the land. Article
appears that the owners of the chest are 448 of the Civil Code provides that the owner of
unknown. the land on which anything has been built in
good faith shall have the right to oblige the one
b) As provided for by the Civil Code, hidden who built to pay the price of the land if its value
treasure shall belong to the owner of the is not considerably more than that of the
property on which it is found. However, if the building.
same is found by a person who is not a d) If B agrees to buy land but fails to pay, A can
trespasser on the property of another, one-half have the house removed (Depra v. Dumlao, 136
of the same shall belong to the finder. SCRA 475).
Accordingly, one-half of the money and jewelry e) Article 448 of the Civil Code provides that the
shall belong to the Spouses Manuel, while the builder cannot be obliged to buy the land if its
other half shall belong to Maria, the helper who value is considerably more than that of the
found the same. The congregation has no share building. In such case, he shall pay reasonable
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rent, if the owner of the land does not choose to leased than is necessary he will be liable for
appropriate the building after proper indemnity. damages (Art. 1678, Civil Code).
The parties shall agree upon the terms of the
lease and in case of disagreement, the court fix Mike built a house on his lot in Pasay City. Two
the terms thereof. years later, a survey disclosed that a portion of the
building actually stood on the neighboring land of
Anselmo is the registered owner of a land and a Jose, to the extent of 40 square meters. Jose claims
house that his friend Boboy occupied for a nominal that Mike is a builder in bad faith because he should
rental and on the condition that Boboy would vacate know the boundaries of his lot, and demands that
the property on demand. With Anselmo’s the portion of the house which encroached on his
knowledge, Boboy introduced renovations consisting land should be destroyed or removed. Mike replies
of an additional bedroom, a covered veranda, and a that he is a builder in good faith and offers to buy the
concrete block fence, at his own expense. land occupied by the building instead.
Subsequently, Anselmo needed the property as his a) Is Mike a builder in good faith or bad faith? Why?
residence and thus asked Boboy to vacate and turn b) Whose preference should be followed? Why?
it over to him. Boboy, despite an extension, failed to (2002 Bar)
vacate the property, forcing Anselmo to send him a
written demand to vacate. In his own written reply, SUGGESTED ANSWER:
Boboy signified that he was ready to leave but a) Yes, Mike is a builder in good faith. There is
Anselmo must first reimburse him the value of the no showing that when he built his house, he
improvements he introduced on the property as he knew that a portion thereof encroached on
is a builder in good faith. Anselmo refused, insisting Jose’s lot. Unless one is versed in the science of
that Boboy cannot ask for reimbursement as he is a surveying, he cannot determine the precise
mere lessee. Boboy responded by removing the boundaries or location of his property by merely
improvements and leaving the building in its original examining his title. In the absence of contrary
state. proof, the law presumes that the encroachment
a) Resolve Boboy’s claim that as a builder in good was done in good faith (Technogas Phils. v. CA,
faith, he should be reimbursed the value of the 268 SCRA 5).
improvements he introduced. b) None of the preferences shall be followed.
b) Can Boboy be held liable for damages for The preference of Mike cannot prevail because
removing the improvements over Anselmo’s under Article 448 of the Civil Code, it is the
objection? (2013 Bar) owner of the land who has the option or choice,
not the builder. On the other hand, the option
SUGGESTED ANSWER: belongs to Jose, he cannot demand that the
a) Boboy’s claim that he is a builder in good portion of the house encroaching on his land be
faith has no basis. A builder in good faith is destroyed or removed because this is not one of
someone who occupies the property in concept the options given by law to the owner of the
of an owner. The provisions on builder-planter- land. The owner may choose between the
sower under the Civil Code cover cases in which appropriation of what was built after payment of
the builder, planter and sower believe indemnity, or to compel the builder to pay for the
themselves to be owners of the land, or at least, land lithe value of the land is not considerably
to have a claim of title thereto. As Boboy is a more than that of the building. Otherwise, the
lessee of the property, even if he was paying builder shall pay rent for the portion of the land
nominal rental, Art. 1678, Civil Code, is encroached.
applicable. Under this provision, if the lessee
makes, in good faith, useful improvements ALTERNATIVE ANSWER:
which are suitable to the use for which the lease a) Mike cannot be considered a builder in good
is intended, without altering the form or faith because he built his house without first
substance of the property leased, the lessor determining the corners and boundaries of his
upon the termination of the lease, shall pay the lot to make sure that his construction was within
lessee one-half of the value of improvements at the perimeter of his property. He could have
that time. Should the lessor refuse to reimburse done this with the help of a geodetic engineer as
said amount, the lessee may remove the an ordinary prudent and reasonable man would
improvements, even though the principal thing do under the circumstances.
may suffer damage thereby. b) Jose’s preference should be followed. He may
have the building removed at the expense of
b) No. Boboy cannot be held liable for damages. Mike, appropriate the building as his own, oblige
The lessor, Anselmo, refused to reimburse one- Mike to buy the land and ask for damages in
half of the value of the improvements, so the addition to any of the three options. (Articles
lessee, Boboy, may remove the same, even 449, 450, 451, Civil Code)
though the principal thing may suffer damage
thereby. If in removing the useful improvements a) Because of confusion as to the boundaries of the
Boboy caused more impairment in the property adjoining lots that they bought from the same
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subdivision company, X constructed a house on the nipa sheds by right of accession. Hence.
adjoining lot of Y in the honest belief that it is the Ernesto is well within his right in refusing to
land that he bought from the subdivision company. allow the removal of the nipa sheds.
What are the respective rights of X and Y with
respect to X’s house? Pedro bought a parcel of land described as
b) Suppose X was in good faith but Y knew that X Cadastral Lot No. 123 and the title was issued to
was constructing on his (Y’s) land but simply kept his name. Juan also bought a lot in the same place,
quiet about it, thinking perhaps that he could get X’s which is described as Cadastral Lot No. 124. Pedro
house later. What are the respective rights of the hired a geodetic engineer to determine the actual
parties over X’s house in this case? (1999 Bar) location of Lot No. 123 but for some reason, the
engineer pointed to Lot No. 124 by mistake. Pedro
SUGGESTED ANSWER: hired a contractor to construct his house and the
a) As he built his structure on Y’s lot only due to latter put up a sign stating the name of the owner of
confusion as to the boundaries, X is deemed to the project and the construction permit number. It
be in good faith. In the absence of proof to the took more than a year before the house was
contrary, Y is also deemed to be in good faith, as constructed. When Pedro was already residing in
good faith is always presumed. The rights of Y, his house, Juan told him to remove his house
as owner of the lot, and of X, as builder of a because it was built on his (Juan’s) lot.
house thereon, are thus governed by Art. 448 of
the Civil Code which grants to Y the right to Juan filed a Complaint for Recovery of Possession
choose between two remedies: (a) appropriate and prayed that the house be removed because
the house by indemnifying X for its value plus Pedro is a builder in bad faith. Pedro filed his
whatever necessary expenses the latter may Answer with Counterclaim that he is entitled to the
have incurred for the preservation of the land, or payment of the value of the house plus damages
(b) compel X to buy the land if the price of the because he is a builder in good faith and that Juan
land is not considerably more than the value of is guilty of estoppel and laches.
the house. If it is, then X cannot be obliged to a) If Pedro is a builder in good faith, what are the
buy the land but he shall pay reasonable rent, rights given to Juan under the law? Explain.
and in case of disagreement, the court shall fix b) If Pedro is a builder in bad faith, what are the
the terms of the lease. rights given to Juan under the law? Explain.
(2016 Bar)
b) Since the lot owner Y is deemed to be in bad
faith (Art. 453), X as the party in good faith may SUGGESTED ANSWER:
(a) remove the house and demand a) Under the Civil Code, the owner, who is in
indemnification for damages suffered by him, or good faith, of a piece of land on which anything
(b) demand payment of the value of the house has been built in good faith, has the right either
plus reparation for damages (Art. 447, in relation to appropriate what has been built, after
to Art. 454). Y continues as owner of the lot and payment of the proper indemnity to the builder,
becomes, under the second option, owner of the or to oblige the builder to buy the land if the
house as well, after he pays the sums value of the land is not considerably more than
demanded. the value of the building. However, if the value
of the land is considerably more than the value
Demetrio knew that a piece of land bordering the of the building, the owner can only ask for
beach belonged to Ernesto. However, since the reasonable rent.
latter was studying in Europe and no one was taking On the other hand, the owner, who is in bad
care of the land, Demetrio occupied the same and faith, of a piece of land on which anything has
constructed thereon nipa sheds with tables and been built in good faith, can, at the option of the
benches which he rented out to people who want to builder, either pay for the value of the building
have a picnic by the beach. When Ernesto returned, while also being liable for damages, or just pay
he demanded the return of the land. Demetrio for the damages suffered by the builder if the
agreed to do so after he has removed the nipa builder opts to remove what he has built.
sheds. Ernesto refused to let Demetrio remove the Accordingly, if Juan was unaware that Pedro
nipa sheds on the ground that these already had built a house on his lot, he would be in
belonged to him by right of accession. Who is good faith, and can either opt to buy the house,
correct? (2000 Bar) paying the latter for the necessary and useful
expenses incurred; or he can sell the lot to
SUGGESTED ANSWER: Pedro if its value is not considerably more than
Ernesto is correct. Demetrio is a builder in bad the value of the house; otherwise he has to rent
faith because he knew beforehand that the land the land to Pedro.
belonged to Ernesto. Under Article 449 of the If Juan was aware that Pedro was building a
Civil Code, one who builds on the land of house on his lot, he would be in bad faith.
another loses what is built without right to Accordingly, if Pedro chooses to sell the house
indemnity. Ernesto becomes the owner of the
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to Juan, Juan has to buy the same, with SUGGESTED ANSWER:

indemnity for damages. If Pedro chooses to No, Santi cannot successfully file an action for
remover the house, Juan cannot object and demolition of the structures put up by Sammy.
would still be liable for the damages suffered by
Pedro. Under the Civil Code, when the owner of the land
and the builder are both in bad faith, the same
b) Under the Civil Code, the owner, who is in cancel each other out, and they will both be
good faith, of a piece of land on which anything deemed in good faith. The Civil Code further
has been built in bad faith, has the right either provides that in case the owner of the land and
to appropriate what has been sown, after the builder are both in good faith, there are only
payment only of the necessary expenses two options available to the owner of the land,
incurred by the builder, or to oblige the builder either to purchase what has been built, paying
to buy the land even if the value of the land is the builder the necessary and useful expenses;
considerably more than the value of the or to sell his land, provided the value of the
building, or he can ask for the demolition of the same is not considerably more than the value of
building. In both cases, he can also ask for the building. The owner of the land does not
damages from the builder. have the option to have the building demolished.
On the other hand, if both the owner of the land
and the builder are in bad faith, the bad faith of In the instant case, Sammy and Santi are both in
both parties cancel each other out, and it is as if bad faith, as Sammy knew that he was
they are both in good faith. The owner of the encroaching on Santi’s land; while Santi was
land would then have the options discussed in also aware of the encroachment but did not
the earlier answer. object thereto. Being both in bad faith, the same
Accordingly, if Juan was unaware that Pedro cancel each other out and the law will now
had built a house on his lot, he would be in consider then to be both in good faith.
good faith, and he can opt to either appropriate Accordingly, the options available to Santi is
the house, paying Pedro only for the necessary only either to sell his land, or to acquire the
expenses incurred by the latter; or to compel portion of te building encroaching on his land.
Pedro to buy the land even if the value thereof He has no option to ask for demolition of the
is considerably more than the value of the structure.
house; or he can ask for demolition of the
house, with indemnity for damages in both Miguel, Carlos and Lino are neighbors. Miguel
cases. owned a piece of registered land which both Carlos
If Juan was aware that Pedro was building a and Lino wanted to buy. Miguel sold the land to
house on his lot, he would be in bad faith. Both Carlos. The sale was not registered upon the
of them being in bad faith, the same cancels request of Miguel. Later on, the same property was
each other out, and it is as if they are both in sold by Miguel to Lino. Miguel told Carlos about the
good faith. In such a case, the options second sale. Carlos immediately tried to see Lino to
discussed in the answer to letter a) would be discuss the matter and inform him of the previous
available to Juan. sale to him (Carlos) of the same property but Lino
refused to see Carlos. Thereupon Carlos annotated
Sammy and Santi are cousins who separately in the Registry of Property his adverse claim on the
inherited two (2) adjoining lots from their property. A week later, Lino registered the sale on
grandfather. Sammy is based overseas but wants to his favor and had a new transfer certificate of title
earn income from his inherited land, so he asked a issued in his name. However, the adverse claim of
local contractor to build a row of apartments on his Carlos was duly annotated in the title.
property which he could rent out. The contractor Notwithstanding, Lino took possession of the
sent him the plans and Sammy noticed that the property and built a small bungalow thereon.
construction encroached on a part of Santi’s land (a) Who is the rightful owner of the property?
but he said nothing and gave approval to construct Explain.
based on the plans submitted by the local (b) To whom would the bungalow built by Lino on the
contractor. Santi, based locally, and who loved his property belong? Explain. (1987 Bar)
cousin dearly did not object even if he knew of the
encroachment since he was privy to the plans and SUGGESTED ANSWER:
visited the property regularly. Later, the cousins had a. Carlos is the rightful owner of the property.
a falling out and Santi demanded that the portion of Under Article 1544, if the same thing should
the apartments that encroached on his land be have been sold to two different vendees, the
demolished. land sold belongs to the persons who in good
faith first registers the sale with the Register of
Can Santi successfully file legal action to require the Deeds. If there is no registration, it belongs to
demolition? (2018 Bar) the person who in good faith was first in
possession. And if there is no possession, to
the person with the oldest title, provided there is
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good faith. In the instant case, while Lino may than that of the building. In such case, he shall
have registered the sale and took possession of pay reasonable rent of the owner of the land
the property first, prior to the registration and does not choose to appropriate the building or
possession, Carlos had already had his claim trees after proper indemnity (Art 448, Civil
annotated on the title of the property. Clearly, Code). The house constructed by the spouses
Lino was not in good faith when he registered Dela Cruz is considered as a useful expense,
and took possession of the property. There since it increased the value of the lot. As such,
being no good faith on the part of Lino, Carlos, should the spouses Rodriguez decides to
who has the oldest title would be the rightful appropriate the house, the spouses Dela Cruz
owner of the property. are entitled to the right of retention pending
b. The bungalow built by Lino belongs to Carlos. reimbursement of the expenses they incurred or
Article 449 provides that he who builds in bad the increase in value which the thing may have
faith on the land of another loses what it built acquired by reason of the improvement (Art 546,
without right to indemnity. As Lino was aware, at Civil Code). Thus, the spouses Dela Cruz may
the time he constructed the bungalow, that the demand P1,000,000.00 as payment of the
property had already been sold earlier to Carlos, expenses in building the house or increase in
he was in bad faith. Being in bad faith, he loses value of the land because of the house as a
the same in favor of Carlos. useful improvement, as may be determined by
the court form the evidence presented during
Ciriaco Realty Corporation (CRC) sold to the the trial (Depra v. Dumlao, 136 SCRA 475, 1985;
spouses Dela Cruz a 500-square meter land (Lot A) Technogas Phils v. CA, 268 SCRA 5, 1997).
in Paranaque. The land now has a fair market value
of Pl,200,000. CRC likewise sold to the spouses In good faith, Pedro constructed a five-door
Rodriguez, a 700-square meter land (Lot B) which is commercial building on the land of Pablo who was
adjacent to Lot A. Lot B has a present fair market also in good faith. When Pablo discovered the
value of P1,500,000. The spouses Dela Cruz construction, he opted to appropriate the building by
constructed a house on Lot B, relying on their paying Pedro the cost thereof. However, Pedro
presentation of the CRC sales agent that it is the insists that he should be paid the current market
property they purchased. Only upon the completion value of the building, which was much higher
of their house did the spouses Dela Cruz discovered because of inflation.
that they had built on Lot B owned by the spouses a) Who is correct, Pedro or Pablo?
Rodriguez, not on Lot A that they purchased. They b) In the meantime that Pedro is not yet paid, who is
spent P1000,000 for the house. As their lawyer, entitled to the rentals of the building, Pedro or
advise the spouses Dela Cruz on their rights and Pablo? (2000 Bar)
obligations under the given circumstances, and the
recourses and options open to them to protect their SUGGESTED ANSWER:
interests. (2013 Bar) a) Pablo is correct. Under Article 448 of the Civil
Code in relation to Article 546, the builder in
SUGGESTED ANSWER: good faith is entitled to a refund of the
Based on the fact as stated, the spouses Dela necessary and useful expenses incurred by him,
Cruz as builders and the spouses Rodriguez as or the increase in value which the land may have
land owners, are both in good faith. The spouses acquired by reason of the improvement, at the
Dela Cruz are builder in good faith because option of the landowner. The builder is entitled
before constructing the house they exercised to a refund of the expenses he incurred, and not
due diligence by asking the Agent of CRC the to the market value of the improvement.
location of the lot A, and they relied on the The case of Person v. CA, 244 SCRA 407, is not
information given by the agent who is presumed applicable to the problem. In the Pecson case,
to know the identity of the lot purchased by the the builder was the owner of the land who later
Dela Cruz spouses (Pleasantville v. CA, 253 lost the property at a public sale due to non-
SCRA 10, 1996). On the other hand, there is no payment of taxes. The Court ruled that Article
showing that the land owners, spouse Rodriguez 448 does not apply to the case where the owner
acted in bad faith. The facts do not show that the of the land is the builder but who later lost the
building was done with their knowledge and land; not being applicable, the indemnity that
without opposition on their part (Art 453, Civil should be paid to the buyer must be the fair
Code). The good faith is always presumed (Art. market value of the building and not just the
527, Civil Code). The owner of the land on which cost of construction thereof. The Court opined in
anything has been built, sown, or planted in that case that to do otherwise would unjustly
good faith shall have the right: (1) to appropriate enrich the new owner of the land.
as his own the works after payment of the
indemnity provided for in Art 546 and 548, or (2) ALTERNATIVE ANSWER:
to oblige the one who built to pay the price of Pedro is correct. In Pecson v. CA, it was held
the land. However, the builder cannot be obliged that Article 546 of the Civil Code does not
to buy the land if its value is considerable more specifically state how the value of useful
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improvements should be determined in fixing a) Who has the better right over the 200-square
the amount of indemnity that the owner of the meter area that has been added to Mario’s
land should pay to the builder in good faith. registered land, Mario or Andres?
Since the objective of the law is to adjust the b) May a third person acquire said 200-square meter
rights of the parties in such manner as to land by prescription? (2003 Bar)
administer complete justice to both of them in
such a way as neither one nor the other may SUGGESTED ANSWER:
enrich himself of that which does not belong to a) Mario has a better right over the 200 square
him, the Court ruled that the basis of meters increase in area by reason of accretion,
reimbursement should be the fair market value applying Article 457 of the Civil Code, which
of the building. provides that “to the owners of lands adjoining
the banks of rivers belong the accretion which
b) Pablo is entitled to the rentals of the building. they gradually receive from the effects of the
As the owner of the land, Pablo is also the owner current of the waters”.
of the building being an accession thereto. Andres cannot claim that the increase in Mario’s
However, Pedro who is entitled to retain the land is his own, because such is an accretion
building is also entitled to retain the rentals. He, and not a result of the sudden detachment of a
however, shall apply the rentals to the indemnity known portion of his land and its attachment to
payable to him after deducting reasonable cost Mario’s land, a process called “avulsion”. He
of repair and maintenance. can no longer claim ownership of the portion of
his registered land which was gradually and
ALTERNATIVE ANSWER: naturally eroded due to the current of the river,
Pablo is entitled to the rentals. Pedro became a because he had lost it by operation of law. That
possessor in bad faith from the time he learned portion of the land has become part of the public
that the land belongs to Pablo. As such, he loses domain.
his right to the building, including the fruits b) Yes, a third party may acquire by prescription
thereof, except the right of retention. the 200 square maters, increase in area, because
it is not included in the Torrens Title of the
Felix cultivated a parcel of land and planted it to riparian owner, Hence, this does not involve the
sugar cane, believing it to be his own. When the imprescriptibility conferred by Sec. 47, P.D. 1529.
crop was eight months old, and harvestable after The fact that the riparian land is registered does
two more months, a resurvey of the land showed not automatically make the accretion thereto
that it really belonged to Fred. What are the options registered land. (Grande v. CA, 115 Phil. 521;
available to Fred? (2000 Bar) Jagualing v. CA, 194 SCRA 607).

SUGGESTED ANSWER: Benjamin is the owner of a titled lot which is

As to the pending crops planted by Felix in good bounded on the north by the Maragondon River. An
faith. Fred has the option of allowing Felix to alluvial deposit of two (2) hectares was added to
continue the cultivation and to harvest the the registered area. Daniel took possession of the
crops, or to continue the cultivation and harvest portion formed by accretion and claims that he has
the crops himself. In the latter option, however, been in open, continuous and undisturbed
Felix shall have the right to a part of the possession of said portion since 1923 as shown by
expenses of cultivation and to a part of the net a tax declaration. In 1958, Benjamin filed a
harvest, both in proportion to the time of Complaint for Quieting of Title and contends that
possession. (Art. 545 Civil Code). the alluvium belongs to him as the riparian owner
and that since the alluvium is, by law, part and
ALTERNATIVE ANSWER: parcel of the registered property, the same may be
Since sugarcane is not a perennial crop, Felix is considered as registered property. Decide the case
considered a sower in good faith. Being so, Art. and explain. (2016 Bar)
448 applies. The options available to Fred are:
(a) to appropriate the crop after paying Felix the SUGGESTED ANSWER:
indemnity under Art. 546, or (b) to require Felix Benjamin’s complaint for quieting of title should
to pay rent. be dismissed. Under the Civil Code, to the owner
of the land adjoining the bank of a river belong
the accretion which is gradually received from
Right of Accession with Respect to Immovable the effects of the current of the water.
Property, Alluvion Accordingly, Benjamin would own the two
hectare portion which was added to his
Andres is a riparian owner of a parcel of registered registered land by the current of the river.
land. His land, however, has gradually diminished in However, while he becomes the owner thereof,
area due to the current of the river, while the the said portion does not become registered
registered land of Mario on the opposite bank has land by mere reason of being an alluvial deposit
gradually increased in area by 200-square meters. to a registered piece of land situated on the bank
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of the river. The same still needs to be brought own the additional 200 square meters by
under the Torrens system to become registered alluvion.
land. Not having been registered by Benjamin, b) No, Plutarco may not validly claim
the same can still be acquired by another person ownership of the dried-up river bed. Under the
through prescription. In the instant case, Daniel law, rivers and river beds are property of
has acquired ownership of said alluvial deposit public dominion. Should the river dry up, the
by prescription, he having been in open, same remains property of public dominion. In
continuous and undisturbed possession of said the absence of a law vesting ownership of a
portion from 1923 up to 1958, a period of more dried up river bed in private individuals, the
than thirty years. Consequently, Benjamin’s Regalian doctrine would still apply, hence the
complaint should be dismissed, he having lost dried-up river bed would still be property of
ownership of the property to Daniel. public dominion.

Subsequent to the original registration of a parcel of Spouses “A” and “B” are registered owners of lot “1”
land bordering a river, its area was increased by consisting of 20,000 square meters while spouses
accession. This additional area was not included in “C” and “D” are owners of lot “2”. These lots are
the technical description appearing on the Torrens separated by a river. For a period of more than 40
Certificate of Title having been acquired subsequent years, the river overflowed its banks yearly and the
to the registration proceedings. May such additional property of the spouses “C” and “D” gradually
area be acquired by third persons thru prescription? received deposits of soil from the effects of the
Give your reasons. (1989 Bar) current of the river so that, an alluvial deposit of
29,000 square meters was added to their lot, 11,000
SUGGESTED ANSWER: square meters of which used to be part of lot “1.”
The Land Registration Law provides that no title Spouses “A” and “B” contend that accretion should
in derogation of the registered owner may be not extend to registered land because to allow the
acquired by adverse possession or acquisitive spouses “C” and “D” to acquire title over the
possession. Since the law refers to registered accretion will be in derogation of the indefeasibility
lands, the accession mentioned in this question of the Torrens Title of spouses “A” and “B”. Is this
may be acquired by a third person through contention correct? Explain. (1989 Bar)
adverse possession or acquisitive possession.
SUGGESTED ANSWER:
ALTERNATIVE ANSWER: No, the contention of A and B is not correct
If the accession is man-made, then it cannot be because the registration under the Torrens Law
considered as private property. It belongs to the does not protect the owner against the
public domain, and, therefore, cannot be diminution of his land through gradual changes
acquired by adverse possession or acquisitive due to the effects of the current of the river. The
possession. accretion will benefit C and D.

Plutarco owned land that borders on a river. After MULTIPLE CHOICE. A delayed accession is:
several years, the action of the water of the river a) formation of an island
caused the deposit of soil, and increased the area b) avulsion
of Plutarco’s property by 200 square meters. c) alluvium
d) change in the course of the riverbed (2014 Bar)
a) If Plutarco wants to own the increase in area,
what will be his legal basis for doing so? Explain SUGGESTED ANSWER:
your answer. b)
b) On the other hand, if the river dries up, may
Plutarco validly claim a right of ownership of the Marciano is the owner of a parcel of land through
dried-up river bed? Explain your answer. (2017 which a river runs out into the sea. The land had
Bar) been brought under the Torrens System, and is
cultivated by Ulpiano and his family as farmworkers
SUGGESTED ANSWER: therein. Over the years, the river has brought silt
a) Plutarco’s legal basis will be alluvion. Under and sediment from its sources up in the mountains
Art. 457, to the owner of lands adjoining the and forests so that gradually the land owned by
banks of rivers belong the accretion which Marciano increased in area by three hectares.
they gradually receive from the action of the Ulpiano built three huts on this additional area,
waters. In the instant case, Plutarco’s land is where he and his two married children live. On this
adjacent to a river; the land’s area increased same area, Ulpiano and his family planted peanuts,
due to soil being deposited; by the action of monggo beans and vegetables. Ulpiano also
the water of the river; the said deposit was regularly paid taxes on the land, as shown by tax
gradual. Plainly, all the elements of accretion declarations, for over thirty years.
by alluvion are present; hence Plutarco will
When Marciano learned of the increase in the size
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of the land, he ordered Ulpiano to demolish the huts, a) Can Jessica and Jenny legally claim ownership
and demanded that he be paid his share in the over the additional 2 meters and one meter,
proceeds of the harvest. Marciano claims that under respectively, of land deposited along their
the Civil Code, the alluvium belongs to him as a properties?
registered riparian owner to whose land the b) If Jessica’s and Jenny’s properties are registered,
accretion attaches, and that his right is enforceable will the benefit of such registration extend to the
against the whole world. increased area of their properties?
a) Is Marciano correct? Explain. c) Assume the two properties are on a cliff adjoining
b) What rights, if any, does Ulpiano have against the shore of Laguna Lake. Jessica and Jenny had a
Marciano? Explain. (2009 Bar) hotel built on the properties. They had the earth and
rocks excavated from the properties dumped on the
SUGGESTED ANSWER: adjoining shore, giving rise to a new patch of dry
a) Marciano is not correct in demanding that land. Can they validly lay claim to the patch of land?
Ulpiano demolish the huts and that he be paid a (2008 Bar)
share in the proceeds of the harvest. While it is
true that accretions which the banks of rivers SUGGESTED ANSWER:
may gradually and naturally receive from the a) Jenny can legally claim ownership of the
effect of the current become the property of the lands by right of accession (accretion) under
owner of the banks, the same does not Article 457 of the Civil Code. The lands came
automatically become registered land just into being over the years through the gradual
because the lot which receives such accretion is deposition of soil and silt by the natural action
covered by a Torrens Title. Ownership of the of the waters of the river.
accretion received by a piece of land is one
thing; registration under the Torrens system of Jessica cannot claim the two meter-wide strip of
that ownership is another. Since the accretion land added to her land. Jessica constructed the
does not automatically become registered land, cement barrier two meters in front of her
the failure to register the same under the property towards the river not to protect her land
Torrens system does not preclude third persons from the destructive forces of the water but to
from acquiring the same through prescription. In trap the alluvium. In order that the riparian
the instant case, Ulpiano, through his adverse owner may be entitled to the alluvium the
possession of the accretion for over thirty years, deposition must occur naturally without the
has acquired ownership of the same by intervention of the riparian owner (Republic v.
prescription (See Reynante v. CA, 207 SCRA CA, 132 SCRA 514).
794).
b) No, the registration of Jessica’s and Jenny’s
b) Since Ulpiano is now the owner of the adjoining property does not automatically
accretion by prescription, he may rightfully extend to the accretions. They have to bring
defend his possession thereto against the their lands under the operation of the Torrens
claims of Marciano. Ulpiano is entitled to resist system of land registration following the
any efforts of Marciano to demolish the huts procedure prescribed in P.D. 1529.
and/or to collect proceeds of the harvest thereto.
c) Jessica and Jenny cannot validly lay claim to
The properties of Jessica and Jenny, who are the price of dry land that resulted from the
neighbors, lie along the banks of the Marikina River. dumping of rocks and earth materials excavated
At certain times of the year, the river would swell from their properties because it is a reclamation
and as the water recedes, soil, rocks and other without authority. The land is part of the
materials are deposited on Jessica’s and Jenny’s lakeshore, if not the lakebed, which is
properties. This pattern of the river swelling, inalienable land of the public domain.
receding and depositing soil and other materials
being deposited on the neighbors’ properties have For many years, the Rio Grande river deposited soil
gone on for many years. Knowing this pattern, along its bank, beside the titled land of Jose. In time,
Jessica constructed a concrete barrier about 2 such deposit reached an area of one thousand
meters from her property line and extending towards square meters. With the permission of Jose, Vicente
the river, so that when the water recedes, soil and cultivated the said area. Ten years later, a big flood
other materials are trapped within this barrier. After occurred in the river and transferred the 1000
several years, the area between Jessica’s property square meters to the opposite bank, beside the land
line to the concrete barrier was completely filled with of Agustin. The land transferred is now contested by
soil, effectively increasing Jessica’s property by 2 Jose and Agustin as riparian owners and by Vicente
meters. Jenny’s property, where no barrier was who claims ownership by prescription. Who should
constructed, also increased by one meter along the prevail? Why? (2002 Bar)
side of the river.
SUGGESTED ANSWER

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Jose should prevail. The disputed area, which is b) A lessee cannot bring a case for quieting of title
an alluvion, belongs by right of accretion to respecting the property that he leases. (2017
Jose, the riparian owner (Art. 457, Civil Code). Bar)
When, as given in the problem, the very same
area was “transferred” by flood waters to the SUGGESTED ANSWER:
opposite bank, it became an avulsion and b) TRUE. An action to quiet title requires that the
ownership thereof is retained by Jose who has plaintiff or complainant have legal or equitable
two years to remove it (Art. 459, Civil Code). title to or interest in the real property subject of
Vicente’s claim based on prescription is the action (Art. 477, Civil Code). A lessee would
baseless since his possession was by mere not have legal or equitable title to the property,
tolerance of Jose and, therefore, did not as he does not claim to be the owner of the
adversely affect Jose’s possession and property, hence he cannot bring an action for
ownership (Art. 537, Civil Code). Inasmuch as quieting of title. An action for ejectment would
his possession is merely that of a holder, he be an adequate remedy for a lessee, as all that
cannot acquire the disputed area by he is interested in is possession of theproperty.
prescription.

Co-Ownership
Right of Accession with Respect to Movable
Property, Civil Fruits Distinguish co-ownership from partnership. (1988
Bar)
Josef owns a piece of land in Pampanga. The
National Housing Authority (NHA) sought to SUGGESTED ANSWER:
expropriate the property for its socialized housing Co-ownership is distinguished from an ordinary
project. The trial court fixed the just compensation partnership in the following ways:
for the property at P50 million. The NHA (1) As to creation: Whereas co-ownership may
immediately deposited the same at the authorized be created by law, contract, succession,
depository bank and filed a motion for the issuance fortuitous event, or occupancy, partnership is
of a writ of possession with the trial court. always created by contract.
Unfortunately, there was delay in the resolution of (2) As to purpose: Whereas the purpose of co-
the motion. Meanwhile, the amount deposited ownership is the common enjoyment of the
earned interest. thing or right owned in common, the purpose of
When Josef sought the release of the amount a partnership is to obtain profits.
deposited, NHA argued that Josef should only be (3) As to personality: Whereas a co-ownership
entitled to P50 million. has no juridical personality which is separate
Who owns the interest earned? (2017 Bar) and distinct from that of the owners, a
partnership has.
SUGGESTED ANSWER: (4) As to duration: Whereas an agreement not to
Josef owns the interest earned. Article 440 of divide the community property for more than ten
the Civil Code grants to the owner the right by years is not allowed by law, such an agreement
accession to everything produced by the would be perfectly valid in the case of
property, or incorporated or attached thereto. In partnerships. This is so, because under the law,
the instant case, the P50 Million is owned by there is no limitation upon the duration of
Josef, the same being the amount fixed by the partnerships.
Court as just compensation for his property. (5) As to power of members: Whereas a co-
With the deposit by the NHA of the said amount owner has no power to represent the co-
in the authorized depository bank, there was ownership, unless there is an agreement to that
constructive delivery of the said amount to effect, a partner has the power to represent the
Josef, thereby making him the owner thereof. partnership, unless there is a stipulation to the
Thereafter, the amount earned interest, which is contrary.
civil fruits of the property. By the right of (6) As to effect of disposition of shares: If a co-
accession, said fruits belong to the owner. owner transfers his share to a third person, the
Accordingly, Josef, as the owner of the P50 latter becomes automatically a co-owner, but if a
million, is entitled to the said interest. (see partner transfers his share to a third person, the
Republic v. Holy TrinityRealty Devt. Corp., G.R. latter does not become a partner, unless agreed
No. 172410, 14 April 2008) upon by all of the partners.
(7) As to division of profits: Whereas in co-
ownership the division of the benefits and
Quieting of Title charges is fixed by law, in a partnership the
division of profits and losses may be subject to
TRUE or FALSE - Explain your answers. the agreement of the partners.
(8) As to effect of death: Whereas the death of a
co- owner has no effect upon the existence of
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the co-owner- ship, the death of a partner shall land, considering that its value is not
result in the dissolution of the partnership. considerably higher than the value of the house.
At this stage she is not given the option to
Alex died without a will, leaving only an undeveloped demand demolition of the house. However, if she
and untitled lot in Taguig City. He is survived by his has chosen to sell the land to Bobby and the
wife and 4 children. His wife told the children that latter does not or cannot buy the land, she can
she is waiving her share in the property, and allowed demand the demolition of the house.
Bobby, the eldest son who was about to get married,
to construct his house on ¼ of the lot, without b) No, Bobby cannot legally insist on purchasing
however obtaining the consent of his siblings. After the land. The rules on building, planting and
settlement of Alex’s estate and partition among the sowing are not applicable to co-ownership. The
heirs, it was discovered that Bobby’s house was rules applicable to co-ownership are acts of
constructed on the portion allocated to his sister, alteration or acts of ownership on one hand and
Cathy. Cathy asked Bobby to demolish his house acts of mere administration on the other. Even if
and vacate the portion allotted to her. In lieu of it were applicable, Bobby acted in bad faith and
demolition, Bobby offered to purchase from Cathy hence, demolition is one of the three options
the lot portion on which his house was constructed. open to an owner. It is the owner of the land, not
At that time, the house was valued at P300,000 the builder, planter or sower who has the
while the portion of the lot on which the house was options, even if both acted in bad faith or good
constructed was valued at P350,000. faith.

a) Can Cathy lawfully ask for demolition of Bobby’s Severino died intestate, survived by his wife
house? Saturnina, and legitimate children Soler, Sulpicio,
b) Can Bobby legally insist on purchasing the land? Segundo and the twins Sandro and Sandra. At the
(2008 Bar) time of his death, the twins were only 11 years of
age, while all the older children were of age. He left
SUGGESTED ANSWER: only one property: a 5,000 sq. m. parcel of land.
a) Yes, Cathy can ask for the demolition of After his death, the older siblings Soler, Sulpicio,
Bobby’s house on the portion allotted to Cathy and Segundo sold the land to Dr. Santos for
in the partition. The lot is presumed to be PhP500,000 with a right to repurchase, at the same
community property as it was acquired during price, within five (5) years from the date of the sale.
the marriage. Upon Alex’s death there was The deed of sale was signed only by the three (3)
created a co-ownership by operation of law older siblings, and covered the entire property.
among the widow and four children. (Art. 1078, Before the five (5) years expired, Soler and
Civil Code) Bobby’s share is only an undivided Sulpicio tendered their respective shares of
interest of 1/10 of the entire lot. The widow’s PhP166,666 each to redeem the property. Since
share in the co-ownership is 6/10 of the entire Segundo did not have the means because he was
lot, ½ of the lot being her share in the still unemployed, Saturnina paid the remaining
community property and 1/5 of Alex’s share in PhP166,666 to redeem the property. After the
the other half, because she has the same share property was redeemed from Dr. Santos, the three
as one of the four children. She has the financial (3) older children and Saturnina, for herself and on
majority or majority interest of the co-ownership. behalf of the twins who were still minors, sold the
property to Dr. Sazon, in an absolute sale, for PhP1
Bobby’s act of building on ¼ of the lot is an act million. In representing the twins, Saturnina relied
requiring the unanimous consent of all the co- on the fact that she was the natural guardian of her
owners since it is an act of alteration. Bobby minor children.
only had the ideal share of 1/10 of the entire lot,
and when he built his house on ¼ of the lot, he a) Was the first sale to Dr. Santos, and the
was arrogating unto himself the right to partition subsequent repurchase, valid?
the property and taking more than what he b) Was the second sale to Dr. Sazon valid? May
legally owns. The consent given by the widow to the twins redeem their share after they reach
Bobby’s act of building his house was legally the age of majority? (2018 Bar)
insufficient. As a matter of right, Cathy can ask
for the demolition of the house and the payment SUGGESTED ANSWER:
of damages. a) The first sale to Dr. Santos is valid, but only to
the extent of the shares of the three older
ALTERNATIVE ANSWER: siblings in the property.
Art. 448 of the Civil Code is applicable by
analogy (Concepcion Fernandez del Campo v.
Under the Civil Code, a co-owner has full
Abeisa, 160 SCRA 379). Pursuant thereto, Cathy
ownership of his undivided share in the thing
is given two options: (1) to appropriate the
owned in common, and he is free to alienate,
house that Bobby built, upon payment of
assign or mortgage it. However, a co-owner has
indemnity; or (2) to compel Bobby to buy the
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no right to dispose of the entire thing without SUGGESTED ANSWER:

the consent of all the co-owners, as acts of Lease of personal property is a mere act of
alteration (which includes acts of disposition) administration, and, therefore, requires the
need the consent of all co-owners. resolution of the majority of the co-owners.
However, lease of real property may be an act of
In the instant case, upon the death of Severino, administration or an act of alteration depending
his surviving spouse and all his children became upon the circumstances of each particular case.
co-owners of the property by succession. (1) If the lease is recorded in the Registry of
Accordingly, the sale by the three older siblings Property, whatever may be the duration thereof,
of the entire property will be valid only as to it is an act of ownership, and therefore, requires
their shares therein, as the other co-owners who the unanimous consent of all the co- owners,
did not consent thereto cannot be affected by since under the law, a special power of attorney
the same. As the older siblings could only sell is required (See Art. 1647, CC). (2) If the lease is
their fractional shares, the sale of the property not recorded in the Registry of Property, but the
will be deemed as having conveyed only their duration thereof is more than one year, it is also
respective shares in the co-ownership (which is an act of ownership, and therefore, requires the
equivalent to ½ of the property). With the sale unanimous consent of all the co-owners, since,
being limited to only a ½ undivided share ion the again, under the law, a special power of attorney
property, the subsequent repurchase will be is required (See Art. 1878 No. 8, CC). (3) If the
deemed as likewise limited solely to the ½ share lease, however, is not recorded in the Registry of
so conveyed. In fine, the sale is valid as to a ½ Property and the duration thereof is only one
undivided share in the property, and the year or less, it is an act of administration, and
repurchase was likewise limited to the therefore, merely requires the resolution of the
redemption of the said ½ share that was majority of the co-owners.
conveyed. The shares of Saturnina and the twins
could not have been sold by the older siblings A, B and C are the co-owners in equal shares of a
and thus, were never subject of the sale and the residential house and lot. During their co-ownership,
redemption. the following acts were respectively done by the co-
owners:
b) The second sale to Dr. Sazon is valid, but 1. A undertook the repair of the foundation of the
again only to the extent of the undivided shares house, then tilting to one side, to prevent the house
of the three older siblings and Saturnina in the from collapsing.
property. The shares of the twins are unaffected 2. B and C mortgaged the house and lot to secure a
by the sale. loan.
3. B engaged a contractor to build a concrete fence
Under the law, guardians only have powers of all around the lot.
administration, not disposition. A sale of real 4. C built a beautiful grotto in the garden.
property is an act of disposition, hence is 5. A and C sold the land to X for a very good price.
beyond the powers of a guardian.
a) Is A’s sole decision to repair the foundation of the
In the instant case, Saturnina sold the property, house binding on B and C? May A require B and C
to include the share of the twin minors, on the to contribute their 2/3 share of the expense?
claim that she was the guardian of the twins. As Reasons.
the sale is an act of disposition, the same is b) What is the legal effect of the mortgage contract
clearly beyond her authority to do, hence the executed by B and C? Reasons.
same is not binding and effective on the twins. c) Is B’s sole decision to build the fence binding
Accordingly, what was sold to Dr. Sazon was upon A and C? May B require A and C to contribute
only the undivided shares of the three older their 2/ 3 share of the expense? Reasons.
siblings and Saturnina in the property. The share d) Is C’s sole decision to build the grotto binding
of the twins are unaffected by the sale. upon A and B? May C require A and B to contribute
their 2/ 3 share of the expense? Reasons.
e) What are the legal effects of the contract of sale
Since their shares could not have been validly
executed by A, C and X? Reasons. (1992 Bar)
sold by Saturnina, there is no need for the twins
to redeem their shares in the property. Not
SUGGESTED ANSWER:
having been sold in the first place, there is
a) Yes. A’s sole decision to repair the foundation
nothing for the twins to redeem.
is binding upon B and C. B and C must
contribute 2/3 of the expense. Each co-owner
Is the lease of the entire community property in co-
has the right to compel the other co-owners to
ownership an act of administration or an act of
contribute to the expense of preservation of the
ownership or alteration? Explain, in relation to the
thing (the house) owned in common in
need of consent of the co-owners. (1988 Bar)
proportion to their respective interests (Arts. 485
and 488, Civil Code).
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b) The mortgage shall not bind the 1/3 right and

interest of A and shall be deemed to cover only The fact that the sale was not reduced to writing
the rights and interests of B and C in the house is of no moment. While the sale of real property
and lot. The mortgage shall be limited to the or an interest therein is covered by the Statute
portion (2/3) which may be alloted to B and C in of Frauds, the same applies only to executory
the partition (Art. 493, Civil Code). contracts, not to partially executed ones. As
c) B’s sole decision to build the concrete fence Maria has already paid for the property in full,
is not binding upon A and C. Expenses to the same is no longer executory, hence no
improve the thing owned in common must be longer covered by the Statute of Frauds. Given
decided upon by a majority of the co-owners the bad faith of Fe, an award of damages in
who represent the controlling interest (Arts. 489 favor of Maria would also be in order.
and 492, Civil Code).
d) C’s sole decision to build the grotto is not
binding upon A and B who cannot be required to (NOTE: This answer assumes that neither Fe or
contribute to the expenses for the Manuel has yet registered or taken possession of
embellishment of the thing owned in common if the property, otherwise the rules laid down by Art.
not decided upon by the majority of the co- 1544 on double sales might need to be taken into
owners who represent the controlling interest consideration).
(Arts. 489 and 492, Civil Code).
e) The sale to X shall not bind the 1/3 share of B X, Y, Z are siblings who inherited a 10-
and shall be deemed to cover only the 2/3 share storey building from their parents. They agreed in
of A and C in the land (Art. 493, Civil Code). B writing to maintain it as a co-owned property for
shall have the right to redeem the 2/3 share sold leasing out and to divide the net profits among
to X by A and C since X is a third person (Art. themselves equally for a period of 20 years. On the
1620, Civil Code). 8th year, X wanted to get out of the co-ownership so
he could get his 1/3 share in the property. Y and Z
Fe, Esperanza, and Caridad inherited from their refused, saying X is bound by their agreement to
parents a 500 sq. m. lot which they leased to Maria keep the co-ownership for 20 years. Are Y and Z
for three (3) years. One year after, Fe, claiming to correct? Explain. (2015 Bar)
have the authority to represent her siblings
Esperanza and Caridad, offered to sell the leased SUGGESTED ANSWER:
property to Maria which the latter accepted. The Y and Z are correct, but they can prevent X from
sale was not reduced into writing, but Maria started getting out of the co-ownership only for the next
to make partial payments to Fe, which the latter two years. Under Art. 494 of the Civil Code, no
received and acknowledged. After giving the full co-owner shall be obliged to remain in the co-
payment, Maria demanded for the execution of a ownership, and thus, a co-owner may demand
deed of absolute sale which Esperanza and partition at any time. However, an agreement to
Caridad refused to do. Worst, Maria learned that the keep the co-owned property undivided for a
siblings sold the same property to Manuel. This period of time, not to exceed 10 years, shall be
compelled Maria to file a complaint for the valid. Accordingly, Y and Z are correct in saying
annulment of the sale with specific performance and that X is bound by their agreement to keep the
damages. co-ownership intact. However, said agreement
If you are the judge, how will you decide the case? is valid only for ten years. Their agreement to
(2014 Bar) keep the co-ownership for twenty years would,
thus, be void as to the period in excess of 10
years. In other words, the agreement X, Y, and Z
SUGGESTED ANSWER: entered into is valid only for ten years.
If I were the Judge, I would award one-third of Therefore, X may not get out of the co-
the property to Maria; that is, the sale of the ownership on the 8th year, as he is bound by
property to Manuel should be set aside as to their agreement for ten years.
one-third thereof. Fe, Esperanza, and Caridad
are co-owners of the property. Fe’s act of selling
the entire property is an act of alteration which Co-ownership, prescription
requires the consent of all the co-owners.
Absent any such authorization on the part of Senen and Peter are brothers. Senen migrated to
Esperanza and Caridad, the sale does not bind Canada early while still a teenager. Peter stayed on
the latter two (it would be unenforceable as to in Bulacan to take care of their widowed mother and
them). However, the sale would be valid as to continued to work on the family farm even after her
Fe’s one-third share in the property, limited death. Returning to the country some thirty years
however, to whatever may be adjudicated as after he had left, Senen seeks a partition of the farm
Fe’s share in the partition of the property, hence to get his share as the only co-heir of Peter. Peter
Maria would be entitled to a one-third share of interposes his opposition, contending that
the property. acquisitive prescription has already set in and that
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estoppel lies to bar the action for partition, citing his because he asserted sole ownership thereof and
continuous possession of the property for at least 10 never shared the harvest therefrom. His adverse
years, for almost 30 years in fact. It is undisputed possession having been continuous and
that Peter has never openly claimed sole ownership uninterrupted for more than 30 years, Ramon
of the property. If he ever had the intention to do so, has acquired the land by prescription. Rosario is
Senen was completely ignorant of it. Will Senen’s also guilty of laches not having asserted her
action prosper? Explain. (2002 Bar) right to the harvest for more than 40 years.

SUGGESTED ANSWER: Since 1935, Janice possessed alone a parcel of

Senen’s action will prosper. Article 494 of the land which she co-owned with Lenny. In 1970, with
Civil Code provides that “no prescription shall the knowledge of Lenny, Janice obtained a Torrens
run in favor of a co-owner or co-heir against his title over the land in her own name alone. On August
co-owners or co-heirs so long as he expressly or 1, 1988, Lenny brought an action against Janice for
impliedly recognizes the co-ownership. Peter reconveyance of her share. Janice set up the
has never renounced the co-ownership nor defense of laches. Will the defense prosper?
notified Senen of his having repudiated the Reasons. (1988 Bar)
same.
SUGGESTED ANSWER:
In 1955, Ramon and his sister Rosario inherited a It is submitted that the defense of laches will
parcel of land in Albay from their parents. Since prosper. As held by the Supreme Court in
Rosario was gainfully employed in Manila, she left several notable decisions, in order that the
Ramon alone to possess and cultivate the land. doctrine of laches or “stale demands” can be
However, Ramon never shared the harvest with applied, the following elements must concur: (1)
Rosario and was even able to sell one-half of the Conduct on the part of the defendant, or of one
land in 1985 by claiming to be the sole heir of his under whom he claims, giving rise to the
parents. Having reached retirement age in 1990 situation of -which complaint is made and for
Rosario returned to the province and upon learning which the complaint seeks a remedy; (2) delay in
what had transpired, demanded that the remaining asserting the complainant’s rights, the
half of the land be given to her as her share. Ramon complainant having had knowledge or notice, of
opposed, asserting that he has already acquired the defendant’s conduct and having been
ownership of the land by prescription, and that afforded an opportunity to institute a suit (3) lack
Rosario is barred by laches from demanding of knowledge or notice on the part of the
partition and reconveyance. Decide the conflicting defendant that the complainant would assert the
claims. (2000 Bar) right on which he bases the suit; and (4) injury
or prejudice to the defendant in the event relief
SUGGESTED ANSWER: is accorded to the complainant, or the suit is not
Ramon is wrong on both counts: prescription held to be barred (Miguel v. Catalino, 26 SCRA
and laches. His possession as co-owner did not 234). All of these elements are present in the
give rise to acquisitive prescription. Possession instant case. As a matter of fact, the doctrine
by a co-owner is deemed not adverse to the was applied to a case wherein co-heir and
other co-owners but is, on the contrary, deemed another were able, through fraud, to register a
beneficial to them (Pangan v. CA, 166 SCRA tract of land in their names. According to the
375). Ramon’s possession will become adverse Supreme Court, the action for reconveyance
only when he has repudiated the co-ownership brought by the other co-heirs more than twenty
and such repudiation was made known to years later is now barred not only by extinctive
Rosario. Assuming that the sale in 1985 where prescription but also by laches. (Fabian v.
Ramon claimed he was the sole heir of his Fabian, 22 SCRA 231).
parents amounted to a repudiation of the co-
ownership, the prescriptive period began to run
only from that time. Not more than 30 years Co-ownership, right of redemption
having lapsed since then, the claim of Rosario
has not as yet prescribed. The claim of laches is Adele and Beth are co-owners of a parcel of land.
not also meritorious. Until the repudiation of the Beth sold her undivided share of the property to
co-ownership was made known to the other co- Xandro, who promptly notified Adele of the sale and
owners, no right has been violated for the said furnished the latter a copy of the deed of absolute
co-owners to vindicate. Mere delay in vindicating sale. When Xandro presented the deed for
the right, standing alone, does not constitute registration, the register of deeds also notified Adele
laches. of the sale, enclosing a copy of the deed with the
notice. However, Adele ignored the notices. A year
ALTERNATIVE ANSWER: Ramon has acquired later, Xandro filed a petition for the partition of the
the land by acquisitive prescription, and property. Upon receipt of summons, Adele
because of laches on the part of Rosario. immediately tendered the requisite amount for the
Ramon’s possession of the land was adverse redemption. Xandro contends that Adele lost her
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right of redemption after the expiration of 30 days No, they may not redeem because there was no
from her receipt of the notice of the sale given by co-ownership among Antonio, Bart and Carlos
him. May Adele still exercise her right of to start with. Their parents already partitioned
redemption? Explain. (2002 Bar) the land in selling separate portions to them.
The situation is the same as in the case of Si v.
SUGGESTED ANSWER: CA, (342 SCRA 653).
Yes, Adele may still exercise her right of
redemption notwithstanding the lapse of more Ambrosio died, leaving his three daughters, Belen,
than 30 days from notice of the sale given to her Rosario and Sylvia a hacienda which was
because Article 1623 of the Civil Code requires mortgaged to the Philippine National Bank. Due to
that the notice in writing of the sale must come the failure of the daughters to pay the bank, the
from the prospective vendor or vendor as the latter foreclosed the mortgage and the hacienda was
case may be. In this case, the notice of the sale sold to it as the highest bidder. Six months later,
was given by the vendee and the Register of Sylvia won the grand prize at the lotto and used part
Deeds. The period of 30 days never tolled. She of it to redeem the hacienda from the bank.
can still avail of that right. Thereafter, she took possession of the hacienda and
refused to share its fruits with her sisters,
ALTERNATIVE ANSWER: contending that it was owned exclusively by her,
Adele can no longer exercise her right of having bought it from the bank with her own money.
redemption. As co-owner, she had only 30 days Is she correct or not? (2000 Bar)
from the time she received written notice of the
sale which in this case took the form of a copy SUGGESTED ANSWER:
of the deed of sale being given to her (Conejero Sylvia is not correct. The 3 daughters are the co-
v. CA, 16 SCRA 775). The law does not prescribe owners of the hacienda being the only heirs of
any particular form of written notice, nor any Ambrosio. When the property was foreclosed,
distinctive method for notifying the the right of redemption belongs also to the 3
redemptioner (Etcuban v. CA, 148 SCRA 507). So daughters. When Sylvia redeemed the entire
long as the redemptioner was informed in property before the lapse of the redemption
writing, he has no cause to complain (Distrito v. period, she also exercised the right of
CA, 197 SCRA 606). In fact, in Distrito, a written redemption of her co-owners on their behalf. As
notice was held unnecessary where the co- such she is holding the shares of her two sisters
owner had actual knowledge of the sale, having in the property, and all the fruits corresponding
acted as middleman and being present when the thereto, in trust for them. Redemption by one co-
vendor signed the deed of sale. owner inures to the benefit of all (Adille v. CA,
157 SCRA 455). Sylvia, however, is entitled to be
Antonio, Bart, and Carlos are brothers. They reimbursed the shares of her two sisters in the
purchased from their parents specific portions of a redemption price.
parcel of land as evidenced by three separate deeds
of sale, each deed referring to a particular lot in In 1937, A obtained a loan of P20,000.00 from the
metes and bounds. When the deeds were presented National City Bank of New York, an American-owned
for registration, the Register of Deeds could not bank doing business in the Philippines. To
issue separate certificates of title due to the absence guarantee payment of his obligation, A constituted a
of a subdivision plan. The new title had to be issued, real estate mortgage on his 30-hectare parcel of
therefore, in the names of the brothers as co-owners agricultural land. In 1939, before he could pay his
of the entire property. The situation has not changed obligation, A died intestate leaving three children. B,
up to now, but each of the brothers has been a son by a first marriage, and C and D, daughters by
receiving rentals exclusively from the lot actually a second marriage. In 1940, the bank foreclosed the
purchased by him. Antonio sells his lot to a third mortgage for non-payment of the principal
person, with notice to his brothers. To enable the obligation. As the only bidder at the extrajudicial
buyer to secure a new title in his name, the deed of foreclosure sale, the bank bought the property and
sale was made to refer to an undivided interest in was later issued a certificate of sale. The war
the property of the seller (Antonio), with the metes supervened in 1941 without the bank having been
and bounds of the lot sold being stated. Bart and able to obtain actual possession of the property
Carlos reacted by signifying their exercise of their which remained with A’s three children who
right of redemption as co-owners. Antonio, in his appropriated for themselves the income from it. In
behalf and in behalf of his buyer, contends that they 1948, B bought the property from the bank using the
are no longer co-owners, although the title covering money he received as backpay from the U.S.
the property has remained in their names as such. Government, and utilized the same in agri-business.
May Bart and Carlos still redeem the lot sold by In 1960, as B’s business flourished, C and D sued B
Antonio? Explain. (2002 Bar) for partition and accounting of the income of the
property, claiming that as heirs of their father they
SUGGESTED ANSWER: were co-owners thereof and offering to reimburse B

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for whatever he had paid in purchasing the property for damage or destruction to the project to be a
from the bank. ground for partition by sale of the entire project,
In brief, how will you answer the complaint of C and it must shown
D, if you were engaged by B as his counsel? (1993
Bar) (i) that three years after damage or destruction
to the project which renders material part
SUGGESTED ANSWER: thereof unit for its use prior thereto, the project
As counsel of B, I shall answer the complaint as has not been rebuilt or repaired substantially to
follows: When B bought the property, it was not its state prior to its damage or destruction, or
by a right of redemption since the period (ii) that damage or destruction to the project has
therefore had already expired. Hence, B bought rendered one-half or more of the units therein
the property in an independent unconditional untenantable and that condominium owners
sale. C and D are not co-owners with B of the holding in aggregate more than thirty percent
property. Therefore, the suit of C and D cannot interest in the common areas are opposed to
prosper. repair or restoration of the project.

ALTERNATIVE ANSWER: There is no showing in the problem that three

As counsel of B, I shall answer the complaint as years have elapsed and that during these three
follows: From the facts described, it would years the project has not been rebuilt or repaired
appear that the certificate of sale has not been substantially to its state prior to its damage or
registered. The one-year period of redemption destruction. Likewise, while a number of units
begins to run from registration. In this case, it were rendered unfit for use, there is no showing
has not yet even commenced. Under the Rules that the damage or destruction affected one-half
of Court, the property may be released by the or more of the units or that condominium
Judgment debtor or his successor in interest. owners holding in aggregate more than thirty
(Sec. 29, Rule 27). It has been held that this percent interest in the common areas are
includes a joint owner (Magno v. Ciola, 61 Phil. opposed to repair or restoration of the project.
80) Consequently, Edwin may not ask for partition
by sale of the project.

Co-ownership, renunciation
Possession
TRUE or FALSE. The renunciation by a co-owner of
his undivided share in the co-owned property in lieu Distinguish occupation v. possession. (2007 Bar )
of the performance of his obligation to contribute to
taxes and expenses for the preservation of the Distinguish between “possession” and “occupation”
property constitutes dacion en pago. (2009 Bar) as these terms are commonly used in Book II and
Book III of the Civil Code. (1997 Bar)
SUGGESTED ANSWER:
TRUE. According to Tolentino, although called a SUGGESTED ANSWER:
renunciation, what actually happens is a dacion Occupation can take place only with respect to
en pago, with the debt of the co-owner to the property without an owner while possession can
other co-owners being paid, not in money, but in refer to all kinds of property, whether with owner
an interest in property – the share of the or without an owner. Occupation itself, when
“renouncing” co-owner will be reduced by an proper, confers ownership but possession does
amount equal to his share in the expenses and not by itself give rise to ownership (Tolentino,
taxes, and this will devolve on the other co- Commentaries and Jurisprudence on the Civil
owners. Code of the Philippines [1999 ed.], Vol. II, p. 489).

ALTERNATIVE ANSWER:
Co-ownership, Condominium Act Occupation is an original mode of acquiring
ownership (Art. 712, Civil Code). Things
The Ifugao Arms is a condominium project in Baguio appropriable by nature which are without an
City. A strong earthquake occurred which left huge owner, such as animals that are the object of
cracks in the outer walls of the building. As a result, hunting and fishing, hidden treasure and
a number of condominium units were rendered unfit abandoned movables, are acquired by
for use. May Edwin, owner of one of the occupation (Art. 713, Civil Code). However,
condominium units affected, legally sue for partition ownership of a piece of land cannot be acquired
by sale of the whole project? Explain. (2009 Bar) by occupation (Art. 714, Civil Code).

SUGGESTED ANSWER: On the other hand, possession is the holding of

No, Edwin may not ask for partition by sale of a thing or the enjoyment of a right, as provided
the whole project. Under the Condominium Law, in Article 523 of the Civil Code. Possession can
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be in the concept of an owner or in the concept and preservation of the fruits (Art. 443, Civil
of a holder (Art. 525, Civil Code). Code).

ANOTHER ALTERNATIVE ANSWER: b) The value of the standing crops must be pro-
Occupation is a mode of acquiring dominion by rated depending upon the period of possession
the seizure of corporeal things which have no and the period of growing and producing the
owner, with the intention of acquiring the fruits. Anthony is entitled to a part of the net
ownership thereof. It is an original mode of harvest and a part of the expenses of cultivation
acquiring ownership upon seizure of a res in proportion to his period of possession. Carlo
nullius by the occupant who has the intention to may appropriate the respective parts subject to
become the owner thereof. prorating the respective periods of possession.
However, Carlo may allow Anthony to gather
Possession, on the other hand, is the holding of these growing fruits as an indemnity for the
a thing or the enjoyment of a right. Possession expenses of cultivation. If Anthony refuses to
may be the real right of possession or jus accept this concession, he shall lose the right to
possessionis or it can be merely the right to indemnity under Art. 443 (Art. 545, par. 3, Civil
possess or jus possidendi, which are among the Code).
basic rights of ownership. If the real right of
possession is possession in the concept of Bartolome constructed a chapel on the land of Eric.
owner, but subject to certain limitations, it may What are Bartolome’s rights if he were:
ripen into full ownership of the thing or property a) a possessor of the land in good faith?
right through acquisitive prescription depending b) a possessor of the land in bad faith? (1996 Bar)
on whether it is a case of ordinary or
extraordinary prescription and whether the SUGGESTED ANSWER:
property is movable or immovable. a) Assuming that Eric acted in good faith,
Bartolome’s rights will depend upon what option
Eric chooses. Eric, the owner of the land, may
Effects of possession choose to acquire the chapel, which is a useful
expense or to sell the land to the builder
Anthony bought a piece of untitled agricultural land (Bartolome).
from Bert. Bert, in turn, acquired the property by If Eric chooses to acquire the chapel, he has the
forging Carlo’s signature in a deed of sale over the right to reimbursement for useful expenses, with
property. Carlo had been in possession of the a right of retention until paid.
property for 8 years, declared it for tax purposes, If Eric chooses to sell the land to Bartolome,
and religiously paid all taxes due on the property. Bartolome may refuse to buy the land if the
Anthony is not aware of the defect in Bert’s title, but value of the land is considerably more than the
has been in actual physical possession of the value of the building, in which case, there will be
property from the time he bought it from Bert, who a forced leased between them.
had never been in possession. Anthony has since
then been in possession of the property for one ADDITIONAL ANSWER:
year. If Eric acted in bad faith, then Bartolome has the
right of absolute removal of the chapel, plus
a) If Carlo is able to legally recover his property, can damages. However, if Eric chooses to acquire
he require Anthony to account for all the fruits he the chapel, then Bartolome has the right to
has harvested from the property while in reimbursement, plus payment of damages, with
possession? right of retention (Art. 454 in relation of Art. 447,
b) If there are standing crops on the property when Civil Code)
Carlo recovers possession, can Carlo appropriate
them? (2008 Bar) b) It is the owner of the land who has the right to
acquire the chapel without paying indemnity,
SUGGESTED ANSWER: plus damages, or to require Bartolome to
a) Since Anthony is a possessor in good faith, remove the chapel, plus damages or to require
Anthony cannot be made to account for the Bartolome to buy the land, without any option to
fruits he gathered before he was served with refuse to buy it. (Arts. 449 and 458, Civil Code)
summons. A possessor in good faith is entitled If Eric acted in bad faith, then his bad faith
to the fruits received before the possession was cancels the bad faith of Bartolome, and both will
legally interrupted by the service of summons be taken to have acted in good faith. (Art. 453,
(Art. 544, Civil Code). After Anthony was served Civil Code)
with summons, he became a possessor in bad
faith and a builder, planter, sower in bad faith. He TRUE or FALSE - Explain your answers.
can also be made to account for the fruits but he d) Possession of a movable property is lost when
may deduct expenses for production gathering the location of the said movable is unknown to the
owner. (2017 Bar)
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sold by the sheriff at public auction at which the

SUGGESTED ANSWER: savings and loan association was the lone bidder.
d) FALSE. Under Art. 556, possession of Accordingly, the car was sold to it. A few days later,
movable property is not deemed lost so long as A arrived from his foreign assignment. Learning of
they remain under the possessor’s control, even what happened to his car, A sought to recover
if he does not know of their whereabouts at the possession and ownership of it from the savings and
time. loan association. Can A recover his car from the
savings and loan association? Explain your answer.
(1993 Bar)
Irrevindicability of title, movable property
SUGGESTED ANSWER:
Rita owned a valuable painting which was stolen Under the prevailing rulings of the Supreme
from her house. The theft was duly reported to the Court, A can recover the car from the Savings
authorities. A year after, Rita saw the painting and Loan Association provided he pays the
hanging in the office of Mario. When queried, Mario price at which the Association bought the car at
said that he bought the painting in a gallery auction. a public auction. Under that doctrine, there has
The painting was positively identified as the one been an unlawful deprivation by B of A of his car
stolen from the house of Rita. and, therefore, A can recover it from any person
(a) Could Rita recover the painting? If so, would in possession thereof. But since it was bought at
Mario be entitled to reimbursement of the amount he a public auction in good faith by the Savings and
paid for the painting? Explain. Loan Association, he must reimburse the
(b) Supposing Mario bought the painting from a Association at the price for which the car was
friend, would your answer be the same? Explain. bought.
(1987 Bar)
ALTERNATIVE ANSWER:
SUGGESTED ANSWER: Yes, A can recover his car from the Savings and
a. Yes, Rita can recover the painting, but Mario is Loan Association. In a Chattel Mortgage, the
entitled to reimbursement for the amount he mortgagor must be the absolute owner of the
paid for it. Article 559 provides that one who has thing morgaged. Furthermore, the person
lost any movable or has been unlawfully constituting the mortgage must have the free
deprived thereof may recover it from the person disposal of the property, and in the absence
in possession of the same. However, if the thereof, must be legally authorized for the
possessor of a movable lost or which the owner purpose. In the case at bar, these essential
has been unlawfully deprived, has acquired it in requisites did not apply to the mortgagor B.
good faith at a public sale, the owner cannot hence the Chattel Mortgage was not valid.
obtain its return without reimbursing the price
paid therefor. In the instant case, since the Using a falsified manager’s check, Justine, as the
painting was stolen from her, Rita was buyer, was able to take delivery of a second hand
unlawfully deprived of the painting, hence she car which she had just bought from United Car
can recover it from the possessor. However, Sales, Inc. The sale was registered with the Land
since Mario acquired it in good faith at a gallery Transportation Office. A week later, the seller
auction, which is a public sale, he is entitled to learned that the check had been dishonored, but by
reimbursement for the price he paid. that time, Justine was nowhere to be seen. It turned
b. Yes, Rita could still recover the painting, out that Justine had sold the car to Jerico, the
having been unlawfully deprived of the same. present possessor who knew nothing about the
However, Mario would no longer be entitled to falsified check. In a suit by United Car Sales, Inc.
reimbursement as he did not obtain the painting against Jerico for recovery of the car, plaintiff alleges
at a public sale. it had been unlawfully deprived of its property
through fraud and should, consequently, be allowed
A, about to leave the country on a foreign to recover it without having to reimburse the
assignment, entrusted to B his brand new car and its defendant for the price the latter had paid. Should
certificate of registration. Falsifying A’s signature, B the suit prosper? (1998 Bar)
sold A’s car to C for P200,000.00. C then registered
the car in his name. To complete the needed SUGGESTED ANSWER:
amount, C borrowed P100,000.00 from the savings No, the suit will not prosper. The sale is valid as
and loan association in his office, constituting a Jerico is a buyer in good faith. Under the law on
chattel mortgage on the car. For failure of C to pay Sales, when the thing sold is delivered by the
the amount owed, the savings and loan association seller to the buyer without reservation of
filed in the RTC a complaint for collection with ownership, the ownership is transferred to the
application for issuance of a writ of replevin to obtain buyer. Accordingly, when United Car Sales sold
possession of the vehicle so that the chattel and delivered the car to Justine, ownership was
mortgage could be foreclosed. The RTC issued the transferred to Justine. While said ownership
writ of replevin. The car was then seized from C and may have been voidable, due to the unfunded
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check, when Justine sold the car to Jerico, said On the other hand, commodatum is a contract
ownership, which had not yet been nullified, was by which one of the parties (bailor) delivers to
then transferred to the latter. Given that Jerico another (bailee) something not consumable so
had no knowledge of the falsified check, as an that the latter may use it for a certain time and
innocent purchaser for value, his ownership of return it.
the car is now plenary and without any defect In usufruct the usufructuary gets the right to the
whatsoever, hence United Car may no longer use and to the fruits of the same, while in
recover the car from him. United Car Sales, Inc. commodatum, the bailee only acquires the use
may, however, still proceed against Justine. of the thing loaned but not its fruits.
Incidentally, United Car Sales’ allegation that it Usufruct may be constituted on the whole or a
has been unlawfully deprived of its property part of the fruits of the thing. (Art. 564, Civil
applies to the proceeds of the check, not to the Code). It may even be constituted over
car it sold, hence Art. 559 applies to the amount consumables like money (Alunan v. Veloso, 52
covered by the check issued by Justine, not to Phil. 545). On the other hand, in commodatum,
the car sold. consumable goods may be subject thereof only
when the purpose of the contract is not the
Pablo sold his car to Alfonso who isssued a consumption of the object, as when it is merely
postdated check in full payment therefor. Before the for exhibition. (Art. 1936, Civil Code)
maturity of the check, Alfonso sold the car to
Gregorio who later sold it to Gabriel. When ANOTHER ANSWER:
presented for payment, the check issued by Alfonso 1. There are several points of distinction
was dishonored by the drawee bank for the reason between usufruct and commodatum. Usufruct is
that he, Alfonso, had already closed his account constituted by law, by contract, by testamentary
even before he issued his check. succession, or by prescription (Art. 1933, Civil
Code). Usufruct creates a real right to the fruits
Pablo sued to recover the car from Gabriel alleging of another’s property, while commodatum
that he (Pablo) had been unlawfully deprived of it by creates only a purely personal right to use
reason of Alfonso’s deception. Will the suit prosper? another’s property, and requires a stipulation to
(1991 Bar) enable the bailee to “make use” of the fruits
(Arts. 1939 & 1940, Civil Code). Usufruct maybe
SUGGESTED ANSWER: onerous while commodatum is always or
No. The suit will not prosper because Pablo was essentially gratuitous (Arts. 1933 & 1935, Civil
not unlawfully deprived of the car although he Code). The contract constituting usufruct is
was unlawfully deprived of the price. The consensual, while commodatum is a real
perfection of the sale and the delivery of the car contract (perfected only by delivery of the
was enough to allow Alfonso to have a right of subject matter thereof). However, both involve
ownership over the car, which can be lawfully the enjoyment by a person of the property of
transferred to Gregorio. Art. 559 applies only to another, differing only as to the extent and
a person who is in possession in good faith of scope of such enjoyment (jus fruendi in one and
the property, and not to the owner thereof. jus utendi in the other); both may have as
Alfonso, in the problem, was the owner, and, subject matter either an immovable or a
hence, Gabriel acquired the title to the car. movable; and, both may be constituted over
consumable goods (Arts. 574 & 1936, Civil
Non-payment of the price in a contract of sale Code).
does not render ineffective the obligation to A consumable thing may be the subject-matter
deliver. of an abnormal usufruct but in a normal
usufruct, the subject-matter may be used only
The obligation to deliver a thing is different from for exhibition. A commodatum of a consumable
the obligation to pay its price (EDCA Publishing thing may be only for the purpose of exhibiting,
Co. v. Santos [1990]). not consuming it.

What is usufruct? How is usufruct extinguished?

Usufruct (1989 Bar)

Distinguish usufruct from commodatum and state SUGGESTED ANSWER:

whether these may be constituted over consumable Usufruct gives a right to enjoy the property of
goods. (1998 Bar) another with the obligation of preserving its
form and substance, unless the title constituting
SUGGESTED ANSWER: it or the law otherwise provides.
1. Usufruct is a right given to a person
(usufructuary) to enjoy the property of another Usufruct is extinguished:
with the obligation of preserving its form and (1) By the death of the usufructuary, unless a
substance. (Art. 562, Civil Code) contrary intention clearly appears;
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(2) By the expiration of the period for which it (NOTE: It is recommended by the Committee that
was constituted, or by the fulfillment of any any two (2) distinctions should be given full credit.)
resolutory condition provided in the title
creating the usufruct; SUGGESTED ANSWER:
(3) By merger of the usufruct and ownership in 2. (a) There can be no easement over a usufruct.
the same person; Since an easement may be constituted only on a
(4) By renunciation of the usufructuary; corporeal immovable property, no easement may
(5) By the total loss of the thing in usufruct; be constituted on a usufruct which is not a
(6) By the termination of the right of the person corporeal right.
constituting the usufruct; b) There can be no usufruct over an easement.
(7) By prescription. While a usufruct may be created over a right,
such right must have an existence of its own
1. What is easement? Distinguish easement from independent of the property. A servitude cannot
usufruct. be the object of a usufruct because it has no
2. Can there be (a) an easement over a usufruct? existence independent of the property to which
(b) a usufruct over an easement? (c) an easement it attaches.
over another easement? Explain. (1995 Bar)
ADDITIONAL ANSWER:
SUGGESTED ANSWER: There cannot be a usufruct over an easement
1. An easement or servitude is an encumbrance since an easement presupposes two (2)
imposed upon an immovable for the benefit of tenements belonging to different persons and
another immovable belonging to a different the right attaches to the tenement and not to the
owner. (Art. 613, Civil Code) owner. While a usufruct gives the usufructuary a
Usufruct gives a right to enjoy the property of right to use, right to enjoy, right to the fruits, and
another with the obligation of preserving its right to possess, an easement gives only a
form and substance, unless the title constituting limited use of the servient estate.
it or the law otherwise provides. (Art. 562, Civil However, a usufruct can be constituted over a
Code). An easement or servitude is an property that has in its favor an easement or one
encumbrance imposed upon an immovable for burdened with a servitude. The usufructuary will
the benefit of another immovable belonging to a exercise the easement during the period of
different owner (Art. 613, Civil Code). usufruct.

ALTERNATIVE ANSWER: c) There can be no easement over another

Easement is an encumbrance imposed upon an easement for the same reason as in (a). An
immovable for the benefit of another immovable easement, although it is a real right over an
belonging to a different owner in which case it is immovable, is not a corporeal right. There is a
called real or predial easement, or for the benefit Roman maxim which says that: There can be no
of a community or group of persons in which servitude over another servitude.
case it is known as a personal easement.
The distinctions between usufruct and easement Distinguish antichresis from usufruct? (2017 Bar)
are:
a) Usufruct includes all uses of the property and SUGGESTED ANSWER:
for all purposes, including jus fruencli Easement Antichresis is a contract whereby the creditor
is limited to a specific use. acquires the right to receive the fruits of an
b) Usufruct may be constituted on immovable or immovable of his debtor with the obligation to
movable property. Easement may be constituted apply them to the payment of interest if owing
only on an immovable property. and thereafter to the principal; while usufruct
c) Easement is not extinguished by the death of gives the right to enjoy the property of another,
the owner of the dominant estate while usufruct with the obligation of preserving its form and
is extinguished by the death of the usufructuary substance.
unless a contrary intention appears.
d) An easement contemplates two (2) estates Antichresis distinguished from usufruct:
belonging to two (2) different owners; a usufruct 1. Antichresis arises from contract; usufruct is
contemplates only one property (real or constituted by law, by the will of private persons
personal) whereby the usufructuary uses and expressed in acts inter vivos or in a last will and
enjoys the property as well as its fruits, while testament, and by prescription.
another owns the naked title during the period of 2. Antichresis involves real property; usufruct
the usufruct. may involve real property or personal property.
e) A usufruct may be alienated separately from 3. In antichresis, the principal and the interest
the property to which it attaches, while an must be provided in writing for validity; there is
easement cannot be alienated separately from no such requirement for usufruct
the property to which it attaches. 4. In antichresis, the fruits are to be applied to
the payment of interest, if owing, then to the
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principal; in usufruct, the fruits belong to the Yes, the usufruct will continue despite the house
usufructuary. located on the lot being burned down.
5. The purpose of antichresis is the fulfillment of
a principal obligation contracted by the debtor Under the law, if a usufruct is constituted on a
who owns the immovable; the purpose of lot where a building is erected, and the building
usufruct is for the usufructuary to enjoy the is destroyed, the usufruct continues, with the
property of another, with the obligation of usufructuary having a right to make use of the
preserving its form and substance. land, as well as the material of the destroyed
building. Accordingly, the usufruct given by
On 1 January 1980, Minerva, the owner of a building Salumbides subsists even if the house on the lot
granted Petronila a usufruct over the property until has been burned down.
01 June 1998 when Manuel, a son of Petronila,
would have reached his 30th birthday. Manuel, However, the usufruct is deemed extinguished
however, died on 1 June 1990 when he was only 26 upon the death of Sinforoso.
years old.
Minerva notified Petronila that the usufruct had been Under the Civil Code, a usufruct given for the
extinguished by the death of Manuel and demanded period until a 3rd person reaches a certain age
that the latter vacate the premises and deliver the continues until such time that the said person
same to the former. Petronila refused to vacate the would have reached that age, even if that 3 rd
place on the ground that the usufruct in her favor person had died even before reaching the
would expire only on 1 June 1998 when Manuel agreed upon age. The only exception would be if
would have reached his 30th birthday and that the the usufruct had been given solely because of
death of Manuel before his 30th birthday did not that 3rd person’s existence, in which case,
extinguish the usufruct. should that person die, the usufruct would be
Whose contention should be accepted? (1997 Bar) deemed extinguished.

SUGGESTED ANSWER: In the instant case, it is clear that the usufruct

Petronila’s contention is correct. Under Article granted by Salumbides was solely because of
606 of the Civil Code, a usufruct granted for the the existence of Sinforoso. Salumbides would
time that may elapse before a third person not have created the usufruct where it not for the
reaches a certain age shall subsist for the existence of his grandson Sinforoso.
number of years specified even if the third Accordingly, with the demise of Sinforoso, the
person should die unless there is an express usufruct granted by Salumbides must also be
stipulation in the contract that states otherwise. deemed extinguished.
In the case at bar, there is no express stipulation
that the consideration for the usufruct is the Bartolome constructed a chapel on the land of Eric.
existence of Petronila’s son. Thus, the general What are Bartolome’s rights if he were a
rule and not the exception should apply in this usufructuary of the land? (1996 Bar)
case.
SUGGESTED ANSWER:
Sofronio was a married father of two when he had a Bartolome has the right to remove the
brief fling with Sabrina. resulting in her pregnancy improvement if it is possible to do so without
and the birth of their son Sinforoso. Though his wife causing damage to the property (Art. 579, Civil
knew nothing of the affair, Sofronio regretted it, but Code). He may also set off the improvement
secretly provided child support for Sinforoso. against any damages which the property held in
Unfortunately, when Sinforoso was 10 years old, usufruct suffered because of his act or the acts
Sofronio died. Only Sofronio’s father, Salumbides, of his assignee. (Art. 580, Civil Code).
knew of Sabrina and Sinforoso. For the purpose of
providing support to Sinforoso, Salumbides gave
Sabrina usufructuary rights over one of his Easements
properties — a house and lot — to last until
Sinforoso reaches the age of majority. Sabrina was Distinguish between:
given possession of the property on the basis of a) Continuous and discontinuous easements:
caucion juratoria. Two (2) years after the creation of b) Apparent and non-apparent easements; and
the usufruct, the house accidentally burned down, c) Positive and negative easements. (1998 Bar)
and three (3) years thereafter, Sinforoso died before
he could reach the age of 18. SUGGESTED ANSWER:
a) Continuous easements are those the use of
Will the usufruct continue after the house has which is or may be incessant, without the
burned down? If yes, will it continue after Sinforoso’s intervention of any act of man, while
death? (2018 Bar) discontinuous easements are those which are
used at intervals and depend upon the acts of
SUGGESTED ANSWER: man. (Art. 615, Civil Code)
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e) A usufruct may be alienated separately from

b) Apparent easements are those which are the property to which it attaches, while an
made known and are continually kept in view by easement cannot be alienated separately from
external signs that reveal the use and enjoyment the property to which it attaches.
of the same, while non-apparent easements are
those which show no external indication of their (NOTE: It is recommended by the Committee that
existence. (Art. 615, Civil Code) any two (2) distinctions should be given full credit.)

c) Positive easements are those which impose SUGGESTED ANSWER:

upon the owner of the servient estate the 2. (a) There can be no easement over a usufruct.
obligation of allowing something to be done or Since an easement may be constituted only on a
of doing it himself, while negative easements are corporeal immovable property, no easement may
those which prohibit the owner of the servient be constituted on a usufruct which is not a
estate from doing something which he could corporeal right.
lawfully do if the easement did not exist. (Art. b) There can be no usufruct over an easement.
615, Civil Code) While a usufruct may be created over a right,
such right must have an existence of its own
1. What is easement? Distinguish easement from independent of the property. A servitude cannot
usufruct. be the object of a usufruct because it has no
2. Can there be (a) an easement over a usufruct? existence independent of the property to which
(b) a usufruct over an easement? (c) an easement it attaches.
over another easement? Explain. (1995 Bar)
ADDITIONAL ANSWER:
SUGGESTED ANSWER: There cannot be a usufruct over an easement
1. An easement or servitude is an encumbrance since an easement presupposes two (2)
imposed upon an immovable for the benefit of tenements belonging to different persons and
another immovable belonging to a different the right attaches to the tenement and not to the
owner. (Art. 613, Civil Code) owner. While a usufruct gives the usufructuary a
Usufruct gives a right to enjoy the property of right to use, right to enjoy, right to the fruits, and
another with the obligation of preserving its right to possess, an easement gives only a
form and substance, unless the title constituting limited use of the servient estate.
it or the law otherwise provides. (Art. 562, Civil However, a usufruct can be constituted over a
Code). An easement or servitude is an property that has in its favor an easement or one
encumbrance imposed upon an immovable for burdened with a servitude. The usufructuary will
the benefit of another immovable belonging to a exercise the easement during the period of
different owner (Art. 613, Civil Code). usufruct.

ALTERNATIVE ANSWER: c) There can be no easement over another

Easement is an encumbrance imposed upon an easement for the same reason as in (a). An
immovable for the benefit of another immovable easement, although it is a real right over an
belonging to a different owner in which case it is immovable, is not a corporeal right. There is a
called real or predial easement, or for the benefit Roman maxim which says that: There can be no
of a community or group of persons in which servitude over another servitude.
case it is known as a personal easement.
The distinctions between usufruct and easement How are easements acquired? (1988 Bar)
are:
a) Usufruct includes all uses of the property and SUGGESTED ANSWER:
for all purposes, including jus fruencli Easement Continuous and apparent easements are
is limited to a specific use. acquired either by virtue of a title or by
b) Usufruct may be constituted on immovable or prescription of ten years (Art. 620, CC), while
movable property. Easement may be constituted continuous non-apparent easements and
only on an immovable property. discontinuous easements whether apparent or
c) Easement is not extinguished by the death of non-apparent, can only be acquired by virtue of
the owner of the dominant estate while usufruct a title (Art. 622, CC).
is extinguished by the death of the usufructuary
unless a contrary intention appears. TRUE or FALSE - Explain your answers.
d) An easement contemplates two (2) estates e) Continuous non-apparent easements can be
belonging to two (2) different owners; a usufruct acquired either through title or by prescription. (2017
contemplates only one property (real or Bar)
personal) whereby the usufructuary uses and
enjoys the property as well as its fruits, while SUGGESTED ANSWER:
another owns the naked title during the period of e) FALSE. Under Art. 622, continuous non-
the usufruct. apparent easements can be acquired only
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through title. It is only continuous and apparent MULTIPLE CHOICE. An easement that can be
easements that can be acquired either through acquired by prescription: (2014 Bar)
title or by prescription (Art. 620). a) Right of way
b) Watering of an animal
In acquiring easement by prescription, how shall the c) Lateral and subjacent support
period of possession be computed? (1988 Bar) d) Light and view

SUGGESTED ANSWER: SUGGESTED ANSWER:

In order that an easement may be acquired by d)
prescription, the time of possession shall be
computed thus: In positive easements, from the TRUE or FALSE. Acquisitive prescription of a
day on which the owner of the dominant estate, negative easement runs from the time the owner of
or the person who may have made use of the the dominant estate forbids, in a notarized
easement, commenced to exercise it upon the document, the owner of the servient estate from
servient estate; and in negative easements, from executing an act which would be lawful without the
the day on which the owner of the dominant easement. (2009 Bar)
estate forbade, by an instrument acknowledged
before a notary public, the owner of the servient SUGGESTED ANSWER:
estate, from executing an act which would be TRUE. Since a negative easement involves acts
lawful without the easement. (Art. 621, CC.) which can normally be done by an owner, to
acquire an easement against adjacent owners,
About fifteen years ago, Adelaida constructed a the latter must be prohibited by the owner of the
house on her lot at Quezon City adjoining a lot dominant estate, by a notarial instrument,
owned by Bernie. She provided it with several against executing an act which would be lawful
windows overlooking Bernie’s lot half a meter away without the easement.
from the boundary line. A month ago, Bernie brought
an action against Adelaida for the closure of the Mr. Bong owns several properties in Pasig City. He
windows alleging that they violate the law on decided to build a condominium named Flores de
distances. Manila in one of his lots. To fund the project, he
1. Has Adelaida acquired an easement of light and obtained a loan from the National Bank (NB)
view by prescription? secured by a real estate mortgage over the
2, Will the action of Bernie prosper? adjoining property which he also owned.
3. If the action will not prosper, will that not be
tantamount to saying that Adelaida has already During construction, he built three (3) pumps on the
acquired an easement of light and view? (1988 Bar) mortgaged property to supply water to the
condominium. After one (1) year, the project was
SUGGESTED ANSWER: completed and the condominium was turned over to
(1) Adelaida has not acquired an easement of the buyers. However, Mr. Bong failed to pay his
light and view by prescription after ten years. loan obligation to NB. Thus, NB foreclosed the
There are two reasons for this. In the first place, mortgaged property where the pumps were
there was no formal prohibition as required by installed. During the sale on public auction of the
law. This should have been done by means of an mortgaged property, Mr. Simon won in the bidding.
instrument acknowledged before a notary public When Mr. Simon attempted to take possession of
wherein she should have prohibited Bernie from the property, the condominium owners, who in the
obstructing his light and view. She did not. In meantime constituted themselves into Flores de
the second place, she did not observe the legal Manila Inc. (FMI), claimed that they have earlier
requirement that there should be a distance of at filed a case for the declaration of the existence of
least two meters between the windows and an easement before the Regional Trial Court (RTC)
Bernie’s lot, since the view is direct. According of Pasig City and prayed that the easement be
to the Civil Code, non-observance of this annotated in the title of the property foreclosed by
distance does not give rise to prescription. NB. FMI further claimed that when Mr. Bong
(2) The action will not prosper because more installed the pumps in his adjoining property, a
than ten years has already elapsed from the time voluntary easement was constituted in favor of FMI.
of the opening of the windows. Bernie’s right of Will the action prosper? (2014 Bar)
action has already prescribed.
(3) This is not tantamount to saying that SUGGESTED ANSWER:
Adelaida has already acquired an easement of Yes, the action will prosper. There are three
light and view. Under the Civil Code, nobody can ways by which an easement can be acquired; by
prevent Bernie from obstructing Adelaida’s light prescription of ten years, by title, and by
and view by constructing a building on his lot or apparent sign of easement. Under Article 624 of
by raising a wall thereon contiguous to the the Civil Code, the existence of an apparent sign
windows of Adelaida. of easement between two estates, established or

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maintained by the owner of both, shall be Enterprises, Inc. v. CA, 330 SCRA 145). The
considered, should either of them be alienated, owner of the higher estate may be compelled to
as a title in order that the easement may pay damages to the owner of the lower estate.
continue actively and passively, unless, at the
time the ownership of the two estates is divided,
the contrary should be provided in the title of Easement of Right of Way
conveyance of either of them, or the sign
aforesaid should be removed before the David is the owner of the subdivision in Sta. Rosa,
execution of the deed. In the instant case, the Laguna, without an access to the highway. When he
owner of the two adjacent lots put up pumps on applied for a license to establish the subdivision,
one lot, which pumps supplied water to the David represented that he will purchase a rice field
other adjacent lot. Clearly, there was an located between his land and the highway, and
apparent sign of easement on the property. develop it into an access road. But, when the license
More, this apparent sign continued to exist after was already granted, he did not bother to buy the
the lot on which the pumps were located was rice field, which remains unutilized until the present.
alienated due to the foreclosure thereof, hence Instead, he chose to connect his subdivision with the
its existence may now be considered as a title in neighboring subdivision of Nestor, which has an
order for the said easement to continue. Plainly, access to the highway. Nestor allowed him to do
an easement was constituted in favor of FMI by this, pending negotiations on the compensation to
virtue of apparent sign of easement. be paid. When they failed to arrive at an agreement,
Nestor built a wall across the road connecting with
David’s subdivision. David filed a complaint in court,
Easements Relating to Waters for the establishment of an easement of right of way
through the subdivision of Nestor which he claims to
Laura owns an agricultural land planted mostly with be the most adequate and practical outlet to the
fruit trees. Hernando owns an adjacent land devoted highway.
to his piggery business, which is two (2) meters a) What are the requisites for the establishment of a
higher in elevation. Although Hernando has compulsory easement of a right of way?
constructed a waste disposal lagoon for his piggery, b) Is David entitled to a right of way in this case?
it is inadequate to contain the waste water Why or why not? (1996 Bar)
containing pig manure, and it often overflows and
inundates Lauro’s plantation. This has increased the SUGGESTED ANSWER:
acidity of the soil in the plantation, causing the trees a)The requisites for a compulsory easement of
to wither and die. Lauro sues for damages caused to right of way are: (a) the dominant estate is
his plantation. Hernando invokes his right to the surrounded by other immovables and is without
benefit of a natural easement in favor of his higher an adequate outlet to a public street or highway;
estate, which imposes upon the lower estate of (b) proper indemnity must be paid; (c) the
Lauro the obligation to receive the waters isolation must not be due to the acts of the
descending from the higher estate. Is Hernando owner of the dominant estate; and (d) the right
correct? (2002 Bar) of way claimed is at a point least prejudicial to
the servient estate and, insofar as is consistent
SUGGESTED ANSWER: with this rule, where the distance to the street or
Hernando is wrong. It is true that Lauro’s land is highway is shortest.
burdened with the natural easement to accept or
receive the water which naturally and without b) No, David is not entitled to the right of way
interruption of man descends from a higher being claimed. The isolation of his subdivision
estate to a lower estate. However, Hernando has was due to his own act or omission because he
constructed a waste disposal lagoon for his did not develop into an access road the rice field
piggery and it is this waste water that flows which he was supposed to purchase according
downward to Laura’s land. Hernando has, thus, to his own representation when he applied for a
interrupted the flow of water and has created license to establish the subdivision (Floro v.
and is maintaining a nuisance. Under Art. 697 of Llenado, 244 SCRA 713).
the Civil Code, abatement of a nuisance does
not preclude recovery of damages by Lauro Tyler owns a lot that is enclosed by the lots of Riley
even for the past existence of a nuisance. The to the North and East, of Dylan to the South, and of
claim for damages may also be premised on Art. Reece to the West. The current route to the public
2191(4) of the Civil Code. highway is a kilometer’s walk through the northern
lot of Riley, but the route is a rough road that gets
ANOTHER ANSWER: muddy during the rainy season, and is inconvenient
Hernando is not correct. Article 637 of the Civil because it is only 2.5 meters wide. Tyler’s nearest
Code provides that the owner of the higher access to the public highway would be through the
estate cannot make works which will increase southern lot of Dylan.
the burden on the servient estate (Remman
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May Dylan be legally required to afford to Tyler a prevent the dominant estate from using it. (4)
right of way through his property? Explain your Ava’s working abroad for more than ten (10)
answer. (2017 Bar) years should not be construed as non-user,
because it cannot be implied from the fact that
SUGGESTED ANSWER: she or those she left behind to cultivate the lot
No, Dylan may not be legally required to afford no longer use the right of way. Note: Since a
Tyler a right of way through his property. right of way is a discontinuous easement, the
The requisites for a legal right of way are: (1) the period of ten years of non-user, shall be
property is surrounded by other immovables computed from the day it ceased to be used
and has no adequate outlet to a public highway; under Art. 631(2), Civil Code. (5) Renunciation or
(2) payment of proper indemnity; (3) the waiver of an easement must be specific, clear,
isolation is not the result of the owner’s own express and made in a public instrument in
acts; (4) the right of way claimed is at the point accordance of Art 1358 of the Civil Code.
least prejudicial to the servient estate; and (5) to
the extent consistent with the foregoing rule, ALTERNATIVE ANSWER:
where the distance from the dominant estate to Yes. Ava has the right to demand from Julia the
a public highway may be the shortest. In this activation of the right of way. A voluntary
connection, jurisprudence has stated that in easement of right of way, like any other contract,
easements of right of way, “mere convenience could be extinguished only by mutual agreement
for the dominant estate is not enough to serve or by renunciation of the owner of the dominant
as its basis. To justify the imposition of this estate. Also, like any other contract, an
servitude, there must be a real, not a fictitious easement is generally effective between parties,
or artificial necessity for it.” In the instant case, their heirs and assignees, except in case where
there is already an existing outlet to the the rights and obligations arising from the
highway through Riley’s lot. While it may be contract are not transmissible by their nature, or
more convenient for Tyler to pass through by stipulations or by provision of law (Unisource
Dylan’s lot, there is no real necessity for him to Commercial v. Chung, 593 SCRA 530).
pass through said property, as he already has a
passage to the highway. Given that the first b) Yes. Ava has the option to demand a right of
requirement for a legal right of way is absent, way on any of the remaining lots of Franz more
Tyler may not demand a right of way through so after Franz sold lot C to Julia. The essential
Dylan’s lot. elements of a legal right of way under Art 649
and 650 of the Civil Code are complied with.
Franz was the owner of Lot E which was surrounded
by four (4) lots one of which – Lot C – he also ALTERNATIVE ANSWER:
owned. He promised Ava that if she bought Lot E, Yes. Ava has the option to demand a right of way
he would give her a right of way in Lot C. from the other lots. The law provides that
Convinced, Ava bought Lot E and, as promised, whenever a piece of land acquired by sale,
Franz gave her a right of way in Lot C. Ava exchange or partition is surrounded by other
cultivated Lot E and used the right of way granted by estates of the vendor, exchanger, or co-owner,
Franz. Ava later found gainful employment abroad. he shall be obliged to grant a right of way
On her return after more than 10 years, the right of without indemnity (Art 652, Civil Code).
way was no longer available to her because Franz
had in the meantime sold Lot C to Julia who had it ANOTHER ALTERNATIVE ANSWER:
fenced. No. There was merely a promise to Ava that a
right of way shall be granted to her in lot C if Ava
a) Does Ava have a right to demand from Julia the purchase lot E. The promise was not reduced to
activation of her right of way? Explain. writing (Obra v. Baldria, 529 SCRA 621). Hence, it
b) Assuming Ava opts to demand a right of way from was not or could not have been registered as to
any of the owners of Lots A, B, and D, can she do warn buyers of lot C about the existence of the
that? Explain. (2010 Bar) easement on the property. Not having been
annotated on the TCT to lot C, the buyer
SUGGESTED ANSWER: acquired lot C free from such right of way
a) Yes. Ava has the right to demand from Julia granted to Ava.
the activation of the right of way, for the
following reasons: (1) The easement of the right The coconut farm of Federico is surrounded by the
of way is a real right which attaches to, and is lands of Romulo. Federico seeks a right of way
inseperable from, the estate to which it belongs. through a portion of the land of Romulo to bring his
(2) The sale of the property includes the coconut products to the market. He has chosen a
easement or servitude, even if the deed of sale is point where he will pass through a housing project of
silent on the matter. (3) The vendee of the Romulo. The latter wants him to pass another way
property in which a servitude or easement exists which is one kilometer longer. Who should prevail?
cannot close or put obstructions thereon to (2000 Bar)
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b) failure to convert the land from agricultural to

SUGGESTED ANSWER: residential under agrarian law
Romulo will prevail. Under Article 650 of the Civil c) failure to secure a license to sell
Code, the easement of right of way shall be (4) commence criminal prosecution for violation
established at the point least prejudicial to the of the penal provisions of PD 957, Sec. 39.
servient estate and where the distance from the
dominant estate to a public highway is the Emma bought a parcel of land from Equitable-PCI
shortest. In case of conflict, the criterion of least Bank, which acquired the same from Felisa, the
prejudice prevails over the criterion of shortest original owner. Thereafter, Emma discovered that
distance. Since the route chosen by Federico Felisa had granted a right of way over the land in
will prejudice the housing project of Romulo, favor of the land of Georgina, which had no outlet to
Romulo has the right to demand that Federico a public highway, but the easement was not
pass another way even though it will be longer. annotated when the servient estate was registered
under the Torrens system. Emma then filed a
Don was the owner of an agricultural land with no complaint for cancellation of the right of way, on the
access to a public road. He had been passing ground that it had been extinguished by such failure
through the land of Ernie with the latter’s to annotate. How would you decide the controversy?
acquiescence for over 20 years. Subsequently, Don (2001 Bar)
subdivided his property into 20 residential lots and
sold them to different persons. Ernie blocked the SUGGESTED ANSWER:
pathway and refused to let the buyers pass through The complaint for cancellation of easement of
his land. right of way must fail. The failure to annotate the
easement upon the title of the servient estate is
a) Did Don acquire an easement of right of way? not among the grounds for extinguishing an
Explain. easement under Art. 631 of the Civil Code. Under
b) Could Ernie close the pathway and refuse to let Article 617, easements are inseparable from the
the buyers pass? Give reasons. estate to which they actively or passively
c) What are the rights of the lot buyers, if any? belong. Once it attaches, it can only be
Explain. (2005 Bar) extinguished under Art. 631, and they exist even
if they are not stated or annotated as an
SUGGESTED ANSWER: encumbrance on the Torrens title of the servient
a) Don did not acquire an easement of right of estate. (II Tolentino 326, 1987 ed.)
way. His passage through Ernie’s land was by
mere acquiescence or tolerance. He cannot ALTERNATIVE ANSWER:
claim to have acquired the easement of right of Under Section 44, PD No. 1529, every registered
way by prescription, because this easement is owner receiving a certificate of title pursuant to
discontinuous although apparent. Only a decree of registration, and every subsequent
continuous and apparent easements can be innocent purchaser for value, shall hold the
acquired by prescription of 10 years of same free from all encumbrances except those
uninterrupted use and enjoyment. noted on said certificate. This rule, however,
admits of exceptions.
b) As there is no right of way existing in favor of Under Act 496, as amended by Act No. 2011, and
Don’s land, Ernie could close the pathway. The Section 4, Act 3621, an easement if not
lot buyers may request Don to establish a right registered shall remain and shall be held to pass
of way as voluntary easement by entering into a with the land until cutoff or extinguished by the
contract with Ernie, or file action to constitute a registration of the servient estate. However, this
legal easement by proving compliance with the provision has been suppressed in Section 44,
four requisites for creating a legal easement of PD No.1529. In other words, the registration of
right of way under Articles 649 and 650 of the the servient estate did not operate to cut-off or
Civil Code. extinguish the right of way. Therefore, the
complaint for the cancellation of the right of way
c) The lot buyers have the right to: should be dismissed.
1) ask for a constitution of legal easement of
right of way; In 2005, Andres built a residential house on a lot
(2) require Don to provide for a right of way. whose only access to the national highway was a
Under Sec. 29 of PD 957, the owner or developer pathway crossing Brando’s property. Andres and
of a subdivision without access to any existing others have been using this pathway (pathway A)
road must secure a right of way; since 1980. In 2006, Brando fenced off his property,
(3) formally complain to the Housing and land thereby blocking Andres’ access to the national
Use of Regulatory Board regarding Don’s failure highway. Andres demanded that part of the fence be
to comply with PD 957 specifically, removed to maintain his old access route to the
a) failure to provide for a right of way highway (pathway A), but Brando refused, claiming
that there was another available pathway (pathway
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B) for ingress and egress to the highway. Andres ask for the constitution of a legal easement through
countered that pathway B has defects, is circuitous, Brando’s lot by proving the four requisites required
and is extremely inconvenient to use. To settle their by Art 649 and 65, Civil Code).
dispute, Andres and Brando hired Damian, a
geodetic and civil engineer, to survey and examine Tomas Encarnacion’s 3,000 square meter parcel of
the two pathways and the surrounding areas, and to land, where he has a plant nursery, is located just
determine the shortest and the least prejudicial way behind Aniceta Magsino’s two hectare parcel land.
through the servient estates. After the survey, the To enable Tomas to have access to the highway,
engineer concluded that pathway B is the longer Aniceta agreed to grant him a road right of way a
route and will need improvements and repairs, but meter wide through which he could pass. Through
will not significantly affect the use of Brando’s the years Tomas’ business nourished which enabled
property. On the other hand, pathway A that had him to buy another portion which enlarged the area
long been in place, is the shorter route but would of his plant nursery. But he was still landlocked. He
significantly affect the use of Brando’s property. In could not bring in and out of his plant nursery a jeep
light of the engineer’s findings and the or delivery panel much less a truck that he needed
circumstances of the case, resolve the parties’ right to transport his seedlings. He now asked Aniceta to
of way dispute. (2013 Bar) grant him a wider portion of her property, the price of
which he was willing to pay, to enable him to
SUGGESTED ANSWER: construct a road to have access to his plant nursery.
Andres is not entitled to the easement of right of Aniceta refused claiming that she had already
way for Pathway A. Pathway B must be used. allowed him a previous road right of way. Is Tomas
The owner of a dominant estate may validly entitled to the easement he now demands from
obtain a compulsory right of way only after he Aniceta? (1993 Bar)
has established the existence of four requisites,
to wit: (1) The (dominant) estate is surrounded SUGGESTED ANSWER:
by other immovables and is without adequate Art. 651 of the Civil Code provides that the width
outlet to a public highway; (2) After payment of of the easement must be sufficient to meet the
the proper indemnity; (3) The isolation was not needs of the dominant estate, and may
due to the proprietor’s own acts; and (4) The accordingly change from time to time. It is the
right of way claimed is at a point least prejudicial need of the dominant estate which determines
to the servient estate, and insofar as consistent the width of the passage. These needs may vary
with this rule, where the distance from the from time to time. As Tomas’ business grows,
dominant estate to the public highway maybe the need for use of modern conveyances
the shortest (Art 650, Civil Code). However, the requires widening of the easement.
Supreme Court has consistently ruled that in
case both criteria cannot be complied with, the
right of way shall be established at the point Easement of Lateral and Subjacent Support
least prejudicial to the servient estate. The first
and fourth requisites are not complied with. Socorro is the registered owner of Lot A while
First, there is another available outlet to the Segunda is the registered owner of the adjoining Lot
national highway (Pathway B). Second, the right B. Lot A is located at an elevated plateau of about
of way obtained (Pathway A) is not the least 15 feet above the level of Lot B. Since Socorro was
prejudicial to Brando’s property, as evidenced allegedly removing portions of the land and cement
by the reports of the geodetic and civil engineer. that supported the adjoining property, Segunda
When there is already an existing adequate caused the annotation of an adverse claim against
outlet from the dominant estate to the public 50 sq. m. on Lot A’s Transfer Certificate of Title,
highway, even if the said outlet, for one reason asserting the existence of a legal easement.
or another, be inconvenient, the need to open up
another servitude is entirely unjustified a) Does a legal easement in fact exist? If so, what
(Costabella Corporation v. CA, 193 SCRA 333). kind?
The rule that the easement of right of way shall b) If a legal easement does in fact exist, is an
be established at the point least prejudicial to annotation of an adverse claim on the title of the
the servient estate is controlling (Quimen v. servient estate proper? (2018 Bar)
Quimen and CA, 257 SCRA 163).
SUGGESTED ANSWER:
(Note: It is not clear from the problem if there exists
a) No, there is no legal easement of lateral or
an easement in favor of the lot belonging to Andres
subjacent support herein.
and if Brando’s lot is burdened as a servient estate
by a right of way as a servient estate. If there is
Under the law, a landowner is free to make any
such an easement burdening Brando’s lot, was it
excavations subject to the limitation that he
created as legal easement or as a voluntary
shall not deprive any adjacent land or building of
easement. If the used pathway was only a
sufficient lateral or subjacent support.
tolerance, then Brando may close it. Andres must
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Accordingly, landowners have the structure of the house but the use of the house
corresponding right to have their land supported for the selling of shabu. However, the demolition
by the land adjacent to their landholding, such of the house is not necessary to abate the sale
that the same does not fall or slide away. of shabu in that community. To demolish the
house is an unnecessary damage and injury.
In the instant case, Segunda, the person
claiming the easement, owns land which is State with reason whether each of the following is a
LOWER than the parcel she is claiming to be nuisance, and if so, give its classification, whether
subject to the easement of support. public or private. (2005 Bar)
As her property is LOWER than Socorro’s
property, it boggles the mind how her parcel of a) A squatter’s hut
land would lose support as to cause portions b) A swimming pool
thereof to fall or slide away. In fact, it appears c) A house of prostitution
that it is Socorro who can demand an easement d) A noisy or dangerous factory in a private land
of lateral or subjacent support be imposed on e) Uncollected garbage
the land owned by Segunda, as it is Segunda’s
land which faces the possibility of falling or SUGGESTED ANSWER:
sliding away should Socorro make excavations a) According to Article 694 of the Civil Code, a
on her property, which is LOWER than that of nuisance is any act, omission, establishment,
Segunda. business condition of property, or anything else
which:
b) No, the annotation of an adverse claim is (1) Injures or endangers the health or safety of
improper. others; or
(2) Annoys or offends the senses; or
An adverse claim, under the law, involves a (3) Shocks, defies, or disregards decency or
claim of ownership by the adverse claimant over morality; or
the land subject of an adverse claim. On the (4) Obstructs or interferes with the free passage
other hand, in a legal easement, the dominant of any public highway or street, or any body of
estate does not claim ownership of the portion water; or (5) Hinders or impairs the use of
of land subject to the legal easement. The said property.
portion still belongs in ownership to the servient A nuisance may be either public or private.
estate, only that an encumbrance is imposed Under Article 685, a public nuisance affects a
thereon in favor of the dominant estate. Since community or neighborhood or any
no claim of ownership is involved in a legal considerable number or persons, although the
easement, the annotation of an adverse claim on extent of the annoyance, danger of damage
the title of the servient estate would be upon individuals may be unequal. A private
improper. nuisance, on the other hand, is one that violates
only private rights and produces damage to but
one or a few persons.
Nuisance a) A squatter’s hut, being an illegal construction,
constitutes a public nuisance per se, if it poses
A drug lord and his family reside in a small bungalow problems of health and sanitation. (City of
where they sell shabu and other prohibited drugs. Manila v. Garcia, 19 SCRA 413). If the squatter’s
When the police found the illegal trade, they but is built on a private land and hinders or
immediately demolished the house because impairs the owner’s use of his or her own
according to them, it was a nuisance per se that property, then it would constitute a private
should be abated. Can this demolition be sustained? nuisance.
Explain. (2006 Bar)
b) A swimming pool is not a nuisance and is an
SUGGESTED ANSWER: exception to the attractive nuisance doctrine
No, the demolition cannot be sustained. The (Hidalgo v. Guillermo, 91 Phil. 488). It generally
house cannot be considered as nuisance per se. does not cause an injury, harm or prejudice to
To be considered per se, the act, occupation, or an individual or the public (Article 694, par. 1,
structure must be a nuisance at all times and Civil Code).
under any circumstances, regardless of location
or surrounding. Since the demolished house c) A house of prostitution is a public nuisance
was not a nuisance during the times that it was because it shocks or disregards the decency or
not being used for selling drugs, it cannot be morality of the community. (Article 694, par. 3,
considered as nuisance per se. Moreover, in the Civil Code)
abatement of a nuisance, whether judicially or
extra-judicially, the abatement should not inflict d) A noisy or dangerous factory even if built in a
unnecessary damage or injury. In this case, what private land may be considered a nuisance if it
may be considered as nuisance per se is not the offends the senses of the owners of the adjacent
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property or poses a danger to their safety It is recommended that the following be likewise
(Article 694, par. 1, Civil Code). This kind of considered as instances whereby there is
nuisance may be classified as a public nuisance acquisition of ownership by operation of law:
if it affects and annoys those who come within (1) The acquisition of property in co-ownership
its sphere. under a marriage governed by the absolute
community regime.
e) Uncollected garbage can be injurious to (2) Estoppel under article 1434 of the Civil Code
health and even the environment. It is thus, which provides that:
considered a public nuisance. “When a person who is not the owner of a
thingsells or alienates and delivers it, and later
TRUE or FALSE - Explain your answers. the seller or grantor acquires title thereto, such
c) Only the city or municipal mayor can file a civil title passes by operation of law to the buyer or
action to abate a public nuisance. (2017 Bar) grantee”.; and
(3) Registration of land under Act 496 where the
SUGGESTED ANSWER: applicant is not the real owner.
c) FALSE. Under Article 703, a private person
may file a civil action to abate a nuisance if the
same is especially injurious to him. Occupation

Distinguish Occupation v. possession. (2007 Bar)

BOOK III - DIFFERENT MODES OF ACQUIRING
OWNERSHIP (712-1155) Distinguish between “possession” and “occupation”
as these terms are commonly used in Book II and
Book III of the Civil Code. (1997 Bar)
What is meant by “law” as a mode of acquiring
ownership? What are the different instances under SUGGESTED ANSWER:
the Civil Code whereby there is an acquisition of Occupation can take place only with respect to
ownership by operation of law? State at least three. property without an owner while possession can
(1988 Bar) refer to all kinds of property, whether with owner
or without an owner. Occupation itself, when
SUGGESTED ANSWER: proper, confers ownership but possession does
a) When the Civil Code speaks of law as a not by itself give rise to ownership (Tolentino,
distinct mode of acquiring ownership, it refers to Commentaries and Jurisprudence on the Civil
those instances where the law, independently of Code of the Philippines [1999 ed.], Vol. II, p. 489).
the other modes of acquiring ownership,
automatically and directly vests the ownership ALTERNATIVE ANSWER:
of the thing in a certain individual once the Occupation is an original mode of acquiring
prescribed requisites or conditions are present ownership (Art. 712, Civil Code). Things
or complied with. Examples of this are: appropriable by nature which are without an
(1) Land which belongs exclusively to either of owner, such as animals that are the object of
the spouses where a building is constructed hunting and fishing, hidden treasure and
with conjugal funds. Here, the ownership of the abandoned movables, are acquired by
land is vested automatically in the conjugal occupation (Art. 713, Civil Code). However,
partnership once the condition that its value has ownership of a piece of land cannot be acquired
been reimbursed to the owner has been by occupation (Art. 714, Civil Code).
complied with (Art. 158, par. 2, CC.)
(2) Hidden treasure which a stranger discovers On the other hand, possession is the holding of
by chance on another’s property. Here, one-half a thing or the enjoyment of a right, as provided
of the treasure belongs by right of occupation to in Article 523 of the Civil Code. Possession can
the stranger, while the other half belongs by be in the concept of an owner or in the concept
operation of law to the proprietor. (Art. 438, par. of a holder (Art. 525, Civil Code).
2, CC.)
(3) Abandoned beds, when a river or stream ANOTHER ALTERNATIVE ANSWER:
suddenly changes its course to traverse private Occupation is a mode of acquiring dominion by
lands. The former owners of the new bed shall the seizure of corporeal things which have no
be the owners of the abandoned bed in owner, with the intention of acquiring the
proportion to the area lost by each. (Art. 58, P.D. ownership thereof. It is an original mode of
No. 1067.) acquiring ownership upon seizure of a res
(4) Fruits naturally falling from a tree upon nullius by the occupant who has the intention to
adjacent land. Here, the ownership of the fruits become the owner thereof.
is vested automatically in the owner of the
adjacent land. (Art. 681, CC.) Possession, on the other hand, is the holding of
a thing or the enjoyment of a right. Possession
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may be the real right of possession or jus

possessionis or it can be merely the right to TRUE or FALSE. A person can dispose of his
possess or jus possidendi, which are among the corpse through an act inter vivos. (2009 Bar)
basic rights of ownership. If the real right of
possession is possession in the concept of SUGGESTED ANSWER:
owner, but subject to certain limitations, it may FALSE. A person’s body becomes a corpse only
ripen into full ownership of the thing or property upon death, hence any disposition made by a
right through acquisitive prescription depending person of his corpse would only take effect upon
on whether it is a case of ordinary or his death. Thus, any disposition by a person of
extraordinary prescription and whether the his corpse would be an act mortis causa, taking
property is movable or immovable. effect only upon his death.

Lost movable May a person donate something that does not

belong to him? Explain. (2003 Bar)
X and Y staged a daring bank robbery in Manila at
10:30 A.M. in the morning of a regular business day, SUGGESTED ANSWER:
and escaped with their loot of two (2) bags, each As a general rule, a person cannot donate
bag containing P50,000.00. something which he cannot dispose of at the
time of the donation (Article 751, Civil Code).
During their flight to elude the police, X and Y
entered the nearby locked house of A, then working Josefa executed a deed of donation covering a one-
in his Quezon City office. From A’s house, X and Y hectare rice land in favor of her daughter, Jennifer.
stole a box containing cash totalling P50,000.00 The deed specifically provides that:
which box A had been keeping in deposit for his
friend B. “For and in consideration of her love
and service Jennifer has shown and
In their hurry, X and Y left in A’s bedroom one (1) of given to me, I hereby freely,
the bags which they had taken from the bank. voluntarily and irrevocably donate to
her my one-hectare rice land
With X and Y now at large and nowhere to be found, covered by TCT No. 11550, located
the bag containing P50,000.00 is now claimed by B, in San Fernando, Pampanga. This
by the Mayor of Manila, and by the bank. donation shall take effect upon my
death.”
B claims that the depository, A, by force majeure
had obtained the bag of money in place of the box of The deed also contained Jennifer’s signed
money deposited by B. acceptance, and an attached notarized declaration
by Josefa and Jennifer that the land will remain in
The Mayor of Manila, on the other hand, claims that Josefa’s possession and cannot be alienated,
the bag of money should be deposited with the encumbered, sold or disposed of while Josefa is still
Office of the Mayor as required of the finder by the alive. Advise Jennifer on whether the deed is a
provisions of the Civil Code. The bank resists the donation inter vivos or mortis causa and explain the
claims of B and the Mayor of Manila. To whom reasons supporting your advice. (2013 Bar)
should A deliver the bag of money? Decide with
reasons. (1992 Bar) SUGGESTED ANSWER:
The donation is a donation inter vivos. When the
SUGGESTED ANSWER: donor intends that the donation shall take effect
B would have no right to claim the money. during the lifetime of the donor, though the
Article 1990 of the Civil Code is not applicable. property shall not be delivered till after the
The law refers to another thing received in donor’s death, this shall be a donation inter
substitution of the object deposited and is vivos (Art. 729, Civil Code). The Civil Code
predicated upon something exchanged. prefers inter vivos transmissions. Moreover,
mortis causa donations should follow the
The Mayor of Manila cannot invoke Article 719 of formalities of a will (Art. 728, Civil Code). Here
the Civil Code which requires the finder to there is no showing that such formalities were
deposit the thing with the Mayor only when the followed. Thus, it is favorable to Jennifer that the
previous possessor is unknown. deed is a donation inter vivos.
Furthermore, what is most significant in
In this case, A must return the bag of money to determining the type of donation is the absence
the bank as the previous possessor and known of stipulation that the donor could revoke the
owner (Arts. 719 and 1990, Civil Code). donation; on the contrary, the deeds expressly
declare them to be “irrevocable,” a quality
absolutely incompatible with the idea of
Donation conveyances mortis causa where revocability is
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the essence of the act, to the extent that a effect it is essential that it must be made in a will
testator cannot lawfully waive or restrict his executed in accordance with all of the
right of revocation. The provisions of the deed of formalities prescribed by law (Art, 728, CC).
donation which state that the same will only take Since this requisite has not been complied with,
effect upon the death of the donor and that there the donation in the instant case is void or
is a prohibition to alienate, encumber, dispose, inexistent.
or sell the same should be harmonized with its
express irrevocability (Austria-Magat v. CA, 375 Distinguish Illegal and impossible conditions in a
SCRA 556). simple donation v. illegal and impossible conditions
in an onerous donation. (2007 Bar)
ALTERNATIVE ANSWER: The donation is
donation mortis causa. The deed clearly states SUGGESTED ANSWER:
that the donation shall take effect upon the Illegal and impossible conditions in a simple
death of the donor, Josefa. The donor, moreover, donation are considered as not written. Such
retained ownership of the subject property as it conditions shall, therefore, be disregarded but
was declared that the property cannot be the donation remains valid (Article 727, Civil
alienated, encumbered, sold or disposed of Code).
while the donor is still alive. As the donation is
in the nature of a mortis causa disposition, the On the other hand, illegal and impossible
formalities of a will should have been complied conditions imposed in an onerous donation
with under Art. 728 of the Civil Code, otherwise, shall annul the donation (Article 1183, Civil
the donation is void and would produce no Code). This is so, because onerous donations
effect (The National Treasure of the Philippines are governed by the law on contracts (Article
v. Vda. de Meimban, 131 SCRA 264). 733, Civil Code).

A donated to X a parcel of land in 1975. The Are the effects of illegal and immoral conditions on
donation was made in a public instrument, while the simple donations the same as those effects that
acceptance made by X was embodied in the same would follow when such conditions are imposed on
public instrument. The Deed of Donation was donations con causa onerosa? (1997 Bar)
entitled “Donation Inter Vivos.” There is however a
provision in the deed to the effect that, although the SUGGESTED ANSWER:
land donated shall be delivered immediately to X No, they do not have the same effect. Illegal or
upon the perfection of the donation with full right to impossible conditions in simple and
enjoy all of the fruits thereof, “title shall pass to the remuneratory donations shall be considered as
donee only upon the donor’s death.” Upon the death not imposed. Hence the donation is valid. The
of A, his widow and only heir, B, brought an action donation will be considered as simple or pure.
for the recovery of the property on the ground that The condition or mode is merely an accessory
the donation is a donation mortis causa and not a disposition, and its nullity does not affect the
donation inter vivos. Will the action prosper? Give donation, unless it clearly appears that the
your reasons. donor would not have made the donation
without the mode or condition.
SUGGESTED ANSWER: Donations con causa onerosa is governed by
Yes, the action will prosper. In Bonsato v. CA, law on obligations and contracts, under which
and Howard v. CA, the Supreme Court declared an impossible or illicit condition annuls the
that in order that a donation will be considered a obligation dependent upon the condition where
disposition post mortem, it should reveal any or the condition is positive and suspensive. If the
all of the following characteristics: impossible or illicit condition is negative, it is
(1) Convey no title or ownership to the simply considered as not written, and the
transferee before the death of the transferor; or, obligation is converted into a pure and simple
what amounts to the same thing, that the one. However, in order that an illegal condition
transferor should retain the ownership, full or may annul a contract, the impossibility must
naked, and control the property while alive; exist at the time of the creation of the obligation;
(2) That before his death the transfer should be a supervening impossibility does not affect the
revocable by the transferor at will, ad nutum; but existence of the obligation.
revocability may be provided for indirectly by
means of a reserved power in the donor to ADDITIONAL ANSWER:
dispose of the property conveyed; No. In simple or pure donation, only the illegal or
(3) That the transfer should he void if the impossible condition is considered not written
transferor should survive the transferee. but the donation remains valid and becomes free
It is clear from the facts stated in the problem from conditions. The condition or mode being a
that the donation reveals the first characteristic. mere accessory disposition, its nullity does not
Hence, it is a disposition post mortem. affect the donation unless it clearly appears that
Therefore, in order that the donation can take the donor would not have made the donation
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without the mode or condition. On the other be notarized, Don Mariano died. Is the donation
hand, onerous donation is governed by the rules valid? (2014 Bar)
on contracts. Under Article 1183, impossible or
illegal conditions shall annul the obligation SUGGESTED ANSWER: The donation is void.
which depends upon them. In these cases, both Donations of real property must be made in in a
the obligation and the condition are void. public document in order to be valid. Since the
deed of donation was not yet notarized at the
In 1986, Jennifer and Brad were madly in love. In time the donor died, and given that the donor
1989, because a certain Picasso painting reminded can no longer appear before the notary public to
Brad of her, Jennifer acquired it and placed it in his acknowledge the same, the deed remains a
bedroom. In 1990, Brad and Jennifer broke up. private document, hence invalid as a donation of
While Brad was mending his broken heart, he met real property.
Angie and fell in love. Because the Picasso painting
reminded Angie of him, Brad in his will bequeathed On January 2, 1986, A executed a deed of donation
the painting to Angie. Brad died in 1995. Saddened inter vivos of a parcel of land to Dr. B who had
by Brad’s death, Jennifer asked for the Picasso earlier constructed thereon a building in which
painting as a remembrance of him. Angie refused researches on the dreaded disease AIDS were
and claimed that Brad, in his will, bequeathed the being conducted. The deed, acknowledged before a
painting to her. Is Angie correct? Why or why not? notary public, was handed over by A to Dr. B who
(2007 Bar) received it. A few days after, A flew to Davao City.
Unfortunately, the airplane he was riding crashed on
SUGGESTED ANSWER: landing killing him. Two days after the unfortunate
NO. Angie is not correct. The Picasso painting accident, Dr. B, upon advice of a lawyer, executed a
was not given or donated by Jennifer to Brad. deed acknowledged before a notary public
She merely “placed it in his bedroom”. Hence, accepting the donation. Is the donation effective?
she is still the owner of the painting. Not being Explain your answer. (1993 Bar)
the owner of the Picasso painting, Brad cannot
validly bequeath the same to Angie (Art. 930, SUGGESTED ANSWER:
Civil Code). Even assuming that the painting No, the donation is not effective. The law
was impliedly given or donated by Jennifer to requires that the separate acceptance of the
Brad, the donation is nevertheless void for not donee of an immovable must be done in a public
being in writing. The Picasso painting must be document during the lifetime of the donor (Art.
worth more than 5,000 pesos. Under Article 748, 746 & 749, Civil Code) In this case, B executed
Civil Code the donation and acceptance of a the deed of acceptance before a notary public
movable worth more than 5,000 pesos must be after the donor had already died.
in writing, otherwise the donation is void. The
donation being void, Jennifer remained the MULTIPLE CHOICE. A executed a Deed of
owner of the Picasso painting and Brad could Donation in favor of B, a bachelor, covering a parcel
not have validly disposed of said painting in of land valued at P1 million. B was, however, out of
favor of Angie in his will. the country at the time. For the donation to be valid,
a) B may e-mail A accepting the donation.
ALTERNATIVE ANSWER: b) The donation may be accepted by B’s father with
Yes, Angie is correct. Even assuming that there whom he lives.
was a void donation because the donation was c) B can accept the donation anytime convenient to
not in writing, Brad, who was in uninterrupted him.
possession of the Picasso painting from 1989 to d) B’s mother who has a general power of attorney
1995, lasting for six (6) years prior to his death, may accept the donation for him.
Brad has already acquired ownership of the e) None of the above is sufficient to make B’s
painting through acquisitive prescription. Under acceptance valid (2010 Bar)
Article 1132 of the Civil Code, ownership of
movables prescribes through continuous SUGGESTED ANSWER:
possession for four (4) years in good faith and e) None of the above is sufficient to make B's
for eight (8) years without need of any other acceptance valid. Since the donation covered an
conditions. A void donation may be the basis of immovable property, the donation and the
possession in the concept of owner and of just acceptance must be in public document and e-
title for purposes of acquisitive prescription. mail is not a public document. Hence, a) is false.
b) and d) are both false. The acceptance by the
The Roman Catholic Church accepted a donation donee’s father alone or mother alone, even in a
of a real property located in Lipa City. A deed of public document, is not sufficient because the
donation was executed, signed by the donor, Don father and mother did not have a special power
Mariano, and the donee, the Church, as of attorney for the purpose. Under Article 745
represented by Fr. Damian. Before the deed could (Civil Code), the donee must accept the donation
personally, or through an authorized person with
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a special power of attorney for the purpose; dispose of it at any time - a right which he did not
otherwise, the donation shall be void. c) is also exercise at all. After his death, Ernesto’s heirs
false. B cannot accept the donation anytime at seasonably brought an action to recover the
his convenience. Under Article 749 Civil Code, property, alleging that the donation was void as it did
the donee may accept the donation only during not comply with the formalities of a will. Will the suit
the lifetime of the donor. prosper? (1998 Bar)

On July 27, 1997, Pedro mailed in Manila a letter to SUGGESTED ANSWER:

his brother, Jose, a resident of Iloilo City, offering to Yes, the suit will prosper as the donation did not
donate a vintage sports car which the latter had long comply with the formalities of a will. In this
been wanting to buy from the former. On August 5, instance, the fact that the donor did not intend to
1997, Jose called Pedro by cellular phone to thank transfer ownership or possession of the donated
him for his generosity and to inform him that he was property to the donee until the donor’s death,
sending by mail his letter of acceptance. Pedro would result in a donation mortis causa and in
never received that letter because it was never this kind of disposition, the formalities of a will
mailed. On August 14, 1997, Pedro received a should be complied with, otherwise, the
telegram from Iloilo informing him that Jose had donation is void. In this instance, donation
been killed in a road accident the day before mortis causa embodied only in a public
(August 13, 1997) instrument without the formalities of a will could
a) Is there a perfected donation? not have transferred ownership of disputed
b) Will your answer be the same if Jose did mail his property to another.
acceptance letter but it was received by Pedro in
Manila days after Jose’s death? (1998 Bar) ALTERNATIVE ANSWER:
One of the essential distinctions between a
SUGGESTED ANSWER: donation inter vivos and a donation mortis
a) None. There is no perfected donation. Under causa is that while the former is irrevocable, the
Article 748 of the Civil Code, the donation of a latter is revocable. In the problem given, all the
movable may be made orally or in writing. If the clauses or conditions mentioned in the deed of
value of the personal property donated exceeds donation, except one, are consistent with the
five thousand pesos, the donation and the rule of irrevocability and would have sustained
acceptance shall be made in writing. Assuming the view that the donation is inter vivos and
that the value of the thing donated, a vintage therefore valid. The lone exception is the clause
sports car, exceeds P5,000.00, then the donation which reserves the donor’s right to sell the
and the acceptance must be in writing. In this property at any time before his death. Such a
instance, the acceptance of Jose was not in reservation has been held to render the donation
writing, therefore, the donation is void. Upon the revocable and, therefore, becomes a donation
other hand, assuming that the sports car costs mortis causa (Puig v. Peñaflorida, 15 SCRA 276,
less than P5,000.00, then the donation may be at p. 286). That the right was not exercised is
oral, but still, the simultaneous delivery of the immaterial; its reservation was an implied
car is needed and there being none, the recognition of the donor’s power to nullify the
donation was never perfected. donation anytime he wished to do so.
Consequently, it should have been embodied in
b) Yes, the answer is the same. If Jose’s mail a last will and testament. The suit for nullity will
containing his acceptance of the donation was thus prosper.
received by Pedro after the former’s death, then
the donation is still void because under Article B donated to M a parcel of land in 1980. B made the
734 of the Civil Code, the donation is perfected deed of donation, entitled “Donation Inter Vivos,” in
the moment the donor knows of the acceptance a public instrument and M accepted the donation in
by the donee. The death of Jose before Pedro the same document. It was provided in the deed that
could receive the acceptance indicates that the the land donated shall be immediately delivered to
donation was never perfected. Under Article 746 M and that M shall have the right to enjoy the fruits
acceptance must be made during the lifetime of fully. The deed also provided that B was reserving
both the donor and the donee. the right to dispose of said land during his (B’s)
lifetime, and that M shall not register the deed of
Ernesto donated in a public instrument a parcel of donation until after B’s death. Upon B’s death, W,
land to Demetrio, who accepted it in the same B’s widow and sole heir, filed an action for the
document. It is there declared that the donation shall recovery of the donated land, contending that the
take effect immediately, with the donee having the donation made by B is a donation mortis causa and
right to take possession of the land and receive its not a donation inter vivos. Will said action prosper?
fruits but not to dispose of the land while Ernesto is Explain your answer. (1990 Bar)
alive as well as for ten years following his death.
Moreover, Ernesto also reserved in the same deed SUGGESTED ANSWER:
his right to sell the property should he decide to
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Yes, the action will proper. The donation is a the donation. The construction of a residential
donation mortis causa because the reservation bungalow which is used as a place of worship
is to dispose of all the property donated and, but only on special occasions is not a
therefore, the donation is revocable at will. substantial compliance with such condition.
Accordingly, the donation requires the execution Hence, the donation may be revoked for failure
of a valid will, either notarial or holographic. to comply with the condition.
(Arts 755, 728 Civil Code) Upon the filing of the case, I will file a notice of
lis pendens with the Register of Deeds for
annotation on the TCT to ensure against the
Effect of Donations and Limitations Thereon transfer of the land to an innocent purchaser for
value.
Spouses Alfredo and Racquel were active members
of a religious congregation. They donated a parcel Anastacia purchased a house and lot on
of land in favor to that congregation in a duly installments at a housing project in Quezon City.
notarized Deed of Donation, subject to the condition Subsequently, she was employed in California and a
that the Minister shall construct thereon a place of year later, she executed a deed of donation, duly
worship within 1 year from the acceptance of the authenticated by the Philippine Consulate in Los
donation. In an affidavit he executed in behalf of the Angeles, California, donating the house and lot to
congregation, the Minister accepted the donation. her friend Amanda. The latter brought the deed of
The Deed of Donation was not registered with the donation to the owner of the project and discovered
Registry of Deeds. that Anastacia left unpaid installments and real
However, instead of constructing a place of worship, estate taxes. Amanda paid these so that the
the Minister constructed a bungalow on the property donation in her favor can be registered in the project
he used as his residence. Disappointed with the owner’s office. Two months later, Anastacia died,
Minister, the spouses revoked the donation and leaving her mother Rosa as her sole heir. Rosa filed
demanded that he vacate the premises immediately. an action to annul the donation on the ground that
But the Minister refused to leave, claiming that aside Amanda did not give her consent in the deed of
from using the bungalow as his residence, he is also donation or in a separate public instrument. Amanda
using it as a place of worship on special occasions. replied that the donation was an onerous one
Under the circumstances, can Alfredo and Racquel because she had to pay unpaid installments and
evict the Minister and recover possession of the taxes; hence her acceptance may be implied. Who
property? is correct? (2000 Bar)
If you were the couple’s counsel, what action will
you take to protect the interests of your clients? SUGGESTED ANSWER:
(2006 Bar) Rosa is correct because the donation is void.
The property donated was an immovable. For
SUGGESTED ANSWER: such donation to be valid, Article 749 of the Civil
As counsel for the couple, I may file an action Code requires both the donation and the
for reconveyance of the property on the ground acceptance to be in a public instrument. There
that the donation was not perfected. It was not being no showing that Amanda’s acceptance
perfected because although it was made in a was made in a public instrument, the donation is
public document and was accepted by the donee void. The contention that the donation is
in a separate public document, the donee failed onerous and, therefore, need not comply with
to notify the donor of such acceptance in an Article 749 for validity is without merit. The
authentic form before the donation was revoked donation is not onerous because it did not
under Article 749 of the Civil Code. Such impose on Amanda the obligation to pay the
notification was necessary for the donation to balance on the purchase price or the arrears in
become valid and binding. real estate taxes. Amanda took it upon herself to
pay those amounts voluntarily. For a donation to
ANOTHER SUGGESTED ANSWER: be onerous, the burden must be imposed by the
Assuming that the donation is valid on the donor on the donee. In the problem, there is no
ground that it was an onerous donation, and such burden imposed by the donor on the
therefore, the law on contracts applied even as donee. The donation not being onerous, it must
to its form, I may file an action for the revocation comply with the formalities of Article 749.
of the donation under Article 764 of the Civil
Code for noncompliance with the condition ALTERNATIVE ANSWER:
imposed on the donation. In donating the land, Neither Rosa nor Amanda is correct. The
the intension of the couple was for the land to donation is onerous only as to the portion of the
become the site of a church, or place of worship, property corresponding to the value of the
for their congregation. This is why the couple Installments and taxes paid by Amanda. The
have imposed, as a condition of the donation, portion in excess thereof is not onerous. The
the construction thereon of a church, or a place onerous portion is governed by the rules on
of worship, within 1 year from the acceptance of contracts which do not require the acceptance
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by the donee to be in any form. The. onerous donated property was a resolutory condition
part, therefore, is valid. The portion which is not imposed on the donation by the donor. Although
onerous must comply with Article 749 of the the Deed of Donation did not fix the time for the
Civil Code which requires the donation and the establishment of the medical college, the failure
acceptance thereof to be in a public instrument of the donee to establish the medical college
in order to be valid. The acceptance not being in after fifty (50) years from the making of the
a public instrument, the part which is not donation should be considered as occurrence of
onerous is void and Rosa may recover it from the resolutory condition, and the donation may
Amanda. now be revoked. While the general rule is that in
case the period is not fixed in the agreement of
Jose, single, donated a house and lot to his only the parties, the period must be fixed first by the
niece, Maria, who was of legal age and who court before the obligation may be demanded,
accepted the donation. The donation and Maria's the period of fifty (50) years was more than
acceptance thereof were evidenced by a Deed of enough time for the donee to comply with the
Donation. Maria then lived in the house and lot condition. Hence, in this case, there is no more
donated to her, religiously paying real estate taxes need for the court to fix the period because such
thereon. Twelve years later, when Jose had already procedure would serve no other purpose but to
passed away, a woman claiming to be an delay compliance with the condition. (Central
illegitimate daughter of Jose filed a complaint Philippine University v. CA, 246 SCRA 511).
against Maria. Claiming rights as an heir, the
woman prayed that Maria be ordered to reconvey Spouses Michael and Linda donated a 3-hectare
the house and lot to Jose's estate. In her complaint residential land to the City of Baguio on the
she alleged that the notary public who notarized the condition that the city government would build
Deed of Donation had an expired notarial thereon a public park with a boxing arena, the
commission when the Deed of Donation was construction of which shall commence within six (6)
executed by Jose. Can Maria be made to reconvey months from the date the parties ratify the donation.
the property? (2015 Bar) The donee accepted the donation and the title to the
property was transferred in its name. Five years
SUGGESTED ANSWER: elapsed but the public park with the boxing arena
Yes, Maria may be made to reconvey the was never started. Considering the failure of the
property. Under Article 749 of the Civil Code, in donee to comply with the condition of the donation,
order for the donation of an immovable to be the donor-spouses sold the property to Ferdinand
valid, the same must be made in a public who then sued to recover the land from the city
document. In the instant case, the notary public government. Will the suit prosper? (1991 Bar)
who notarized the Deed of Donation had an
expired notarial commission, hence it cannot be SUGGESTED ANSWER:
said that the Deed of Donation he “notarized” is Ferdinand has no right to recover the land. It is
a public document. Not having been made in a true that the donation was revocable because of
public document, the donation to Maria would be breach of the conditions. But until and unless
void, hence she can be made to reconvey the the donation was revoked, it remained valid.
property to Jose’s estate. Hence, Spouses Michael and Linda had no right
to sell the land to Ferdinand. One cannot give
what he does not have. What the donors should
Revocation and Reduction of Donations have done first was to have the donation
annulled or revoked. And after that was done,
In 1950, Dr. Alba donated a parcel of land to Central they could validly have disposed of the land in
University on condition that the latter must establish favor of Ferdinand.
a medical college on the land to be named after him.
In the year 2000, the heirs of Dr. Alba filed an action ALTERNATIVE ANSWER:
to annul the donation and for the reconveyance of a) Until the contract of donation has been
the property donated to them for the failure, after 50 resolved or rescinded under Article 1191 of the
years, of the University to establish on the property Civil Code or revoked under Art. 764 of the Civil
a medical school named after their father. The Code, the donation stands effective and valid.
University opposed the action on the ground of Accordingly, the sale made by the donor to
prescription and also because it had not used the Ferdinand cannot be said to have conveyed title
property for some purpose other than that stated in to Ferdinand, who, thereby, has no cause of
the donation. Should the opposition of the University action for recovery of the land acting for and in
to the action of Dr. Alba’s heirs be sustained? his behalf.
Explain. (2003 Bar)
b) The donation is onerous. And being onerous,
SUGGESTED ANSWER: what applies is the law on contracts, and not the
The donation may be revoked. The non- law on donation (De Luna v. Abrigo, 81 SCRA
establishment of the medical college on the 150). Accordingly, the prescriptive period for the
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filing of such an action would be the ordinary because only half of the period of the ban had
prescriptive period for contacts which may elapsed) was not voidable at all, none of the
either be six or ten depending upon whether it is vices of consent under Art. 1390 of the Civil
verbal or written. The filing of the case five years Code being present. Hence, the motion to
later is within the prescriptive period and, dismiss should be granted.
therefore, the action can prosper.

ALTERNATIVE ANSWER: Succession, death

The law on donation lays down a special
prescriptive period in the case of breach of (a) For purposes of succession, when is death
condition, which is four years from non- deemed to occur or take place?
compliance thereof (Article 764, Civil Code). b) May succession be conferred by contracts or acts
Since the action has prescribed, the suit will not inter vivos? Illustrate. (1991 Bar)
prosper.
SUGGESTED ANSWER:
Sometime in 1955, Tomas donated a parcel of land a) Death as a fact is deemed to occur when it
to his stepdaughter Irene, subject to the condition actually takes place. Death is presumed to take
that she may not sell, transfer or cede the same for place in the circumstances under Arts. 390-391
twenty years. Shortly thereafter, he died. In 1965, of the Civil Code. The time of death is presumed
because she needed money for medical expenses, to be at the expiration of the 10-year period as
Irene sold the land to Conrado. The following year, prescribed by Article 390 and at the moment of
Irene died, leaving as her sole heir a son by the disappearance under Article 391.
name of Armando. When Armando learned that the b) Under Art. 84 of the Family Code amending
land which he expected to inherit had been sold by Art. 130 of the Civil Code, contractual
Irene to Conrado, he filed an action against the latter succession is no longer possible since the law
for annulment of the sale, on the ground that it now requires that donations of future property
violated the restriction imposed by Tomas. Conrado be governed by the provisions on the
filed a motion to dismiss, on the ground that testamentary succession and formalities of wills.
Armando did not have the legal capacity to sue.
If you were the judge, how will you rule on this ALTERNATIVE ANSWER:
motion to dismiss? Explain. (1996 Bar) b) In the case of Coronado v. CA (191 SCRA 81),
it was ruled that no property passes under a will
SUGGESTED ANSWER: without its being probated, but may under
As judge, I will grant the motion to dismiss. Non- Article 1058 of the Civil Code of 1898, be
compliance with a condition imposed by a donor sustained as a partition by an act inter vivos
gives rise to an action to revoke the donation (Mang-oy v. CA, 144 SCRA 33).
under Art. 764, Civil Code. However, the right of
action belongs to the donor, is transmissible to And in the case of Chavez v. IAC (191 SCRA 211),
his heirs, and may be exercised against the it was ruled that while the law prohibits
donee’s heirs. Since Armando is an heir of the contracts upon future inheritance, the partition
donee, not of the donor, he has no legal capacity by the parent, as provided in Art. 1080, is a case
to sue for revocation of the donation. Although expressly authorized by law. A person has two
he is not seeking such revocation but an options in making a partition of his estate: either
annulment of the sale which his mother, the by an act inter vivos or by will. If the partition is
donee, had executed in violation of the condition by will, it is imperative that such partition must
imposed by the donor, an action for annulment be executed in accordance with the provisions
of a contract may be brought only by those who of the law on wills; if by an act inter vivos, such
are principally or subsidiarily obliged thereby partition may even be oral or written, and need
(Art. 1397, Civil Code). As an exception to the not be in the form of a will, provided the legitime
rule, it has been held that a person not so is not prejudiced.
obliged may nevertheless ask for annulment if
he is prejudiced in his rights regarding one of “Where several sisters execute deeds of sale
the contracting parties (DBP v. CA, 96 SCRA 342 over their 1/6 undivided share of the paraphernal
and other cases) and can show the detriment property of their mother, in favor of another
which would result to him from the contract in sister, with their mother not only giving her
which he had no intervention. (Teves v. PHHC, authority thereto but even signing said deeds,
23 SCRA 1141). there is a valid partition inter vivos between the
Such detriment or prejudice cannot be shown by mother and her children which cannot be
Armando. As a forced heir, uiando’s interest in revoked by the mother. Said deeds of sale are
the property was, at best, a mere expectancy. not contracts entered into with respect to future
The sale of the land by his mother did not impair inheritance.
any vested right. The fact remains that the
premature sale made by his mother (premature
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It would be unjust for the mother to revoke the Wills

sales to a son and to execute a simulated sale in
favor of a daughter who already benefited by the What are the characteristics of a will? (1989 Bar)
partition.
SUGGESTED ANSWER:
A will is —
Testamentary succession, property passed thereby 1. Personal
2. Unilateral
Alfonso, a bachelor without any descendant or 3. Formal or Solemn
ascendant, wrote a last will and testament in which 4. Ambulatory or revocable
he devised, “all the properties of which I may be 5. Individual, not joint
possessed at the time of my death” to his favorite 6. Free and voluntary
brother Manuel. At the time he wrote the will, he 7. Mortis causa
owned only one parcel of land. But by the time he
died, he owned twenty parcels of land. His other “X”, a Spanish citizen and a resident of Los Angeles,
brothers and sisters insist that his will should pass California, executed a will in Tokyo. Japan. May
only the parcel of land he owned at the time it was such will be probated in the Philippines? May his
written, and did not cover his properties acquired, estate located in the Philippines be distributed in
which should be by intestate succession. Manuel conformity with the provisions of the said will? Give
claims otherwise. Who is correct? Explain. (1996 your reasons. (1989 Bar)
Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER: A Yes, it may be made according to the
Manuel is correct because under Art. 793, Civil formalities of Spanish law, California law,
Code, property acquired after the making of a Japanese law, or Philippine law.
will shall only pass thereby, as if the testator had b) Yes, provided that the provisions conform to
possessed it at the time of making the will, the order of succession and the amount of
should it expressly appear by the will that such successional rights as regulated by Spanish law.
was his intention. Since Alfonso’s intention to
devise all properties he owned at the time of his
death expressly appears on the will, then all the Forms of Wills
20 parcels of land are included in the devise.
Ernesto donated in a public instrument a parcel of
land to Demetrio, who accepted it in the same
Testamentary succession, testamentary capacity document. It is there declared that the donation shall
and intent take effect immediately, with the donee having the
right to take possession of the land and receive its
Stevie was born blind. He went to school for the fruits but not to dispose of the land while Ernesto is
blind, and learned to read in Braille language. He alive as well as for ten years following his death.
speaks English fluently. Can he: Moreover, Ernesto also reserved in the same deed
his right to sell the property should he decide to
a) Make a will? dispose of it at any time - a right which he did not
b) In the above instance, must the will be read to exercise at all. After his death, Ernesto’s heirs
him? (2008 Bar) seasonably brought an action to recover the
property, alleging that the donation was void as it did
SUGGESTED ANSWER: not comply with the formalities of a will. Will the suit
a) Stevie may make a notarial will. A blind man is prosper? (1998 Bar)
not expressly prohibited from executing a will. In
fact, Article 808 of the Civil Code provides for SUGGESTED ANSWER:
additional formality when the testator is blind. Yes, the suit will prosper as the donation did not
Stevie, however, may not make a holographic comply with the formalities of a will. In this
will in Braille because the writing in Braille is not instance, the fact that the donor did not intend to
a handwriting. A holographic will to be valid transfer ownership or possession of the donated
must be written entirely, signed, and dated by property to the donee until the donor’s death,
the testator in his own handwriting. would result in a donation mortis causa and in
this kind of disposition, the formalities of a will
b) In case Stevie executes a notarial will, it has should be complied with, otherwise, the
to be read to him twice. First by one of the donation is void. In this instance, donation
instrumental witnesses, and second by the mortis causa embodied only in a public
notary public before whom the will was instrument without the formalities of a will could
acknowledged. not have transferred ownership of disputed
property to another.

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ALTERNATIVE ANSWER: provides that intrinsic validity of testamentary

One of the essential distinctions between a provisions shall be governed by the national law
donation inter vivos and a donation mortis of the person whose succession is under
causa is that while the former is irrevocable, the consideration. California law will govern the
latter is revocable. In the problem given, all the intrinsic validity of the will.
clauses or conditions mentioned in the deed of
donation, except one, are consistent with the A, a Filipino, executed a will in Kuwait while there as
rule of irrevocability and would have sustained a contract worker. Assume that under the laws of
the view that the donation is inter vivos and Kuwait, it is enough that the testator affix his
therefore valid. The lone exception is the clause signature in the presence of two witnesses and that
which reserves the donor’s right to sell the the will need not be acknowledged before a notary
property at any time before his death. Such a public. May the will be probated in the Philippines?
reservation has been held to render the donation (1993 Bar)
revocable and, therefore, becomes a donation
mortis causa (Puig v. Peñaflorida, 15 SCRA 276, SUGGESTED ANSWER:
at p. 286). That the right was not exercised is Yes. Under Articles 815 and 17 of the Civil Code,
immaterial; its reservation was an implied the formality of the execution of a will is
recognition of the donor’s power to nullify the governed by the law of the place of execution. If
donation anytime he wished to do so. the will was executed with the formalities
Consequently, it should have been embodied in prescribed by the laws of Kuwait and valid there
a last will and testament. The suit for nullity will as such, the will is valid and may be probated in
thus prosper. the Philippines.

Felipe and Felisa, both Filipino citizens, were Arthur executed a will which contained only: (i) a
married in Malolos, Bulacan on June 1, 1950. In provision disinheriting his daughter Bernice for
1960, Felipe went to the United States, becoming a running off with a married man, and (ii) a provision
U.S. citizen in 1975. In 1980, he obtained a divorce disposing of his share in the family house and lot in
from Felisa, who was duly notified of the favor of his other children Connie and Dora. He did
proceedings. The divorce decree became final not make any provisions in favor of his wife Erica,
under California law. Coming back to the Philippines because as the will stated, she would anyway get ½
in 1982, Felipe married Segundina, a Filipino citizen. of the house and lot as her conjugal share. The will
In 2001, Felipe, then domiciled in Los Angeles, was very brief and straightforward and both the
California, died, leaving one child by Felisa, and above provisions were contained in page 1, which
another one by Segundina. He left a will which was Arthur and his instrumental witness, signed at the
executed in Manila, under which he left his estate to bottom. Page 2 contained the attestation clause and
Segundina and his two children and nothing to the signatures, at the bottom thereof, of the 3
Felisa. instrumental witnesses which included Lambert, the
driver of Arthur; Yoly, the family cook, and Attorney
Segundina files a petition for the probate of Felipe’s Zorba, the lawyer who prepared the will. There was
will. Felisa questions the intrinsic validity of the will, a 3rd page, but this only contained the notarial
arguing that her marriage to Felipe subsisted acknowledgement.
despite the divorce obtained by Felipe because said
divorce is not recognized in the Philippines. For this The attestation clause stated the will was signed on
reason, she claims that the properties left by Felipe the same occasion by Arthur and his instrumental
are their conjugal properties and that Segundina has witnesses who all signed in the presence of each
no successional rights. other, and the notary public who notarized the will.
a) What law governs the formalities of the will? There are no marginal signatures or pagination
Explain. appearing on any of the 3 pages. Upon his death, it
b) Will Philippine law govern the intrinsic validity of was discovered that apart from the house and lot, he
the will? Explain. (2002 Bar) had a P1 million account deposited with ABC Bank.

SUGGESTED ANSWER: What other defects of the will, if any, can cause
a) The foreigner who executes his will in the denial of probate? (2008 Bar)
Philippines may observe the formalities
prescribed in: SUGGESTED ANSWER:
1) the law of the country of which he is a citizen There are no other defects of the will that can
under Article 817 of the Civil Code, or cause denial of probate. Art. 805 of the Civil
2) the law of the Philippines being the law of the Code provides that the will must be subscribed
place of execution under Article 17 of the Civil at the end thereof by the testator, and
Code. subscribed by three or more credible witnesses
in the presence of the testator and of one
b) Philippine law will not govern the instrinsic another. The driver, the cook and the lawyer who
validity of the will. Article 16 of the Civil Code prepared the will are credible witnesses. The
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testator and the instrumental witnesses of the witnesses signed the will not in the presence of
will, shall also sign, each and every page of the Roberta because she was in the restroom for
will proper, except the last, on the left margin, extended periods of time. Inside the restroom,
and all the pages shall be numbered Roberta could not have possibly seen the
correlatively in letters placed on the upper part testatrix and the other witnesses sign the will by
of each page. merely casting her eyes in the proper direction
(Jaboneta v. Gustilo, 5 Phil. 541; Nera v.
It has been held, however, that the testator’s Rimando, 18 Phil. 451). Therefore, the testatrix
signature is not necessary in the attestation signed her will in the presence of only two
clause, and that if a will consists of two sheets, witnesses, and only two witnesses signed the
the first of which contains the testamentary will in the presence of the testatrix and of one
dispositions, and is signed at the bottom by the another.
testator and the three witnesses, and the second It is to be noted, however, that a thumbmark
sheet contains the attestation clause, as in this intended by the testator to be his signature in
case, signed by 3 witnesses, marginal executing his last will and testament is valid
signatures and paging are not necessary. After (Payad v. Tolentino, 62 Phil. 848; Matias v. Salud,
all, the object of the law is to avoid substitution 104 Phil. 1046). The problem, however, states
of any of the sheets of the will. (Abangan v. that Clara “said that she can sign her full name
Abangan, 40 Phil. 476; In Re: Will of Tan Diuco, later”; Hence, she did not consider her thumb-
45 Phil. 807). mark as her “complete” signature, and intended
further action on her part. The testatrix and the
ALTERNATIVE ANSWER: other witness signed the will in the presence of
The only other defect in the will is the failure of Hannah, because she was aware of her function
the attestation clause to state the number of and role as witness and was in a position to see
pages upon which the will is written. Art. 805 the testatrix and the other witness sign by
requires that the attestation clause state the merely casting her eyes in the proper direction.
number of pages used upon which the will is
written. Note, however, that should there be any On his deathbed, Vicente was executing a will. In
statement elsewhere in the will, or even in the the room were Carissa, Carmela, Cornelio and Atty.
acknowledgment, stating the number of pages, Cimpo, a notary public. Suddenly, there was a street
this will be considered, in accordance with the brawl which caught Cornelio’s attention, prompting
mandate of Art. 809, to be substantial him to look out the window. Cornelio did not see
compliance with the requirement. If there be no Vicente sign a will. Is the will valid? (1994 Bar)
such statement, however, the will should be
denied probate (see Azuela v. CA, 487 SCRA SUGGESTED ANSWER:
142). Yes. The will is valid. The law does not require a
witness to actually see the testator sign the will.
Clara, thinking of her mortality, drafted a will and It is sufficient if the witness could have seen the
asked Roberta, Hannah, Luisa and Benjamin to be act of signing had he chosen to do so by casting
witnesses. During the day of the signing of her will, his eyes to the proper direction.
Clara fell down the stairs and broke both her arms.
Coming from the hospital, Clara insisted on signing Vanessa died on April 14, 1980, leaving behind a
her will by thumb mark and said that she can sign holographic will which is entirely written, dated and
her full name later. While the will was being signed, signed in her own handwriting. However, it contains
Roberta experienced a stomach ache and kept insertions and cancellations which are not
going to the restroom for long periods of time. authenticated by her signature. For this reason, the
Hannah, while waiting for her turn to sign the will, probate of Vanessa’s will was opposed by her
was reading the 7th Harry Potter book on the couch, relatives who stood to inherit by her intestacy.
beside the table on which everyone was signing. May Vanessa’s holographic will be probated?
Benjamin, aside from witnessing the will, also Explain. (1996 Bar)
offered to notarize it. A week after, Clara was run
over by a drunk driver while crossing the street in SUGGESTED ANSWER:
Greenbelt. May the will of Clara be admitted to Yes, the will as originally written may be
probate? Give your reasons briefly. (2007 Bar) probated. The insertions and alterations were
void since they were not authenticated by the
SUGGESTED ANSWER: full signature of Vanessa, under Art. 814, Civil
Probate should be denied. The requirement that Code. The original will, however, remains valid
the testator and at least three (3) witnesses must because a holographic will is not invalidated by
all sign in the “presence” of one another was not the unathenticated insertions or alterations
complied with. Benjamin who notarized the will (Ajero v. CA, 236 SCRA 468).
is disqualified as a witness, hence, he cannot be
counted as one of the three witnesses (Cruz v. Natividad’s holographic will, which had only one (1)
Villasor, 54 SCRA 31). The testatrix and the other substantial provision, as first written, named Rosa
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as her sole heir. However, when Gregorio presented of the person whose succession is under
it for probate, it already contained an alteration, consideration, whatever may be the nature of
naming Gregorio, instead of Rosa, as sole heir, but the property and regardless of the country
without authentication by Natividad’s signature. where said property may be found. Since Alden
Rosa opposes the probate alleging such lack of and Stela had become naturalized American
proper authentication. She claims that the unaltered citizens, the intrinsic validity of their joint will
form of the will should be given effect. Whose claim would be governed by their national law —
should be granted? Explain. (2012 Bar) American law. As each American state has its
own law, the American law applicable would be
SUGGESTED ANSWER: It depends. If the the law of the US state where Alden and Stela
cancellation of Rosa’s name in the will was done were residing. Accordingly, if the law of the said
by the testator himself, Rosa’s claimed that the American state considers a joint will as valid,
holographic will in its original tenor should be then the same would be valid. However, if the
given effect must be denied. The said applicable state law prohibits joint wills, then
cancellation has revoked the entire will as the same would be invalid. Philippine law, which
nothing remains of the will after the name of prohibits joint wills, would be inapplicable, as
Rosa was cancelled. Such cancellation is valid Alden and Stela are no longer Filipinos.
revocation of the will and does not require
authentication by the full signature of the b) As stated earlier, if the joint will is allowed by
testator to be effective. However, if the the US state where Alden and Stela were
cancellation of Rosa’s name was not done by residing, the same would be valid.
the testator himself, such cancellation shall not Consequently, the same would produce legal
be effective and the will in its original tenor shall effect in the Philippines in the sense that the
remain valid. The effectively of the holographic properties of Alden and Stela found in the
will cannot be left to the mercy of unscrupulous Philippines would have to be distributed in
third parties. The writing of Gregorio’s name as accordance with its terms. In sum, the property
sole heir was ineffective, even though written by of Alden and Stela in the Philippines would be
the testator himself, because such is an divided equally into 12 shares to be equally
alteration that requires authentication by the full distributed among the five siblings of Alden and
signature of the testator to be valid and seven siblings of Stela.
effective. Not having an authenticated, the
designation of Gregorio as an heir was
ineffective, (Kalaw v. Relova, 132 SCRA 237). Witnesses to Wills

Alden and Stela were both former Filipino citizens. Stevie was born blind. He went to school for the
They were married in the Philippines but they later blind, and learned to read in Braille language. He
migrated to the United States where they were speaks English fluently. Can he:
naturalized as American citizens. In their union they
were able to accumulate several real properties a) Act as a witness to a will?
both in the US and in the Philippines. Unfortunately, b) In the above instance, must the will be read to
they were not blessed with children. In the US, they him? (2008 Bar)
executed a joint will instituting as their common
heirs to divide their combined estate in equal SUGGESTED ANSWER:
shares, the five siblings of Alden and the seven b) A blind man is disqualified by law to be a
siblings of Stela. Alden passed away in 2013 and a witness to a notarial will.
year later, Stela also died. The siblings of Alden who c) As he cannot be a witness, the will need not
were all citizens of the US instituted probate be read to him.
proceedings in a US court impleading the siblings of
Stela who were all in the Philippines. On his deathbed, Vicente was executing a will. In
the room were Carissa, Carmela, Cornelio and Atty.
a) Was the joint will executed by Alden and Stela Cimpo, a notary public. Suddenly, there was a street
who were both former Filipinos valid? Explain with brawl which caught Cornelio’s attention, prompting
legal basis. him to look out the window. Cornelio did not see
b) Can the joint will produce legal effect in the Vicente sign a will. Is the will valid? (1994 Bar)
Philippines with respect to the properties of Alden
and Stela found here? If so, how? (2015 Bar) SUGGESTED ANSWER:
Yes. The will is valid. The law does not require a
SUGGESTED ANSWER: witness to actually see the testator sign the will.
a) The validity of the joint will depends on the It is sufficient if the witness could have seen the
law of the US state where Alden and Stela act of signing had he chosen to do so by casting
resides. Article 16 of the Civil Code provides his eyes to the proper direction.
that the intrinsic validity of testamentary
provisions shall be regulated by the national law
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The probate of the will of Nicandro is contested on photographic copy. But since the holographic
the ground that the notary public before whom the will was lost and there was no other copy, it
will, was acknowledged was also one of the three cannot be probated and therefore the notarial
instrumental witnesses. If you were the probate will will be admitted to probate because there is
judge, how would you decide the contest? Give your no revoking will.
reasons. (1989 Bar)
ADDITIONAL ANSWERs:
SUGGESTED ANSWER: 1. In the case of Gan v. Yap (104 Phil 509), the
The will is void. The acknowledging officer execution and the contents of a lost or
cannot serve as attesting witness at the same destroyed holographic will may not be proved by
time. In effect there are only two witnesses since the bare testimony of witnesses who have seen
the notary cannot swear before himself. or read such will. The will itself must be
presented otherwise it shall produce no effect.
MULTIPLE CHOICE. A executed a 5-page notarial The law regards the document itself as material
will before a notary public and three witnesses. All of proof of authenticity, Moreover, in order that a
them signed each and every page of the will. One of will may be revoked by a subsequent will, it is
the witnesses was B, the father of one of the necessary that the hitter will be valid and
legatees to the will. What is the effect of B being a executed with the formalities required for the
witness to the will? making of a will. The latter should possess all
a) The will is invalidated the requisites of a valid will whether it be
b) The will is valid and effective ordinary or a holographic will, and should be
c) The legacy given to B’s child is not valid (2010 probated in order that the revocatory clause
Bar) thereof may produce effect. In the case at bar,
since the holographic will itself cannot be
SUGGESTED ANSWER: presented, it cannot therefore be probated.
c) The legacy given to B's child is not valid. The Since it cannot be probated, it cannot revoke the
validity of the will is not affected by the legacy in notarial will previously written by the decedent.
favor of the son of an attesting witness to the
will. However, the said legacy is void under 2. On the basis of the Rules of Court, Rule 76,
Article 823 Civil Code. Sec. 6, provides that no will shall be proved as a
lost or destroyed will x x x unless its provisions
ALTERNATIVE ANSWER: b) The will is valid and are clearly and distinctly proved by at least two
effective. Under Article 823 (Civil Code),the (2) credible witnesses. Hence, if we abide strictly
legacy given in favor of the son of an by the two-witness rule to prove a lost or
instrumental witness to a will has no effect on destroyed will, the holographic will which
the validity of the will. Hence, the will is valid Johnny allegedly mistakenly burned, cannot be
and effective. probated, since there is only one witness,
Eduardo, who can be called to testify as to the
existence of the will. If the holographic will,
Revocation of Wills and Testamentary Dispositions which purportedly, revoked the earlier notarial
will cannot be proved because of the absence of
Johnny, with no known living relatives, executed a the required witness, then the petition for the
notarial will giving all his estate to his sweetheart. probate of the notarial will should prosper.
One day, he had a serious altercation with his
sweetheart. A few days later, he was introduced to a Mr. Reyes executed a will completely valid as to
charming lady who later became a dear friend. Soon form. A week later, however, he executed another
after, he executed a holographic will expressly will which expressly revoked his first will, following
revoking the notarial will and so designating his new which he tore his first will to pieces. Upon the death
friend as sole heir. One day when he was clearing of Mr. Reyes, his second will was presented for
up his desk, Johnny mistakenly burned, along with probate by his heirs, but it was denied probate due
other papers, the only copy of his holographic will. to formal defects. Assuming that a copy of the first
His business associate. Eduardo, knew well the will is available, may it now be admitted to probate
contents of the will which was shown to him by and given effect? Why? (2003 Bar)
Johnny the day it was executed. A few days after the
burning incident, Johnny died. Both wills were SUGGESTED ANSWER:
sought to be probated in two separate petitions. Will Yes, the first will may be admitted to probate and
either or both petitions prosper? (1997 Bar) given effect. When the testator tore the first will,
he was under the mistaken belief that the
SUGGESTED ANSWER: second will was perfectly valid and he would not
The probate of the notarial will will prosper. The have destroyed the first will had he known that
holographic will cannot be admitted to probate the second will is not valid. The revocation by
because a holographic will can only be probated destruction therefore is dependent on the
upon evidence of the will itself unless there is a validity of the second will. Since it turned out
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that the second will was invalid, the tearing of doctrine of dependent relative revocation should
the first will did not produce the effect of not be applied.
revocation. This is known as the doctrine of
dependent relative revocation (Molo v. Molo, 90 b) Yes, my answer will still be the same. The
Phil 37). renunciation of the heirs instituted in a will has
no connection to the validity of the revocation of
ALTERNATIVE ANSWER: a will made prior to the said will.
No, the first will cannot be admitted to probate.
While it is true that the first will was not Accordingly, the fact that the provisions of the
successfully revoked by the second will because 2nd will can no longer be given effect because
the second will was later denied probate, the the heirs instituted therein have renounced their
first will was, nevertheless, revoked when the inheritance will not affect the revocation of the
testator destroyed it after executing the second 1st will. Said will remains revoked.
invalid will. (Diaz v. De Leon, 43 Phil. 413).
Allowance and Disallowance of Wills

Sydney, during her lifetime, was a successful In probate proceedings, what are the only questions
lawyer. By her own choice, she remained which a probate court can determine? (1988 Bar)
unmarried and devoted all her time to taking
care of her nephew and two (2) nieces: SUGGESTED ANSWER:
Socrates, Saffinia, and Sophia. She wrote a a) Under our law, there are only three possible
will giving all her properties remaining upon questions which can be determined by the
her death to the three (3) of them. The will probate court. They are:
was admitted to probate during her lifetime. (1) Whether or not the instrument which is
Later, she decided to make a new will giving offered for probate is the last will and testament
all her remaining properties only to the two of the decedent; in other words, the question is
(2) girls, Saffinia and Sophia, She then tore one of identity.
up the previously probated will. The second (2) Whether or not the will has been executed in
will was presented for probate only after her accordance with the formalities prescribed by
death. However, the probate court found the law; in other words, the question is one of due
second will to be void for failure to comply execution.
with formal requirements. (3) Whether or not the testator had the
necessary testamentary capacity at the time of
the execution of the will; in other words, the
question is one of capacity.
a) Will the doctrine of dependent relative revocation
Consequently, the probate court cannot inquire
apply?
into the intrinsic validity of testamentary
b) Will your answer be the same if the second will
dispositions.
was found to be valid but both Saffinia and
Sophia renounce their inheritance? (2018 Bar)
A presented for probate a will purporting to be the
last will and testament of his deceased wife. The will
SUGGESTED ANSWER:
was admitted to probate without any opposition.
a) No, the doctrine of dependent relative
Sixteen months later, the brothers and sisters of the
revocation will not apply.
deceased discovered that the will was a forgery.
Can A now be prosecuted for the criminal offense of
According to jurisprudence, the doctrine of
forgery? Give your reasons. (1988 Bar)
dependent relative revocation applies only if it is
clearly apparent that the intention of the testator
SUGGESTED ANSWER:
is that the revocation of a will becomes effective
A can no longer be prosecuted for the criminal
only if the will replacing the revoked will is found
offense of forgery. This is so because, according
to be valid, so much so that if the 2nd will is
to the last paragraph of Art. 838 of the Civil
declared invalid, the prior will will not be
Code, subject to the right of appeal the
considered revoked and will still be effective.
allowance of the will, either during the lifetime of
the testator or after his death, shall be
In the instant case, there is no showing that
conclusive as to its due execution. Since sixteen
Sydney intended the revocation of her 1 st will to
months have already elapsed from the allowance
be conditional on her second will being declared
of the will to the time when the forgery was
valid. It does not clearly appear that the
discovered, there is now no possible remedy of
destruction of her 1st will is connected to an
impugning the validity of the will. Even a petition
intention that the same will be valid only if the
to set aside a judgment or order of a Court of
2nd will is declared valid. Her intention as to the
First Instance on the ground of fraud in
validity of the revocation being equivocal, the
accordance with Secs. 2 and 3 of Rule 38 of the
Rules of Court is no longer possible because
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 130

more than six months from the time of the testator cannot forbid the partition of all or part
promulgation of the judgment or order have of the estate for a period longer than twenty (20)
already elapsed. (Mercado v. Santos, 66 Phil. years.
215.)
H died leaving a last will and testament wherein it is
ALTERNATIVE ANSWER: stated that he was legally married to W by whom he
The criminal action can still prosper because the had two legitimate children A and B. H devised to his
question of probate is a civil law matter while the said forced heirs the entire estate except the free
question of forgery is a penal matter. That does portion which he gave to X who was living with him
not preclude the determination of guilt of the at the time of his death.
forger because the two are founded on different
legal bases. Besides, in a criminal case, proof In said will he explained that he had been estranged
beyond reasonable doubt is required while in from his wife W for more than 20 years and he has
civil cases, only preponderance of evidence is been living with X as man and wife since his
required. separation from his legitimate family.

John Sagun and Maria Carla Camua, British citizens In the probate proceedings, X asked for the
at birth, acquired Philippine citizenship by issuance of letters testamentary in accordance with
naturalization after their marriage. During their the will wherein she is named sole executor. This
marriage, the couple acquired substantial was opposed by W and her children.
landholdings in London and in Makati. Maria begot a) Should the will be admitted in said probate
three (3) children, Jorge, Luisito, and Joshur. In one proceedings?
of their trips to London, the couple executed a joint b) Is the said devise to X valid?
will appointing each other as their heirs and c) Was it proper for the trial court to consider the
providing that upon the death of the survivor intrinsic validity of the provisions of said will? Explain
between them, the entire estate would go to Jorge your answers. (1990 Bar)
and Luisito only but the two (2) could not dispose of
nor divide the London estate as long as they live. SUGGESTED ANSWER:
John and Maria died tragically in the London subway a) Yes, the will may be probated if executed
terrorist attack in 2005. Jorge and Luisito filed a according to the formalities prescribed by law.
petition for probate of their parents’ will before a b) The institution giving X the free portion is not
Makati Regional Trial Court. Joshur vehemently valid, because the prohibitions under Art. 739 of
objected because he was preterited. the Civil Code on donations also apply to
testamentary dispositions (Article 1028, Civil
a) Should the will be admitted to probate? Explain. Code). Among donations which are considered
b) Are the testamentary dispositions valid? Explain. void are those made between persons who were
(3) Is the testamentary prohibition against the guilty of adultery or concubinage at the time of
division of the London estate valid? (2012 Bar) the donation.
c) As a general rule, the will should be admitted
SUGGESTED ANSWER: in probate proceedings if all the necessary
a) No, the will should not be admitted to probate. requirements for its extrinsic validity have been
Since the couples are both Filipino citizens, Art met, and the court should not consider the
818 and 819 of the Civil Code shall apply. Said intrinsic validity of the provisions of said will.
articles prohibits the execution of joint wills and However, the exception arises when the will in
make them void, even though authorized of the effect contains only one testamentary
country where they were executed. disposition. In effect, the only testamentary
disposition under the will is the giving of the free
b) Since the joint will is void, all the portion to X, since legitimes are provided by law.
testamentary disposition written therein are also Hence, the trial court may consider the intrinsic
void. However, if the will is valid, the institutions validity of the provisions of said will. (Nuguid v.
of the heirs shall be annulled because Joshur Nuguid, et al., 17 SCRA 449; Nepomuceno v. CA,
was preterited. He was preterited because he will 139 SCRA 206).
receive nothing from the will, will receive
nothing in testacy, and the facts do not show Manuel, a Filipino, and his American wife Eleanor,
that he received anything as an advance on his executed a Joint Will in Boston, Massachusetts
inheritance. He was totally excluded from the when they were residing in said city. The law of
inheritance of his parents. Massachusetts allows the execution of joint wills.
Shortly thereafter, Eleanor died. Can the said Will be
c) Assuming the will of John and Maria was probated in the Philippines for the settlement of her
valid, the testamentary prohibition on the estate? (2000 Bar)
division of the London estate shall be valid but
only for 20 years. Under Arts 1083 and 494 of the SUGGESTED ANSWER:
Civil Code, a testamentary disposition of the
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Yes, the will may be probated in the Philippines

insofar as the estate of Eleanor is concerned. a) Should the will be admitted to probate?
While the Civil Code prohibits the execution of b) Are the testamentary dispositions valid?
joint wills here and abroad, such prohibition c) Is the testamentary prohibition against the division
applies only to Filipinos. Hence, the joint will of the London estate valid? (2008 Bar)
which is valid where executed is valid in the
Philippines but only with respect to Eleanor. SUGGESTED ANSWER:
Under Article 819, it is void with respect to a) No, the will cannot be admitted to probate.
Manuel whose joint will remains void in the Joint wills are void under the Civil Code. And
Philippines despite being valid where executed. even if the joint will executed by Filipinos abroad
where valid where it was executed, the joint will
ALTERNATIVE ANSWER: is still not valid in the Philippines.
The will cannot be probated in the Philippines,
even though valid where executed, because it is ALTERNATIVER ANSWER:
prohibited under Article 818 of the Civil Code Yes, the will may be probated in the Philippines.
and declared void under Article 819. The Probate proceedings are limited to determining
prohibition should apply even to the American the extrinsic validity of a will. Thus, the probate
wife because the Joint will is offensive to public court can only inquire into the testamentary
policy. Moreover, it is a single juridical act which capacity of the testator and whether or not there
cannot be valid as to one testator and void as to was compliance with the formal requisites
the other. prescribed by law for the making of wills.
Whether the holographic will is intrinsically
On December 1, 2000, Dr. Juanito Fuentes valid, given that the testator was already an
executed a holographic will, wherein he gave American, is a question outside the jurisdiction
nothing to his recognized illegitimate son, Jay. Dr. of the probate court.
Fuentes left for the United States, passed the New
York medical licensure examinations, resided b) If a will is void, all testamentary dispositions
therein, and became a naturalized American citizen. contained in that will are also void. Hence, all
He died in New York in 2007. The laws of New York testamentary provisions contained in the void
do not recognize holographic wills or compulsory joint will are also void.
heirs.
Can the holographic will of Dr. Fuentes be admitted c) The testamentary prohibition against the
to probate in the Philippines? Why or why not? division by Peter and Paul of the London estate
(2009 Bar) for as long as they live, is not valid. Article 494
of the Civil Code provides that a donor or
SUGGESTED ANSWER: testator may prohibit partition for a period which
Yes, the will may be probated in the Philippines. may not exceed twenty (20) years.
Probate proceedings are limited to determining
the extrinsic validity of a will. Thus, the probate Maria, to spite her husband Jorge, whom she
court can only inquire into the testamentary suspected was having an affair with another woman,
capacity of the testator and whether or not there executed a will, unknown to him, bequeathing all the
was compliance with the formal requisites properties she inherited from her parents, to her
prescribed by law for the making of wills. sister Miguela. Upon her death, the will was
Whether the holographic will is intrinsically presented for probate. Jorge opposed probate of the
valid, given that the testator was already an will on the ground that the will was executed by his
American, is a question outside the jurisdiction wife without his knowledge, much less consent, and
of the probate court. that it deprived him of his legitime. After all, he had
given her no cause for disinheritance, added Jorge
John and Paula, British citizens at birth, acquired in his opposition. How will you rule on Jorge’s
Philippine citizenship by naturalization after their opposition to the probate of Maria’s will, if you were
marriage. During their marriage the couple acquired the Judge? (1993 Bar)
substantial landholdings in London and in Makati.
Paula bore John three children, Peter, Paul and SUGGESTED ANSWER:
Mary. In one of their trips to London, the couple As Judge, I shall rule as follows: the opposition
executed a joint will appointing each other as their should be denied since it is predicated upon
heirs and providing that upon the death of the causes not recognized by law as grounds for
survivor between them the entire estate would go to disallowance of a will, to wit:
Peter and Paul only but the two could not dispose of 1) that the will was made without his knowledge,
nor divide the London estate as long as they live. 2) that the will was made without his consent;
John and Paula died tragically in the London and
Subway terrorist attack in 2005. Peter and Paul filed 3) that it has the effect of depriving him of his
a petition for probate of their parent’s will before a legitime, which is a ground that goes into the
Makati Regional Trial Court.
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intrinsic validity of the will and need not be a 3rd page, but this only contained the notarial
resolved during the probate proceedings. acknowledgement.
Incidentally, Jorge cannot claim preterition as he
is not a compulsory heir in the direct line. There The attestation clause stated the will was signed on
being no preterition, the institution of the sister the same occasion by Arthur and his instrumental
was valid. However, this is a case of ineffective witnesses who all signed in the presence of each
disinheritance under Art. 918 of the Civil Code, other, and the notary public who notarized the will.
because the omission of the compulsory heir There are no marginal signatures or pagination
Jorge by Maria was intentional. Consequently, appearing on any of the 3 pages. Upon his death, it
the institution of Miguela as heir is void insofar was discovered that apart from the house and lot, he
as the legitime of Jorge is prejudiced. had a P1 million account deposited with ABC Bank.
Accordingly, Jorge is entitled to his legitime of
one-half of the estate, and Miguela gets the other Was Erica preterited? (2008 Bar)
half.
SUGGESTED ANSWER:
No, Erica was not preterited, under Art. 854 of
Institution of Heir, preterition the Civil Code because she was not related in
the direct line. Moreover, since there is an
What is preterition? What are its requisites? What is intestate portion in Arthur’s estate from which
its effect? (1988 Bar) Erica will inherit as an intestate heir, she was not
totally excluded or omitted from the inheritance
SUGGESTED ANSWER: of Arthur. To be preterited, the heir who must be
Preterition or pretermission, as it is sometimes a compulsory heir in the direct line should be
called may be defined as the omission in the totally excluded from the inheritance, i.e., the
testator’s will of one, some, or all of the heir will not receive anything by will, or by
compulsory heirs in the direct line, whether intestacy, and has not received any advance by
living at the time of the execution of the will or way of donation inter pleas.
born after the death of the testator (Art. 854, CC).
Stated in another way, it consists in the Even assuming that Erica was preterited, her
omission in the testator’s will of the compulsory preterition will not have any effect on the
heirs in the diret line, or of anyone of them, provisions of the will. The effect of preterition is
either because they are not mentioned therein, simply to annul the institution of an heir made in
or; though mentioned, they are neither instituted the will. Legacies and devises are respected
as heir nor expressly disinherited (Neri v. Akutin, unless they are inofficious. In the problem, since
74 Phil. 185; Nuguid v. Nuguid, 17 SCRA 449). Its the will contains nothing but a devise, there is
requisites are: no institution that will be annulled even on the
(1) The heir omitted must be a compulsory heir assumption that there was preterition.
in the direct line;
(2) The ommission must be total and complete; MULTIPLE CHOICE. What is the effect of
and (3) The omitted heir must survive the preterition?
testator. a) It annuls the devise and legacy
The effect is to annul entirely the institution of b) It annuls the institution of heir
heirs but legacies and devises shall be valid c) It reduces the devise and legacy
insofar as they are not in- officious. (Art. 854, d) It partially annuls the institution of heir (2014 Bar)
CC.)
SUGGESTED ANSWER:
Arthur executed a will which contained only: (i) a b)
provision disinheriting his daughter Bernice for
running off with a married man, and (ii) a provision Maria, to spite her husband Jorge, whom she
disposing of his share in the family house and lot in suspected was having an affair with another woman,
favor of his other children Connie and Dora. He did executed a will, unknown to him, bequeathing all the
not make any provisions in favor of his wife Erica, properties she inherited from her parents, to her
because as the will stated, she would anyway get ½ sister Miguela. Upon her death, the will was
of the house and lot as her conjugal share. The will presented for probate. Jorge opposed probate of the
was very brief and straightforward and both the will on the ground that the will was executed by his
above provisions were contained in page 1, which wife without his knowledge, much less consent, and
Arthur and his instrumental witness, signed at the that it deprived him of his legitime. After all, he had
bottom. Page 2 contained the attestation clause and given her no cause for disinheritance, added Jorge
the signatures, at the bottom thereof, of the 3 in his opposition. How will you rule on Jorge’s
instrumental witnesses which included Lambert, the opposition to the probate of Maria’s will, if you were
driver of Arthur; Yoly, the family cook, and Attorney the Judge? (1993 Bar)
Zorba, the lawyer who prepared the will. There was
SUGGESTED ANSWER:
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As Judge, I shall rule as follows: the opposition 1992 ed.). He would only have a right to a
should be denied since it is predicated upon completion of his legitime under Art. 906 of the
causes not recognized by law as grounds for Civil Code. The estate should be divided equally
disallowance of a will, to wit: among the five children who will each receive
1) that the will was made without his knowledge, P225,000.00 because the total hereditary estate,
2) that the will was made without his consent; after collating the donation to Juan (Art. 1061,
and Civil Code), would be P1 million. In the actual
3) that it has the effect of depriving him of his distribution of the net estate, Juan gets nothing
legitime, which is a ground that goes into the while his siblings will get P225,000.00 each.
intrinsic validity of the will and need not be
resolved during the probate proceedings. (a) Mr. Cruz, widower, has three legitimate children,
Incidentally, Jorge cannot claim preterition as he A, B and C. He executed a Will instituting as his
is not a compulsory heir in the direct line. There heirs to his estate of One Million (P1,000,000.00)
being no preterition, the institution of the sister Pesos his two children A and B, and his friend F.
was valid. However, this is a case of ineffective Upon his death, how should Mr. Cruz’s estate be
disinheritance under Art. 918 of the Civil Code, divided? Explain.
because the omission of the compulsory heir b) In the preceding question, suppose Mr. Cruz
Jorge by Maria was intentional. Consequently, instituted his two children A and B as his heirs in his
the institution of Miguela as heir is void insofar Will, but gave a legacy of P 100,000.00 to his friend
as the legitime of Jorge is prejudiced. F. How should the estate of Mr. Cruz be divided
Accordingly, Jorge is entitled to his legitime of upon his death? Explain. (1999 Bar)
one-half of the estate, and Miguela gets the other
half. SUGGESTED ANSWER:
a) Assuming that the institution of A, B and F
Because her eldest son Juan had been pestering were to the entire estate, there was preterition of
her for capital to start a business, Josefa gave him C since C is a compulsory heir in the direct line.
P100,000.00. Five years later, Josefa died, leaving a Thee preterition will result in the total annulment
last will and testament in which she instituted only of the institution of heirs. Therefore, the
her four younger children as her sole heirs. At the institution of A, B and F will be set aside and Mr.
time of her death, her only property left was Cruz’s estate will be divided, as in intestacy,
P900,000.00 in a bank. Juan opposed the will on the equally among A, B and C as follows: A -
ground of preterition. How should Josefa’s estate be P333,333.33; B - P333,333.33; and C -
divided among her heirs? State briefly the reason(s) P333,333.33.
for your answer. (2001 Bar)
b) On the same assumption as letter (a), there
SUGGESTED ANSWER: was preterition of C. Therefore, the institution of
There was no preterition of the oldest son A and B is annulled but the legacy of
because the testatrix donated 100,000 pesos to P100,000.00 to F shall be respected for not being
him. This donation is considered an advance on inofficious. Therefore, the remainder of
the son’s inheritance. There being no preterition, P900,000.00 will be divided equally among A, B
the institutions in the will shall be respected but and C.
the legitime of the oldest son has to be
completed if he received less.
After collating the donation of P100,000 to the Substitution of Heirs
remaining property of P900,000, the estate of the
testatrix is P100,000. Of this amount, one-half or By virtue of a Codicil appended to his will, Theodore
P P500,000, is the legitime of the legitimate devised to Divino a tract of sugar land, with the
children and it follows that the legitime of one obligation on the part of Divino or his heirs to deliver
legitimate child is P100,000. The legitime, to Betina a specified volume of sugar per harvest
therefore, of the oldest son is P100,000. during Betina’s lifetime. It is also stated in the Codicil
However, since the donation given him was that in the event the obligation is not fulfilled, Betina
P100,000, he has already received in full his should immediately seize the property from Divino or
legitime and he will not receive anything the latter’s heirs and turn it over to Theodore’s
anymore from the decedent. The remaining compulsory heirs. Divino failed to fulfill the obligation
P900,000, therefore, shall go to the four younger under the Codicil. Betina brings suit against Divino
children by institution in the will, to be divided for the reversion of the tract of land.
equally among them. Each will receive P225,000. a) Distinguish between modal institution and
substitution of heirs.
ALTERNATIVE ANSWER: b) Distinguish between simple and fideicommissary
Assuming that the donation is valid as to form substitution of heirs. (2002 Bar)
and substance, Juan cannot invoke preterition
because he actually had received a donation SUGGESTED ANSWER:
inter vivos from the testatrix (III Tolentino 188,
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a) A modal institution is the institution of an heir

made for a certain purpose or cause (Arts. 871 b) If Scarlet predeceases Ruffa, the
and 882, Civil Code). Substitution is the fideicommissary substitution is rendered null or
appointment of another heir so that he may enter ineffective under Article 863 (N.C.C.) And
into the inheritance in default of the heir applying Article 868 (N.C.C.), the
originally instituted. (Art. 857, Civil Code). fideicommissary clause is disregarded without
prejudice to the validity of the institution of the
b) In a simple substitution of heirs, the testator fiduciary. In such case Ruffa shall inherit the
designates one or more persons to substitute devise free from the condition.
the heirs instituted in case such heir or heirs
should die before him, or should not wish or c) In a fideicommissary substitution, the
should be incapacitated to accept the intention of the testator is to make the second
inheritance. In a fideicommissary substitution, heir his ultimate heir. The right of the second
the testator institutes a first heir and charges heir is simply postponed by the delivery of the
him to preserve and transmit the whole or part of inheritance to the first heir for him to enjoy the
the inheritance to a second heir. In a simple usufruct over the inheritance. Hence, when the
substitution, only one heir inherits. In a first heir predeceased the testator, the first heir
fideicommissary substitution, both the first and did not qualify to inherit and the right of the
second heirs inherit. (Art. 859 and 863, Civil second heir to receive the inheritance will no
Code) longer be delayed provided the second heir is
qualified to inherit at the time of the testator’s
What are the different limitations imposed by law death. In fideicommissary substitution, the first
upon fideicommissary substitutions? (1988 Bar) and the second heirs inherit from the testator,
hence, both should be qualified to inherit from
SUGGESTED ANSWER: the testator at the time of his death.
There are four limitations. They are:
(1) The substitution must not go beyond one In the problem, when Ruffa predeceased
degree from the heir originally instituted (Art. Raymond, she did not qualify to receive the
863, CC). inheritance to enjoy its usufruct, hence, the right
(2) The fiduciary and the fideicommissary must of Scarlet to receive the inheritance upon the
be living at the time of the death of the testator death of the testator will no longer be delayed.
(Ibid).
(3) The substitution must not burden the legitime
of compulsory heirs (Art. 864, CC). Conditional Testamentary Dispositions, Dispositions
(4) The substitution must be made expressly With a Term, Modal Dispositions
(Art. 865, par. 1, CC.)
By virtue of a Codicil appended to his will, Theodore
Raymond, single, named his sister Ruffa in his will devised to Divino a tract of sugar land, with the
as a devisee of a parcel of land which he owned. obligation on the part of Divino or his heirs to deliver
The will imposed upon Ruffa the obligation of to Betina a specified volume of sugar per harvest
preserving the land and transferring it, upon her during Betina’s lifetime. It is also stated in the Codicil
death, to her illegitimate daughter Scarlet who was that in the event the obligation is not fulfilled, Betina
then only one year old. Raymond later died, leaving should immediately seize the property from Divino or
behind his widowed mother, Ruffa and Scarlet. the latter’s heirs and turn it over to Theodore’s
compulsory heirs. Divino failed to fulfill the obligation
a) Is the condition imposed upon Ruffa to preserve under the Codicil. Betina brings suit against Divino
the property and to transmit it upon her death to for the reversion of the tract of land.
Scarlet, valid? a) Distinguish between modal institution and
b) If Scarlet predeceases Ruffa, who inherits the substitution of heirs.
property? b) Does Betina have a cause of action against
c) If Ruffa predeceases Raymond, can Scarlet Divino? Explain. (2002 Bar)
inherit the property directly from Raymond? (2008
Bar) SUGGESTED ANSWER:
a) A modal institution is the institution of an heir
SUGGESTED ANSWER: made for a certain purpose or cause (Arts. 871
a) When an obligation to preserve and transmit and 882, Civil Code). Substitution is the
the property to Scarlet was imposed on Ruffa, appointment of another heir so that he may enter
the testator Raymond intended to create a into the inheritance in default of the heir
fideicommissary substitution where Ruffa is the originally instituted. (Art. 857, Civil Code).
fiduciary and Scarlet is the fideicommissary.
Having complied with the requirements of b) Betina has a cause of action against Divino.
Articles 863 and 869 (N.C.C.) the This is a case of a testamentary disposition
fideicommissary substitution is valid.
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subject to a mode and the will itself provides for (2) In default of the foregoing, legitimate parents
the consequence if the mode is not complied and ascendants, with respects to their legitimate
with. To enforce the mode, the will itself gives children and descendants;
Betina the right to compel the return of the (3) The widow or widower;
property to the heirs of Theodore. (Rabadilla v. (4) Illegitimate childen.
CA, 334 SCRA 522). Compulsory heirs mentioned in numbers 3 and 4
are not excluded by those in numbers 1 and 2;
Crispin died testate and was survived by Alex and neither do they exclude one another.
Josine, his children from his first wife; Rene and Compulsory heirs mentioned in numbers 3 and 4
Ruby, his children from his second wife; and Allan, are not excluded by those in numbers 1 and 2;
Bea, and Cheska, his children from his third wife. neither do they exclude one another.
In all cases of illegitimate children, their filiation
One important provision in his will reads as follows: must be duly proved.
The father or mother of illegitimate children of
“Ang lupa at bahay sa the classes mentioned shall inherit from them in
Lungsod ng Maynila ay ililipat at the manner and to the extent established by the
ilalagay sa pangalan nila Alex at Civil Code. (Art. 887, CC.)
Rene hindi bilang pamana ko sa
kanila kundi upang pamahalaan at On December 1, 2000, Dr. Juanito Fuentes
pangalagaan lamang nila at nang executed a holographic will, wherein he gave
ang sinuman sa aking mga anak, nothing to his recognized illegitimate son, Jay. Dr.
sampu ng aking mga apo at Fuentes left for the United States, passed the New
kaapuapuhan ko sa habang York medical licensure examinations, resided
panahon, ay may tutuluyan kung therein, and became a naturalized American citizen.
magnanais na mag-aral sa Maynila He died in New York in 2007. The laws of New York
o sa kalapit na mga lungsod.” do not recognize holographic wills or compulsory
heirs.
Is the provision valid? (2014 Bar) Assuming that the will is probated in the Philippines,
can Jay validly insist that he be given his legitime?
Why or why not? (2009 Bar)
SUGGESTED ANSWER:
On the assumption that the disposition involving SUGGESTED ANSWER:
the house and lot does not prejudice the No, Jay may not validly insist that he be given
legitimes of his children, the same would be his legitime. This is a question relating to
valid, BUT only for the first twenty years from amount of successional rights. Under the Civil
the time of Crispin’s death. The disposition Code, amount of successional rights is a
basically creates a permanent trust over the question to be answered by the national law of
property, prohibiting its alienation or partition. the decedent whose succession is under
Art. 870 of the Civil Code declares that consideration. As Dr. Fuentes is already an
dispositions of the testator prohibiting alienation American citizen residing in New York, the
for more than 20 years is void. Art. 1083 allows amount of successional rights of his heirs is
non-partition only for a similar 20-year period. In governed by New York law. Since said law does
accordance with jurisprudence, such a not recognize compulsory heirs, there would be
prohibition would be good only for the first 20 no legitimes under said law, hence Jay may not
years, hence the disposition would be valid but insist that he is entitled to one.
only for the first twenty years from the time of
Crispin’s death. How can RJP distribute his estate by will, if his heirs
are JCP, his wife; HBR and RVC, his parents; and
an illegitimate child, SGO?
Legitime
SUGGESTED ANSWER:
Who are compulsory heirs? (1988 Bar) A testator may dispose of by will the free portion
of his estate. Since the legitime of JCP is 1/8 of
SUGGESTED ANSWER: the estate, SGO is ¼ of the estate and that of
In general, compulsory heirs are those for whom HBR and RVC is ½ of the hereditary estate under
the law has reserved a portion of the testator’s Art 889 of the Civil Code, the remaining 1/8 of
estate which is known as the legitime. the estate is the free portion which the testator
In particular, the following are compulsory heirs: may dispose of by will.
(1) Legitimate children and descendants, with
respect to their legitimate parents and Pedro had worked for 15 years in Saudi Arabia
ascendants; when he finally decided to engage in farming in his
home province where his 10- hectare farmland
valued at P2,000,000.00 was located. He had
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already P3,000,000.00 savings from his long stint in Warlito 200,000.00 (legitime)
Saudi Arabia. Adette 200,000.00 (legitime)
Eagerly awaiting Pedro’s arrival at the NAIA were Ramon 400,000.00 (P 100,000 as legitime, and
his aging parents Modesto and Jacinta, his P 300,000 as free portion)
common-law spouse Veneranda, their three ------------------
children, and Alex, his child by Carol, his departed Total P1, 200,000.00
legal wife. Sadly for all of them, Pedro suffered a
stroke because of his over- excitement just as the Sol Soldivino, widow, passed away, leaving
plane was about to land, and died without seeing two (2) legitimate children: a 25-year old son,
any of them. Santino (whom she had not spoken to for five [5]
The farmland and the savings were all the properties years prior to her death since he attempted to kill
he left. her at that time), and a 20-year-old daughter, Sara.
b) Assuming that Pedro’s will is discovered soon She left an estate worth PhP8 million and a will
after his funeral. In the will, he disposed of half of his containing only one provision: that PhP1 million
estate in favor of Veneranda, and the other half in should be given to “the priest who officiated at my
favor of his children and his parents in equal shares. wedding to my children’s late father.” Sara, together
Assuming also that the will is admitted to probate by with two (2) of her friends, acted as an attesting
the proper court. Are the testamentary dispositions witness to the will.
valid and effective under the law on succession?
Explain your answer. (2017 Bar) On the assumption that the will is admitted
for probate and that there are no debts, divide the
SUGGESTED ANSWER: estate and indicate the heirs/legatees entitled to
b) Pedro’s testamentary dispositions in his will inherit, the amount that each of them will inherit, and
are invalid and ineffective. Article 886 of the Civil where (i.e., legitime/free portion/intestate share)
Code states that the legitime is that part of a their shares should be charged. (2018 Bar)
testator’s property that he cannot dispose of SUGGESTED ANSWER:
because the law has reserved it for certain heirs, Under the Civil Code, legitimate children are
called compulsory heirs. In fine, a testator can entitled to a legitime of ½ of the estate of their
dispose only of the portion left after the deceased parent. As for incapacity to succeed,
legitimes of his compulsory heirs are first the Civil Code requires that a person who has
satisfied. This portion is called the “free attempted against the life of the testator is
portion.” In the instant case, there is no free unworthy of succeeding if he has been
portion, as the legitimes for Pedro’s legitimate convicted by final judgment for said attempt.
and illegitimate children cover Pedro’s entire The law also provides that a witness to a will is
property – one half for Alex, and the remaining disqualified from inheriting anything by the will
half distributed among his three illegitimate to which he is a witness to. Finally, the Civil
children. There is nothing to give to Veneranda Code provides that a testator who has
or to Pedro’s parents, hence the dispositions in compulsory heirs may bequeath the free portion
the will cannot be given effect. to whomsoever he wants, provided he respects
the legitimes of his compulsory heirs.
Emil, the testator, has three legitimate children. Tom,
Henry and Warlito; a wife named Adette; parents Accordingly, Santino and Sara, as legitimate
named Pepe and Pilar; an illegitimate child, Ramon; children, are entitled to ½ of the estate of Sol.
brother, Mark; and a sister, Nanette. Since his wife Notably, Santino is not disqualified from
Adette is well-off, he wants to leave to his inheriting from Sol, as he has not been
illegitimate child as much of his estate as he can convicted by final judgment for his attempt
legally do. His and has an aggregate net amount of against her life. Likewise, while Sara is a witness
P1,200,000.00, and all the above-named relatives to Sol’s will, she is not disqualified from
are still living. Emil now comes to you for advice in inheriting her legitime, as she remains entitled
making a will. thereto. More, since she received nothing by the
How will you distribute his estate according to his will, the incapacity to succeed of witnesses to
wishes without violating the law on testamentary wills is inapplicable to her. In fine, Santino and
succession? (2005 Bar) Sara each receive P2 Million each as legitime,
equivalent to ½ the estate of Sol.
SUGGESTED ANSWER:
In his will, Emil should give his compulsory The P1 million legacy to the priest who officiated
heirs just their respective legitimes and give all at Sol’s wedding, being well within the P4 Million
of the free portion to his illegitimate child in free portion of Sol’s estate, is valid and is
addition to the said child’s legitime. He should charged thereto. Note that, even if not identified
divide his estate in his will as follows: by name, since the priest’s identity can readily
be ascertained, said institution is valid.
Tom P 200,000.00 (legitime)
Henry 200,000.00 (legitime)
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As to the remaining free portion, the same will the legacy of 100,000 pesos. The legacy of
be divided equally between Santino and Sara by 50,000 pesos in favor of Ernie is not inofficious
virtue of intestate succession, as Santino and not having exceeded the free portion. Hence, he
Sara, as earlier discussed, are not disqualified to shall be entitled to receive it. The institution of
inherit from Sol. Baldo, which applies only to the free portion,
shall be respected. In sum, the estate of
In his last will and testament, Lamberto 1) disinherits Lamberto will be distributed as follows:
his daughter Wilma because “she is disrespectful
towards me and raises her voice talking to me”, 2) Baldo 450,000
omits entirely his spouse Elvira, 3) leaves a legacy Wilma 250,000
of P100,000.00 to his mistress Rosa and Elvira 250,000
P50,000.00 to his driver Ernie and 4) institutes his Ernie 50,000
son Baldo as his sole heir. How will you distribute -----------
his estate of P1,000,000.00? (2000 Bar) 1,000,000

SUGGESTED ANSWER: Don died after executing a Last Will and Testament
The disinheritance of Wilma was effective leaving his estate valued at P12 Million to his
because disrespect of, and raising of voice to, common-law wife Roshelle. He is survived by his
her father constitute maltreatment under Article brother Ronie and his half-sister Michelle.
919(6) of the Civil Code. She is, therefore, not Was Don’s testamentary disposition of his estate in
entitled to inherit anything. Her inheritance will accordance with the law on succession? Whether
go to the other legal heirs. The total omission of you agree or not, explain your answer. (2006 Bar)
Elvira is not preterition because she is not a
compulsory heir in the direct line. She will SUGGESTED ANSWER:
receive only her legitime. The legacy in favor of Yes, the testamentary disposition is in
Rosa is void under Article 1028 for being in accordance with the law on succession. Don
consideration of her adulterous, relation with the was not survived by any compulsory heir.
testator. She is, therefore, disqualified to receive Hence, he could will his entire estate to anybody
the legacy. Ernie will receive the legacy in his of his choice including a total stranger. His
favor because it is not inofficious. The institution of his common-law wife to his entire
institution of Baldo, which applies only to the estate is valid. The disposition is not in
free portion, will be respected. In sum, the estate consideration of an adulterous relationship
of Lamberto shall be distributed as follows: because both of them were not married to
anyone at the time of his making of the will and
Heir Legitime Legacy at the time of his death. Relationship between
Institution TOTAL two unmarried persons is not adulterous. The
law does not prohibit testamentary dispositions
Baldo 500,000 in favor of a common law spouse. What the law
200,000 700,000 prohibits are donations in favor of common law
Elvira 250,000 spouses under the Family Code. Such provision
250,000 does not include a disposition mortis causa
Ernie 50,000 such as a testamentary institution.
50,000
---------- --------- ---------- ----------- Arthur executed a will which contained only: (i) a
TOTAL 750,000 50,000 200,000 provision disinheriting his daughter Bernice for
1,000,000 running off with a married man, and (ii) a provision
disposing of his share in the family house and lot in
ALTERNATIVE ANSWER: favor of his other children Connie and Dora. He did
The disinheritance of Wilma was ineffective not make any provisions in favor of his wife Erica,
because the ground relied upon by the testator because as the will stated, she would anyway get ½
does not constitute maltreatment under Article of the house and lot as her conjugal share. The will
919(6) of the Civil Code. Hence, the testamentary was very brief and straightforward and both the
provisions in the will shall be annulled but only above provisions were contained in page 1, which
to the extent that her legitime was impaired. The Arthur and his instrumental witness, signed at the
total omission of Elvira does not constitute bottom. Page 2 contained the attestation clause and
preterition because she is not a compulsory heir the signatures, at the bottom thereof, of the 3
in the direct line. Only compulsory heirs in the instrumental witnesses which included Lambert, the
direct line may be the subject of preterition. Not driver of Arthur; Yoly, the family cook, and Attorney
having been preterited, she will be entitled only Zorba, the lawyer who prepared the will. There was
to her legitime. The legacy in favor of Rosa is a 3rd page, but this only contained the notarial
void under Article 1028 for being in acknowledgement.
consideration of her adulterous relation with the
testator. She is, therefore, disqualified to receive
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The attestation clause stated the will was signed on Arthur that she merely gets her legitime from his
the same occasion by Arthur and his instrumental estate. In fine, the family house and lot will be
witnesses who all signed in the presence of each distributed as follows:
other, and the notary public who notarized the will. Erica ½ + 1/8 = 10/16
There are no marginal signatures or pagination Dora 1/8 + 1/16 = 3/16
appearing on any of the 3 pages. Upon his death, it Connie 1/8 + 1/16 = 3/16
was discovered that apart from the house and lot, he
had a P1 million account deposited with ABC Bank.
Reserva troncal
How should the house and lot, and the cash be
distributed? (2008 Bar) Esteban and Martha had four (4) children: Rolando,
Jun, Mark, and Hector. Rolando had a daughter,
SUGGESTED ANSWER: Edith, while Mark had a son, Philip. After the death
of Esteban and Martha, their three (3) parcels of
On the assumption that the House and Lot and land were adjudicated to Jun. After the death of
the Cash were all conjugal property, the Jun, the properties passed to his surviving spouse
distribution will be as follows: Anita, and son Cesar. When Anita died, her share
went to her son Cesar. Ten (10) years after, Cesar
House and Lot died intestate without any issue. Peachy, Anita's
One half of the house shall be the conjugal sister, adjudicated to herself the properties as the
share of Erica. The other half is the conjugal only surviving heir of Anita and Cesar. Edith and
share of Arthur which was inherited by Erica, Philip would like to recover the properties claiming
Connie and Dora in equal shares. Hence, Erica, that they should have been reserved by Peachy in
Connie and Dora will be undivided co-owners of their behalf and must now revert back to them.
the house and lot with Erica getting 2/3 share
thereof and Connie and Dora with 1/6 share Is the contention of Edith and Philip valid? (2014
each. Bar)
Cash
The one million cash shall be divided in the SUGGESTED ANSWER:
same manner. ½ thereof or 500,000 shall be the No, the contention of Edith and Philip is invalid.
conjugal share of Erica while 500,000 shall be Reserva troncal requires that AN ASCENDANT
the share of Arthur. This amount shall be divided receive property (which came from another
in 3 equal shares, or 166, 666.66 per share. Erica ascendant or a brother or sister of the
will get 166,666.66 as her share, while Dora and praepositus) by operation of law from the
Connie will get 166,666.66 each as their praepositus. In the instant case, the three
inheritance. The one million cash will be parcels of land were not received by an
distributed as follows: ascendant of Cesar; rather the same was
Erica 666,666.66 inherited by a collateral relative of Cesar. More,
Dora 166,666.66 reserva troncal requires that the reservatarios
Connie 166,666.66 be third degree relatives of the praepositus.
Edith and Philip are not third degree, but fourth
ALTERNATIVE ANSWER: degree relatives of Cesar, hence there is no
House and Lot reserva troncal.
Since this is the family house and lot, the
presumption is it belongs to the absolute Princess married Roberto and bore a son, Onofre.
community or conjugal partnership, thus one- Roberto died in a plane crash. Princess later
half of the house shall be the conjugal share of married Mark and they also had a son - Pepito.
Erica. As to the other half, in all successions, Onofre donated to Pepito, his half-brother, a lot in
compulsory succession first takes place. Thus, Makati City worth P3,000,000.00. Pepito succumbed
of the one-half share pertaining Arthur, one-half to an illness and died intestate. The lot given to
(½ of ½ = ¼) shall pertain to Connie and Dora. Pepito by Onofre was inherited by his father, Mark.
Erica, as surviving spouse, will get the same Mark also died intestate. Lonely, Princess followed
share as Connie and Dora. Connie, Dora, and Mark to the life beyond. The claimants to the subject
Erica will thus get 1/8 each, for a total of 3/8. The lot emerged - Jojo, the father of Princess; Victor, the
remaining 1/8 would be the free portion. Since father of Mark; and Jerico, the father of Roberto.
Arthur can dispose of the free portion to Who among the three (3) ascendants is entitled to
whomsoever he wants, his will disposing of his the lot? Explain. (2016 Bar)
share in the family house and lot refers to this
1/8 free portion. Connie and Dora gets this 1/8 SUGGESTED ANSWER:
free portion by virtue of Arthur’s will. Erica gets Jojo, the father of Princess is entitled to the lot.
nothing from the free portion, since with her Under Art. 891 of the Civil Code, “the ascendant
omission from the will, it is clearly the intent of who inherits from his descendant any property
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which the latter may have acquired by Lilia and Nelia are relatives, Lilia being the
gratuitous title from another ascendant, or a grandniece of Nelia. They had a common ancestor,
brother or sister, is obliged to reserve such Bonong, father of Nelia and great-grandfather of
property as he may have acquired by operation Lilia. Bonong had a sister, Rosa, who donated
of law for the benefit of relatives who are within gratuitously a parcel of land to her niece, Mely, sister
the third degree and who belong to the line from of Nelia and grandmother of Lilia. Mely died
which said property came.” This obligation to intestate, leaving aforementioned parcel of land,
reserve is known as reserva troncal. There is survived by her husband Jose and their two
reserva troncal when 1) there is an ascendant to children, Rico and Nina. Bonong died intestate
whom the legitime or intestate estate of the survived by his legitimate grandchildren, Rico and
descendant (called the praepositus) belongs; 2) Nina. In the adjudication of his estate, the portion
there is in the inheritance properties which the pertaining to Mely, who had predeceased her father,
descendant/praepositus acquired by gratuitous went to her two legitimate children, Rico and Nina.
title from another ascendant or a brother or Rico died instestate, single, and without any issue,
sister; and 3) there are relatives within the 3 rd leaving his share in the inheritance to his father,
degree and from the line from which the Jose, subject to a reserva troncal duly annotated on
properties came. Notably, all the parties must be the title. Thereafter Nina died intestate and her
legitimately related to the praepositus whose rights and interests were inherited by her only
property was inherited by the ascendant. In the legitimate child, Lilia. Thereafter, Jose died intestate
instant case, Pepito (the praepositus) received survived by his only descendant, Lilia. Nelia, aunt of
the lot in question by donation from his brother Rico, would like to lay claim as reservatario to a
Onofre. Later, this lot was inherited by Mark, the portion of the one-half pro indiviso share of the
father of Pepito. There also exists relatives property inherited by Jose from his son Rico.
within the 3rd degree from the line from which
said property came. Accordingly, when Mark How should the estate of Jose, including the
inherited the lot (which originally came from property subject to reserva troncal be adjudicated?
Onofre by gratuitous title) from Pepito, the same Explain. (1987 Bar)
became subject of a reserva troncal. Being
subject to reserva troncal, the lot never forms SUGGESTED ANSWER:
part of Mark’s property upon his death, hence This is a proper case of reserva troncal. The
Mark’s father, Victor, is not entitled to the same. prepositus is Rico, the reservista is Jose and the
On the other hand, Pepito’s mother, Princess, reservatarios are Lilia (a niece) and Nelia (an
died AFTER Mark. Princess is the nearest 3 rd aunt), both of them being relatives within the 3rd
degree relative of Pepito, and she also comes degree of Rico (the prepositus) and belonging to
from the line of Onofre, the source of the the maternal line represented by Mely. However,
property, hence she is is qualified to receive the in reserva troncal, once the property that went to
property subject of the reserva. And after the reservista reverts back to the line from which
Princess died, the property would be inherited it came from, the ordinary rules on intestate
by Jojo, Princess’ nearest relative. On the other succession would apply. Accordingly, while
hand, Jerico is not legitimately related to Pepito, Nelia is properly a reservatario, she would be
the praepositus, hence he cannot be a excluded by Lilia, the other reservatario. In
beneficiary of the reserva troncal. In fine, the lot intestacy, nephews and nieces exclude uncles
belongs to Jojo, as heir of Princess, the nearest and aunts. Consequently, Nelia cannot claim any
reservatario who inherited the property after portion of the pro-indiviso share of the property
Mark’s death. inherited by Jose from Rico; as she is excluded
by her niece, Lilia. Lilia alone inherits the
TRUE or FALSE. In reserva troncal, all reservatarios property covered by the reserva troncal.
(reservees) inherit as a class and in equal shares
regardless of their proximity in degree to the The rest of Jose’s estate, not subject to reserva,
prepositus. (2009 Bar) will be inherited by his granddaughter Lilia as
sole intestate heir.
SUGGESTED ANSWER:
FALSE. Once a reserva is shown to exist in favor Mr. Luna died, leaving an estate of Ten Million
of relatives within the third degree belonging to (P10,000,000.00) Pesos. His widow gave birth to a
the line from which the property came, the child four months after Mr. Luna’s death, but the
determination as to who among these relatives child died five hours after birth. Two days after the
is entitled to the property subject to reserva is child’s death, the widow of Mr. Luna also died
governed by the rules on intestacy, among because she had suffered from difficult childbirth.
which is the principle that “nearer excludes the The estate of Mr. Luna is now being claimed by his
further,” hence reservatarios nearer in degree parents, and the parents of his widow. Who is
exclude further ones. entitled to Mr. Luna’s estate and why? (1999 Bar)

SUGGESTED ANSWER:
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Half of the estate of Mr. Luna will go to the hostage at the cockpit and ordered him to fly instead
parents of Mrs. Luna as their inheritance from to Libya. During the hijacking Isidro suffered a heart
Mrs. Luna, while the other half will be inherited attack and was on the verge of death. Since Irma
by the parents of Mr. Luna as the reservatarios was already eight months pregnant by Isidro, she
of the reserved property inherited by Mrs. Luna pleaded to the hijackers to allow the assistant pilot
from her child. to solemnize her marriage with Isidro. Soon after the
When Mr. Luna died, his heirs were his wife and marriage, Isidro expired. As the plane landed in
the unborn child. The unborn child inherited Libya Irma gave birth. However, the baby died a few
because the inheritance was favorable to it and minutes after complete delivery. Back in the
it was born alive later though it lived only for five Philippines Irma immediately filed a claim for
hours. Mrs. Luna inherited half of the 10 Million inheritance. Does Irma have any successional rights
estate while the unborn child inherited the other at all? Discuss fully.
half. When the child died, it was survived by its
mother, Mrs. Luna. As the only heir, Mrs. Luna SUGGESTED ANSWER:
inherited, by operation of law, the estate of the Irma succeeded to the estate of Isidro as his
child consisting of its 5 Million inheritance from surviving spouse to the estate of her legitimate
Mr. Luna. In the hands of Mrs. Luna, what she child. When Isidro died, he was succeeded by
inherited from her child was subject to reserva his surviving wife Irma, and his legitimate
troncal for the benefit of the relatives of the child unborn child. They divided the estate equally
within the third degree of consanguinity and between them, the child excluding the parents of
who belong to the family of Mr. Luna, the line Isidro. An unborn child is considered born for all
where the property came from. purposes favorable to it provided it is born later.
When Mrs. Luna died, she was survived by her The child was considered born because, having
parents as her only heirs. Her parents will inherit an intra-uterine life of more than seven months,
her estate consisting of the 5 Million she it lived for a few minutes after its complete
inherited from Mr. Luna. The other 5 Million she delivery. It was legitimate because it was born
inherited from her child will be delivered to the within the valid marriage of the parents.
parents of Mr. Luna as beneficiaries of the Succession is favorable to it. When the child
reserved property. died, Irma inherited the share of the child.
However, the share of the child in the hands of
In sum, 5 Million Pesos of Mr. Luna’s estate will Irma is subject to reserva troncal for the benefit
go to the parents of Mrs. Luna, while the other 5 of the relatives of the child within the third
Million Pesos will go to the parents of Mr. Luna degree of consanguinity and who belong to the
as reservatarios. line of Isidro.

ALTERNATIVE ANSWER: ALTERNATIVE ANSWER:

If the child had an intra-uterine life of not less If the marriage is void, Irma has no successional
than 7 months, it inherited from the father. In rights with respect to Isidro but she would have
which case, the estate of 10M will be divided successional rights with respect to the child.
equally between the child and the widow as legal
heirs. Upon the death of the child, its share of
5M shall go by operation of law to the mother, Disinheritance
which shall be subject to reserva troncal. Under
Art. 891, the reserva is in favor of relatives Arthur executed a will which contained only: (i) a
belonging to the paternal line and who are within provision disinheriting his daughter Bernice for
3 degrees from the child. The parents of Mr. running off with a married man, and (ii) a provision
Luna are entitled to the reserved portion which disposing of his share in the family house and lot in
is 5M as they are 2 degrees related from child. favor of his other children Connie and Dora. He did
The 5M inherited by Mrs. Luna from Mr. Luna will not make any provisions in favor of his wife Erica,
be inherited from her by her parents. because as the will stated, she would anyway get ½
However, if the child had intra-uterine life of less of the house and lot as her conjugal share. The will
than 7 months, half of the estate of Mr. Luna, or was very brief and straightforward and both the
5M, will be inherited by the widow (Mrs. Luna), above provisions were contained in page 1, which
while the other half, or 5M, will be inherited by Arthur and his instrumental witness, signed at the
the parents of Mr. Luna. Upon the death of Mrs. bottom. Page 2 contained the attestation clause and
Luna, her estate of 5M will be inherited by her the signatures, at the bottom thereof, of the 3
own parents. instrumental witnesses which included Lambert, the
driver of Arthur; Yoly, the family cook, and Attorney
Isidro and Irma, Filipinos, both 18 years of age, were Zorba, the lawyer who prepared the will. There was
passengers of Flight No. 317 of Oriental Airlines. a 3rd page, but this only contained the notarial
The plane they boarded was of Philippine registry. acknowledgement.
While en route from Manila to Greece some
passengers hijacked the plane, held the chief pilot
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The attestation clause stated the will was signed on Elvira is not preterition because she is not a
the same occasion by Arthur and his instrumental compulsory heir in the direct line. She will
witnesses who all signed in the presence of each receive only her legitime. The legacy in favor of
other, and the notary public who notarized the will. Rosa is void under Article 1028 for being in
There are no marginal signatures or pagination consideration of her adulterous, relation with the
appearing on any of the 3 pages. Upon his death, it testator. She is, therefore, disqualified to receive
was discovered that apart from the house and lot, he the legacy. Ernie will receive the legacy in his
had a P1 million account deposited with ABC Bank. favor because it is not inofficious. The
institution of Baldo, which applies only to the
Was the disinheritance valid? (2008 Bar) free portion, will be respected. In sum, the estate
of Lamberto shall be distributed as follows:
SUGGESTED ANSWER:
The fact that the daughter disinherited ran off Heir Legitime Legacy
with a married man is a valid ground for Institution TOTAL
disinheritance under the Civil Code. One ground Baldo 500,000
for disinheritance of a descendant is when the 200,000 700,000
descendant leads a dishonorable or disgraceful Elvira 250,000
life (Art. 919 [7], Civil Code). Running away with 250,000
a married man leads to a dishonorable or Ernie 50,000
disgraceful life. 50,000
---------- --------- ---------- -----------
Jose and Ana are husband and wife. On January 10, TOTAL 750,000 50,000 200,000
1980, Jose learned that Ana was having illicit 1,000,000
relations with Juan. In fact, Jose personally saw his
wife and Juan leaving a motel on one occasion. ALTERNATIVE ANSWER:
Despite all the evidence he had at hand, Jose did The disinheritance of Wilma was ineffective
not bring any action for legal separation against Ana. because the ground relied upon by the testator
Instead, Jose simply prepared a will wherein he does not constitute maltreatment under Article
disinherited Ana for her acts of infidelity. The validity 919(6) of the Civil Code. Hence, the testamentary
of the disinheritance was questioned by Ana upon provisions in the will shall be annulled but only
Jose’s death. If you were the judge, how would you to the extent that her legitime was impaired. The
resolve this question? Give your reasons. (1989 total omission of Elvira does not constitute
Bar) preterition because she is not a compulsory heir
in the direct line. Only compulsory heirs in the
SUGGESTED ANSWER: direct line may be the subject of preterition. Not
The disinheritance is valid. Under the Civil Code, having been preterited, she will be entitled only
the legal ground for disinheriting a spouse is to her legitime. The legacy in favor of Rosa is
that the spouse has given cause for legal void under Article 1028 for being in
separation. Therefore, a final judgment is not consideration of her adulterous relation with the
needed. testator. She is, therefore, disqualified to receive
the legacy of 100,000 pesos. The legacy of
ALTERNATIVE ANSWER: 50,000 pesos in favor of Ernie is not inofficious
The disinheritance is not valid. The facts not having exceeded the free portion. Hence, he
indicate that there was condonation by Jose of shall be entitled to receive it. The institution of
Ana’s illicit relationship with Juan since they Baldo, which applies only to the free portion,
appear to have continued to live together. shall be respected. In sum, the estate of
Lamberto will be distributed as follows:
In his last will and testament, Lamberto 1) disinherits
his daughter Wilma because “she is disrespectful Baldo 450,000
towards me and raises her voice talking to me”, 2) Wilma 250,000
omits entirely his spouse Elvira, 3) leaves a legacy Elvira 250,000
of P100,000.00 to his mistress Rosa and Ernie 50,000
P50,000.00 to his driver Ernie and 4) institutes his -----------
son Baldo as his sole heir. How will you distribute 1,000,000
his estate of P1,000,000.00? (2000 Bar)
Mr. Palma, widower, has three daughters D, D-1 and
SUGGESTED ANSWER: D-2. He executes a Will disinheriting D because she
The disinheritance of Wilma was effective married a man he did not like, and instituting
because disrespect of, and raising of voice to, daughters D-1 and D-2 as his heirs to his entire
her father constitute maltreatment under Article estate of P 1,000,000.00. Upon Mr. Palma’s death,
919(6) of the Civil Code. She is, therefore, not how should him estate be divided? Explain. (1999
entitled to inherit anything. Her inheritance will Bar)
go to the other legal heirs. The total omission of
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 142

SUGGESTED ANSWER: will. Bert was survived by his biological siblings,

This is a case of ineffective disinheritance Joe, and the boy.
because marrying a man that the father did not
approve of is not a ground for disinheriting D. b) What are the successional rights of the boy Bert
Therefore, the institution of D-1 and D-2 shall be and Joe raised as their son? (2015 Bar)
annulled insofar as it prejudices the legitime of
D, and the institution of D-1 and D-2 shall only SUGGESTED ANSWER:
apply on the free portion in the amount, of The boy has no successional rights to the estate
P500,000.00. Therefore, D, D-1 and D-2 will get of Bert. In intestate succession, capacity to
their legitimes of P500,000.00 divided into three succeed requires that the presumptive heir be
equal parts and D-1 and D-2 will get a reduced related to the decedent. Furthermore, in intestate
testamentary disposition of P250,000.00 each. succession, nearer relatives exclude more
Hence, the shares will be: distant ones. In the instant case, the boy was not
D P166,666.66 legally adopted by Bert, hence he cannot be
D-1 P166,666.66 + P250,000.00 considered as a descendant of Bert. And while
D-2 P166,666.66 + P250,000.00 he may actually be a nephew of Bert, being the
son of Bert’s living brother, he would be
excluded from the succession by Bert’s siblings,
Legal or Intestate Succession as he is a more distant relative than the said
siblings. Consequently, the boy may not
When does the right of representation take place? succeed to Bert’s estate.
(1988 Bar)
Luis was survived by two legitimate children, two
SUGGESTED ANSWER: illegitimate children, his parents, and two brothers.
a) The right of representation shall take place in He left an estate of P1 million. Who are the
the following cases: compulsory heirs of Luis, how much is the legitime
(1) In testamentary succession: of each, and how much is the free portion of his
a) In case a compulsory heir in the direct estate, if any?
descending line dies before the testator survived b) Suppose Luis, in the preceding question (a), died
by his children or descendants (Art. 856, CC). intestate. Who are his intestate heirs, and how much
b) In case a compulsory heir in the direct is the share of each in his estate? (2003 Bar)
descending line is incapacitated to succeed
from the testator and he has children or SUGGESTED ANSWER:
descendants. (Arts. 856, 1035, CC). a) The compulsory heirs are the two legitimate
c) In case a compulsory heir in the direct children and the two illegitimate children. The
descending line is disinherited and he has parents are excluded by the legitimate children,
children or descendants. (Art. 923, CC). while the brothers are not compulsory heirs at
(2) In intestate succession: all.
a) In case a legal heir in the direct descending Their respective legitimes are:
line dies before the decedent survived by his (1) The legitime of the two (2) legitimate children
children or descendant (Arts. 981, 982, CC), or in is one-half (½) of the estate (P500,000.00) to be
the absence of other heirs who can exclude divided between them equally, or P250,000.00
them from the succession, a brother or sister each.
dies before the decedent survived by his or her (2) The legitime of each illegitimate child is one-
own children. (Arts. 972, 975, CC). half (½) the legitime of each legitimate child or
b) In case a legal heir in the direct descending P125,000.00.
line is incapacitated to succeed from the Since the total legitimes of the compulsory heirs
decedent and he has children or descendants is P750,000.00, the balance of P250,000.00 is the
(Art. 1035, CC), or in the absence of other heirs free portion.
who can exclude them from the, succession, a
brother or sister is incapacitated to succeed b) The intestate heirs are the two (2) legitimate
from the decedent and he or she has children. children and the two (2) illegitimate children. In
(Arts. 972, 975, 1035, CC). intestacy the estate of the decedent is divided
among the legitimate and illegitimate children
Bert and Joe, both male and single, lived together such that the share of each illegitimate child is
as common law spouses and agreed to raise a son one-half the share of each legitimate child.
of Bert's living brother as their child without legally Their shares are:
adopting him. Bert worked while Joe took care of For each legitimate child - P333,333.33
their home and the boy. In their 20 years of 100 For each illegitimate child - P166,666.66
cohabitation they were able to acquire real estate (Article 983, Civil Code; Article 176, Family
assets registered in their names as co-owners. Code)
Unfortunately, Bert died of cardiac arrest, leaving no

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Pedro had worked for 15 years in Saudi Arabia marriage. Their absolute community of property
when he finally decided to engage in farming in his having been dissolved, they delivered P1 million to
home province where his 10- hectare farmland each of their 3 children as their presumptive
valued at P2,000,000.00 was located. He had legitimes. Peter later re-married and had two (2)
already P3,000,000.00 savings from his long stint in children by his second wife Marie. Peter and Marie,
Saudi Arabia. having successfully engaged in business, acquired
Eagerly awaiting Pedro’s arrival at the NAIA were real properties. Peter later died intestate.
his aging parents Modesto and Jacinta, his
common-law spouse Veneranda, their three a) Who are Peter’s legal heirs and how will his
children, and Alex, his child by Carol, his departed estate be divided among them?
legal wife. Sadly for all of them, Pedro suffered a b) What is the effect of the receipt by Peter’s 3
stroke because of his over- excitement just as the children by his first marriage of their presumptive
plane was about to land, and died without seeing legitimes on their right to inherit following Peter’s
any of them. death? (2010 Bar)
The farmland and the savings were all the properties
he left. SUGGESTED ANSWER:
State who are Pedro’s legal heirs, and the shares of a) The legal heirs of Peter are his children by the
each legal heir to the estate? Explain your answer. first and second marriages and his surviving
(2017 Bar) second wife. Their shares in the estate of Peter
will depend, however, on the cause of the nullity
SUGGESTED ANSWER: of the first marriage. If the nullity of the first
Pedro’s legal heirs are his legitimate child Alex, marriage was psychological incapacity of one or
and his three illegitimate children (born by his both spouses, the three children of that void
common law partner Veneranda). Under Art. 979 marriage are legitimate and all of the legal heirs
of the Civil Code, legitimate children succeed to shall share the estate of Peter in equal shares. If
the property of their parents and ascendants. the judgment of nullity was for other causes, the
Article 983 further states that illegitimate three children are illegitimate and the estate
children surviving with legitimate children also shall be distributed such that an illegitimate
succeed to the property of their parents, albeit child of the first marriage shall receive half of
getting only half the legitime of a legitimate child the share of a legitimate child of the second
(Art. 176, Family Code). Article 985 further marriage, and the second wife will inherit a
provides that parents and other descendants share equal to that of a legitimate child. In no
succeed to the property of their children only in case may the two legitimate children of the
the absence of legitimate children and second marriage receive a share less than one-
descendants. Finally, while the spouse is also a half of the estate which is their legitime. When
legal heir of a decedent, the spouse must be the estate is not sufficient to pay all the
validly married to the decedent. In the instant legitimes of the compulsory heirs, the legitime of
case, Alex, being a legitimate child, would be a the spouse is preferred and the illegitimate
legal heir of Pedro. His presence would then children suffer the reduction. Computation: (A) If
exclude Modesto and Jacinta, Pedro’s parents. the ground of nullity is psychological incapacity:
However, Alex does not exclude his three half- 3 children by first marriage 1/6 of the estate for
siblings, the illegitimate children of Pedro with each 2 children by second marriage 1/6 of the
Veneranda. Veneranda, not being married to estate for each Surviving second spouse 1/6 of
Pedro, would not be related to the latter, hence the estate (B) If the ground of nullity is not
would not also be a legal heir of Pedro. psychological capacity: 2 legitimate children ¼
of the estate for each of second marriage
Under the law, legitimate children get one-half of Surviving second spouse ¼ of the estate 3
the property; while illegitimate children get half illegitimate children 1/12 of estate for each of
the share of a legitimate child, but limited to first marriage Note: The legitime of an
what is left after the share of the legitimate illegitimate child is supposed to be ½ the
children are first satisfied. Accordingly, Alex legitime of a legitimate child or 1/8 of the estate.
gets 2.5 Million, one-half of the properties of But the estate will not be sufficient to pay the
Pedro. The three children are entitled to half the said legitime of the 3 illegitimate children,
share of Alex, which should be P1.25M each. because only ¼ of the estate is left after paying
However, these add up to P3.75M, in excess of the legitime of the surviving spouse which is
the remaining property, which amounts to only preferred. Hence, the remaining ¼ of the estate
P2.5 M. Accordingly, being limited to what is left shall be divided among the 3 illegitimate
of the estate, each of the three illegitimate children.
children get P833,333.33 each, for a total of
P2.5M. b) In the distribution of Peter’s estate, ½ of the
presumptive received by the 3 children of the
The spouses Peter and Paula had three (3) children. first marriage shall be collated to Peter’s estate
Paula later obtained a judgment of nullity of and shall be imputed as an advance of their
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respective inheritance from Peter. Only half of F had three (3) legitimate children: A, B, and C. B
the presumptive legitime is collated to the estate has one (1) legitimate child X. C has two (2)
of Peter because the other half shall be collated legitimate children: Y and Z.
to the estate of his first wife. Graphically illustrated, the relationships are as
follows:
Angel died intestate leaving considerable properties
accumulated during 25 years of marriage. He is
survived by his widow, a legally adopted son, the
child of a deceased legitimate daughter, two
illegitimate children duly recognized by Angel before
his death and his ailing 93-year old mother who was
wholly dependent on him.

How would you distribute the estate indicating by

fractions the portions of the following who claim to
be entitled to inherit:
(a) the widow? F and A rode together in a car and perished together
(b) the adopted son? at the same time in a vehicular accident. F and A
(c) the child of the deceased legitimate daughter? died, each of them leaving substantial estates in
(d) the two recognized illegitimate children? intestacy.
(e) the mother? (1987 Bar)
a) Who are the intestate heirs of F? What are their
SUGGESTED ANSWER: respective fractional shares?
Under the law, legitimate children and b) Who are the intestate heirs of A? What are their
descendants are entitled to a legitime of one-half respective fractional shares?
of the property of their deceased parents (Art. c) If B and C both predeceased F, who are F’s
888). Notably, an adopted child has all the rights intestate heirs? What are their respective fractional
of succession as a legitimate child (Sec. 18, RA shares? Do they inherit in their own right or by
8552). On the other hand, the grandchild inherits representation? Explain your answer.
by right of representation of his deceased d) If B and C both repudiated their shares in the
parent, if his parent predeceases the decedent. estate of F, who are F’s intestate heirs? What are
Additionally, should there be two or more their respective fractional shares? Do they inherit in
legitimate children or descendants, the surviving their own right or by representation? Explain your
spouse is entitled to a legitime equal to the answer. (1992 Bar)
share of each legitimate child or descendant
(Art. 892). Illegitimate children, on the other SUGGESTED ANSWER:
hand, are entitled to one-half the legitime of a a) B and C, as legitimate children of F and
legitimate child (Art. 176, Family Code) [but nearest relatives in degree, will be the intestate
limited to what is left after first satisfying the heirs of F, sharing the property 50-50 (Art. 979 &
legitimes of the legitimate children and surviving 980, Art. 962) X, Y, and Z, being more distant in
spouse]. Finally, legitimate ascendants are degree than B and C to the deceased, are
entitled to a legitime only in the absence of excluded.
legitimate children and descendants (Art.
887[2]). Accordingly, should there be legitimate b) B and C will be the intestate heirs of A,
children or descendants, they are excluded. In sharing the property 50-50. Under Art. 1004,
accordance with the following rules, the shares when brothers and sisters alone survive, they
of Angel’s heirs are: inherit the entire estate in equal shares. X, Y, and
a. the widow – ¼ (she gets the same share as Z, being more distant in degree than B and C to
that of each legitimate child or descendant, the deceased, are excluded (Art. 962).
which is ¼)
b. the adopted son – ¼ (he is entitled to ½ of the c) Under Art. 982, grandchildren inherit from
estate, which he divides with the child of the their grandparents by right of representation,
deceased legitimate daughter) hence X inherits from F by right of
c. the child of the deceased legitimate daughter representation, representing his parent B,
– ¼ (he inherits by right of representation, and getting ½ of the estate. Y and Z also inherit from
divides ½ of the estate with the adopted son) F by right of representation, representing their
d. the two recognized illegitimate children – parent C, getting the other half of the estate,
since the legitimate children got ¼ each, they which they divide between themselves per
get one-half of such share, which is 1/8. stirpes – thus ¼ of the estate goes to Y and ¼ of
e. the mother – since there are legitimate the estate goes to Z.
children and descendants, she is excluded,
hence gets nothing. d) Article 977 of the Civil Code provides that
heirs who repudiate their share cannot be
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represented, hence Art. 982 will not apply. X, Y

and Z will inherit in their own right, dividing the d) They are entitled to share the estate equally
share per capita, 1/3 to X, 1/3 to Y, and 1/3 to Z. under Article 1001 of the Civil Code. Therefore,
Karla gets 13 Million and Luis gets 13 Million.
On 10 September 1988 Kevin, a 26-year old
businessman, married Karla, a winsome lass of 18. Tessie died survived by her husband Mario, and two
Without the knowledge of their parents or legal nieces, Michelle and Jorelle, who are the legitimate
guardians, Kevin and Karla entered into an children of an elder sister who had predeceased her
antenuptial contract the day before their marriage The only property she left behind was a house and
stipulating that conjugal partnership of gains shall lot worth two million pesos, which Tessie and her
govern their marriage. At the time of their marriage husband had acquired with the use of Mario’s
Kevin’s estate was worth 50 Million while Karla’s savings from his income as a doctor. How much of
was valued at 2 Million. the property or its value, if any, may Michelle and
A month after their marriage Kevin died in a freak Jorelle claim as their hereditary shares? (1998 Bar)
helicopter accident. He left no will, no debts, no
obligations. Surviving Kevin, aside from Karla, are SUGGESTED ANSWER:
his only relatives: his brother Luis and first cousin Article 1001 of the Civil Code provides, “Should
Lilia. brothers and sisters or their children survive
a) What property regime governed the marriage of with the widow or widower, the latter shall be
Kevin and Karla? Explain. entitled to one-half of the inheritance and the
b) Determine the value of the estate of Kevin. brothers and sisters or their children to the other
c) Who are Kevin’s heirs? half.”
d) How much is each of Kevin’s heirs entitled to Tessie’s gross estate consists of a house and lot
inherit? (1995 Bar) acquired during her marriage, making it part of
the community property. Thus, one-half of the
SUGGESTED ANSWER: said property would have to be set aside as
a) Since the marriage settlement was entered Mario’s conjugal share from the community
into without the consent and without the property. The other half, amounting to one
participation of the parents (they did not sign the million pesos, is her conjugal share (net estate),
document), the marriage settlement is invalid and should be distributed to her intestate heirs.
applying Art. 78, F.C. which provides that a Applying the above provision of law, Michelle
minor who according to law may contract and Jorelle, Tessie’s nieces, are entitled to one-
marriage may also enter into marriage half of her conjugal share worth one million
settlements but they shall be valid only if the pesos, or 500,000 pesos, while the other one-half
person who may give consent to the marriage amounting to P500,000 will go to Mario, Tessie’s
are made parties to the agreement. (Karla was surviving spouse. Michelle and Jorelle are then
still a minor at the time the marriage settlement entitled to P250,000 pesos each as their
was executed in September 1988 because the hereditary share.
law, R.A. 6809, reducing the age of majority to 18
years took effect on 18 December 1989). The In 1985, Sonny and Lulu, both Filipino citizens, were
marriage settlement being void, the property married in the Philippines. In 1987, they separated,
regime governing the marriage is, therefore, and Sonny went to Canada, where he obtained a
absolute community of property, under Art. 75 of divorce in the same year. He then married another
the FC. Filipina, Auring, in Canada on January 1, 1988. They
had two sons, James and John. In 1990, after failing
(NOTE: At present, it is believed that Art. 78 is to hear from Sonny, Lulu married Tirso, by whom
already defunct, as a “minor who may contract she had a daughter, Verna. In 1991, Sonny visited
marriage” no longer exists, given the lowering of the the Philippines where he succumbed to heart attack.
age of majority to 18.). a) Discuss the effect of the divorce obtained by
Sonny and Lulu in Canada.
b) All the properties which Kevin and Karla b) Explain the status of the marriage between Sonny
owned at the time of marriage became and Auring.
community property which shall be divided c) Explain the status of the marriage between Lulu
equally between them at dissolution. Since and Tirso.
Kevin owned 50 Million and Karla, 2 Million, at d) Explain the respective filiation of James, John
the time of the marriage, 52 Million constituted and Verna.
their community property. Upon the death of e) Who are the heirs of Sonny? Explain. (2005 Bar)
Kevin, the community was dissolved and half of
the 52 Million or 26 Million is his share in the SUGGESTED ANSWER:
community. This 26 Million therefore is his a) The divorce obtained by Sonny in Canada was
estate. not valid because he and his wife were both
Filipino citizens. Divorce between a Filipino
c) Karla and Luis are the intestate heirs of Kevin. couple is not valid under Philippine law even
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though they are living abroad. (Art. 15, Civil One Million (P1,000,000.00) Pesos during their
Code) marriage, which are being claimed by the parents of
b) Since the divorce obtained by Sonny was both spouses in equal shares.
void, his marriage to Auring is necessarily void
ab initio because of his subsisting marriage to a) Is the claim of both sets of parents valid and why?
Lulu. (Art. 41, Family Code) b) Suppose in the preceding question, both Mr. and
c) The marriage between Lulu and Tirso is also Mrs. Cruz were already dead when help came, so
void ab initio because Lulu is still validly married that nobody could say who died ahead of the other,
to Sonny. would you answer be the same to the question as to
d) James and John are the illegitimate children who are entitled to the properties of the deceased
of Sonny and Auring because they were couple? (1999 Bar)
conceived and born outside a valid marriage.
Verna is an illegitimate child of Lulu and Tirso SUGGESTED ANSWER:
having been conceived and born to the invalid a) No, the claim of both parents is not valid.
marriage of Lulu and Tirso. Verna cannot be When Mr. Cruz died, he was succeeded by his
presumed as the legitimate child of Sonny wife and his parents as his intestate heirs who
because of the supervening marriage that was will share his estate equally. His estate was 0.5
celebrated between Lulu and Tirso even though Million pesos which is his half share in the
such marriage is void ab initio. The case of absolute community amounting to 1 Million
Liyao v. Liyao is not applicable because in that Pesos. His wife, will, therefore, inherit 0.25
case the wife begot a child by another man Million Pesos and his parents will inherit 0.25
during her marriage to her estranged husband Million Pesos.
but no marriage was celebrated between the wife When Mrs. Cruz died, she was succeeded by her
and the father of the child. The child in that case parents as her intestate heirs. They will inherit
was presumed to be the legitimate child of the all of her estate consisting of her 0.5 Million half
estranged husband. share in the absolute community and her 0.25
e) The heirs of Sonny are his wife Lulu, and his 2 Million inheritance from her husband, or a total
illegitimate children James and John. The void of 0.750 Million Pesos.
remarriage of Lulu to Tirso did not incapacitate In sum, the parents of Mr. Cruz will inherit
her to succeed Sonny. 250,000 Pesos while the parents of Mrs. Cruz will
inherit 750,000 Pesos.
Ricky and Arlene are married. They begot Franco
during their marriage. Franco had an illicit (b) This being a case of succession, in the
relationship with Audrey and out of which, they absence of proof as to the time of death of each
begot Arnel. Frnaco predeceased Ricky, Arlene and of the spouses, it is presumed they died at the
Arnel. Before Ricky died, he executed a will which same time and no transmission of rights from
when submitted to probate was opposed by Arnel on one to the other is deemed to have taken place.
the ground that he should be given the share of his Therefore, each of them is deemed to have an
father, Franco. Is the opposition of Arnel correct? estate valued at P500,000.00, or one-half of their
Why? (2012 Bar) conjugal property of P1 million. Their respective
parents will thus inherit the entire P1 Million in
SUGGESTED ANSWER: equal shares, or P500,000.00 per set of parents.
No, his opposition is not correct. Arnel cannot
inherit from Ricky in the representation of his Ramon Mayaman died intestate, leaving a net
father Franco. In representation, the estate of P10,000,000.00. Determine how much
representative must not only be a legal heir of each heir will receive from the estate:
the person he is representing, he must also be a a) If Ramon is survived by his wife, three full-blood
legal heir of the decedent he seeks to inherit brothers, two half-brothers, and one nephew (the
from. While Arnel is a legal heir of Franco, he is son of a deceased full-blood brother)? Explain.
not a legal heir of Ricky because under Art 992 b) If Ramon is survived by his wife, a half-sister, and
of the Civil Code, an illegitimate child has no three nephews (sons of a deceased full-blood
right to inherit ab intestato from the legitimate brother)? Explain. (2009 Bar)
children and relatives of his father or mother.
Arnel is disqualified to inherit from Ricky SUGGESTED ANSWER:
because Arnel is an illegitimate child of Franco a) Under Art. 1001, when the surviving spouse
and Ricky is a legitimate relative of Franco. concurs with brothers and sisters or their
children, the spouse gets half and the brothers
Mr. and Mrs. Cruz, who are childless, met with a and sisters and their children get the other half.
serious motor vehicle accident with Mr. Cruz at the Thus, Mayaman’s wife gets P5,000,000.00. The
wheel and Mrs. Cruz seated beside him, resulting in other P5M goes to the three full-blood brothers,
the instant death of Mr. Cruz. Mrs. Cruz was still 2 half-blood brothers and the nephew.
alive when help came but she also died on the way
to the hospital. The couple acquired properties worth In intestate succession, full-blood siblings get
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 147

twice the share of half-blood siblings. Likewise,

nephews and nieces, when they concur with If there was an impediment for Ernesto and his
brothers and sisters, inherit by right of common law wife to marry each other, the
representation. Since the nephew is the son of a P100,000 will be owned by Ernesto alone, the
deceased full-blood brother, he would inherit the common law wife not having contributed to its
share of his father by right of representation. acquisition (Art. 148, Family Code). It shall be
Thus, in this case, it is as if, there are four (4) inherited by his mother who will get P50,000,
full-blood brothers and two (2) half-blood and his two illegitimate sons who will get 25,000
brothers. Thus, the P5M inherited by the three each.
full-blood brothers, 2 half-blood brothers and the
nephew will be distributed as follows: For purposes of this question, assume all formalities
and procedural requirements have been complied
Three full blood brothers - P1M each with.
for P3M
Two half-blood brothers - P500,000 In 1970, Ramon and Dessa got married. Prior to
each for P1M their marriage, Ramon had a child, Anna. In 1971
Nephew - P1M and 1972, Ramon and Dessa legally adopted Cherry
for P1M and Michelle, respectively. In 1973, Dessa died
while giving birth to Larry. Anna had a child, Lia.
-------- Anna never married. Cherry, on the other hand,
legally adopted Shelly. Larry had twins, Hans and
Total P5M Gretel, with his girlfriend, Fiona. In 2005, Anna,
Larry, and Cherry died in a car accident. In 2007,
b) As stated above, the surviving wife gets P5M. Ramon died. Who may inherit from Ramon and who
The three nephews and the half-sister inherit the may not? Give your reasons briefly. (2007 Bar)
other P5M. The three nephews inherit, by right of
representation of their full-blood father, per SUGGESTED ANSWER:
stirpes. The half-sister gets half the share of the The following may inherit from Ramon:
deceased full-blood brother. Thus, the three 1. Michelle, as an adopted child Ramon, will
nephews inherit P3,333,333.33 to be divided inherit as a legitimate child of Ramon. As an
equally among themselves (P1,111,111,11 each). adopted child, Michelle has all the rights of a
The half-sister inherits P1,666,666.66. legitimate child (Section 18, Domestic Adoption
Law).
Ernesto, an overseas Filipino worker, was coming 2. Lia will inherit in representation of Anna.
home to the Philippines after working for so many Although Lia is an illegitimate child, she is not
years in the Middle East. He had saved P100,000 in barred by Article 992, because her mother Anna
his savings account in Manila which he intended to is herself illegitimate. She will represent Anna as
use to start a business in his home country. On his regards Anna’s legitime under Art. 902, Civil
flight home, Ernesto had a fatal heart attack. He left Code and as regards Anna’s intestate share
behind his widowed mother, his common-law wife under Article 990, NNC.
and their twin sons. He left no will, no debts, no
other relatives and no other properties except the The following may not inherit from Ramon:
money in his savings account. Who are the heirs
entitled to inherit from him and how much should 1. Shelly, being an adopted child, cannot
each receive? (2008 Bar) represent Cherry. This is because adoption
creates a personal legal relation only between
SUGGESTED ANSWER: the adopter and the adopted. The law on
If the 100,000 peso savings came from wages representation requires the representative to be
and salaries that Ernesto earned during the time a legal heir of the person he is representing and
that he was cohabiting with his common law also of the person from whom the person being
wife, and there was no impediment for them to represented was supposed to inherit. While
marry each other, the P100,000 shall be owned Shelly is a legal heir of Cherry, Shelly is not a
by them in equal shares under Article 147 of the legal heir of Ramon. Adoption created a purely
Family Code. Therefore, one half thereof, or personal legal relation only between Cherry and
P50,000, shall belong to the common law wife as Shelly.
her share in the co-ownership, while the other
half of P50,000 shall be the share of Ernesto that 2. Hans and Gretel are barred from inheriting
will be inherited by his mother, and two from Ramon under Article 992 of the Civil Code.
illegitimate children. The mother will get P25,000 Being illegitimate children, they cannot inherit
while the two illegitimate children will get ab intestato from the legitimate relatives of their
P12,500 each. The common law wife is not a father or mother. Since Ramon is a legitimate
legal heir of Ernesto because they were not relative of Larry, the illegitimate twin children of
legally married.
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Larry are barred from inheriting ab intestato - an illegitimate child of a legitimate father - cannot.
from Ramon. Civil Law commentator Arturo Tolentino opined that
Article 992 created an absurdity and committed an
ALTERNATIVE ANSWER: injustice because while the illegitimate descendant
The problem expressly mentioned the dates of of an illegitimate child can represent, the illegitimate
the adoption of Cherry and Michelle as 1971 and descendant of a legitimate child cannot. Decide the
1972. During that time, adoption was governed case and explain. (2016 Bar)
by the Civil Code. Under the Civil Code, husband
and wife were allowed to adopt separately or not SUGGESTED ANSWER:
jointly with the other spouse. And since the Tomas Jr. may not inherit from Don Ricardo, as
problem does not specifically and categorically an illegitimate child cannot inherit from his
state, it is possible to construe the use of the legitimate relatives and vice-versa. Tomas Jr.’s
word “respectively” in the problem as indicative claim of unconstitutionality of Article 992 has no
of the situation that Cherry was adopted by merit, there being no violation of the equal
Ramon alone and Michelle was adopted by protection of laws clause. Notably, the principle
Dessa alone. In such a case of separate of equal protection of laws requires that laws be
adoption the alternative answer to the problem equally applicable among equals. Accordingly,
will be as follows: legislature is allowed to classify the objects of
legislation, In the instant case, there is a valid
Only Lia will inherit from Ramon in classification made between children of an
representation of Ramon’s illegitimate daughter illegitimate parent, and children of a legitimate
Anna. Although Lia is an illegitimate child, she is parent. Undeniably, public policy does not favor
not barred from inheriting from Ramon because illegitimacy. In this connection, prohibiting an
her mother Anna is herself illegitimate. illegitimate child from inheriting from his
Shelly cannot inherit in representation of Cherry legitimate relatives promotes this policy, as this
because Shelly is just an adopted child of would discourage people from having
Cherry. In representation, the representative illegitimate children, seeing that such children
must not only be a legal heir of the person he is have inferior rights than legitimate children, and
representing but also of the decedent from from given that the legitimate family looks down
whom the represented person is supposed to disgracefully on such illegitimate child. On the
inherit. In the case of Shelly, while she is a legal other hand, to prohibit an illegitimate
heir of Cherry by virtue of her adoption, she is descendant from inheriting, by right of
not a legal heir of Ramon. Adoption creates a representation, from the parent of his
personal legal relation only between the illegitimate parent neither adds or subtracts
adopting parent and the adopted child (Teotico from public policy. As the descendant is already
v. Del Val, 13 SCRA 406). illegitimate, allowing him to inherit will not
result in more people having illegitimate
Michelle cannot inherit from Ramon, because children. Rather, it treats illegitimate
she was adopted not by Ramon but by Dessa. In descendants, who had no say in their status,
the eyes of the law she is not related to Ramon humanely, giving them a modicum of
at all. Hence, she is not a legal heir of Ramon. successional rights so they may better
themselves. In fine, there is a valid distinction
Hans and Gretel are not entitled to inherit from between illegitimate children of an illegitimate
Ramon, because they are barred by Article 992 parent, and illegitimate children of a legitimate
Civil Code. Being illegitimate children of Larry, parent, which distinction sanctions the
they cannot inherit from the legitimate relatives prohibition of illegitimate children of a
of their father Larry. Ramon is a legitimate legitimate parent from inheriting from the
relative, of Larry the legitimate father. legitimate relatives of his parent.

Don Ricardo had 2 legitimate children - Tomas and A is the acknowledged natural child of B who died
Tristan. Tristan has 3 children. Meanwhile, Tomas when A was already 22 years old. When B’s full
had a relationship with Nancy, who was also single blood brother, C, died he (C) was survived by his
and had the legal capacity to marry. Nancy became widow and four children of his other brother, D.
pregnant and gave birth to Tomas, Jr. After the birth Claiming that he is entitled to inherit from his father’s
of Tomas, Jr., his father, Tomas, died. Later, Don brother, C, A brought suit to obtain his share in the
Ricardo died without a will and Tristan opposed the estate of C. Will his action prosper? (1993 Bar)
motion of Tomas, Jr. to be declared an heir of the
deceased since he is an illegitimate child. Tomas, SUGGESTED ANSWER:
Jr. countered that Article 992 of the Civil Code is No, the action of A will not prosper. On the
unconstitutional for violation of the equal protection premise that B, C and D are legitimate brothers,
of the laws. He explained that an illegitimate child of as an illegitimate child of B, A cannot inherit in
an illegitimate parent is allowed to inherit under intestacy from C who is a legitimate brother of B.
Articles 902, 982 and 990 of the Civil Code while he Being an illegitimate, he is barred by Article 992
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 149

of the Civil Code from inheriting ab intestato succession the same share as that of each of the
from the legitimate relatives of his father. Only children.
the wife of C in her own right and the legitimate 3) C has no share because his father is still alive
relatives of C (i.e. the children of D as C’s hence succession by representation shall not
legitimate nephews inheriting as collateral apply (Art. 975).
relatives) can inherit in intestacy. (Arts. 992, 4) D inherits P30,000 which is the share of his
1001, 1005 and 975, Civil Code) father E who predeceased T by virtue of Art. 981
on the right of representation.
‘T’ died intestate on 1 September 1997. He was 5) F has no share because his father G
survived by M (his mother), W (his widow), A and B repudiated the inheritance. Under Article 977
(his legitimate children), C (his grandson, being the heirs who repudiate their share may not be
legitimate son of B), D (his other grandson, being represented.
the son of E who was a legitimate son of, and who
predeceased, ‘T’), and F (his grandson, being the “X”, the decedent, was survived by W (his widow), A
son of G, a legitimate son who repudiated the (his son), B (a granddaughter, being the daughter of
inheritance from ‘T’). His distributable net estate is A) and C and D (the two acknowledged illegitimate
P120,000.00. children of the decedent). “X’ died this year (1997)
How should this amount be shared in intestacy leaving a net estate of P180,000.00. All were willing
among the surviving heirs? (1997 Bar) to succeed, except A who repudiated the inheritance
from his father, and they seek your legal advice on
SUGGESTED ANSWER: how much each can expect to receive as their
The legal heirs are A, B, D, and W. C is excluded respective shares in the distribution of the estate.
by B who is still alive. D inherits in Give your answer. (1997 Bar)
representation of E who predeceased. F is
excluded because of the repudiation of G, the SUGGESTED ANSWER:
predecessor. M is excluded by the legitimate INTESTATE SUCCESSION ESTATE: P180,000.00
children of T. W- (widow gets ½ share) P90,000.00 (Art. 998)
A- (son who repudiated his inheritance) None
In addition to their legitimes, A, B, D and W will (Art. 977)
be given equal shares in the free portions: B - (Granddaughter) None
A: P20,000.00 plus P10,000.00 (¼ of the free C - (Acknowledged illegitimate child) P45,000.00
portion) (Art.998)
B: P20,000.00 plus P10,000.00 (¼ of the free D - (Acknowledged illegitimate child) P45,000.00
portion) (Art. 998)
D: P20,000.00 plus P10,000.00 (¼ of the free
portion) Don died after executing a Last Will and Testament
W: P20,000.00 plus P 10,000.00(¼ of the free leaving his estate valued at P12 Million to his
portion) common-law wife Roshelle. He is survived by his
brother Ronie and his half-sister Michelle.
ALTERNATIVE ANSWER:
Shares in intestacy a) If Don failed to execute a will during his lifetime,
T - decedent Estate: P120,000.00 as his lawyer, how will you distribute his estate?
Survived by: Explain.
M - Mother None b) Assuming he died intestate survived by his
W - Widow P 30,000.00 brother Ronie, his half-sister Michelle, and his
A - Son P 30,000.00 legitimate son Jayson, how will you distribute his
B - Son P 30,000.00 estate? Explain.
C - Grandson (son of B) None c) Assuming further he died intestate, survived by
D - Grandson (son of E who predeceased T) P his father Juan, his brother Ronie, his half-sister
30,000.00 Michelle, and his legitimate son Jayson, how will you
F - Grandson (son of G who repudiated the distribute his estate? Explain.
inheritance from ‘T’) None
SUGGESTED ANSWER:
Explanation: a) If Don failed to execute a will, he died intestate
1) The mother (M) cannot inherit from T because and his estate was inherited by his intestate
under Art. 985 the ascendants shall inherit in heirs. His intestate heirs are Ronie and Michelle.
default of legitimate children and descendants of However, Ronie will receive double the share of
the deceased. Michelle because Michelle was a half-blood
2) The widow’s share is P30,000.00 because sister while Ronnie was a full-blood brother.
under Art. 996 it states that if the widow or Ronie will receive 8 million pesos, while Michelle
widower and legitimate children or descendants will receive 4 million pesos.
are left, the surviving spouse has in the

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b) Only Jayson will inherit from Don as his F (legitimate child of D) = P100,000 - by right of
compulsory heir in the direct descending line. representation
Jayson will exclude the collateral relatives Ronie G (illegitimate child) = P100,000 - ½ share of a
and Michelle. In intestate succession, the direct legitimate child
line excludes the collateral line. H (illegitimate child) = P100,000 - ½ share of a
legitimate child
c) Only Jayson will inherit from his father Don. In W (Widow) = P200,000 - same share as legitimate
intestate succession, the direct line excludes the child
collateral line. But among those in the direct
line, the descending excludes the ascending. ANOTHER ANSWER:
Hence, the father Juan and Jayson, who are in Under the theory of Exclusion the free portion
the direct line, exclude the brother Ronie and the (P300,000), is distributed only among the
sister Michelle who are both in the collateral line. legitimate children and is given to them in
However the son Jayson, who is in the addition to their legitime. All other intestate heirs
descending line, excludes the father Juan who is are entitled only to their respective legitimes.
in the ascending line. The distribution is as follows:

Cristina, the illegitimate daughter of Jose and Maria, Legitime

died intestate, without any descendant or Free
ascendant. Her valuable estate is being claimed by Portion
Ana, the legitimate daughter of Jose, and Eduardo, Total
the legitimate son of Maria. Is either, both, or neither
of them entitled to inherit? Explain. (1996 Bar) A (legitimate child) P150,000 P
75,000 P225,000
SUGGESTED ANSWER: B (legitimate child) P150,000
Neither Ana nor Eduardo is entitled to inherit ab P150,000 P225,000
intestato from Cristina. Both are legitimate C (legitimate child) P150,000 P
relatives of Cristina’s illegitimate parents and 75,000 P225,000
therefore they fall under the prohibition D (legitimate child) 0
prescribed by Art. 992, Civil Code (Manuel v. 0 0
Ferrer, 242 SCRA 477; Diaz v. Court of Appeals, E (legitimate child of D) P 75,000 P
182 SCRA 427). 35,500 P112,500
F (legitimate child of D) P 75,000 P
Mr. XT and Mrs. YT have been married for 20 years. 37,500 P112,500
Suppose the wife, YT, died childless, survived only G (illegitimate child) P 75,000 0
by her husband, XT. What would be the share of XT P 75,500
from her estate as inheritance? Why? Explain. (2004 H (illegitimate child) P 75,000 0
Bar) P 75,500
W (Widow) P150,000
SUGGESTED ANSWER: 0 P150,000
Under the Civil Code, the widow or widower is a
legal and compulsory heir of the deceased
spouse. If the widow is the only surviving heir, Capacity to Succeed
there being no legitimate ascendants,
descendants, brothers and sisters, nephews and A Filipino couple, Mr. And Mrs. BM, Jr., decided to
nieces, she gets the entire estate. adopt YV, an orphan from St. Claire’s orphanage in
New York City. They loved and treated her like a
Enrique died, leaving a net hereditary estate of P1.2 legitimate child for they have none of their very own.
million. He is survived by his widow, three legitimate However, BM, Jr., died in an accident at sea,
children, two legitimate grandchildren sired by a followed to the grave a year later by his sick father,
legitimate child who predeceased him, and two BM, Sr. Each left a sizable estate consisting of bank
recognized illegitimate children. Distribute the estate deposits, lands and buildings in Manila. May the
in intestacy. (1998 Bar) adopted child, YV, inherit from BM, Jr.? May she
also inherit from BM, Sr.? Is there a difference?
SUGGESTED ANSWER: Why? Explain. (2004 Bar)
Under the theory of Concurrence, the shares are
as follows: SUGGESTED ANSWER:
A (legitimate child) = P200,00.0 YV can inherit from BM, Jr. The succession to
B (legitimate child) = P200,000 the estate of BM, Jr. is governed by Philippine
C (legitimate child) = P200,000 law because he was a Filipino when he died
D (legitimate child) = 0 (predeceased) (Article 16, Civil Code). Under Article 1039 of the
E (legitimate child of D) = P100,000 - by right of Civil Code, the capacity of the heir to succeed is
representation governed by the national law of the decedent
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and not by the national law of the heir. Hence, We believe that the wife of the minister would
whether or not YV can inherit from BM, Jr. is not be disqualified from inheriting from the
determined by Philippine law. Under Philippine testator. Under No. 2 of Art. 1027 of the Civil
law, the adopted inherits from the adopter as a Code, the law extends the disqualification of
legitimate child of the adopter. priests and ministers of the gospel to their
YV, however, cannot inherit, in his own right, relatives within the fourth degree as well as to
from the father of the adopter, BM, Sr., because the church, order, chapter, community,
he is not a legal heir of BM, Sr. The legal fiction organization or institution to which they may
of adoption exists only between the adopted and belong. The spouse is not included.
the adopter. (Teotico v. Del Val 13 SCRA 406 Consequently, such spouse is not disqualified.
(19651). Neither may he inherit from BM, Sr. by Otherwise, we would be reading into the law
representing BM, Jr. because in representation, what is not found there. Besides, capacity to
the representative must be a legal heir not only succeed is the general rule, while incapacity to
of the person he is representing but also of the succeed is the exception. Hence, the rules on
decedent from whom the represented was incapacity must always be strictly construed.
supposed to inherit (Article 973, Civil Code).
ALTERNATIVE ANSWER:
Eugenio died without issue, leaving several parcels If the testamentary disposition was actually
of land in Bataan. He was survived by Antonio, his intended to favor the Minister as a disqualified
legitimate brother; Martina, the only daughter of his person and was ostensibly made thru an
predeceased sister Mercedes; and five legitimate intermediary, namely, the wife, then the Minister
children of Joaquin, another predeceased brother. is considered disqualified as the real and
Shortly after Eugenio’s death, Antonio also died, intended heir.
leaving three legitimate children. Subsequently,
Martina, the children of Joaquin and the children of Sol Soldivino, widow, passed away, leaving two (2)
Antonio executed an extrajudicial settlement of the legitimate children: a 25-year old son, Santino
estate of Eugenio, dividing it among themselves. (whom she had not spoken to for five [5] years prior
The succeeding year, a petition to annul the to her death since he attempted to kill her at that
extrajudicial settlement was filed by Antero, an time), and a 20-year-old daughter, Sara. She left an
illegitimate son of Antonio, who claims he is entitled estate worth PhP8 million and a will containing only
to share in the estate of Eugenio. The defendants one provision: that PhP1 million should be given to
filed a motion to dismiss on the ground that Antero is “the priest who officiated at my wedding to my
barred by Article 992 of the Civil Code from children’s late father.” Sara, together with two (2) of
inheriting from the legitimate brother of his father. her friends, acted as an attesting witness to the will.
How will you resolve the motion? (2000 Bar)
On the assumption that the will is admitted for
SUGGESTED ANSWER: probate and that there are no debts, divide the
The motion to dismiss should be granted. Article estate and indicate the heirs/legatees entitled to
992 does not apply. Antero is not claiming any inherit, the amount that each of them will inherit, and
inheritance from Eugenio. He is claiming his where (i.e., legitime/free portion/intestate share)
share in the inheritance of his father consisting their shares should be charged. (2018 Bar)
of his father’s share in the inheritance of
Eugenio (Dela Merced v. Dela Merced, 303 SCRA
SUGGESTED ANSWER:
683).
Under the Civil Code, legitimate children are
entitled to a legitime of ½ of the estate of their
ALTERNATIVE ANSWER:
deceased parent. As for incapacity to succeed,
It depends. If Antero was not acknowledged by
the Civil Code requires that a person who has
Antonio, the motion to dismiss should be
attempted against the life of the testator is
granted because Antero is not a legal heir of
unworthy of succeeding if he has been
Antonio. If Antero was acknowledged, the
convicted by final judgment for said attempt.
motion should be denied because Article 992 is
The law also provides that a witness to a will is
not applicable. This is because Antero is
disqualified from inheriting anything by the will
claiming his inheritance from his illegitimate
to which he is a witness to. Finally, the Civil
father, not from Eugenio.
Code provides that a testator who has
compulsory heirs may bequeath the free portion
Suppose that the beneficiary in a will is the wife of
to whomsoever he wants, provided he respects
the minister of the gospel who rendered aid to the
the legitimes of his compulsory heirs.
testator during the latter’s last illness, would she be
disqualified from inheriting from the testator?
Explain. (1988 Bar) Accordingly, Santino and Sara, as legitimate
children, are entitled to ½ of the estate of Sol.
SUGGESTED ANSWER: Notably, Santino is not disqualified from
inheriting from Sol, as he has not been

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convicted by final judgment for his attempt FALSE, The other three co-heirs may not
against her life. Likewise, while Sara is a witness anytime demand the partition of the house and
to Sol’s will, she is not disqualified from lot since it was expressly provided by the
inheriting her legitime, as she remains entitled decedent in his will that the same cannot be
thereto. More, since she received nothing by the partitioned while his youngest child desires to
will, the incapacity to succeed of witnesses to stay there. Article 1083 of the Civil Code allows a
wills is inapplicable to her. In fine, Santino and decedent to prohibit, by will, the partition of a
Sara each receive P2 Million each as legitime, property and his estate for a period not longer
equivalent to ½ the estate of Sol. than 20 years no matter what his reason maybe.
Hence, the three co-heir cannot demand its
The P1 million legacy to the priest who officiated partition at anytime but only after 20 years from
at Sol’s wedding, being well within the P4 Million the death of their father. Even if the deceased
free portion of Sol’s estate, is valid and is parent did not leave a will, if the house and lot
charged thereto. Note that, even if not identified constituted their family home, Article 159 of the
by name, since the priest’s identity can readily Family Code prohibits its partition for a period of
be ascertained, said institution is valid. ten (10) years, or for as long as there is a minor
beneficiary living in the family home.
As to the remaining free portion, the same will
be divided equally between Santino and Sara by X was the owner of a 10,000 square meter property.
virtue of intestate succession, as Santino and X married Y and out of their union, A, B and C were
Sara, as earlier discussed, are not disqualified to born. After the death of Y, X married Z and they
inherit from Sol. begot as children, D, E and F. After the death of X,
the children of the first and second marriages
H died leaving a last will and testament wherein it is executed an extrajudicial partition of the aforestated
stated that he was legally married to W by whom he property on May 1, 1970. D, E and F were given a
had two legitimate children A and B. H devised to his one thousand square meter portion of the property.
said forced heirs the entire estate except the free They were minors at the time of the execution of the
portion which he gave to X who was living with him document. D was 17 years old, E was 14 and F was
at the time of his death. 12; and they were made to believe by A, B and C
that unless they sign the document they will not get
In said will he explained that he had been estranged any share. Z was not present then. In January 1974,
from his wife W for more than 20 years and he has D, E and F filed an action in court to nullify the suit
been living with X as man and wife since his alleging they discovered the fraud only in 1973.
separation from his legitimate family. a) Can the minority of D, E and F be a basis to
nullify the partition? Explain your answer.
In the probate proceedings, X asked for the b) How about fraud? Explain your answer. (1990
issuance of letters testamentary in accordance with Bar)
the will wherein she is named sole executor. This
was opposed by W and her children. SUGGESTED ANSWER:
Is the said devise to X valid? (1990 Bar) a) Yes, a partition may be rescinded or annulled
for the same causes as contracts. Minority of
SUGGESTED ANSWER: one of the parties is a ground for annulment of a
The institution giving X the free portion is not contract hence, can be a basis to nullify the
valid, because the prohibitions under Art. 739 of partition. D, E and F were not properly
the Civil Code on donations also apply to represented by their parents or guardians at the
testamentary dispositions (Article 1028, Civil time they contracted the extrajudicial partition.
Code). Among donations which are considered (Articles 1097 in relation to 1390, 1327, Civil
void are those made between persons who were Code). The action must be brought within four
guilty of adultery or concubinage at the time of years, counted from the time guardianship over
the donation. D, E, and F ceases. At the time of the filing, the 4
years had not yet elapsed.

Succession, partition b) In the case of fraud, the same is likewise a

ground for annulment of contracts, hence may
TRUE OR FALSE. X, a widower, died leaving a will also be used in setting aside a partition. When
stating that the house and lot where he lived cannot through insidious words or machinations of one
be partitioned for as long as the youngest of his four party the other is induced to enter into the
children desires to stay there. As coheirs and co- contract without which he would not have
owners, the other three may demand partition agreed to, there is fraud. The action has not also
anytime. (2010 Bar) prescribed because under Art. 1391 of the Civil
Code, in case of fraud, the action for annulment
SUGGESTED ANSWER: may be brought within four years from the
discovery of the fraud. Four years have not
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elapsed from the execution of the partition, prescription his right to recover ownership and
much more discovery of the fraud. possession of the land.

The action in this case is for annulment of the

Prescription sale executed by the husband over a conjugal
partnership property covered by a Torrens Title.
Way back in 1948, Winda’s husband sold in favor of Actions on contracts are subject to prescription.
Verde Sports Center Corp. (Verde) a 10-hectare
property belonging to their conjugal partnership. The 1) Is title to registered land subject to prescription?
sale was made without Winda’s knowledge, much Explain your answer.
less consent. In 1950, Winda learned of the sale, 2) How about the right of the registered owner to
when she discovered the deed of sale among the recover possession, is it equally imprescriptible?
documents in her husband’s vault after his demise. Why? (1988 Bar)
Soon after, she noticed that the construction of the
sports complex had started. Upon completion of the SUGGESTED ANSWER:
construction in 1952, she tried but failed to get free 1) No because under Section 47, P.D. 1529, no
membership privileges in Verde. title to registered land in derogation of that of
Winda now files a suit against Verde for the the registered owner shall be acquired by
annulment of the sale on the ground that she did not prescription or adverse possession. A similar
consent to the sale. In answer, Verde contends that, provision is found in the Civil Code. The reason
in accordance with the Spanish Civil Code which is that once a piece of land is registered under
was then in force, the sale in 1948 of the property the Torrens System, it operates as a notice to
did not need her concurrence. Verde contends that the whole world. All persons are bound by it. No
in any case the action has prescribed or is barred by one can plead ignorance of the registration.
laches. Winda rejoins that her Torrens title covering (2) The right to recover the land from another
the property is indefeasible and imprescriptible. person holding it is equally imprescriptible, the
a) Define or explain the term laches. reason being that possession is a mere
b) Decide the case, stating your reasons for your consequence of ownership.
decision. (2002 Bar)
Joven and Juliana are the owners of a 30-hectare
SUGGESTED ANSWER: plantation in Cotabato, covered by a title. One day,
a) Laches means failure or neglect, for an a group of armed men forcibly entered their house
unreasonable and unexplained length of time, to and, at gun point, forced them to sign a Deed of
do what, by exercising due diligence, could or Absolute Sale in favor of Romeo. Romeo got the
should have been done earlier. it is negligence title from them and they were ejected from the
or omission to assert a right within a reasonable house and threatened not to come back or else
time. (De Vera v. CA, 305 SCRA 624) they will be killed. The spouses went to Manila and
b) While Article 1413 of the Spanish Civil Code resided there for more than 35 years. They never
did not require the consent of the wife for the went back to Cotabato for fear of their lives. Word
validity of the sale, an alienation by the husband came to them that peace and order have been
in fraud of the wife is void as held in Uy Coque v. restored in their former place of residence and they
Navas (45 Phil. 430). Assuming that the decided to reclaim their land for the benefit of their
alienation in 1948 was in fraud of Winda and, grandchildren. Joven and Juliana filed a suit for
therefore, makes the sale to Verde void, the reconveyance of their property. This was opposed
action to set aside the sale, nonetheless, is by the grandson of Romeo to whom the title was
already barred by prescription and laches. More eventually transferred, on the ground of laches and
than 52 years have already elapsed from her prescription. Decide the case and rule on the
discovery of the sale in 1950. defenses of laches and prescription. Explain your
answer. (2016 Bar)
ALTERNATIVE ANSWER:
b) Winda’s claim that her Torrens Title covering SUGGESTED ANSWER:
the property is indefeasible and imprescriptible Joven and Juliana’s action for reconveyance
is not tenable. The rule of indefeasibility of a should be dismissed. Under the law, contracts
Torrens Title means that after one year from the which do not have a cause at the time of the
date of Issue of the decree of registration or if transaction are inexistent and void from the
the land has fallen into the hands of an innocent beginning. Corollary thereto, the law also
purchaser for value, the title becomes provides that the action or defense for the
incontestible and incontrovertible. declaration of a contract does not prescribe. In
Imprescriptibility, on the other hand, means that the instant case, the Deed of Absolute Sale
no title to the land in derogation of that of the signed by Joven and Juliana is null and void ab
registered owner may be acquired by adverse initio, the same being unsupported by any
possession or acquisitive prescription or that consideration whatsoever. Being inexistent,
the registered owner does not lose by extinctive Joven and Juliana can file an action for
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reconveyance against Romeo at any time. passed away, a woman claiming to be an

Notably, Romeo’s possession can never ripen illegitimate daughter of Jose filed a complaint
into ownership, he having obtained the same by against Maria. Claiming rights as an heir, the
violence. All that he has is physical possession, woman prayed that Maria be ordered to reconvey
without any title whatsoever. the house and lot to Jose's estate. In her complaint
However, the property is no longer possessed she alleged that the notary public who notarized the
by Romeo, but by Romeo’s grandson, to whom Deed of Donation had an expired notarial
the property was transferred. As to Romeo’s commission when the Deed of Donation was
grandson, prescription is available. If Romeo’s executed by Jose. What can she put up as a
grandson, the transferee, obtained the property defense? (2015 Bar)
with just title, as by succession, and he was not
aware of the circumstances under which Romeo SUGGESTED ANSWER:
obtained the property, he would be in good Maria may put up the defense that she is already
faith. Accordingly, he would only need the owner of the property by acquisitive
possession of ten years in order to acquire the prescription. Under Article 1134 of the Civil
property by prescription (Art. 534. Civil Code). Code, ownership of immovable property is
However, if he was aware that the property had acquired by ordinary prescription through
been acquired by violence, he would be in bad possession of ten years. In this case, it appears
faith, and would require thirty years possession that Maria had no knowledge that the notary
in order to acquire the property. public who notarized the Deed of Donation had
an expired commission, hence she is deemed to
Unfortunately for Joven and Juliana, however, be in good faith. She has been in possession of
they are guilty of laches. Laches requires that the property for 12 years. Having been in
there be: possession of the property in good faith for
(a) conduct on the part of the defendant, or of more than the required period, she can validly
one under whom he claims, giving rise to the say that she is already owner of the property by
situation of which complaint is made and for acquisitive prescription.
which the complaint seeks a remedy;
(b) delay in asserting the complainant's rights, Laches
the complainant having had knowledge or
notice, of the defendant's conduct and having In an action brought to collect a sum of money
been afforded an opportunity to institute a suit; based on a surety agreement, the defense of laches
(c) lack of knowledge or notice on the part of was raised as the claim was filed more than seven
the defendant that the complainant would years from the maturity of the obligation. However,
assert the right on which he bases his suit; and the action was brought within the ten-year
(d) injury or prejudice to the defendant in the prescriptive period provided by law wherein actions
event relief is accorded to the complainant, or based on written contracts can be instituted.
the suit is not held to be barred. a) Will the defense prosper? Reason.
b) What are the essential elements of laches? (2000
All these elements are present herein. The Deed Bar)
of Absolute Sale in Romeo’s favor was void ab
initio, having been obtained by violence. SUGGESTED ANSWER:
Knowing that the deed of absolute sale was a) No, the defense will not prosper. The problem
void, Joven and Juliana could have filed a suit did not give facts from which laches may be
questioning the same at any time, yet they inferred. Mere delay in filing an action, standing
waited more than 35 years to do so. Romeo’s alone, does not constitute laches (Agra v. PNB,
grandson would also have had no knowledge 309 SCRA 509).
that Joven and Juliana would file a case for
reconveyance, as the two lived in Metro Manila, b) The four basic elements of laches are: (1)
not Cotabato. Finally, Romeo’s grandson would conduct on the part of the defendant or of one
be prejudiced if Joven and Juliana’s action under whom he claims, giving rise to the
would be allowed, as he would lose the property situation of which complainant seeks a remedy;
transferred to him. In fine, since Joven and (2) delay in asserting the complainant’s rights,
Juliana are guilty of laches, their petition must the complainant having had knowledge or notice
be dismissed. of the defendant’s conduct and having been
afforded an opportunity to institute suit; (3) lack
Jose, single, donated a house and lot to his only of knowledge on the part of the defendant that
niece, Maria, who was of legal age and who the complainant would assert the right on which
accepted the donation. The donation and Maria's he bases his suit; and (4) injury or prejudice to
acceptance thereof were evidenced by a Deed of the defendant in the event relief is accorded to
Donation. Maria then lived in the house and lot the complainant, or the suit is not held to be
donated to her, religiously paying real estate taxes barred.
thereon. Twelve years later, when Jose had already
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Since 1935, Janice possessed alone a parcel of land in 1985 by claiming to be the sole heir of his
land which she co-owned with Lenny. In 1970, with parents. Having reached retirement age in 1990
the knowledge of Lenny, Janice obtained a Torrens Rosario returned to the province and upon learning
title over the land in her own name alone. On August what had transpired, demanded that the remaining
1, 1988, Lenny brought an action against Janice for half of the land be given to her as her share. Ramon
reconveyance of her share. Janice set up the opposed, asserting that he has already acquired
defense of laches. Will the defense prosper? ownership of the land by prescription, and that
Reasons. (1988 Bar) Rosario is barred by laches from demanding
partition and reconveyance. Decide the conflicting
SUGGESTED ANSWER: claims. (2000 Bar)
It is submitted that the defense of laches will
prosper. As held by the Supreme Court in SUGGESTED ANSWER:
several notable decisions, in order that the Ramon is wrong on both counts: prescription
doctrine of laches or “stale demands” can be and laches. His possession as co-owner did not
applied, the following elements must concur: (1) give rise to acquisitive prescription. Possession
Conduct on the part of the defendant, or of one by a co-owner is deemed not adverse to the
under whom he claims, giving rise to the other co-owners but is, on the contrary, deemed
situation of -which complaint is made and for beneficial to them (Pangan v. CA, 166 SCRA
which the complaint seeks a remedy; (2) delay in 375). Ramon’s possession will become adverse
asserting the complainant’s rights, the only when he has repudiated the co-ownership
complainant having had knowledge or notice, of and such repudiation was made known to
the defendant’s conduct and having been Rosario. Assuming that the sale in 1985 where
afforded an opportunity to institute a suit (3) lack Ramon claimed he was the sole heir of his
of knowledge or notice on the part of the parents amounted to a repudiation of the co-
defendant that the complainant would assert the ownership, the prescriptive period began to run
right on which he bases the suit; and (4) injury only from that time. Not more than 30 years
or prejudice to the defendant in the event relief having lapsed since then, the claim of Rosario
is accorded to the complainant, or the suit is not has not as yet prescribed. The claim of laches is
held to be barred (Miguel v. Catalino, 26 SCRA not also meritorious. Until the repudiation of the
234). All of these elements are present in the co-ownership was made known to the other co-
instant case. As a matter of fact, the doctrine owners, no right has been violated for the said
was applied to a case wherein co-heir and co-owners to vindicate. Mere delay in vindicating
another were able, through fraud, to register a the right, standing alone, does not constitute
tract of land in their names. According to the laches.
Supreme Court, the action for reconveyance
brought by the other co-heirs more than twenty ALTERNATIVE ANSWER: Ramon has acquired
years later is now barred not only by extinctive the land by acquisitive prescription, and
prescription but also by laches. (Fabian v. because of laches on the part of Rosario.
Fabian, 22 SCRA 231). Ramon’s possession of the land was adverse
because he asserted sole ownership thereof and
What effect has the equitable principle of laches on never shared the harvest therefrom. His adverse
the imprescriptibility of Torrens Title? Explain. (1988 possession having been continuous and
Bar) uninterrupted for more than 30 years, Ramon
has acquired the land by prescription. Rosario is
SUGGESTED ANSWER: also guilty of laches not having asserted her
While a Torrens Title is imprescriptible, under right to the harvest for more than 40 years.
certain exceptional circumstances, it may yield
to the equitable principle of laches. In other In 1965, Renren bought from Robyn a parcel of
words, certain circumstances such as inaction registered land evidenced by a duly executed deed
or utter neglect on the part of the owner and the of sale. The owner presented the deed of sale and
intervention of rights by third parties may, for the owner’s certificate of title to the Register of
reasons of equity, convert the claim of Deeds. The entry was made in the day book and
imprescriptibility into a stale demand. (Mejia v. corresponding fees were paid as evidenced by
Gamponia, 100 Phil. 277; Miguel v. Catalino, 26 official receipt. However, no transfer of certificate of
SCRA 234; Heirs of Batiog Lacamen v. Heirs of title was issued to Renren because the original
Laruan, 65 SCRA 605). certificate of title in Robyn’s name was temporarily
misplaced after fire partly gutted the Office of the
In 1955, Ramon and his sister Rosario inherited a Register of Deeds. Meanwhile, the land had been
parcel of land in Albay from their parents. Since possessed by Robyn’s distant cousin, Mikaelo,
Rosario was gainfully employed in Manila, she left openly, adversely and continuously in the concept of
Ramon alone to possess and cultivate the land. owner since 1960. It was only in April 1998 that
However, Ramon never shared the harvest with Renren sued Mikaelo to recover possession.
Rosario and was even able to sell one-half of the Mikaelo invoked a) acquisitive prescription and b)
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laches, asking that he be declared owner of the Tarlac parcel covered by the deed of sale executed
land. Decide the case by evaluating these defenses. by A and X.
(1998 Bar) After twelve (12) years, a controversy arose
between B and X on the issue of the ownership of
SUGGESTED ANSWER: the Pangasinan parcel.
a) Renren’s action to recover possession of the B claims a vested right of ownership over the
land will prosper. In 1965, after buying the land Pangasinan parcel because B never sold that parcel
from Robyn, he submitted the Deed of Sale to to X or to anyone else.
the Registry of Deeds for registration together On the other hand, X claims a vested right of
with the owner’s duplicate copy of the title, and ownership over the Pangasinan parcel by acquisitive
paid the corresponding registration fees. Under prescription, because X possessed this parcel for
Section 56 of P.D. No. 1529, the Deed of Sale to over ten (10) years under claim of ownership.
Renren is considered registered from the time Decide on these claims, giving your reasons. (1992
the sale was entered in the Day Book (now Bar)
called the Primary Entry Book).
For all legal intents and purposes, Renren is SUGGESTED ANSWER:
considered the registered owner of the land. X cannot claim the right of vested ownership
After all, it was not his fault that the Registry of over the Pangasinan parcel by acquisitive
Deeds could not issue the corresponding prescription. In addition to the requisites
transfer certificate of title. common to ordinary and extraordinary
Mikaelo’s defense of prescription cannot be acquisitive prescription consisting of
sustained. A Torrens title is imprescriptible. No uninterrupted, peaceful, public, adverse and
title to registered land in derogation of the title actual possession in the concept of owner,
of the registered owner shall be acquired by ordinary acquisitive prescription for ten (10)
prescription or adverse possession. (Section 47, years requires (1) possession in good faith and
P.D. No. 1529) (2) just title. The Civil Code further provides that
The right to recover possession of registered title for purposes of prescription must be true
land likewise does not prescribe because and valid (Art. 1130). In this case, there is no true
possession is just a necessary incident of and valid title that can be invoked by X for the
ownership. acquisition of the Pangasinan parcel, as his
b) Mikaelo’s defense of laches, however, seller was never the owner of the parcel that he
appears to be more sustainable. Renren bought occupied. Notably, what A sold to X was the
the land and had the sale registered way back in Tarlac parcel, not the Pangasinan parcel over
1965. From the facts. It appears that it was only which A had no right whatsoever. X could not
in 1998 or after an inexplicable delay of 33 years have acquired any right of ownership over the
that he took the first step asserting his right to Pangasinan parcel, for the reason that no such
the land. It was not even an action to recover right was ever transferred to him. B retains
ownership but only possession of the land. By ownership of the Pangasinan parcel of land
ordinary standards, 33 years of neglect or (Wolfson v. Reyes, 8 Phil 366).
inaction is too long and maybe considered
unreasonable. As often held by the Supreme Anthony bought a piece of untitled agricultural land
Court, the principle of imprescriptibility from Bert. Bert, in turn, acquired the property by
sometimes has to yield to the equitable principle forging Carlo’s signature in a deed of sale over the
of laches which can convert even a registered property. Carlo had been in possession of the
land owner’s claim into a stale demand. property for 8 years, declared it for tax purposes,
Mikaelo’s claim of laches, however, is weak and religiously paid all taxes due on the property.
insofar as the element of equity is concerned, Anthony is not aware of the defect in Bert’s title, but
there being no showing in the facts how he has been in actual physical possession of the
entered into the ownership and possession of property from the time he bought it from Bert, who
the land. had never been in possession. Anthony has since
then been in possession of the property for one
year.
Prescription of ownership and other real rights Can Anthony acquire ownership of the property by
acquisitive prescription? How many more years
A owned a parcel of unregistered land located on does he have to possess it to acquire ownership?
the Tarlac side of the boundary between Tarlac and (2008 Bar)
Pangasinan. His brother B owned the adjoining
parcel of unregistered land on the Pangasinan side. SUGGESTED ANSWER:
A sold the Tarlac parcel to X in a deed of sale Yes, Anthony can acquire ownership of the
executed as a public instrument by A and X. After X property by ordinary acquisitive prescription
paid in full the price of the sale, X took possession of which requires just title and good faith (Art.
the Pangasinan parcel in the belief that it was the 1117, Civil Code). There was just title because a
deed of sale was issued in his favor even though
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it was forged, which fact he was not aware of. He also guilty of laches not having asserted her
needs to possess the land in good faith and in right to the harvest for more than 40 years.
the concept of owner for a total of ten years in
order to acquire ownership. Since Anthony On March 27, 1980, Cornelio filed an application for
possessed the land for only one year, he has not land registration involving a parcel of agricultural
completed the ten-year period. Even if Anthony land that he had bought from Isaac identified as Lot
tacks the 8-year period of possession by Carlo No. 2716 with an area of one (1) hectare. During
who in the deed of sale is supposed to be his the trial, Cornelio claimed that he and his
grantor or predecessor in interest (Article predecessors-in-interest had been in open,
1138[1], Civil Code), the period is still short of continuous, uninterrupted, public and adverse
ten years. possession and occupation of the land for more
than thirty (30) years. He likewise introduced in
In 1955, Ramon and his sister Rosario inherited a evidence a certification dated February 12, 1981
parcel of land in Albay from their parents. Since citing a presidential declaration to the effect that on
Rosario was gainfully employed in Manila, she left June 14, 1980, agricultural lands of the public
Ramon alone to possess and cultivate the land. domain, including the subject matter of the
However, Ramon never shared the harvest with application, were declared alienable and disposable
Rosario and was even able to sell one-half of the agricultural land.
land in 1985 by claiming to be the sole heir of his 1.
parents. Having reached retirement age in 1990 Can Cornelio acquire said agricultural land through
Rosario returned to the province and upon learning acquisitive prescription, whether ordinary or
what had transpired, demanded that the remaining extraordinary? (2014 Bar)
half of the land be given to her as her share. Ramon
opposed, asserting that he has already acquired
ownership of the land by prescription, and that SUGGESTED ANSWER:
Rosario is barred by laches from demanding Cornelio cannot acquire the land through
partition and reconveyance. Decide the conflicting acquisitive prescription. For land of the public
claims. (2000 Bar) domain to be acquired through acquisitive
prescription, it is not enough that it be declared
SUGGESTED ANSWER: as alienable and disposable. Under the Civil
Ramon is wrong on both counts: prescription Code, only patrimonial properties of the State
and laches. His possession as co-owner did not may be acquired by acquisitive prescription.
give rise to acquisitive prescription. Possession Even if land of the public domain has been
by a co-owner is deemed not adverse to the declared as alienable and disposable, the same
other co-owners but is, on the contrary, deemed is not converted into patrimonial property. It is
beneficial to them (Pangan v. CA, 166 SCRA only when the State declares that the land is 1)
375). Ramon’s possession will become adverse withdrawn from public service or the
only when he has repudiated the co-ownership development of the national wealth or 2) is
and such repudiation was made known to declared as patrimonial, that it may be acquired
Rosario. Assuming that the sale in 1985 where by acquisitive prescription; and the period of
Ramon claimed he was the sole heir of his prescription begins running only from the time
parents amounted to a repudiation of the co- of such declaration. Accordingly, in the absence
ownership, the prescriptive period began to run of proof that the land subject of Cornelio’s
only from that time. Not more than 30 years application has been declared as patrimonial by
having lapsed since then, the claim of Rosario the State, he may not acquire the same by
has not as yet prescribed. The claim of laches is acquisitive prescription (Republic v. Cortez,
not also meritorious. Until the repudiation of the G.R. No. 186639, 05 February 2014).
co-ownership was made known to the other co-
owners, no right has been violated for the said For many years, the Rio Grande river deposited soil
co-owners to vindicate. Mere delay in vindicating along its bank, beside the titled land of Jose. In time,
the right, standing alone, does not constitute such deposit reached an area of one thousand
laches. square meters. With the permission of Jose, Vicente
cultivated the said area. Ten years later, a big flood
ALTERNATIVE ANSWER: Ramon has acquired occurred in the river and transferred the 1000
the land by acquisitive prescription, and square meters to the opposite bank, beside the land
because of laches on the part of Rosario. of Agustin. The land transferred is now contested by
Ramon’s possession of the land was adverse Jose and Agustin as riparian owners and by Vicente
because he asserted sole ownership thereof and who claims ownership by prescription. Who should
never shared the harvest therefrom. His adverse prevail? Why? (2002 Bar)
possession having been continuous and
uninterrupted for more than 30 years, Ramon SUGGESTED ANSWER
has acquired the land by prescription. Rosario is Jose should prevail. The disputed area, which is
an alluvion, belongs by right of accretion to
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Jose, the reparian owner (Art. 457, Civil Code). prescribed since ten years have already elapsed
When, as given in the problem, the very same from the registration of the title in his name. Decide.
area was “transferred” by flood waters to the Discuss fully. (1995 Bar)
opposite bank, it became an avulsion and
ownership thereof is retained by Jose who has SUGGESTED ANSWER:
two years to remove it (Art. 459, Civil Code). This is a case of an implied resulting trust. If
Vicente’s claim based on prescription is Walter claims to have acquired ownership of the
baseless since his possession was by mere land by prescription or if he anchors his defense
tolerance of Jose and, therefore, did not on extinctive prescription, the ten year period
adversely affect Jose’s possession and must be reckoned from 1987 when he demanded
ownership (Art. 537, Civil Code). Inasmuch as that Maureen remove the extension house on
his possession is merely that of a holder, he Lot No. 2 because such demand amounts to an
cannot acquire the disputed area by express repudiation of the trust and it was made’
prescription. known to Maureen. The action for reconveyance
filed in 1992 is not yet barred by prescription.
(Spouses Huang v. Court of Appeals, Sept. 13,
Express trust does not prescribe 1994).

On 01 January 1980, Redentor and Remedios Mr. A, a businessman, put several real estate
entered into an agreement by virtue of which the properties under the name of his eldest son X
former was to register a parcel of land in the name because at that time, X was the only one of legal
of Remedios under the explicit covenant to reconvey age among his four children. He told his son he was
the land to Remigio, son of Redentor, upon the son’s to hold those assets for his siblings until they
graduation from college. In 1981, the land was become adults themselves. X then got married.
registered in the name of Remedios. After 5 years, Mr. A asked X to transfer the titles
Redentor died a year later or in 1982. In March over three properties to his three siblings, leaving
1983, Remigio graduated from college. In February two properties for himself. To A's surprise, X said
1992, Remigio accidentally found a copy of the that he can no longer be made to transfer the
document so constituting Remedios as the trustee of properties to his siblings because more than 5
the land. In May 1994, Remigio filed a case against years have passed since the titles were registered
Remedios for the reconveyance of the land to him. in his name. Do you agree? Explain. (2015 Bar)
Remedios, in her answer, averred that the action
already prescribed. How should the matter be SUGGESTED ANSWER:
decided? (1997 Bar) I do not agree with X’s contention. Article 1449
of the Civil Code provides that an implied trust
SUGGESTED ANSWER: is create when a donation is made to a person
The matter should be decided in favor of but it appears that although the legal estate is
Remigio (trustee) because the action has not transmitted to the donee, he nevertheless is
prescribed. The case at bar involves an express either to have no beneficial interest or only a
trust which does not prescribe as long as they part thereof. In the instant case, the intention of
have not been repudiated by the trustee (Diaz v. A from the very beginning is that X would have a
Gorricho, 103 Phil. 261). beneficial interest only in a part of the
properties conveyed to him, the other properties
being intended for his siblings who were still
Prescription, implied trust minors. Clearly, an implied trust was created in
favor of X’s siblings. It is well-settled that an
In 1980, Maureen purchased two lots in a plush action for reconveyance based on implied trust
subdivision registering Lot 1 in her name and Lot 2 prescribes in ten years. As the ten-year period
in the name of her brother Walter with the latter’s has not yet elapsed, X can still be made to
consent. The idea was to circumvent a subdivision reconvey the property to his siblings.
policy against the acquisition of more than one lot by
one buyer. Maureen constructed a house on Lot 1 Prescription of actions
with an extension on Lot 2 to serve as a guest
house. In 1987, Walter who had suffered serious In 1960, an unregistered parcel of land was
business losses demanded that aureen remove the mortgaged by owner O to M, a family friend, as
extension house since the lot on which the collateral for a loan. O acted through his attorney-in-
extension was built was his property. In 1992, fact, son S, who was duly authorized by way of a
Maureen sued for the reconveyance to her of Lot 2 special power of attorney, wherein O declared that
asserting that a resulting trust was created when he was the absolute owner of the land, that the tax
she had the lot registered in Walter’s name even if declarations/receipts were all issued in his name,
she paid the purchase price. Walter opposed the and that he has been in open, continuous and
suit arguing that assuming the existence of a adverse possession in the concept of owner.
resulting trust the action of Maureen has already
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As O was unable to pay back the loan plus interest

for the past five (5) years, M had to foreclose the b) If M had secured a Torrens Title to the land, all
mortgage. At the foreclosure sale, M was the highest the more S and P could not recover because if at
bidder. Upon issuance of the sheriff’s final deed of all their remedies would be:
sale and registration in January, 1966, the mortgage 1. A Petition to Review the Decree of
property was turned over to M’s possession and Registration. This can be availed of within one
control. M has since then developed the said (1) year from the entry thereof, but only upon the
property. In 1967, O died, survived by sons S and P. basis of “actual fraud.” There is no showing that
M committed actual fraud in securing his title to
In 1977, after the tenth (10th) death anniversary of the land; or
his father O, son P filed a suit to annul the mortgage 2. An action in personam against M for the
deed and subsequent sale of the property, etc., on reconveyance of the title in their favor. Again,
the ground of fraud. He asserted that the property in this remedy is available within four years from
question was conjugal in nature actually belonging, the date of the discovery of the fraud but not
at the time of the mortgage, to O and his wife, W, later than ten (10) years from the date of
whose conjugal share went to their sons (S and P) registration of the title in the name of M.
and to O.
a) Is the suit filed by P barred by prescription? Does an action to foreclose a real estate mortgage
Explain your answer. affecting registered land under the Torrens System
b) After the issuance of the sheriff’s final deed of prescribe? Give your reasons. (1989 Bar)
sale in 1966 in this case, assuming that M applied
for registration under the Torrens System and was SUGGESTED ANSWER:
issued a Torrens Title to the said property in Even if the property given as collateral is
question, would that added fact have any significant covered by a Torrens Title, the right to foreclose
effect on your conclusion? State your reason. (1990 a real estate mortgage thereon prescribes. This
Bar) is really an action to enforce collection of the
loan.
SUGGESTED ANSWER:
a) The action to annul the same instituted in Does the right to request for the issuance of a writ of
1977, or eleven years after the execution of the possession over a foreclosed real property prescribe
sheriffs final sale, has obviously prescribed in five (5) years? (2012 Bar)
because:
1. An action to annul a contract on the ground of SUGGESTED ANSWER:
fraud must be brought within four (4) years from Yes, it prescribes in five (5) years. If the real
the date of discovery of the fraud. Since this is property mortgaged is judicially foreclosed, the
in essence an action to recover ownership, it action for judicial foreclosure should be filed
must be reckoned from the date of execution of within a period of ten (10) years. The request for
the contract or from the registration of the issuance of a writ of possession should be filed
alleged fraudulent document with the assessor’s upon motion of the winning bidder within five (5)
office for the purpose of transferring the tax years after the judgment of foreclosure. The writ
declaration, this being unregistered land, (Bael of possession is an order commanding the
v. Intermediate Appellate Court, 169 SCRA 617). sheriff to place a person named therein in
2. If the action is to be treated as an action to possession of real property (BPI v. Icot, 603
recover ownership of land, it would have SCRA 322).
prescribed just the same because more than 10
years have already elapsed since the date of the
execution of the sale. BOOK IV - OBLIGATIONS AND CONTRACTS

ALTERNATIVE ANSWER: Nature and effect of obligations

a) The action to recover has been barred by
acquisitive prescription in favor of M Tony bought a Ford Expedition from a car dealer in
considering that M has possessed the land Muntinlupa City. As payment, Tony issued a check
under a claim of ownership for ten (10) years drawn against his current account with Premium
with a just title. Bank. Since he has a good reputation, the car
(NOTE: For our purposes, we no longer consider dealer allowed him to immediately drive home the
the fact that the conjugal partnership would have vehicle merely on his assurance that his check is
been governed by the Civil Code at that time, under sufficiently funded. When the car dealer deposited
which disposition of property by one spouse without the check, it was dishonored on the ground of
the consent of the other was voidable, since today, “Account Closed”. After an investigation, it was
the rule is that disposition of property by one spouse found that an employee of the bank misplaced
without the consent of the other is void, although Tony’s account ledger. Thus, the bank erroneously
considered to be a continuing offer which may be assumed that his account no longer exists. Later, it
accepted by the non-consenting spouse) turned out that Tony’s account has more than
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sufficient funds to cover the check. The dealer avoided the alleged injury by requesting the
however, immediately filed an action for recovery of airline staff to do the luggage transfer as a
possession of the vehicle against Tony for which he matter of duty on their part. There is also no
was terribly humiliated and embarrassed. Does Tony basis to award moral damages for such breach
have a cause of action against Premium Bank? of contract because the facts of the problem do
Explain. (2006 Bar) not show bad faith or fraud on the part of the
airline. (Cathay Pacific v. Vazquez, 399 SCRA
SUGGESTED ANSWER: 207). However, they may recover moral damages
Yes, Tony has a cause of action against if the cause of action is based on Article 21 of
Premium Bank. According to Art. 1170, those the Civil Code for the humiliation and
who in the performance of their obligations are embarrassment they felt when the stewardess
guilty of fraud, negligence or delay and those threatened to offload them if they did not avail of
who in any manner contravene the tenor thereof, the upgrade.
are liable for damages. Premium Bank owes a
duty to Tony, its depositor and current account AB Corp. entered into a contract with XY Corp.
holder, to manage the latter’s account ledger whereby the former agreed to construct the research
with the diligence of very cautious persons, as and laboratory facilities of the latter. Under the terms
the fiduciary nature of banking requires a high of the contract, AB Corp. agreed to complete the
standard of integrity and performance from facility in 18 months, at the total contract price of
banks with regard to the accounts of its P10 million. XY Corp. paid 50% of the total contract
depositors. The proximate cause of Tony’s injury price, the balance to be paid upon completion of the
was the bank’s negligence in misplacing his work. The work started immediately, but AB Corp.
account ledger. Being guilty of negligence, in later experienced work slippage because of labor
accordance with Art. 1170, it is liable for unrest in his company. AB Corp.’s employees
damages to Tony. claimed that they are not being paid on time; hence,
the work slowdown. As of the 17th month, work was
DT and MT were prominent members of the only 45% completed. AB Corp. asked for extension
frequent travelers’ club of FX Airlines. In Hong Kong, of time, claiming that its labor problems is a case of
the couple were assigned seats in Business Class fortuitous event, but this was denied by XY Corp.
for which they had bought tickets. On checking in, When it became certain that the construction could
however, they were told they were upgraded by not be finished on time, XY Corp. sent written notice
computer to First Class for the flight to Manila canceling the contract, and requiring AB Corp. to
because the Business Section was overbooked. immediately vacate the premises.
a) Can the labor unrest be considered a fortuitous
Both refused to transfer despite better seats, food, event?
beverage and other services in First Class. They b) Can XY Corp. unilaterally and immediately cancel
said they had guests in Business Class they should the contract?
attend to. They felt humiliated, embarrassed and c) Must AB Corp. return the 50% downpayment?
vexed, however, when the stewardess allegedly (2008 Bar)
threatened to offload them if they did not avail of the
upgrade. Thus they gave in, but during the transfer SUGGESTED ANSWER:
of luggage DT suffered pain in his arm and wrist. a) Labor unrest is not a fortuitous event that will
After arrival in Manila, they demanded an apology excuse AB Corp. from complying with its
from FX’s management as well as indemnity obligation of constructing the research and
payment. When none was forthcoming, they sued laboratory facilities of XY Corp. The labor unrest,
the airline for a million pesos in damages. Is the which may even be attributed in large part to AB
airline liable for actual and moral damages? Why or Corp. itself, is not the direct cause of non-
why not? Explain briefly. (2004 Bar) compliance by AB Corp. It is independent of its
obligation. It is similar to the failure of a DBP
SUGGESTED ANSWER: borrower to pay her loan just because her
FX Airlines committed breach of contract when it plantation suffered losses due to the cadang-
upgraded DT and MT, over their objections, to cadang disease. It does not excuse compliance
First Class because they had contracted for with the obligation (DBP v. Vda. de Moll, 43
Business Class passage. However, although SCRA 82).
there is a breach of contract, DT and MT are
entitled to actual damages only for such ADDITIONAL ANSWER:
pecuniary losses suffered by them as a result of a) The labor unrest in this case is not a
such breach. There seems to be no showing that fortuitous event. The requisites of fortuitous
they incurred such pecuniary loss. There is no event are: (1) the event must be independent of
showing that the pain in DT’s arm and wrist human will or at least of the debtor’s will; (2) the
resulted directly from the carrier’s acts event could not be foreseen, or if foreseen, is
complained of. Hence, they are not entitled to inevitable; (3) the event must have rendered
actual damages. Moreover, DT could have impossible debtor’s compliance of the obligation
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in a proper manner; and (4) the debtor must not debtor to fulfill the obligation in a normal
be guilty of concurrent negligence (Lasam v. manner; and (b) that the debtor must be free of
Smith, 45 Phil. 657). All the requisites are absent participation in, or aggravation of, the injury to
in this case. AB Corp. could have anticipated the the creditor.
labor unrest which was caused by delays in All of the above requisites or conditions are
paying the laborer’s wages. The company could present in this case. It is undeniable that in order
have hired additional laborers to make up for the to completely exonerate the debtor by reason of
work slowdown. a fortuitous event, such debtor must, in addition
into the causes itself, be free of any concurrent
b) No. XY Corp cannot unilaterally and or contributory fault or negligence. We believe,
immediately cancel the contract because there is however, that her act in travelling alone in the
need for a judicial action of rescission. The evening, carrying jewelry of considerable value,
provisions of Art. 1191 of the Civil Code cannot be considered as either concurrent or
providing for rescission in reciprocal obligations contributory negligence. While it may be so
can only be invoked judicially (Escueta v. Pando, considered now, we are not persuaded that the
76 Phil. 256; Republic v. Hospital de San Juan de same rule should obtain ten years previously
Dios, 84 Phil. 820). when the robbery in question took place, for at
that time criminality had not by far reached the
ALTERNATIVE ANSWER: levels attained in the present day.
b) Yes, XY Corp. may unilaterally cancel the There is likewise no merit in the contention that
obligation but this is subject to the risk that the to allow the fact of robbery to be recognized in
cancellation of the reciprocal obligation being this case before conviction is secured in the
challenged in court and if AB Corp. succeeds, criminal action, would prejudice the latter case,
then XY Corp. will be declared in default and be or would result in inconsistency should the
liable for damages (U.P. v. de los Angeles, 35 accused obtain an acquittal or should the
SCRA 102). criminal case be dismissed. It must be realized
that a court finding that a robbery has happened
c) No, under the principle of quantum meruit, AC would not necessarily mean that those accused
Corp. has the right to retain payment in the criminal action would be found guilty of
corresponding to his percentage of the crime; nor would a ruling that those actually
accomplishment less the amount of damages accused did not commit the robbery be
suffered by XY Corp. because of the delay or inconsistent with a finding that a robbery did
default. take place. The evidence to establish these facts
would not necessarily be the same.
Mario received from Edgar a pendant with diamonds (2) There is no need of prior conviction in either
valued at P5,000.00 to be sold on commission basis case.
or to be returned on demand. In the evening of
August 31, 1987, while he was walking home, two ALTERNATIVE ANSWERS:
men snatched his clutch bag containing the pendant (1) We would like to call attention to the fact that
and ran away. Subsequently, the snatchers were the question says “contends.” So perhaps we
apprehended and charged. During the pendency of should make a distinction if negligence is
the criminal case, Edgar brought an action against proven and if negligence is not proven. If the
Mario for the recovery of the pendant or its value negligence of the defendant is not proven as
and damages. Mario interposed the defense of Edgar contends, then the defense of fortuitous
fortuitous event but Edgar contends— event is tenable. However, if negligence is
(1) That the defense of fortuitous event is untenable proven to be present then the defense of
because there was negligence on the part of the fortuitous event is not tenable here and the
defendant; and defendant will be liable.
(2) That if the defense is untenable, there must be a
prior conviction of robbery before it can be availed A van owned by Orlando and driven by Diego, while
of. Decide the case. (1988 Bar) negotiating a downhill slope of a city road, suddenly
gained speed, obviously beyond the authorized limit
SUGGESTED ANSWER: in the area, and bumped a car in front of it, causing
(1) The factual setting of the above problem is severe damage to the car and serious injuries to its
identical to that of Austria v. CA (39 SCRA 527). passengers. Orlando was not in the car at the time
In that case the Supreme Court held that of the incident. The car owner and the injured
defendant is not liable. passengers sued Orlando and Diego for damages
To constitute a caso fortuito that would exempt a caused by Diego’s negligence. In their defense,
person from responsibility, it is necessary (1) Diego claims that the downhill slope caused the van
that the event must be independent of the will of to gain speed and that, as he stepped on the brakes
the debtor; (2) that it must be either to check the acceleration, the brakes locked,
unforeseeable or unavoidable; (3) that the causing the van to go even faster and eventually to
occurrence must render it impossible for the hit the car in front of it. Orlando and Diego contend
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that the sudden malfunction of the van’s brake showing that X was guilty of participatory
system is a fortuitous event and that, therefore, they negligence in the custody or safekeeping of the
are exempt from any liability. Is this contention dresses. Plainly, the robbery is a fortuitous
tenable? Explain. (2002 Bar) event that excuses X from liability.

SUGGESTED ANSWER: Incidentally, while Article 1165 states that the

No, the malfunction of the van’s brake system debtor shall be liable for fortuitous event should
does not constitute fortuitous event. The he be in delay, the same is inapplicable here.
requisites of fortuitous event are: (1) the event Admittedly, the dresses were not delivered on
must be independent of human will or at least of the date they were supposed to be delivered.
the debtor’s will; (2) the event could not be However, there is delay only when the creditor
foreseen, or if foreseen, is inevitable; (3) the demands the fulfillment of the obligation and the
event must have rendered impossible debtor’s debtor fails to perform his obligation after such
compliance of the obligation in a proper manner; demand. In the instant case, Karla had not yet
and (4) the debtor must not be guilty of demanded the delivery of the dresses, hence it
concurrent negligence (Lasam v. Smith, 45 Phil. cannot be said that X was in delay when the
657). In this case, the malfunction is foreseeable robbery occurred.
as the defect in the van’s brake system could
have been readily detected had Orlando and Samantha sold all her business interest in a sole
Diego conducted a diligent maintenance check. proprietorship to Sergio for the amount of PhP1
More, by failing to do so, Orlando and Diego are million. Under the sale agreement, Samantha was
guilty of concurrent negligence. Accordingly, the supposed to pay for all prior unpaid utility bills
malfunction is not a fortuitous event, the incurred by the sole proprietorship. A month after the
requisites therefor being absent. Contract to Sell was executed, Samantha still had
not paid the PhP50,000 electricity bills incurred prior
X, a dressmaker, accepted clothing materials from to the sale. Since Sergio could not operate the
Karla to make two dresses for her. On the day X business without electricity and the utility company
was supposed to deliver Karla's dresses, X called refused to restore electricity services unless the
up Karla to say that she had an urgent matter to unpaid bills were settled in full, Sergio had to pay
attend to and will deliver them the next day. That the unpaid electricity bills. When the date for
night, however, a robber broke into her shop and payment arrived, Sergio only tendered PhP950,000
took everything including Karla's two dresses. X representing the full purchase price, less the amount
claims she is not liable to deliver Karla's dresses or he paid for the unpaid utility bills. Samantha refused
to pay for the clothing materials considering she to accept the tender on the ground that she was the
herself was a victim of the robbery which was a one supposed to pay the bills and Sergio did not
fortuitous event and over which she had no control. have authorization to pay on her behalf.
Do you agree? Why? (2015 Bar) b) Is Samantha guilty of mora accipiendi? (2018
Bar)
SUGGESTED ANSWER:
Yes, I would agree with X. Article 1174 of the SUGGESTED ANSWER:
Civil Code provides that no person shall be Yes, Samantha is guilty of mora accipiendi.
responsible for those events which could not be
foreseen or which, though foreseen, were Under the Civil Code, when two persons are
inevitable. For an event to be considered a simultaneously debtors and creditors of each
fortuitous event, the following requisites must other, and both debts consist in sums of money;
be present: and are both due; said debts are extinguished to
1. The cause must be independent of the the concurrent amount of said debts.
human will;
2. It must be impossible to foresee the The Civil Code likewise provides that failure
event, or if it can be foreseen, it must be without just cause to accept payment of the
impossible to avoid; obligation will render the creditor guilty of mora
3. The occurrence renders it impossible for accipiendi.
the debtor to fulfill his obligation in the
normal manner; and In the instant case, while Sergio owed Samantha
4. The debtor must be free from any P1 Million, the former’s payment of Samantha’s
participation in the aggravation of the electricity bill resulted in the latter owing him
injury resulting to the creditor. P50,000. Both debts being in money, and being
due, the debt of Sergio to Samantha would be
In the instant case, all the foregoing elements reduced to only P950,000 by compensation.
are present. The robbery was independent of X’s Accordingly, it was proper for him to offer
will; it was impossible to foresee; the robbery of payment to Samantha of only P950,000; and the
the dresses made it impossible for X to fulfill her latter’s refusal to accept the same would be
obligation to deliver the same; and there is no
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without just cause. Consequently, Samantha’s price has been paid or not. If it has been paid,
refusal to accept the P950,000 makes her guilty the suit for damages should prosper but only to
of mora accipiendi. enable the buyer to recover the price paid. It
should be noted that Ben, the seller, must bear
Kristina brought her diamond ring to a jewelry shop the loss on the principle of res perit domino. He
for cleaning. The jewelry shop undertook to return cannot be held answerable for damages as the
the ring by February 1, 1999. When the said date loss of the car was not imputable to his fault or
arrived, the jewelry shop informed Kristina that the fraud. In any case, he can recover the value of
job was not yet finished. They asked her to return the car from the party whose negligence caused
five days after. On February 6, 1999, Kristina went the accident. If no price has been paid at all, the
to the shop to claim the ring, but she was informed trial court acted correctly in dismissing the
that the same was stolen by a thief who entered the complaint.
shop the night before. Kristina filed an action for
damages against the jewelry shop which put up the Distinguish an implied contract from a quasi-
defense of force majeure. Will the action prosper or contract. (1989 Bar)
not? (2000 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER: a) An implied contract requires consent of the
The action will prosper. Since the defendant was parties. A quasi-contract is not predicated on
already in default not having delivered the ring consent, being a unilateral act.
when delivery was demanded by plaintiff at due b) The basis of an implied contract is the will of
date, the defendant is liable for the loss of the the parties. The basis of a quasi-contract is law
thing and even when the loss was due to force to the end that there be no unjust situation.
majeure.
Printado is engaged in the printing business. Suplico
Dino sued Ben for damages because the latter had supplies printing paper to Printado pursuant to an
failed to deliver the antique Mercedes Benz car Dino order agreement under which Suplico binds himself
had purchased from Ben, which was - by agreement to deliver the same volume of paper every month for
- due for delivery on December 31, 1993. Ben, in his a period of 18 months, with Printado in turn agreeing
answer to Dino’s complaint, said Dino’s claim has no to pay within 60 days after each delivery. Suplico
basis for the suit, because as the car was being has been faithfully delivering under the order
driven to be delivered to Dino on January 1, 1994, a agreement for 10 months but thereafter stopped
reckless truck driver had rammed into the Mercedes doing so, because Printado has not made any
Benz. The trial court dismissed Dino’s complaint, payment at all. Printado has also a standing contract
saying Ben’s obligation had, indeed, been with publisher Publico for the printing of 10,000
extinguished by force majeure. Is the trial court volumes of school textbooks. Suplico was aware of
correct (1994 Bar) said printing contract. After printing 1,000 volumes,
Printado also fails to perform under its printing
SUGGESTED ANSWER: contract with Publico. Suplico sues Printado for the
The judgment of the trial court is incorrect. Loss value of the unpaid deliveries under their order
of the thing due by fortuitous events or force agreement. At the same time Publico sues Printado
majeure is a valid defense for a debtor only for damages for breach of contract with respect to
when the debtor has not incurred delay. their own printing agreement. In the suit filed by
Extinguishment of liability for fortuitous event Suplico, Printado counters that: (a) Suplico cannot
requires that the debtor has not yet incurred any demand payment for deliveries made under their
delay. In the present case, the debtor was in order agreement until Suplico has completed
delay when the car was destroyed on January 1, performance under said contract; (b) Suplico should
1993 since it was due for delivery on December pay damages for breach of contract; and (c) Suplico
31, 1993. (Art. 1262 Civil Code) should be liable for Printado’s breach of his contract
with Publico because the order agreement between
ALTERNATIVE ANSWER: Suplico and Printado was for the benefit of Publico.
It depends whether or not Ben, the seller, was Are the contentions of Printado tenable? Explain
already in default at the time of the accident your answer as to each contention. (2002 Bar)
because a demand for him to deliver on due date
was not complied with by him. That fact not SUGGESTED ANSWER:
having been given in the problem, the trial court No, the contentions of Printado are untenable.
erred in dismissing Dino’s complaint. Reason: Printado having failed to pay for the printing
There is default making him responsible for paper covered by the delivery Invoices on time,
fortuituous events including the assumption of Suplico has the right to cease making further
risk or loss. delivery. And the latter did not violate the order
If on the other hand Ben was not in default as no agreement (Integrated Packaging Corporation v.
demand has been sent to him prior to the Court of Appeals, (333 SCRA 170).
accident, then we must distinguish whether the
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Suplico cannot be held liable for damages, for B, the same not having been extinguished by death,
breach of contract, as it was not he who violated there being no law or provision making it
the order agreement, but Printado. intransmissible, nor is the same intransmissble by
nature.)
Suplico cannot be held liable for Printado’s
breach of contract with Publico. He is not a party Spouses Biong and Linda wanted to sell their house.
to the agreement entered into by and between They found a prospective buyer, Ray. Linda
Printado and Publico. Theirs is not a stipulation negotiated with Ray for the sale of the property.
pour autri. Such contracts could not affect third They agreed on a fair price of P2 Million. Ray sent
persons like Suplico because of the basic civil Linda a letter confirming his intention to buy the
law principle of relativity of contracts which property. Later, another couple, Bernie and Elena,
provides that contracts can only bind the parties offered a similar house at a lower price of P1.5
who entered into it, and it cannot favor or Million. But Ray insisted on buying the house of
prejudice a third person, even If he is aware of Biong and Linda for sentimental reason. Ray
such contract and has acted with knowledge prepared a deed of sale to be signed by the couple
thereof. (Integrated Packaging Corporation v. and a manager’s check of P2 Million. After receiving
CA, supra.) the P2 Million, Biong signed the deed of sale.
However, Linda was not able to sign it because she
was abroad. On her return she refused to sign the
Stipulation pour autri document saying she changed her mind. Linda filed
suit for nullification of the deed of sale and for moral
A is the lessee of an apartment owned by Y. A and exemplary damages against Ray.
allowed his married but employed daughter B, Does Ray have any cause of action against Biong
whose husband works in Kuwait, to occupy it. The and Linda? Can he also recover damages from the
relationship between Y and A soured. Since he has spouses? Explain. (2006 Bar)
no reason at all to eject A, Y, in connivance with the
City Engineer, secured from the latter an order for SUGGESTED ANSWER:
the demolition of the building. A immediately filed an Yes, Ray has a cause of action against Linda and
action in the Regional Trial Court to annul the order Biong for the return of the 2 million pesos he
and to enjoin its enforcement. Y and A were able to paid for the property. He may recover damages
forge a compromise agreement under which A from the spouses, if it can be proven that they
agreed to a twenty percent (20%) increase in the were in bad faith in backing out from the
monthly rentals. They further agreed that the lease contract, as this is an act contrary to morals and
will expire two (2) years later and that in the event good customs under Articles 19 and 21 of the
that Y would sell the property, either A or his Civil Code.
daughter B shall have the right of first refusal. The
Compromise Agreement was approved by the court. ANOTHER SUGGESTED ANSWER:
Six (6) months before the expiration of the lease, A Assuming that the contract of sale has been
died. Y sold the property to the Visorro Realty Corp. perfected, Ray may file a counterclaim against
without notifying B. B then filed an action to rescind Linda and Biong for specific performance or
the sale in favor of the corporation and to compel Y rescission, with damages in either case. Linda
to sell the property to her since under the has breached the obligation created by the
Compromise Agreement, she was given the right of contract when she filed an action for nullification
first refusal which, she maintains, is a stipulation of sale. On account of Linda’s bad faith or fraud,
pour autri under Article 1311 of the Civil Code. Is Ray may ask for damages under Article 1170 of
she correct? (1991 Bar) the Civil Code.

SUGGESTED ANSWER: What are “obligations without an agreement”? Give

B is not correct. Her action cannot prosper. five examples of situations giving rise to this type of
Article 1311 requires that the third person obligation. (2007 Bar)
intended to be benefited must communicate his
acceptance to the obligor before the revocation. SUGGESTED ANSWER:
There is no showing that B manifested her “Obligations without an agreement” are
acceptance to Y at any time before the death of A obligations that do not arise from contract such
and before the sale. Hence, B cannot enforce as those arising from:
any right under the alleged stipulation pour 1. delicts;
autri. 2. quasi-delicts;
3. solutio indebiti;
(NOTE: While the Compromise Agreement may not 4. negotiorum gestio; and
be a valid stipulation pour autri, it may be noted that 5. all other obligations arising from law.
rights and obligations, as a general rule, are
transmissible to the heirs. The right of first refusal of ALTERNATIVE ANSWER:
A is transmissible to B, hence may be exercised by
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“Obligations without an agreement” refer to the

juridical relation of quasi-contract which arise SUGGESTED ANSWER:
from certain lawful, voluntary and unilateral acts a) The obligation is valid. It is an obligation
to the end that no one shall be unjustly enriched subject to an indefinite period because the
or benefited at the expense of another. (Art. debtor binds himself to pay when his means
2142, Civil Code) permit him to do so (Article 1180, Civil Code).
First example of an obligation without an When the creditor knows that the debtor already
agreement is a case of negotiorum gestio, has the means to pay, he must file an action in
whereby one who voluntarily takes charge of the court to fix the period, and when the definite
agency or management of the business or period as set by the court arrives, the obligation
property of another, without any power from the to pay becomes demandable (Article 1197, Civil
latter, is obliged to continue the same until the Code).
termination of the affair and its incidents, or to
require the person concerned to substitute him, b) The obligation “to pay when he likes” is a
if the owner is in a position to do so (Art. 2144, suspensive condition the fulfillment of which is
Civil Code). subject to the sole will of the debtor and,
Second example, a case of solutio indebiti may therefore, the conditional obligation is void.
also give rise to an obligation without an (Article 1182, Civil Code).
agreement. This refers to the obligation to return
which arises when something is received when c) The obligation is valid. It is subject to a
there is no right to demand it, and it was unduly suspensive condition, the future and uncertain
delivered through mistake (Art. event of his becoming a lawyer. The
2154, Civil Code). performance of this obligation does not depend
Third example, is when without the knowledge of solely on the will of the debtor but also on other
the person obliged to give support, it is given by factors outside the debtor’s control.
a stranger, the latter shall have a right to claim
the same from the former, unless it appears that d) The obligation is valid. The death of the son of
he gave it out of piety and without intention of cancer within one year is made a negative
being repaid (Art. 2164, Civil Code). suspensive condition to his making the
Fourth example, is when through an accident or payment. The obligation is demandable if the
other cause a person is injured or becomes son does not die within one year (Article 1185,
seriously ill, and he is treated or helped while he Civil Code).
is not in a condition to give consent to a
contract, he shall be liable to pay for the Distinguish between the effects of suspensive and
services of the physician or other person aiding resolutory conditions upon an obligation. (1988 Bar)
him, unless the service has been rendered out or
pure generosity (Art. 2167, Civil Code). SUGGESTED ANSWER:
Fifth instance of an obligation without an It is evident that a resolutory condition affects
agreement is when the person obliged to the obligation to which it is attached in a manner
support an orphan or an insane or other indigent which is diametrically opposed to that of a
person unjustly refuses to give support to the suspensive condition. If the suspensive
latter, any third person may furnish support to condition is fulfilled, the obligation arises or
the needy individual, with right of becomes effective if the resolutory condition is
reimbursement from the person obliged to give fulfilled, the obligation is extinguished. If the
support. The provisions of this article apply first is not fulfilled, the juridical relation is
when the father or mother of a child under created; if the second is not fulfilled, the juridical
eighteen years of age unjustly refuses to relation is consolidated. In other words, in the
support him (Art. 2166, Civil Code). first, rights are not yet acquired, but there is a
hope or expectancy that they will soon be
acquired; in the second, rights are already
Pure and Conditional Obligations acquired, but subject to the threat of extinction
(8 Manresa, 5th Ed., Bk. 1, p. 311.)
Are the following obligations valid, why, and if they
are valid, when is the obligation demandable in each In two separate documents signed by him, Juan
case? Valentino “obligated” himself each to Maria and to
a) If the debtor promises to pay as soon as he has Perla, thus -
the means to pay;
b) If the debtor promises to pay when he likes; “To Maria, my true love, I obligate
c) If the debtor promises to pay when he becomes a myself to give you my one and only
lawyer; horse when I feel like it.”
d) If the debtor promises to pay if his son, who is
sick with cancer, does not die within one year. (2003 - and -
Bar)
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“To Perla, my true sweetheart, I FIRST ALTERNATIVE ANSWER:

obligate myself to pay you the Yes, the sale to the other person is valid.
P500.00 I owe you when I feel like However, the buyer acquired the property
it.” subject to a resolutory condition of Eva passing
the 1998 Bar Examinations. Hence, upon Eva’s
Months passed but Juan never bothered to make passing the Bar, the rights of the other buyer
good his promises. Maria and Perla came to consult terminated and Eva acquired ownership of the
you on whether or not they could recover on the property.
basis of the foregoing settings. What would your
legal advice be? (1997 Bar) SECOND ALTERNATIVE ANSWER:
The sale to another person before Eva could buy
SUGGESTED ANSWER: it from Manuel is valid, as the contract between
I would advise Maria not to bother running after Manuel and Eva is a mere promise to sell and
Juan for the latter to make good his promise. Eva has not acquired a real right over the land
Under Art. 1182, when the fulfillment of the assuming that there is a price stipulated in the
condition depends upon the sole will of the contract for the contract to be considered a sale
debtor, the conditional obligation shall be void. and there was delivery or tradition of the thing
Juan’s promise to Maria, depending as it does sold.
on the sole will of the obligor, Juan, is void.
As regards Perla, the document is an express b) No, she is not entitled to the rentals collected
acknowledgment of a debt, and the promise to by Manuel because at the time they accrued and
pay what he owes her when he feels like it is were collected, Eva was not yet the owner of the
equivalent to a promise to pay when his means property.
permits him to do so, and is deemed to be one
with an indefinite period under Art. 1180. Hence FIRST ALTERNATIVE ANSWER:
the amount is recoverable after Perla asks the Assuming that Eva is the one entitled to buy the
court to set the period as provided by Art. 1197, house and lot, she is not entitled to the rentals
par. 2. collected by Manuel before she passed the bar
examinations. Whether it is a contract of sale or
Pedro promised to give his grandson a car if the a contract to sell, reciprocal prestations are
latter will pass the bar examinations. When his deemed imposed A for the seller to deliver the
grandson passed the said examinations, Pedro object sold and for the buyer to pay the price.
refused to give the car on the ground that the Before the happening of the condition, the fruits
condition was a purely potestative one. Is he correct of the thing and the interests on the money are
or not? (2000 Bar) deerried to have been mutually compensated
under Article 1187.
SUGGESTED ANSWER:
No, he is not correct. First of all, the condition is SECOND ALTERNATIVE ANSWER:
not purely potestative, because it does not Under Art. 1164, there is no obligation on the
depend on the sole will of one of the parties. part of Manuel to deliver the fruits (rentals) of
Secondly, even if it were, it would be valid the thing until the obligation to deliver the thing
because it depends on the sole will of the arises. As the suspensive condition has not
creditor (the donee) and not of the debtor (the been fulfilled, the obligation to sell does not
donor). arise.

In 1997, Manuel bound himself to sell Eva a house

and lot which is being rented by another person, if Rescission (resolution) of obligations
Eva passes the 1998 bar examinations. Luckily for
Eva, she passed said examinations. LT applied with BPI to purchase a house and lot in
a) Suppose Manuel had sold the same house and Quezon City, one of its acquired assets. The amount
lot to another before Eva passed the 1998 bar offered was P1,000,000.00 payable, as follows:
examinations, is such sale valid? Why? P200,000.00 down payment, the balance of
b) Assuming that it is Eva who is entitled to buy said P800,000.00 payable within 90 days from June 1,
house and lot, is she entitled to, the rentals collected 1985. BPI accepted the offer, whereupon LT drew a
by Manuel before she passed the 1998 bar check for P200,000.00 in favor of BPI which the
examinations? Why? (1999 Bar) latter thereafter deposited in its account. On
September 5, 1985, LT wrote BPI requesting
SUGGESTED ANSWER: extension until October 10, 1985, within which to
a) Yes, the sale to the other person is valid as a pay the balance, to which BPI agreed. On October
sale with a resolutory condition because what 5, 1985, due to the expected delay in the remittance
operates as a suspensive condition for Eva of the needed amount by his financier from the
operates as a resolutory condition for the buyer. United States, LT wrote BPI requesting a last
extension until October 30, 1985, within which to
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pay the balance. BPI denied LT’s request because remedy. Foreclosure is not only a legal but a
another had offered to buy the same property for contractual remedy. The debtor must pay and, in
P1,500,000.00, cancelled its agreement with LT and case of breach, the mortgagee may foreclose.
offered to return to him the amount of P200,000.00
that LT had paid to it. On October 20, 1985, upon b) “Y” can rescind. Specific performance and
receipt of the amount of P800,000.00 from his US rescission are alternative remedies in breach of
financier, LT offered to pay the amount by tendering reciprocal obligations. The contract is only
a cashier’s check therefor but which BPI refused to partly consummated. The price is not fully paid.
accept. LT then filed a complaint against BPI in the The mortgage is an accessory contract of
RTC for specific performance and deposited in court guarantee and can be waived by the creditor
the amount of P800,000.00. Is BPI legally correct in who can avail of his remedies in the principal
cancelling its contract with LT? (1993 Bar) contract.

SUGGESTED ANSWER: ALTERNATIVE ANSWERS:

BPI is not correct in cancelling the contract with c) Considering that the default covers only
LT. The general rule is that rescission (more P25,000.00 and the sum of P200,000.00 has
appropriately, resolution ) of an obligation will already been paid, there is only, a slight or
not be permitted for a slight or casual breach, casual breach negating the right of the seller to
but only for such substantial and fundamental rescind the contract of sale.
violations as would defeat the very object of the
parties in making the agreement. In the instant d) Rescission is available provided that the
case, LT’s failure to pay the balance on time is vendor give the vendee the 60-day period as
merely a slight breach of their agreement. Delay required by the Maceda Law or the Realty
in the fulfillment of the obligation (Art. 1169, Civil Installment Buyers Law.
Code) is a ground to rescind only if time is of the
essence. Otherwise, the court may refuse the
rescission if there is a just cause for the fixing of Obligations with a Period
a period. There is no showing that time is of the
essence in the agreement in question, hence BPI Sarah had a deposit in a savings account with
may not use the same as a ground for Filipino Universal Bank in the amount of five million
rescission. Secondly, notarial or judicial pesos (P5,000,000.00). To buy a new car, she
rescission under Art. 1592 of the Civil Code is obtained a loan from the same bank in the amount
necessary (Taguba v. de Leon, 132 SCRA 722.), of P1,200,000.00, payable in twelve monthly
which requirements BPI have not complied with. installments. Sarah issued in favor of the bank post-
dated checks, each in the amount of P100,000.00,
“X” offered to buy the house and lot of “Y” for to cover the twelve monthly installment payments.
P300,000. Since “X” had only P200,000 in cash at On the third, fourth and fifth months, the
the time, he proposed to pay the balance of corresponding checks bounced.
P100,000 in four (4) equal monthly installments. As
the title to the property was to be immediately The bank then declared the whole obligation due,
transferred to the buyer, “X”, to secure the payment and proceeded to deduct the amount of one million
of the balance of purchase price, proposed to pesos (P1,000,000.00) from Sarah’s deposit after
constitute a first mortgage on the property in favor of notice to her that this is a form of compensation
“Y”. “Y” agreed to the proposal so that on April 15, allowed by law. Is the bank correct? Explain. (2009
1987, the contract of sale in favor of “X” was Bar)
executed and on the same date (April 15, 1987), “X”
constituted the said first mortgage. When the first SUGGESTED ANSWER:
installment became due, “X” defaulted in the Yes, the actions of the bank are correct. Under
payment thereof. “Y” now brings an action to rescind Art. 1198 of the Civil Code, the debtor loses the
the contract of sale, which “X” opposed. How would right to make use of the period when the debtor
you decide the conflict? Give your reasons. (1989 violates any undertaking, in consideration of
Bar) which the creditor agreed to the period. In the
instant case, the bank agreed to the repayment
SUGGESTED ANSWER: period of one year since Sarah had issued 12
Either of the following answers should be given post-dated checks as payment for the loan. With
full credit: the checks she issued having bounced, Sarah is
a) “Y” cannot rescind. The relationship is no deemed to have violated an undertaking in
longer that of buyer and seller because the sale consideration of which the bank agreed to the
was already perfected and consummated. The one-year period, hence the bank could properly
relationship is already that of mortgagor and declare the whole obligation due. Likewise, the
mortgagee. Rescission is not a principal action bank could properly deduct the one million
retaliatory in character but a subsidiary one balance from Sarah’s savings account, as
available only in the absence of any other legal deposits in a bank are governed by the
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provisions of loan, and may, accordingly, be set- SUGGESTED ANSWER:

off against the debtor’s obligations to the bank The promissory note is an obligation with a
(Tan Tiong Tick v. American Apothecaries, 65 period. Under the law (Art. 1180), when the
Phil. 414). debtor binds himself to pay when his means
permit him to do so, it is deemed to be an
In a deed of sale of a realty, it was stipulated that the obligation with a period; although it is the court
buyer would construct a commercial building on the which shall fix the duration of the period (Art.
lot while the seller would construct a private 1197). Accordingly, my advice to Nolan would be
passageway bordering the lot. The building was that he file an action with the court to fix the
eventually finished but the seller failed to complete duration of the promissory note. Once fixed by
the passageway as some of the squatters, who were the court, he may thereafter collect on the
already known to be there at the time they entered promissory note once the period fixed by the
into the contract, refused to vacate the premises. In court elapses, and the note becomes due and
fact, prior to its execution, the seller filed ejectment demandable. He should then demand payment
cases against the squatters. from Zeny. Should the latter not pay after
demand, Nolan can now file an action for
The buyer now sues the seller for specific collection against Zeny.
performance with damages. The defense is that the
obligation to construct the passageway should be
with a period which, incidentally, had not been fixed Alternative Obligations
by them, hence, the need for fixing a judicial period.
Will the action for specific performance of the buyer Define alternative and facultative obligations. (1988
against the seller prosper? (1991 Bar) Bar)

SUGGESTED ANSWER: SUGGESTED ANSWER:

No, the action for specific performance filed by Alternative obligations refer to those juridical
the buyer is premature under Art. 1197 of the relations which comprehend several objects or
Civil Code. If a period has not been fixed prestations which are due, but the payment or
although contemplated by the parties, the performance of one of them would be sufficient.
parties themselves should fix that period, failing On the other hand, facultative obligations refer
in which, the Court may be asked to fix it, taking to those juridical relations where only one object
into consideration the probable contemplation of or prestation has been agreed upon by the
the parties. Before the period is fixed, an action parties to the obligation, but the obligor may
for specific performance is premature. deliver or render another in substitution.

ALTERNATIVE ANSWER:
It has been held in Borromeo v. CA (47 SCRA Joint and Solidary Obligations
69), that the Supreme Court allowed the
simultaneous filing of action to fix the probable Define joint and solidary obligations. (1988 Bar)
contemplated period of the parties where none
is fixed in the agreement if this would avoid SUGGESTED ANSWER:
multiplicity of suits. In addition, technicalities When there is a concurrence of two or more
must be subordinated to substantial justice. creditors or of two or more debtors in one and
the same obligation, such obligation may be
ALTERNATIVE ANSWER: either joint (obligacion mancomunada) or
The action for specific performance will not solidary (obligacion solidaria). A joint obligation
prosper. The filing of the ejectment suit by the may be defined as an obligation where there is a
seller was precisely in compliance with his concurrence of several creditors or several
obligations and should not, therefore, be faulted debtors, or of several creditors and debtors, by
if no decision has yet been reached by the Court virtue which each of the creditors has a right to
on the matter. demand, while each of debtors is bound to
render compliance with his proportionate part of
Zeny and Nolan were best friends for a long time the prestation which constitutes the object of
already. Zeny borrowed P10,000.00 from Nolan, the obligation. In other words, each of the
evidenced by a promissory note whereby Zeny creditors is entitled to demand the payment of
promised to pay the loan “once his means permit.” only a proportionate part of the credit, while
Two months later, they had a quarrel that broke their each of the debtors is liable for the payment of
long-standing friendship. only a proportionate part of the debt. A solidary
Nolan seeks your advice on how to collect from obligation, on the other hand, may be defined as
Zeny despite the tenor of the promissory note. What an obligation where there is a concurrence of
will your advice be? Explain your answer. (2017 several creditors, or several debtors, or of
Bar) several creditors and debtors, by virtue which
each of the creditors has a right to demand,
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while each of the debtors is bound to render Kevin signed a loan agreement with ABC Bank.
entire compliance with the prestation which To secure payment, Kevin requested his girlfriend
constitutes the object of the obligation. In other Rosella to execute a document entitled
words, each of the creditors is entitled to “Continuing Guaranty Agreement” whereby she
demand the payment of the entire credit, while expressly agreed to be solidarily liable for the
each of the debtors is liable for the payment of obligation of Kevin.
the entire debt. (See Art. 1207, CC; 3 Castan, 7th Can ABC Bank proceed directly against Rosella
Ed., pp. 65-66.) upon Kevin’s default even without proceeding
against Kevin first? Explain your answer. (2017
Four foreign medical students rented the apartment Bar)
of Thelma for a period of one year. After one
semester, three of them returned to their home SUGGESTED ANSWER:
country and the fourth transferred to a boarding Yes, ABC Bank can proceed directly against
house. Thelma discovered that they left unpaid Rosella. Art. 2047 of the Civil Code provides that
telephone bills In the total amount of P80,000.00. if a person binds himself solidarily with the
The lease contract provided that the lessees shall principal debtor, the contract is one of
pay for the telephone services in the leased suretyship, with the surety becoming directly,
premises. Thelma demanded that the fourth student primarily, and equally bound with the principal
pay the entire amount of the unpaid telephone bills, debtor for the fulfillment of the obligation. More,
but the latter is willing to pay only one fourth of it. it is not the denomination given to the contract
Who is correct? Why? (2001 Bar) by the parties which determine its nature,
whether as a mere guaranty or a suretyship, but
SUGGESTED ANSWER: the actual provisions themselves. In the instant
The fourth student is correct. His liability is only case, even if the contract is titled as a “guaranty
joint, hence, pro rata. There is solidary liability agreement”, the fact that Rosella expressly
only when the obligation expressly so states or agreed to be solidarily liable for the obligations
when the law or nature of the obligation requires of Kevin makes her a surety of the latter.
solidarity (Art. 1207, Civil Code). The contract of Accordingly, she is likewise directly, primarily,
lease in the problem does not, in any way, and equally bound to fulfill the obligation, hence
stipulate solidarity. ABC Bank can directly proceed against her,
without proceeding against Kevin first.
Juancho, Don and Pedro borrowed P150,000.00
from their friend Cita to put up an internet cafe orally A, B, C, D, and E made themselves solidarily
promising to pay her the full amount after one year. indebted to X for the amount of P50,000.00. When X
Because of their lack of business know-how, their demanded payment from A, the latter refused to pay
business collapsed. Juancho and Don ended up on the following grounds:
penniless but Pedro was able to borrow money and a) B is only 16 years old.
put up a restaurant which did well. Can Cita demand b) C has already been condoned by X.
that Pedro pay the entire obligation since he, c) D is insolvent.
together with the two others, promised to pay the d) E was given by X an extension of 6 months
amount in full after one year? Defend your answer. without the consent of the other four co-debtors.
(2015 Bar) State the effect of each of the above defenses put
up by A on his obligation to pay X, if such defenses
SUGGESTED ANSWER: are found to be true. (2003 Bar)
Cita may not demand that Pedro pay the entire
obligation. The fact that there is more than one SUGGESTED ANSWER:
debtor in the same obligation does not imply a) A may avail the minority of B as a defense, but
that each debtor is now bound to render entire only for B’s share of P10,000.00. A solidary
compliance with the obligation. Under the law, if debtor may avail himself of any defense which
the law or the wording of the obligation does not personally belongs to a solidary co- debtor, but
create solidarity, the debt shall be divided into only as to the share of that co-debtor.
as many debts as there are debtors. In the b) A may avail of the condonation by X of C’s
instant case, the fact that the debtors promised share of P10,000.00. A solidary debtor may, in
to pay the full amount of the loan after one year actions filed by the creditor, avail himself of all
is not considered to be an express declaration of defenses which are derived from the nature of
solidarity. It is not equivalent to each debtor the obligation and of those which are personal
binding himself to be liable for the entire amount to him or pertain to his own share. With respect
of the obligation. Accordingly, the P150,000 debt to those which personally belong to others, he
is a joint obligation, and must be divided into may avail himself thereof only as regards that
three, there being three debtors. Pedro would part of the debt for which the latter are
thus be liable to Cita for only P50,000. responsible. (Article 1222, Civil Code).
c) A may not interpose the defense of insolvency
of D as a defense. Applying the principle of
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mutual guaranty among solidary debtors, A a) How much, if any, may Joey be compelled to
guaranteed the payment of D’s share and of all pay?
the other co-debtors. Hence, A cannot avail of b) To what extent, if at all, can Jojo be compelled by
the defense of D’s insolvency. Joey to contribute to such payment? (1998 Bar)
d) The extension of six (6) months given by X to
E may be availed of by A as a partial defense but SUGGESTED ANSWER:
only for the share of E. There is no novation of a) Joey can be compelled to pay only the
the obligation but only an act of liberality remaining balance of P200,000, in view of the
granted to E alone. remission of Jojo’s share by the creditor. (Art.
1219, Civil Code)
A, B, and C borrowed P12,000 from X. This debt is
evidenced by a promissory note wherein the three b) Jojo can be compelled by Joey to contribute
bound themselves to pay the debt jointly and P50,000. Art. 1217, par. 3, Civil Code provides,
severally. However, according to the note, A can be “When one of the solidary debtors cannot,
compelled to pay only on June 15, 1962, B can be because of his insolvency, reimburse his share
compelled to pay only on June 15, 1964, while C to the debtor paying the obligation, such share
can be compelled to pay only on June 15. shall be borne by all his co-debtors, in
1966. On June 15, 1962, X made a demand upon A proportion to the debt of each.”
to pay the entire indebtedness but the latter aid only Since the insolvent debtor’s share which Joey
P4,000.00. Subsequently, because of A’s refusal to paid was P100,000, and there are only two
pay the balance, X brought an action against him for remaining debtors - namely Joey and Jojo -
collection of the amount. Will such an action these two shall share equally the burden of
prosper? Reasons. (1988 Bar) reimbursement. Jojo may thus be compelled by
Joey to contribute P50,000.00.
SUGGESTED ANSWER:
For the present, the action will not prosper. It is Iya and Betty owed Jun P500,000.00 for advancing
of course true that the obligation here is solidary their equity in a corporation they joined as
and that its solidary character is not destroyed incorporators. Iya and Betty bound themselves
by the fact that the debtors are bound by solidarily liable for the debt. Later, Iya and Jun
different periods for payment is expressly became sweethearts so Jun condoned the debt of
provided for in Art. 1211 of the Civil Code. P500,000.00. May Iya demand from Betty
However, in solidary obligations of this type, the P250,000.00 as her share in the debt? Explain with
right of the creditor is limited to the recovery of legal basis. (2015 Bar)
the amount owed by the debtor whose obligation
has already matured, leaving in suspense his SUGGESTED ANSWER:
right to recover the shares corresponding to the No, Iya may not demand P250,000 from Betty as
other debtors whose obligations have not yet her supposed share in the debt. Article 1220 of
matured. This restriction upon the creditor’s the Civil Code provides that the remission of the
right does not destroy the solidary character of whole obligation, obtained by one of the
the obligation, because ultimately, he can still solidary debtors, does not entitle him to
compel one and the same debtor, if that is his reimbursement from his co-debtors. In the
wish, to pay the entire obligation. Therefore, in instant case, Iya, a solidary debtor, has obtained
the instant case, X shall have to wait for June 15, the condonation or remission of the whole debt
1964, when B’s obligation shall have matured, from the creditor. In accordance with the
and for June 15, 1966, when C’s obligation shall aforementioned article, she is not entitled to
have also matured. On June 15, 1966, he can reimbursement from her co-debtors. Not being
collect P4,000 from either A or B. On June 15, entitled to reimbursement, she cannot ask for
1966, he can again collect another P4,000 from P250,000 from Betty.
either A or B or C. (See Ynchausti v. Yulo, 34
Phil. 978.) In June 1988, X obtained a loan from A and
executed with Y as solidary co-maker a promissory
ALTERNATIVE ANSWER: note in favor of A for the sum of P200,000.00. The
c) It now being 1988, the action can no longer loan was payable at P20,000.00 with interest
prosper because it has already prescribed. monthly within the first week of each month
Actions upon written contracts prescribe in 10 beginning July 1988 until maturity in April 1989. To
years. secure the payment of the loan, X put up as security
a chattel mortgage on his car, a Toyota Corolla
Joey, Jovy and Jojo are solidary debtors under a sedan. Because of failure of X and Y to pay the
loan obligation of P300,000.00 which has fallen due. principal amount of the loan, the car was
The creditor has, however, condoned Jojo’s entire extrajudicially foreclosed. A acquired the car at A’s
share in the debt. Since Jovy has become insolvent, highest bid of P120,000.00 during the auction sale.
the creditor makes a demand on Joey to pay the
debt.
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After several fruitless letters of demand against X to accept the tender on the ground that she was the
and Y, A sued Y alone for the recovery of one supposed to pay the bills and Sergio did not
P80,000.00 constituting the deficiency. have authorization to pay on her behalf.

Y resisted the suit raising the following defenses: (a) What is the effect of payment made by Sergio
a) That Y should not be liable at all because X was without the knowledge and consent of Samantha?
not sued together with Y. (2018 Bar)
b) That the obligation has been paid completely by
A’s acquisition of the car through “dacion en pago” SUGGESTED ANSWER:
or payment by cession. Sergio’s payments of the debts of Samantha will
c) That Y should not be held liable for the deficiency entitle him to reimbursement from Samantha to
of P80,000.00 because he was not a co-mortgagor the extent that the latter has benefitted from said
in the chattel mortgage of the car, which contract payment.
was executed by X alone as owner and mortgagor.
d) That assuming that Y is liable, he should only pay Under the law, when a third person pays without
the proportionate sum of P40,000.00. the knowledge and/or consent of the debtor, he
will be entitled to reimbursement from the debtor
Decide each defense with reasons. (1992 Bar) to the extent that the latter has benefitted from
the payment.
SUGGESTED ANSWER:
a) This first defense of Y is untenable. Y is still In the instant case, Samantha was indebted to
liable as solidary debtor. The creditor may the utility company for P50,000. Sergio’s
proceed against any one of the solidary debtors. payment of P50,000 benefitted Samantha to the
The demand against one does not preclude entire extent of the payment, as she had not paid
further demand against the others so long as the any amount of the debt prior to Sergio’s
debt is not fully paid. payment. Accordingly, Sergio is now entitled to
b) The second defense of Y is untenable. Y is collect P50,000 from Samantha, in
still liable. The chattel mortgage is only given as reimbursement of the amount he paid to the
a security and not as payment for the debt in utility company.
case of failure to pay. Y as a solidary co-maker is
not relieved of further liability on the promissory Under the Civil Code, what are the different special
note as a result of the foreclosure of the chattel forms of payments? (1988 Bar)
mortgage.
c) The third defense of Y is untenable. Y is a SUGGESTED ANSWER:
surety of X and the extrajudicial demand against Under the Civil Code, there are actually four
the principal debtor is not inconsistent with a special forms of payment. They are (1)
judicial demand against the surety. A suretyship application of payment (Arts. 1252-1254); (2)
may co-exist with a mortgage. dation in payment (Art. 1245); (3) payment by
d) The fourth defense of Y its untenable. Y is cession (Art. 1255); and (4) tender of payment
liable for the entire prestation since Y incurred a and consignation (Arts. 1256-1261). Strictly
solidary obligation with X. speaking, however, application of payment, by
(Arts. 1207, 1216, 1252 and 2047 Civil Code: its very nature, is not a special form of payment.
Bicol Savings and Loan Associates v. Guinhawa,
188 SCRA 642) TRUE or FALSE. The renunciation by a co-owner of
his undivided share in the co-owned property in lieu
of the performance of his obligation to contribute to
Payment or Performance taxes and expenses for the preservation of the
property constitutes dacion en pago. (2009 Bar)
Samantha sold all her business interest in a sole
proprietorship to Sergio for the amount of PhP1 SUGGESTED ANSWER:
million. Under the sale agreement, Samantha was TRUE. According to Tolentino, although called a
supposed to pay for all prior unpaid utility bills renunciation, what actually happens is a dacion
incurred by the sole proprietorship. A month after the en pago, with the debt of the co-owner to the
Contract to Sell was executed, Samantha still had other co-owners being paid, not in money, but in
not paid the PhP50,000 electricity bills incurred prior an interest in property – the share of the
to the sale. Since Sergio could not operate the “renouncing” co-owner will be reduced by an
business without electricity and the utility company amount equal to his share in the expenses and
refused to restore electricity services unless the taxes, and this will devolve on the other co-
unpaid bills were settled in full, Sergio had to pay owners.
the unpaid electricity bills. When the date for
payment arrived, Sergio only tendered PhP950,000 What is dation in payment and how is it
representing the full purchase price, less the amount distinguished from assignment of property? (1989
he paid for the unpaid utility bills. Samantha refused Bar)
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of his US$ 100 debt, based on the Phil P-US$

SUGGESTED ANSWER: exchange rate at that time. Gustavo accepted the
Dation in payment is a special form of payment check, but forgot to deposit it until Sept. 12, 2008.
whereby property is alienated to the creditor in His bank refused to accept the check because it had
satisfaction of a debt in money. become stale. Gustavo now wants Felipe to pay him
Assignment of property, or payment by cession, in cash the amount of P5,600, claiming that the
is a special form of payment whereby the debtor previous payment was not in legal tender, and that
cedes or assigns his property to his creditors so there has been extraordinary deflation since 1998,
that the proceeds thereof will be applied in and therefore, Felipe should pay him the value of
payment of his debts. the debt at the time it was incurred. Felipe refused to
pay him again, claiming that Gustavo is estopped
ALTERNATIVE ANSWER: from raising the issue of legal tender, having
In dation in payment whereby property is given accepted the check in March, and that it was
by the debtor to the creditor in payment of a Gustavo’s negligence in not depositing the check
debt in money, there is only one creditor. In immediately that caused the check to become stale.
assignment of property, there are several
creditors. a) Can Gustavo now raise the issue that the
In the former, the debtor may be solvent. In the cashier’s check is not legal tender?
latter, there may be partial insolvency. b) Can Felipe validly refuse to pay Gustavo again?
In the former, particular property is ceded. In the c) Can Felipe compel Gustavo to receive US$100
latter, all the property of the debtor is ceded. instead? (2008 Bar)
In the former, the particular obligation is
extinguished in whole or in part as agreed upon. SUGGESTED ANSWER:
In the latter, it releases the debtor from the net a) No, because Gustavo is guilty of estoppel by
proceeds only, unless otherwise agreed or laches. He led Felipe to believe he could pay by
intended. cashier’s check, and Felipe relied that such
cashier’s check would be encashed thus
Butch got a loan from Hagibis Corporation (Hagibis) extinguishing his obligation. Because of
but he defaulted in the payment. A case for Gustavo’s inaction of more than six months the
collection of a sum of money was filed against him. check became stale and Felipe will prejudiced if
As a defense, Butch claims that there was already he will be required to pay $100 at the exchange
an arrangement with Hagibis on the payment of the rate of P56 to $1.00. The exchange should be the
loan. To implement the same, Butch already rate at the time of payment.
surrendered five (5) service utility vehicles (SUVs)
to the company for it to sell and the proceeds to be ALTERNATIVE ANSWER:
credited to the loan as payment. Was the obligation a) Yes. The cashier’s check is not legal tender
of Butch extinguished by reason of dacion en pago until it is encashed. (Art. 1249, Civil Code). The
upon the surrender of the SUVs? Decide and cashier’s check by itself is not legal tender.
explain. (2016 Bar) (Cuaycong v. Ruiz, 86 Phil. 170; Belisario v.
Natividad, 60 Phil. 156).
SUGGESTED ANSWER:
Butch’s obligation was not extinguished by b) Yes, if the payment is valid. Since the bank
dacion en pago upon the surrender of the considered the cashier’s check as being stale
SUVs. Under the Civil Code, there is dacion en for not having been encashed on time, then the
pago when property is alienated to the creditor cashier’s check may be issued again. At any
in satisfaction of a debt in money. In other rate, non-payment of the amount to Gustavo
words, in dacion en pago, the thing given in would constitute unjust enrichment.
payment of the debt in money becomes the
property of the creditor. In the instant case, the c) Yes. Felipe can compel Gustavo to pay US
agreement of the parties was that the SUVs $100 instead. Under the prior law, RA 529, as
surrendered by Butch would be sold by amended by R.A. 4100, payment can only be in
Hagibis, the proceeds of which would be Philippine currency as it would be against public
credited as payment for the loan. Plainly, policy, null and void and of no effect. However,
Hagibis did not become the owner of the SUVs. under RA 8183, payment may be made in the
Accordingly, it cannot be said that there was a currency agreed upon by the parties, and the
dacion en pago arrangement between the rate of exchange to be followed is at the time of
parties that would have extinguished Butch’s payment. (C.F. Sharp & Co. Inc v. Northwest
obligation. Airlines, Inc., 381 SCRA 314).

Felipe borrowed $100 from Gustavo in 1998, when ALTERNATIVE ANSWER:

the Phil P-US$ exchange rate was P56-US$1. On No, Felipe may not compel Gustavo to receive
March 1, 2008, Felipe tendered to Gustavo a $100 instead. While R.A. 8183, which has
cashier’s check in the amount of P4,135 in payment repealed RA 529 (The Uniform Currency Act),
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now provides that parties can agree that an

obligation or transaction shall be settled in any SUGGESTED ANSWER:
other currency at the time of payment, there is A check, whether a manager’s check or an
no showing that at the time Felipe borrowed ordinary check is not legal tender, and an offer
$100 from Gustavo, they agreed that repayment of a check in payment of a debt is not a valid
would also be in US dollars. In the absence of tender of payment and may be refused receipt
agreement as to the currency in which by the oblige or creditors (Philippine Airlines v.
repayment is to be made, payment must be CA and Amelia Tan, 181 SCRA 557). Mere
made in the currency which is legal tender in the delivery of checks does not discharge the
Philippines (Art. 1249, Civil Code), hence Felipe obligation under a judgment. A check shall
cannot force Gustavo to accept $100, the same produce the effect of payment only when they
not being legal tender in the Philippines. have been cashed or where through the fault of
the creditor they have been impaired (Art 1249,
In 1983 PHILCREDIT extended loans to Rivett- Civil Code). However, it is not necessary that the
Strom Machineries, Inc. (RIVETT-STROM), right of redemption be exercised by delivery of
consisting of US$10 Million for the cost of legal tender. A check may be used for the
machineries imported and directly paid by exercise of right of redemption, the same being
PHILCREDIT, and 5 Million in cash payable in a right and not an obligation. The tender of a
installments over a period of ten (10) years on the check is sufficient to compel redemption but is
basis of the value thereof computed at the rate of not in itself a payment that relieves the
exchange of the U.S. dollar vis-a-vis the Philippine redemptioner from his liability to pay the
peso at the time of payment. redemption price (Biana v. Gimenez, 469 SCRA
RIVETT-STROM made payments on both loans 486, citing Fortunado v. CA). Redemption within
which if based on the rate of exchange in 1983 the period allowed by law is not a matter of
would have fully settled the loans. intent but a question of payment or valid tender
PHILCREDIT contends that the payments on both of full redemption prices within the said period.
loans should be based on the rate of exchange Whether redemption is being made under Act
existing at the time of payment, which rate of 3135 or under the General Banking Law, the
exchange has been consistently increasing, and for mortgagor or his assignee is required to tender
which reason there would still be a considerable payment to make said redemption valid (Heirs of
balance on each loan. Quisumbing v. PNB and SLDC, 576 SCRA 762).
Is the contention of PHILCREDIT correct? Discuss Moreover, Ferdie’s refusal was justified on the
fully. (1995 Bar) ground that the amount tendered does not
include interest. In order to effect the
SUGGESTED ANSWER: redemption of the foreclosed property, the
Yes, the contention of PHILCREDIT is correct on payment to the purchaser must include the
both counts. While under the prior law, RA 529, following sums: (a) the bid price; (b) the interest
as amended by R.A. 4100, payment can only be on the bid price, computed at one per centum
in Philippine currency, the same has already (1%) per month; and (c) the assessments and
been repealed by RA 8183. Under RA 8183, taxes, if any, paid by the purchaser with the
payment may be made in the currency agreed same rate of interest (Sec 28, 1997 Rules of Civil
upon by the parties, and the rate of exchange to Procedure). Unless there is an express
be followed is at the time of payment. (C.F. Sharp stipulation to that effect, the creditor cannot be
& Co. Inc v. Northwest Airlines, Inc., 381 SCRA compelled to receive partial payment of the
314). prestation (Art. 1248, Civil Code).

(NOTE: The suggested answer disregards the date On July 1, 1998, Brian leased an office space in a
when the loan was incurred, choosing instead to building for a period of five years at a rental rate of
apply the law as it currently is.) P1,000.00 a month. The contract of lease contained
the proviso that “in case of inflation or devaluation of
Lito obtained a loan of P1,000,000 from Ferdie, the Philippine peso, the monthly rental will
payable within one year. To secure payment, Lito automatically be increased or decreased depending
executed a chattel mortgage on a Toyota Avanza on the devaluation or inflation of the peso to the
and a real estate mortgage on a 200-square meter dollar:” Starting March 1, 2001, the lessor increased
piece of property. the rental to P2,000.00 a month, on the ground of
Lito’s failure to pay led to the extra-judicial inflation proven by the fact that the exchange rate of
foreclosure of the mortgaged real property. Within a the Philippine peso to the dollar had increased from
year from foreclosure, Lito tendered a manager’s P25.00.$1.00 to P50.00=$1.00. Brian refused to pay
check to Ferdie to redeem the property. Ferdie the increased rate and an action for unlawful
refused to accept payment on the ground that he detainer was filed against him. Will the action
wanted payment in cash: the check does not qualify prosper? Why? (2001 Bar)
as legal tender and does not include the interest
payment. Is Ferdie’s refusal justified? (2013 Bar) SUGGESTED ANSWER
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The unlawful detainer action will not prosper. Dorotea leased portions of her 2,000 sq. m. lot to
Extraordinary inflation or deflation is defined as Monet, Kathy, Celia, and Ruth for five (5) years.
the sharp decrease in the purchasing power of Two (2) years before the expiration of the lease
the peso. It does not necessarily refer to the contract, Dorotea sold the property to PM Realty
exchange rate of the peso to the dollar. Whether and Development Corporation. The following
or not there exists an extraordinary inflation or month, Dorotea and PM Realty stopped accepting
deflation is for the courts to decide. There being rental payments from all the lessees because they
no showing that the purchasing power of the wanted to terminate the lease contracts.
peso hail been reduced tremendously, there
could be no inflation that would justify the Due to the refusal of Dorotea to accept rental
increase in the amount of rental to be paid. payments, the lessees, Ruth, et al., filed a
Hence, Brian could refuse to pay the increased complaint for consignation of the rentals before the
rate. Regional Trial Court (RTC) of Manila without
notifying Dorotea.
ALTERNATIVE ANSWER:
The action will not prosper. The existence of Is the consignation valid? (2014 Bar)
inflation or deflation requires an official
declaration by the Bangko Sentral ng Pilipinas. SUGGESTED ANSWER:
No, the consignation is invalid. The Civil Code
ALTERNATIVE ANSWER: requires that consignation must first be
The unlawful detainer action will prosper. It is a announced to the persons interested in the
given fact in the problem, that there was fulfillment of the obligation, the rationale being
inflation, which caused the exchange rate to to give the creditor an opportunity to reconsider
double. Since the contract itself authorizes the his unjustified refusal and to accept payment in
increase in rental in the event of an inflation or order to avoid consignation and the litigation
devaluation of the Philippine peso, the doubling attendant thereto. This previous notice is
of the monthly rent is reasonable and is essential to the validity of the consignation and
therefore a valid act under the very terms of the its lack invalidates the same. Since the lessees
contract. Brian’s refusal to pay is thus a ground did not notify the lessor of their intent to
for ejectment. consign, prior to consignation with the court,
the said consignation is void.
Tender of Payment and Consignation

What are the special requisites of consignation in Loss of the Thing Due
order that it shall produce the effect of payment?
(1988 Bar) A is the owner of a lot on which he constructed a
SUGGESTED ANSWER: building in the total cost of P10,000,000.00. Of that
In order that consignation shall produce the amount B contributed P5,000,000.00 provided that
effect of payment, it is not only essential that it the building as a whole would be leased to him (B)
must conform with all of the requisites of for a period of ten years from January 1, 1985 to
payment, but it is also essential that certain December 31, 1995 at a rental of P100,000.00 a
special requirements prescribed by law must be year. To such condition, A agreed. On December 20,
complied with. The debtor must show: 1990, the building was totally burned. Soon
(1) That there is a debt due; thereafter, A’s workers cleared the debris and
(2) That the consignation has been made either started construction of a new building. B then served
because the creditor to whom tender of payment notice upon A that he would occupy the building
was made refused to accept the payment being constructed upon completion, for the
without just cause, or because any of the cause unexpired portion of the lease term, explaining that
stated by law for effective consignation without he had spent partly for the construction of the
previous tender of payment exists (Art. 1256, building that was burned. A rejected B’s demand.
CC); Did A do right in rejecting B’s demand? (1993 Bar)
(3) The previous notice of the consignation had
been given to the persons interested in the SUGGESTED ANSWER:
fulfillment of the obligation (Art. 1256, CC); Yes, A was correct in rejecting the demand of B.
(4) That the thing or amount due had been As a result of the total destruction of the
placed at the disposal of judicial authority (Art. building by fortuituous event, the lease was
1258, par. 1, CC); and extinguished. (Art. 1655, Civil Code.)
(5) That after the consignation had been made,
the persons interested in the fulfillment of the Kristina brought her diamond ring to a jewelry shop
obligation had been notified thereof (Art. 1258, for cleaning. The jewelry shop undertook to return
par. 2, CC). the ring by February 1, 1999. When the said date
arrived, the jewelry shop informed Kristina that the

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job was not yet finished. Thèy asked her to return the car from the party whose negligence caused
five days after. On February 6, 1999, Kristina went the accident. If no price has been paid at all, the
to the shop to claim the ring, but she was informed trial court acted correctly in dismissing the
that the same was stolen by a thief who entered the complaint.
shop the night before. Kristina filed an action for
damages against the jewelry shop which put up the
defense of force majeure. Will the action prosper or Impossibility of Performance
not? (2000 Bar)
A. X and Y are partners in a shop offering
SUGGESTED ANSWER: portrait painting. Y provided the capital and the
The action will prosper. Since the defendant was marketing while X was the portrait artist. They
already in default not having delivered the ring accepted the P50,000.00 payment of Kyla to do her
when delivery was demanded by plaintiff at due portrait but X passed away without being able to do
date, the defendant is liable for the loss of the it. Can Kyla demand that Y deliver the portrait she
thing and even when the loss was due to force had paid for because she was dealing with the
majeure. business establishment and not with the artist
personally? Why or why not? (2015 Bar)
Dino sued Ben for damages because the latter had
failed to deliver the antique Mercedes Benz car Dino SUGGESTED ANSWER:
had purchased from Ben, which was - by agreement Kyla cannot demand the delivery of the portrait
- due for delivery on December 31, 1993. Ben, in his she has contracted for. While it is true that a
answer to Dino’s complaint, said Dino’s claim has no partnership has a juridical personality separate
basis for the suit, because as the car was being and distinct from that of each partner, it cannot
driven to be delivered to Dino on January 1, 1994, a also be denied that X was the one painting
reckless truck driver had rammed into the Mercedes portraits for the partnership. Article 1266 of the
Benz. The trial court dismissed Dino’s complaint, Civil Code provides that the debtor in
saying Ben’s obligation had, indeed, been obligations to do shall be released when the
extinguished by force majeure. Is the trial court prestation becomes legally or physically
correct? (1994 Bar) impossible without the fault of the obligor. X
having died, it is now physically impossible for
SUGGESTED ANSWER: the partnership to deliver the portrait painting
The judgment of the trial court is incorrect. Loss contracted by Kyla, as the painter thereof is
of the thing due by fortuitous events or force already dead. Notably, the nature of the
majeure is a valid defense for a debtor only obligation is personal, the same involving the
when the debtor has not incurred delay. unique talent of X, hence with his death, the
Extinguishment of liability for fortuitous event obligation must be deemed impossible to
requires that the debtor has not yet incurred any perform.
delay. In the present case, the debtor was in
delay when the car was destroyed on January 1,
1993 since it was due for delivery on December Difficulty in performance
31, 1993. (Art. 1262 Civil Code)
In 1971, Able Construction, Inc. entered into a
ALTERNATIVE ANSWER: contract with Tropical Home Developers, Inc.
It depends whether or not Ben, the seller, was whereby the former would build for the latter the
already in default at the time of the accident houses within its subdivision. The cost of each
because a demand for him to deliver on due date house, labor and materials included, was
was not complied with by him. That fact not P100,000.00. Four hundred units were to be
having been given in the problem, the trial court constructed within five years. In 1973, Able found
erred in dismissing Dino’s complaint. Reason: that it could no longer continue with the job due to
There is default making him responsible for the increase in the price of oil and its derivatives and
fortuituous events including the assumption of the concomitant worldwide spiralling of prices of all
risk or loss. commodities, including basic raw materials required
If on the other hand Ben was not in default as no for the construction of the houses. The cost of
demand has been sent to him prior to the development had risen to unanticipated levels and
accident, then we must distinguish whether the to such a degree that the conditions and factors
price has been paid or not. If it has been paid, which formed the original basis of the contract had
the suit for damages should prosper but only to been totally changed. Able brought suit against
enable the buyer to recover the price paid. It Tropical Homes praying that the Court relieve it of its
should be noted that Ben, the seller, must bear obligation. Is Able Construction entitled to the relief
the loss on the principle of res perit domino. He sought? (1993 Bar)
cannot be held answerable for damages as the
loss of the car was not imputable to his fault or SUGGESTED ANSWER:
fraud. In any case, he can recover the value of
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Yes, Able Construction, Inc. is entitled to the father, the answer is the same as the answers
relief sought. Article 1267 of the Civil Code above.
provides: When the service has become so
difficult as to be manifestly beyond the
contemplation of the parties, the obligor may Compensation
also be released therefrom, in whole or in part.”
Under said law, if the change in circumstances Sarah had a deposit in a savings account with
could not have been foreseen at the time of the Filipino Universal Bank in the amount of five million
execution of the contract, and is one manifestly pesos (P5,000,000.00). To buy a new car, she
beyond the contemplation of the parties, then obtained a loan from the same bank in the amount
the debtor may be released. In the given case, of P1,200,000.00, payable in twelve monthly
the rise in the cost of development was installments. Sarah issued in favor of the bank post-
unanticipated, and such event totally changed dated checks, each in the amount of P100,000.00,
the original basis of the contract. This to cover the twelve monthly installment payments.
authorizes the release of Able Construction from On the third, fourth and fifth months, the
the obligation it had contracted. corresponding checks bounced.

The bank then declared the whole obligation due,

Condonation or Remission of the Debt and proceeded to deduct the amount of one million
pesos (P1,000,000.00) from Sarah’s deposit after
Arturo borrowed P500,000.00 from his father. After notice to her that this is a form of compensation
he had paid P300,000.00, his father died. When the allowed by law. Is the bank correct? Explain. (2009
administrator of his father’s estate requested Bar)
payment of the balance of P200,000.00, Arturo
replied that the same had been condoned by his SUGGESTED ANSWER:
father as evidenced by a notation at the back of his Yes, the actions of the bank are correct. Under
check payment for the P300,000,00 reading: “In full Art. 1198 of the Civil Code, the debtor loses the
payment of the loan”. Will this be a valid defense in right to make use of the period when the debtor
an action for collection? (2000 Bar) violates any undertaking, in consideration of
which the creditor agreed to the period. In the
SUGGESTED ANSWER: instant case, the bank agreed to the repayment
It depends. If the notation “in full payment of the period of one year since Sarah had issued 12
loan” was written by Arturo’s father, there was post-dated checks as payment for the loan. With
an implied condonation of the balance that the checks she issued having bounced, Sarah is
discharges the obligation. In such case, the deemed to have violated an undertaking in
notation is an act of the father from which consideration of which the bank agreed to the
condonation may be inferred. The condonation one-year period, hence the bank could properly
being implied, it need not comply with the declare the whole obligation due. Likewise, the
formalities of a donation to be effective. The bank could properly deduct the one million
defense of full payment will, therefore, be valid. balance from Sarah’s savings account, as
When, however, the notation was written by deposits in a bank are governed by the
Arturo himself, it merely proves his intention in provisions of loan, and may, accordingly, be set-
making that payment but in no way does it bind off against the debtor’s obligations to the bank
his father (Yam v. CA, 303 SCRA 1). In such case, (Tan Tiong Tick v. American Apothecaries, 65
the notation was not the act of his father from Phil. 414).
which condonation may be inferred. There being
no condonation at all, the defense of full A treasury warrant payable to Rosenne and
payment will not be valid. indorsed by Boni was cashed at the Philippine
National Bank. The warrant was subsequently
ALTERNATIVE ANSWER: dishonored by the Philippine Treasury. The Bank
If the notation was written by Arturo’s father, it then applied the deposit of Boni to the payment of
amounted to an express condonation of the the amount paid for the warrant. Is the action of the
balance which must comply with the formalities Bank in accordance with law? Reasons. (1988 Bar)
of a donation to be valid under the 2nd
paragraph of Article 1270 of the Civil Code. SUGGESTED ANSWER:
Since the amount of the balance is more than Yes, the action of the Bank is in accordance with
5,000 pesos, the acceptance by Arturo of the law. The facts stated in the above problem are
condonation must also be in writing under exactly the same as those in the case of Gullas
Article 748. There being no acceptance in writing v. National Bank, 62 Phil. 519, where the
by Arturo, the condonation is void and the Supreme Court held that a bank has a right of
obligation to pay the balance subsists. The set-off of the deposit in its hands for the
defense of full payment is, therefore, not valid. In payment of any indebtedness to it on the part of
case the notation was not written by Arturo’s the depositor. When a person deposits his
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money at a bank, whether such deposit is fixed, action taken by the bank as being a case of pactum
savings or current, a relationship of creditor and commissorium. The bank disagrees. What is your
debtor is established between the depositor and opinion? (1997 Bar)
bank. It is, therefore, evident that all of the
requisites for compensation are present in this SUGGESTED ANSWER:
case. We submit that there is no pactum
commissorium here. Deposits of money in
Eduardo was granted a loan by XYZ Bank for the banks and similar institutions are governed by
purpose of improving a building which XYZ leased the provisions on simple loans (Art. 1980, Civil
from him. Eduardo, executed the promissory note Code). The relationship between the depositor
(“PN”) in favor of the bank, with his friend Recardo and a bank is one of creditor and debtor.
as co-signatory. In the PN, they both acknowledged Basically this is a matter of compensation as all
that they are “individually and collectively” liable and the elements of compensation are present in this
waived the need for prior demand. To secure the case (BPI v. CA, 232 SCRA 302).
PN, Recardo executed a real estate mortgage on his
own property. When Eduardo defaulted on the PN, ADDITIONAL ANSWER:
XYZ stopped payment of rentals on the building on Where the security for the debt is also money
the ground that legal compensation had set in. Since deposited in a bank, it is not illegal for the
there was still a balance due on the PN after creditor to encash the time deposit certificates
applying the rentals, XYZ foreclosed the real estate to pay the debtor’s overdue obligation. (Chu v.
mortgage over Recardo’s property. Recardo CA, et al., 177 SCRA 793).
opposed the foreclosure on the ground that he is
only a co-signatory; that no demand was made upon Saachi opened a savings bank account with
him for payment, and assuming he is liable, his Shanghainese Bank. He made an initial deposit of
liability should not go beyond half the balance of the PhP100,000. Part of the bank opening forms that he
loan. Further, Recardo said that when the bank was required to sign when he opened the account
invoked compensation between the rentals and the was a Holdout Agreement which provided that,
amount of the loan, it amounted to a new contract or should he incur any liability or obligation to the bank,
novation, and had the effect of extinguishing the the bank shall have the right to immediately and
security since he did not give his consent (as owner automatically take over his savings account deposit.
of the property under the real estate mortgage) After he opened his deposit account, the
thereto. Shanghainese Bank discovered a scam wherein the
Can XYZ Bank validly assert legal compensation? funds in the account of another depositor in the bank
(2008 Bar) was withdrawn by an impostor. Shanghainese Bank
suspected Saachi to be the impostor, and filed a
SUGGESTED ANSWER: criminal case of estafa against him. While the case
XYZ Bank may validly assert the partial was still pending with the Prosecutor’s office, the
compensation of both debts, but it should be bank took over Saachi’s savings deposit on the
facultative compensation because not all of the basis of the Holdout Agreement.
five requisites of legal compensation are present a) What kind of contract is created when a
(Article 1279, N.C.C). The payment of the rentals depositor opens a deposit account with a bank?
by XYZ Bank is not yet due, but the principal b) In this case, did the bank have the right to take
obligation of loan where both Eduardo and over Saachi’s bank deposit? (2018 Bar)
Recardo are bound solidarily and therefore any
of them is principally bound to pay the entire SUGGESTED ANSWER:
loan, is due and demandable without need of a) The contract created when a depositor opens
demand. XYZ Bank may declare its obligation to a deposit account with a bank is a contract of
pay rentals as already due and demand payment loan.
from any of the two debtors.
Article 1980 of the Civil Code provides that fixed,
ALTERNATIVE ANSWER: savings, and current deposits of money in banks
Legal compensation can be validly asserted and similar institutions shall be governed by the
between the bank, Eduardo and Recardo. This is provisions concerning simple loan.
a case of facultative obligation, thus, the bank
can assert partial compensation. Banks have an Accordingly, a deposit account opended by a
inherent right to set off where both obligations depositor with a bank will be considered as a
are due and demandable (Art. 1279, Civil Code). loan of money by the depositor to the bank.
In order to secure a bank loan, XYZ Corporation
surrendered its deposit certificate, with a maturity b) No, the Bank does not have any right to take
date of 01 September 1997 to the bank. The over Saachi’s bank deposit.
corporation defaulted on the due repayment of the
loan, prompting the bank to encash the deposit
certificate. XYZ Corporation questioned the above
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As a general rule, a bank is allowed to set-off the Even assuming that there was a perfected right
debts which a depositor owes to it with the of first refusal, compensation did not take place
deposit of said depositor, as a deposit is actually because the claim is unliquidated.
a loan of money to the bank by the depositor;
which can then be subject to compensation of a) Define compensation as a mode of extinguishing
loans owed by the depositor to the bank. an obligation, and distinguish it from payment.
However, for compensation to occur between a b) X, who has a savings deposit with Y Bank in the
bank and its depositor, the depositor must be a sum of P1,000.000.00, incurs a loan obligation with
debtor to the bank. the said Bank in the sum of P800,000.00 which has
become due. When X tries to withdraw his deposit,
In the instant case, there is nothing yet for the Y Bank allows only P200,000.00 to be withdrawn,
bank to compensate or set-off against the loan less service charges, claiming that compensation
which it owes to the depositor. Emphatically, the has extinguished its obligation under the savings
Holdout Agreement itself provides that the bank account to the concurrent amount of X’s debt. X
will have a right to take over the account only contends that compensation is improper when one
when the depositor incurs any obligation or of the debts, as here, arises from a contract of
liability to the bank. As the estafa case is still deposit. Assuming that the promissory note signed
pending with the Prosecutor’s Office, it cannot by X to evidence the loan does not provide for
yet be said that Saachi is already liable or compensation between said loan and his savings
obligated to the bank. Consequently, the Bank deposit, who is correct? (1998 Bar)
cannot, as of yet, invoke the Holdout Agreement
and take over Saachi’s bank deposit. (see SUGGESTED ANSWER;
Metrobank v. Rosales, G.R. No. 183204, January a) Compensation is a mode of extinguishing to
13, 2014) the concurrent amount, the obligations of those
persons who in their own right are reciprocally
debtors and creditors of each other (Tolentino,
Stockton is a stockholder of Core Corp. He desires 1991 ed., p. 365, citing 2 Castan 560 and Francia
to sell his shares in Core Corp. in view of a court suit v. IAC, 162 SCRA 753). It involves the
that Core Corp. has filed against him for damages in simultaneous balancing of two obligations in
the amount of P10 million, plus attorney’s fees of P1 order to extinguish them to the extent in which
million, as a result of statements published by the amount of one is covered by that of the
Stockton which are allegedly defamatory because it other. (De Leon, 1992 ed., p. 221, citing 8
was calculated to injure and damage the Manresa 401).
corporation’s reputation and goodwill. Payment means not only delivery of money but
also performance of an obligation (Article 1232,
The articles of incorporation of Core Corp. provide Civil Code). In payment, capacity to dispose of
for a right of first refusal in favor of the corporation. the thing paid and capacity to receive payment
Accordingly, Stockton gave written notice to the are required for debtor and creditor,
corporation of his offer to sell his shares of P10 respectively: in compensation, such capacity is
million. The response of Core Corp. was an not necessary, because the compensation
acceptance of the offer in the exercise of its rights of operates by law and not by the act of the parties.
first refusal, offering for the purpose payment in form In payment, the performance must be complete;
of compensation or set-off against the amount of while in compensation there may be partial
damages it is claiming against him, exclusive of the extinguishment of an obligation (Tolentino,
claim for attorney’s fees. Stockton rejected the offer supra)
of the corporation, arguing that compensation
between the value of the shares and the amount of b) Y bank is correct. Art. 1287, Civil Code, does
damages demanded by the corporation cannot not apply. All the requisites of Art. 1279, Civil
legally take effect. Is Stockton correct? Give reasons Code are present. In the case of Gullas v. PNB
for your answer. (2002 Bar) (62 Phil. 519), the Supreme Court held: “The Civil
Code contains provisions regarding
SUGGESTED ANSWER: compensation (set off) and deposit. These
Stockton is correct. There is no right of portions of Philippine law provide that
compensation between his price of P10 million compensation shall take place when two
and Core Corp.’s unliquidated claim for persons are reciprocally creditor and debtor of
damages. In order that compensation may be each other. In this connection, it has been held
proper, the two debts must be liquidated and that the relation existing between a depositor
demandable. The case for the P10 million and a bank is that of creditor and debtor. x x x
damages being still pending in court, the As a general rule, a bank has a right of set off of
corporation has as yet no claim which is due the deposits in its hands for the payment of any
and demandable against Stockton. indebtedness to it on the part of a depositor.”
Hence, compensation took place between the
ANOTHER MAIN ANSWER: mutual obligations of X and Y bank.
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latter maintained that Baldomero remained as his

Samantha sold all her business interest in a sole customer as far as their service contract was
proprietorship to Sergio for the amount of PhP1 concerned, notwithstanding the lease contract
million. Under the sale agreement, Samantha was between Baldomero and Jose. Who is correct,
supposed to pay for all prior unpaid utility bills Baldomero or the telephone company? Explain.
incurred by the sole proprietorship. A month after the (1996 Bar)
Contract to Sell was executed, Samantha still had
not paid the PhP50,000 electricity bills incurred prior SUGGESTED ANSWER:
to the sale. Since Sergio could not operate the The telephone company is correct because as
business without electricity and the utility company far as it is concerned, the only person it
refused to restore electricity services unless the contracted with was Baldomero. The telephone
unpaid bills were settled in full, Sergio had to pay company has no contract with Jose. Baldomero
the unpaid electricity bills. When the date for cannot substitute Jose in his stead without the
payment arrived, Sergio only tendered PhP950,000 consent of the telephone company (Art. 1293,
representing the full purchase price, less the amount Civil Code). Baldomero is, therefore, liable under
he paid for the unpaid utility bills. Samantha refused the contract.
to accept the tender on the ground that she was the
one supposed to pay the bills and Sergio did not Suppose that under an obligation imposed by a final
have authorization to pay on her behalf. judgment, the liability of the judgment debtor is to
b) Is Samantha guilty of mora accipiendi? (2018 pay the amount of P6,000.00 but both the judgment
Bar) debtor and the judgment creditor subsequently
entered into a contract reducing the liability of the
SUGGESTED ANSWER: former to only P4,000.00, is there an implied
Yes, Samantha is guilty of mora accipiendi. novation which will have the effect of extinguishing
the judgment obligation and creating a modified
Under the Civil Code, when two persons are obligatory relation? Reasons. (1988 Bar)
simultaneously debtors and creditors of each
other, and both debts consist in sums of money; SUGGESTED ANSWER:
and are both due; said debts are extinguished to There is no implied novation in this case. We see
the concurrent amount of said debts. no valid objection to the judgment debtor and
the judgment creditor in entering into an
The Civil Code likewise provides that failure agreement regarding the monetary obligation of
without just cause to accept payment of the the former under the judgment referred to. The
obligation will render the creditor guilty of mora payment by the judgment debtor of the lesser
accipiendi. amount of P4,000, accepted by the creditor
without any protest or objection and
In the instant case, while Sergio owed Samantha acknowledged by the latter as in full satisfaction
P1 Million, the former’s payment of Samantha’s of the money judgment, completely extinguished
electricity bill resulted in the latter owing him the judgment debt and released the debtor from
P50,000. Both debts being in money, and being his pecuniary liability.
due, the debt of Sergio to Samantha would be Novation results in two stipulations — one to
reduced to only P950,000 by compensation. extinguish an existing obligation, the other to
Accordingly, it was proper for him to offer substitute a new one in its place. Fundamental it
payment to Samantha of only P950,000; and the is that novation effects a substitution or
latter’s refusal to accept the same would be modification of an obligation by another or an
without just cause. Consequently, Samantha’s extinguishment of one obligation by the creation
refusal to accept the P950,000 makes her guilty of another. In the case at hand, we fail to see
of mora accipiendi. what new or modified obligation arose out of the
payment by judgment debtor of the reduced
amount of P4,000 to the creditor. Additionally, to
Novation sustain novation necessitates that the same be
so declared in unequivocal terms clearly and
Baldomero leased his house with a telephone to unmistakably shown by the express agreement
Jose. The lease contract provided that Jose shall of the parties or by acts of equivalent import —
pay for all electricity, water and telephone services or that there is complete and substantial
in the leased premises during the period of the incompatibility between the two obligations.
lease. Six months later, Jose surreptitiously vacated (Sandico v. Piguing, 42 SCRA 322.)
the premises. He left behind unpaid telephone bills
for overseas telephone calls amounting to over ALTERNATIVE ANSWERS:
P20,000.00. Baldomero refused to pay the said bills (1) There remains an obligation on the basis of
on the ground that Jose had already substituted him the facts given. There is no showing in the facts
as the customer of the telephone company. The that the P4,000 has been paid so it created a
modified obligatory obligation no longer based
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on the judgment but based on the novatory Omnibus Investment Code, which properly belongs
agreement. to Commercial Law)
(2) There is no implied novation. Instead there
has been a partial remission in the amount of SUGGESTED ANSWER:
P2,000 leaving P4,000 still enforceable under the The action will prosper not on the ground
judgment. invoked but on the ground that the farmers have
not given their consent to the assignment. The
Eduardo was granted a loan by XYZ Bank for the milling contract imposes reciprocal obligations
purpose of improving a building which XYZ leased on the parties. The sugar central has the
from him. Eduardo, executed the promissory note obligation to mill the sugar cane of the farmers
(“PN”) in favor of the bank, with his friend Recardo while the latter have the obligation to deliver
as co-signatory. In the PN, they both acknowledged their sugar cane to the sugar central. As to the
that they are “individually and collectively” liable and obligation to mill the sugar cane, the sugar
waived the need for prior demand. To secure the central is a debtor of the farmers. In assigning
PN, Recardo executed a real estate mortgage on his its rights under the contract, the sugar central
own property. When Eduardo defaulted on the PN, will also transfer to the Taiwanese its obligation
XYZ stopped payment of rentals on the building on to mill the sugar cane of the farmers. This will
the ground that legal compensation had set in. Since amount to a novation of the contract by
there was still a balance due on the PN after substituting the debtor with a third party. Under
applying the rentals, XYZ foreclosed the real estate Article 1293 of the Civil Code, such substitution
mortgage over Recardo’s property. Recardo cannot take effect without the consent of the
opposed the foreclosure on the ground that he is creditor. The farmers, who are creditors as far as
only a co-signatory; that no demand was made upon the obligation to mill their sugar cane is
him for payment, and assuming he is liable, his concerned, may annul such assignment for not
liability should not go beyond half the balance of the having given their consent thereto.
loan. Further, Recardo said that when the bank
invoked compensation between the rentals and the J.C. Construction (J.C.) bought steel bars from
amount of the loan, it amounted to a new contract or Matibay Steel Industries (MSI) which is owned by
novation, and had the effect of extinguishing the Buddy Batungbacal. J.C. failed to pay the
security since he did not give his consent (as owner purchased materials worth P500,000.00 on due
of the property under the real estate mortgage) date. J.C. persuaded its client Amoroso with whom
thereto. it had receivables to pay its obligation to MSI.
Does Recardo have basis under the Civil Code for Amoroso agreed and paid MSI the amount of
claiming that the original contract was novated? P50,000.00. After two (2) other payments, Amoroso
(2008 Bar) stopped making further payments.

SUGGESTED ANSWER: Buddy filed a complaint for collection of the balance

None of the three kinds of novation is of the obligation and damages against J.C. J.C.
applicable. There is no objective novation, denied any liability claiming that its obligation was
whether express or implied, because there is no extinguished by reason of novation which took
change in the object or principal conditions of place when MSI accepted partial payments from
the obligation. There is no substitution of Amoroso on its behalf.
debtors, either. Compensation is considered as
abbreviated or simplified payment and since Was the obligation of J.C. Construction to MSI
Recardo bound himself solidarily with Eduardo, extinguished by novation? Why? (2014 Bar)
any facultative compensation which occurs does
not result in partial legal subrogation. Neither SUGGESTED ANSWER:
Eduardo nor Recardo is a third person No, the obligation was not extinguished by
interested in the obligation under Art 1302, Civil novation. Novation requires an agreement
Code. between the debtor and the creditor that the
original obligation is extinguished and replaced
The sugar cane planters of Batangas entered into a by a new obligation. Notably, novation is never
long-term milling contract with the Central Azucarera presumed. Either there is an express
de Don Pedro Inc. Ten years later, the Central declaration that a new obligation extinguishes
assigned its rights to the said milling contract to a the old obligation, or the new obligation and the
Taiwanese group which would take over the original obligation are incompatible on every
operations of the sugar mill. The planters filed an point with each other. In the instant case, there
action to annul the said assignment on the ground is no express declaration that the obligation of
that the Taiwanese group was not registered with JC to MSI is extinguished by the payment of
the Board of Investments. Will the action prosper or JC’s obligation by Amoroso, nor is Amoroso’s
not? Explain briefly. (2001 Bar) payment of JC’s obligations incompatible with
(Note: The question presupposes knowledge and the said obligation. In fine, all that we have here
requires the application of the provisions of the
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is an agreement that another person, in addition amount from Chito, executed another promissory
to JC, can pay the debt of JC to MSI, which note which was worded exactly as the 1978
does not constitute such a novation as to promissory note, except for the date thereof, which
extinguish JC’s obligation to MSI. was the date of its execution.
a) Can Chito demand payment on the 1991
Jerico, the project owner, entered into a promissory note in 1994?
Construction Contract with Ivan for the latter to b) Can Chito foreclose the real estate mortgage if
construct his house. Jojo executed a Surety Bobby fails to make good his obligation under the
undertaking to guarantee the performance of the 1991 promissory note? (1994 Bar)
work by Ivan. Jerico and Ivan later entered into a
Memorandum of Agreement (MOA) revising the SUGGESTED ANSWER:
work schedule of Ivan and the subcontractors. The a) Yes, Chito can demand payment on the 1991
MOA stated that all the stipulations of the original promissory note in 1994. Although the 1978
contract not in conflict with said agreement shall promissory note for P1 million payable two
remain valid and legally effective. Jojo filed a suit to years later or in 1980 became a natural
declare him relieved of his undertaking as a result obligation after the lapse of ten (10) years, such
of the MOA because of the change in the work natural obligation can be a valid consideration of
schedule. Jerico claims there is no novation of the a novated promissory note dated in 1991 and
Construction Contract. Decide the case and payable two years later, or in 1993.
explain. (2016 Bar)
All the elements of an implied real novation are
SUGGESTED ANSWER: present:
Jojo should be declared as relieved of his 1. an old valid obligation;
undertaking as surety. In several cases, the 2. a new valid obligation;
Supreme Court has already declared that a 3. capacity of the parties:
surety is released from its obligation when 4. animus novandi or intention to novate; and
there is a material alteration of the principal 5. The old and the new obligation should be
contract in connection with which the bond is incompatible with each other on all material
given, such as a change which imposes a new points (Article 1292). The two promissory notes
obligation on the promising party, or which cannot stand together, hence, the period of
takes away some obligation already imposed, or prescription of ten (10) years has not yet lapsed.
one which changes the legal effect of the
original contract and not merely its form. b) No. The mortgage being an accessory
Similarly, Article 2079 of the Civil Code provides contract prescribed with the loan. The novation
that “An extension granted to the debtor by the of the loan, however, did not expressly include
creditor without the consent of the guarantor the mortgage, hence, the mortgage is
extinguishes the guaranty.” extinguished under Article 1296 of the Civil
Code. The contract has been extinguished by
Accordingly, if the MOA entered into by Jerico the novation or extinction of the principal
and Ivan shortens the work schedule of Ivan obligation insofar as third parties are concerned.
and the subcontractors, the same would be a
material alteration of the principal contract, as Contracts, general provisions
shortening the period would make the
construction of the house more onerous. There Jude owned a building which he had leased to
being a novation, Jojo would then be relieved of several tenants. Without informing his tenants, Jude
his undertaking. On the other hand, if the MOA sold the building to Ildefonso. Thereafter, the latter
entered into by Jerico and Ivan extends the notified all the tenants that he is the new owner of
work schedule of Ivan and the subcontractors, the building. Ildefonso ordered the tenants to vacate
Article 2079 would become applicable. With the the premises within thirty (30) days from notice
extension granted to Ivan, Jojo, not having because he had other plans for the building. The
consented thereto, would also be released from tenants refused to vacate, insisting that they will only
his undertaking, as the surety would be do so when the term of their lease shall have
extinguished. In sum, whether the MOA expired. Is Ildefonso bound to respect the lease
shortens or extends the period, Jojo would, in contracts between Jude and his tenants? Explain
both cases, be relieved from his undertaking as your answer. (2009 Bar)
a surety.
SUGGESTED ANSWER:
In 1978, Bobby borrowed P1,000,000.00 from Chito Yes, Ildefonso is bound to respect the lease
payable in two years. The loan, which was contracts between Jude and his tenants. Under
evidenced by a promissory note, was secured by a the principle of relativity of contracts, as
mortgage on real property. No action was filed by provided for under Art. 1311 of the Civil Code,
Chito to collect the loan or to foreclose the contracts take effect between the parties, their
mortgage. But in 1991, Bobby, without receiving any assigns and heirs, except in case where the
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rights and obligations arising from the contract

are not transmissible by their nature, or by SUGGESTED ANSWER:
stipulation or by provision of law. The sale, although not contained in a public
instrument or formal writing, is nevertheless
In the instant case, Ildefonso is an assignee of valid and binding for the time-honored rule is
Jude, hence the contract of lease entered into that even a verbal contract of sale of real estate
between Jude and his tenants is also effective produces legal effects between the parties. In
on him. Note that the rights and obligations of the premises, Art. 1434 of the Civil Code, which
the contract of lease is not intransmissible by its declares that when a person who is not the
nature, or by provision of law, neither is there a owner of a thing sells or alienates and delivers
statement in the problem that there is a it, and later the seller or grantor acquires title
stipulation between Jude and his tenants that thereto, such title passes by operation of law to
the contract of lease is intransmissible. Since the buyer or grantee, is applicable. (Bucton v.
the contract of lease between Jude and his Gabar, 55 SCRA 499.)
tenants do not fall under any of the exceptions,
it is binding on Ildefonso, Jude’s assignee. ALTERNATIVE ANSWER:
1) The contract of sale is valid and enforceable
(NOTE: Art. 1676 should not be applicable, the in view of the payment of the price of P1,500 but
lease in questioning covering a building, rather than there is no showing the problem that there was
a piece of land. This argument is further bolstered delivery of the land. Accordingly, Article 1434
by the fact that the 2nd par. of Art. 1676 refers to does not apply. However, Y can compel under
“fruits of the harvest” and “agricultural year”, Article 1357 to observe the proper form of a
implying that the same refers to land rather than a deed of sale involving real property and
building, as in the above case.) simultaneously compel specific performance to
(Art. 1676 reads - The purchaser of a piece of land deliver.
which is under a lease that is not recorded in the 2) The verbal sale of land is unenforceable since
Registry of Property may terminate the lease, save there is no statement in the problem that the
when there is a stipulation to the contrary in the agreed price of P1,500 was paid, nor was the
contract of sale, or when the purchaser knows of the land delivered. Being, Article 1434 will not apply
existence of the lease. since it is predicated on a valid or enforceable
If the buyer makes use of this right, the lessee may contract of sale.
demand that he be allowed to gather the fruits of the
harvest which corresponds to the current Merle offered to sell her automobile to Violy for
agricultural year and that the vendor indemnify him P60,000.00. After inspecting the automobile, Violy
for damages suffered. offered to buy it for P50,000.00. This offer was
If the sale is fictitious, for the purpose of accepted by Merle. The next day, Merle offered to
extinguishing the lease, the supposed vendee deliver the automobile, but Violy being short of
cannot make use of the right granted in the first funds, secured postponement of the delivery,
paragraph of this article. The sale is presumed to be promising to pay the price “upon arrival of the
fictitious if at the time the supposed vendee steamer, Helena”. The steamer however never
demands the termination of the lease, the sale is not arrived because it was wrecked by a typhoon and
recorded in the Registry of Property.) sank somewhere off the Coast of Samar.
(1) Is there a perfected contract in this case? Why?
Distinguish consensual from real contracts and (2) Is the promise to pay made by Violy conditional
name at least four (4) kinds of real contracts under or with a term? Why?
the present law. (1998 Bar) (3) Can Merle compel Violy to pay the purchase
price and to accept the automobile? Why? (1988
SUGGESTED ANSWER: Bar)
Consensual contracts are those which are
perfected by mere consent (Art. 1315, Civil SUGGESTED ANSWER:
Code). Real contracts are those which are (1) Yes, there is a perfected contract because
perfected by the delivery of the object of the there is already a concurrence between the offer
obligation. (Art. 1316, Civil Code) and the acceptance with respect to the object
and the cause which shall constitute the
Examples of real contracts are deposit, pledge, contract. Such concurrence is manifested by the
commodatum and simple loan (mutuum). acceptance made by Merle of the offer made by
Violy.
One-half of a parcel of land belonging to A and B (2) I submit that the promise to pay made by
was sold by X to Y for the amount of P1,500.00. The Violy is not conditional, but with a term. The
sale was executed verbally. One year later, A and B promise is to pay the P50,000 upon arrival in this
sold the entire land to X. Is the sale executed port of the steamer, Helena, not if the steamer
verbally by X to Y valid and binding? Reasons. Helena shall arrive in this port. Hence, the
(1988 Bar)
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promise is with regard to the date of arrival and the offer may be withdrawn at any time before
not with regard to the fact of arrival. acceptance by communicating such withdrawal,
(3) Yes, Merle can compel Violy to pay the except when the option is founded upon
purchase price and to accept the automobile. consideration, as something paid or promised.
She will, however, have to wait for the date when An accepted unilateral promise to buy or sell a
the steamer, Helena, would have arrived were it determinate thing for a price certain is binding
not for the shipwreck. After all, there is already a upon him if the promise is supported by a
perfected contract. consideration distinct from the price (Art. 1479).
Consideration in an option contract may be
ALTERNATIVE ANSWERS: anything of value, unlike in sale where it must be
(2) The promise to pay is subject to a term. the price certain in money or its equivalent (San
When there is a pre-existing obligation and the Miguel Properties Inc. v. Spouses Huang, 336
“condition” affects only the time of payment SCRA 737). Here, the case of Jack Daniels Black
such “condition” can be considered as a period. and the P5,000.00 “pulutan” money was a
In other words, the parties must be deemed to consideration to “seal their agreement,” an
have contemplated a period. agreement that Marcelo is given until June 30,
(3) Yes Merle can compel Violy to pay the 2012 to buy the parcel of land. There is also no
purchase price and to accept the automobile but showing that such consideration will be
only after the parties would have fixed the considered part of the purchase price. Thus,
period. Failing in that, the courts may be asked Sergio’s unilateral withdrawal of the offer
to fix the period. Article 1180 provides that: violated the Option Contract between him and
“When the debtor binds himself to pay when his Marcelo.
means permit him to do so, the obligation shall
be deemed to be one with a period, subject to b) No. Sergio’s claim has no legal basis. The
the provisions of article 1197.” contract at issue in the present case is the
option contract, not the contract of sale for the
Sergio is the registered owner of a 500-square real property. Therefore, Art. 1403 does not
meter land. His friend, Marcelo, who has long been apply. The Statute of Frauds covers an
interested in the property, succeeded in persuading agreement for the sale of real property or of an
Sergio to sell it to him. On June 2, 2012, they interest therein. Such agreement is
agreed on the purchase price of P600,000 and that unenforceable by action, unless the same, or
Sergio would give Marcelo up to June 30, 2012 some note or memorandum, thereof, be in
within which to raise the amount. Marcelo, in a light writing, (Art. 1403 (e), Civil Code). Here, Marcelo
tone usual between them, said that they should seal and Sergio merely entered into an Option
their agreement through a case of Jack Daniels Contract, which refers to a unilateral promise to
Black and P5,000 “pulutan” money which he buy or sell, which need not be in writing to be
immediately handed to Sergio and which the latter enforceable (Sanchez v. Rigos, 45 SCRA 368,
accepted. The friends then sat down and drank the citing Atkins, Kroll and Co. Inc. v. Cua Hian Tek
first bottle from the case of bourbon. On June 15, and Southwestern Sugar & Molasses Co. v.
2013, Sergio learned of another buyer, Roberto, who Atlantic Gulf & Pacific Co.).
was offering P800,000 in ready cash for the land.
When Roberto confirmed that he could pay in cash ALTERNATIVE ANSWER:
as soon as Sergio could get the documentation No. Sergio’s claim has no legal basis. The
ready, Sergio decided to withdraw his offer to contract of sale has already been partially
Marcelo, hoping to just explain matters to his friend. executed which takes it outside the ambit of the
Marcelo, however, objected when the withdrawal Statute of Frauds is applicable only to executory
was communicated to him, taking the position that contracts, not to contracts that are totally or
they have a firm and binding agreement that Sergio partially performed (Carbonnel v. Poncio, 103
cannot simply walk away from because he has an Phil. 655).
option to buy that is duly supported by a duly
accepted valuable consideration. Newlyweds Sam and Sienna had contracted with
a) Does Marcelo have a cause of action against Sangria Hotel for their wedding reception. The
Sergio? couple was so unhappy with the service, claiming,
b) Can Sergio claim that whatever they might have among other things, that there was an unreasonable
agreed upon cannot be enforced because any delay in the service of dinner and that certain items
agreement relating to the sale of real property must promised were unavailable. The hotel claims that,
be supported by evidence in writing and they never while there was a delay in the service of the meals,
reduced their agreement to writing? (2013 Bar) the same was occasioned by the sudden increase of
guests to 450 from the guaranteed expected number
SUGGESTED ANSWER: of 350, as stated in the Banquet and Meeting
a) Yes. Marcelo has a cause of action against Services Contract. In the action for damages for
Sergio. Under Art. 1324, when the offerer has breach of contract instituted by the couple, they
allowed the offeree a certain period to accept, claimed that the Banquet and Meeting Services
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Contract was a contract of adhesion since they only obligatoriness of contracts. Obligations arising
provided the number of guests and chose the menu. from contracts have the force of law between the
On the other hand, the hotel’s defense was that the parties.
proximate cause of the complainant’s injury was the
unexpected increase in their guests, and this was Roland is liable under the contract as far as
what set the chain of events that resulted in the Lady Love is concerned. He is liable for
alleged inconveniences. damages under Article 1170 of the Civil Code
since he contravened the tenor of his obligation.
a) Does the doctrine of proximate cause apply in
this case? (2018 Bar) Not being a contracting party, Sweet Taste is not
bound by the contract but it can be held liable
SUGGESTED ANSWER: under Art. 1314. The basis of its liability is not
No, the doctrine of proximate cause is prescribed by contract but is founded on quasi-
inapplicable to the case. delict, assuming that Sweet Taste knew of the
contract. Article 1314 of the Civil Code provides
Jurisprudence states that the doctrine of that any third person who induces another to
proximate cause applies only in cases of quasi- violate his contract shall be liable for damages
delicts, not in cases where there is an existing to the other contracting party.
contractual relationship between the parties. The
purpose of said doctrine is to provide a link Sebastian, who has a pending assessment from the
between parties who have no pre-existing Bureau of Internal Revenue (BIR), was required to
relation between them. post a bond. He entered into an agreement with
Solid Surety Company (SSC) for SSC to issue a
In the instant case, there is an existing Banquet bond in favor of the BIR to secure payment of his
and Meeting Services Contract between the taxes, if found to be due. In consideration of the
parties. Plainly, there is an existing contractual issuance of the bond, he executed an Indemnity
relationship between the parties, which provide Agreement with SSC whereby he agreed to
for their respective rights and obligations with indemnify the latter in the event that he was found
respect to each other. Accordingly, the doctrine liable to pay the tax. The BIR eventually decided
of proximate cause is inapplicable. against Sebastian, and judicially commenced action
against both Sebastian and SSC to recover
Autonomy of contracts Sebastian’s unpaid taxes. Simultaneously BIR also
initiated action to foreclose on the bond. Even
Roland, a basketball star, was under contract for before paying the BIR, SSC sought indemnity from
one year to play-for-pay exclusively for Lady Love, Sebastian on the basis of the Indemnity Agreement.
Inc. However, even before the basketball season Sebastian refused to pay since SSC had not paid
could open, he was offered a more attractive pay the BIR anything yet, and alleged the provision in
plus fringes benefits by Sweet Taste, Inc. Roland the Indemnity Agreement which allowed SSC to
accepted the offer and transferred to Sweet Taste. recover from him, by mere demand, even if it (SSC)
Lady Love sues Roland and Sweet Taste for breach had not yet paid the creditor, was void for being
of contract. Defendants claim that the restriction to contrary to law and public policy.
play for Lady Love alone is void, hence,
unenforceable, as it constitutes an undue Can Sebastian legally refuse to pay SSC? (2018
interference with the right of Roland to enter into Bar)
contracts and the impairment of his freedom to play
and enjoy basketball. SUGGESTED ANSWER:
Can Roland be bound by the contract he entered No, Sebastian may not legally refuse to pay SSC.
into with Lady Love or can he disregard the same?
Is he liable at all? How about Sweet Taste? Is it Under the Civil Code, parties to a contract are
liable to Lady Love? (1991 Bar) free to enter into any terms, clauses, and
stipulations they may deem convenient,
SUGGESTED ANSWER: provided the same is not contrary to law, public
Roland is bound by the contract he entered into policy, morals, and good customs.
with Lady Love. Under the principle of
authonomy of contract, parties are free to enter In the instant case, Sebastian freely entered into
into any stipulation whatsoever, so long as the an agreement with SSC wherein he agreed that
same is not contrary to law, public order, public should he be found LIABLE to pay taxes, he
policy, morals or good customs. The restriction would indemnify SSC. Said clause is not
to play exclusively for Lady Love, being limited contrary to law, public policy, morals, and good
to a one year period, is not contrary to law, customs. Having already been found liable to
public order, public policy, morals or good pay the taxes, plainly he now has the duty to pay
customs is binding upon Roland and he cannot SSC should the latter demand indemnity.
disregard the same, under the principles of Notably, the agreement Sebastian entered into
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with SSC is not to indemnify the latter for LOSS, not having given his consent to the increase in
but to indemnify the latter for LIABILITY, which interest, the increase is void.
has occurred in this case.

Consent
Essential requisites of contracts
Marvin offered to construct the house of Carlos for a
The parties in a contract of loan of money agreed very reasonable price of P900,000.00, giving the
that the yearly interest rate is 12% and it can be latter 10 days within which to accept or reject the
increased if there is a law that would authorize the offer. On the fifth day, before Carlos could make up
increase of interest rates. Suppose OB, the lender, his mind, Marvin withdrew his offer.
would increase by 5% the rate of interest to be paid a) What is the effect of the withdrawal of Marvin’s
by TY, the borrower, without a law authorizing such offer?
increase, would OB’s action be just and valid? Why? b) Will your answer be the same if Carlos paid
Has TY a remedy against the imposition of the rate Marvin P10,000.00 as consideration for that option?
increase? Explain. (2004 Bar) Explain.
c) Supposing that Carlos accepted the offer before
SUGGESTED ANSWER: Marvin could communicate his withdrawal thereof?
OB’s action is not just and valid. The debtor Discuss the legal consequences. (2005 Bar)
cannot be required to pay the increase in
interest there being no law authorizing it, as SUGGESTED ANSWER:
stipulated in the contract. Increasing the rate in a) The withdrawal of Marvin’s offer is valid
the absence of such law violates the principle of because there was no consideration paid for the
mutuality of contracts. option. An option is a separate contract from the
contract which is the subject of the offer, and if
ALTERNATIVE ANSWER: not supported by any consideration, the option
Even if there was a law authorizing the increase contract is not deemed perfected. Thus, Marvin
in interest rate, the stipulation is still void may withdraw the offer at any time before
because there is no corresponding stipulation to acceptance of the offer.
decrease the interest due when the law reduces
the rate of interest. b) If Carlos paid P10,000.00 as consideration for
that option, Marvin cannot withdraw the offer
Samuel borrowed P300,000.00 housing loan from prior to expiration of the option period. The
the bank at 18% per annum interest. However, the option is a separate contract and if founded on
promissory note contained a proviso that the bank consideration is a perfected option contract and
“reserves the right to increase interest within the must be respected by Marvin.
limits allowed by law.” By virtue of such proviso, over
the objections of Samuel, the bank increased the c) If Carlos has already accepted the offer and
interest rate periodically until it reached 48% per such acceptance has been communicated to
annum. Finally, Samuel filed an action questioning Marvin before Marvin communicates the
the right of the bank to increase the interest rate up withdrawal, the acceptance creates a perfected
to 48%. The bank raised the defense that the construction contract, even if no consideration
Central Bank of the Philippines had already was as yet paid for the option. If Marvin does not
suspended the Usury Law. Will the action prosper or perform his obligations under the perfected
not? Why? (2001 Bar) contract of construction, he shall be liable for all
consequences arising from the breach thereof
SUGGESTED ANSWER: based on any of the available remedies which
The action will prosper. While it is true that the may be instituted by Carlos, such as specific
interest ceilings set by the Usury Law are no performance, or rescission with damages in
longer in force, it has been held that PD No.1684 both cases.
and CB Circular No. 905 merely allow
contracting parties to stipulate freely on any Newlyweds Sam and Sienna had contracted with
adjustment in the interest rate on a loan or Sangria Hotel for their wedding reception. The
forbearance of money but do not authorize a couple was so unhappy with the service, claiming,
unilateral increase of the interest rate by one among other things, that there was an unreasonable
party without the other’s consent (PNB v. CA, delay in the service of dinner and that certain items
238 SCRA 20). To say otherwise will violate the promised were unavailable. The hotel claims that,
principle of mutuality of contracts under Article while there was a delay in the service of the meals,
1308 of the Civil Code. To be valid, therefore, any the same was occasioned by the sudden increase of
change of interest must be mutually agreed guests to 450 from the guaranteed expected number
upon by the parties (Dizon v. Magsaysay, 57 of 350, as stated in the Banquet and Meeting
SCRA 250). In the present problem, the debtor Services Contract. In the action for damages for
breach of contract instituted by the couple, they
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claimed that the Banquet and Meeting Services

Contract was a contract of adhesion since they only SUGGESTED ANSWER:
provided the number of guests and chose the menu. The suit will prosper. The sale was void because
On the other hand, the hotel’s defense was that the Linda did not give her written consent to the
proximate cause of the complainant’s injury was the sale. In Jader-Manalo v. Camaisa, 374 SCRA 498
unexpected increase in their guests, and this was (2002), the Supreme Court has ruled that the sale
what set the chain of events that resulted in the of conjugal property is void if both spouses
alleged inconveniences. have not given their written consent to it and
even if the spouse who did not sign the Deed of
b) Was the Banquet and Meeting Services Contract Sale participated in the negotiation of the
a contract of adhesion? If yes, is the contract contract. In Abalos v. Macatangay, 439 SCRA
void? (2018 Bar) 649 (2004), the Supreme Court even held that for
SUGGESTED ANSWER: the sale to be valid, the signatures of the
Yes, the contract is a contract of adhesion. spouses to signify their written consent must be
on the same document. In this case, Linda,
A contract of adhesion is defined as a contract although she was the one who negotiated the
wherein all the terms and conditions are sale, did not give her written consent to the sale.
prepared by one of the contracting parties, and Hence, the sale is void. However, Linda will not
all the other contracting party does is to signify be entitled to damages because Ray is not in
his consent, or adhere, to the contract. any way in bad faith.

In the case of Sam and Sienna, all the terms and ANOTHER SUGGESTED ANSWER:
conditions of the Banquet and Meeting Services The suit will not prosper because the contract of
Contract were prepared by Sangria Hotel. Even if sale has already been perfected and partly
Sam and Sienna chose the number of guests consummated. The contract of sale is perfected
and the menu, judicial notice may be taken of upon the meeting of the minds of the buyer and
the fact that menus for catering contracts are seller on to the thing to be sold and on the price
likewise already prepared by the caterer, with the thereof. In this case, Linda had a meeting of
other party choosing only from set packages minds with Ray when they agreed that the
already pre-selected by the caterer. As to the property will be sold for 2 million pesos at the
number of guests, again, this does not affect the conclusion of her negotiations with him, while
overall terms and conditions of the catering Biong had a meeting of minds with Ray when he
contract. Plainly, the Banquet and Meeting signed the Deed of Sale and accepted the 2
Services Contract is a contract of adhesion. million-peso payment by Ray. Linda is estopped
from questioning the validity of the contract she
Nevertheless, the fact that the same is a contract herself negotiated with Ray.
of adhesion does not render the contract void.
Contracts of adhesion are not violative of the Bert offers to buy Simeon’s property under the
principle of mutuality of contracts, as the party following terms and conditions: P1 million purchase
who did not prepare the same is free to agree to price, 10% option money, the balance payable in
or not agree to, the said contract. In the case of cash upon the clearance of the property of all illegal
Sam and Sienna, they were free to decide, had occupants. The option money is promptly paid and
they wanted to, not to enter into a contract with Simeon clears the property of all illegal occupants in
Sangria Hotel. no time at all. However, when Bert tenders payment
of the balance and asks Simeon for the deed of
Spouses Biong and Linda wanted to sell their house. absolute sale, Simeon suddenly has a change of
They found a prospective buyer, Ray. Linda heart, claiming that the deal is disadvantageous to
negotiated with Ray for the sale of the property. him as he has found out that the property can fetch
They agreed on a fair price of P2 Million. Ray sent three times the agreed purchase price. Bert seeks
Linda a letter confirming his intention to buy the specific performance but Simeon contends that he
property. Later, another couple, Bernie and Elena, has merely given Bert an option to buy and nothing
offered a similar house at a lower price of P1.5 more, and offers to return the option money which
Million. But Ray insisted on buying the house of Bert refuses to accept.
Biong and Linda for sentimental reason. Ray a) Explain the nature of an option contract.
prepared a deed of sale to be signed by the couple b) Will Bert’s action for specific performance
and a manager’s check of P2 Million. After receiving prosper? Explain.
the P2 Million, Biong signed the deed of sale. c) May Simeon justify his refusal to proceed with the
However, Linda was not able to sign it because she sale by the fact that the deal is financially
was abroad. On her return she refused to sign the disadvantageous to him? Explain. (2002 Bar)
document saying she changed her mind. Linda filed
suit for nullification of the deed of sale and for moral SUGGESTED ANSWER:
and exemplary damages against Ray. a) An option contract is one granting a privilege
Will the suit prosper? Explain. (2006 Bar) to buy or sell within an agreed time and at a
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determined price. It must be supported by a Form of contracts

consideration distinct from the price. (Art. 1479
and 1482, Civil Code) Lino entered into a written agreement for the repair
b) Bert’s action for specific performance will of his private plane with Aim Repair Works, Inc. for
prosper because there was a binding agreement P500,000. Additional work was done upon the verbal
of sale, not just an option contract. The sale was request and authority of a duly recognized
perfected upon acceptance by Simeon of 10% of representative of Lino. Lino refused to pay for the
the agreed price. This amount is in reality additional work, interposing as a defense the
earnest money which, under Art. 1482, “shall be absence of a written contract for the additional work
considered as part of the price and as proof of done.
the perfection of the contract.” (Topacio v. CA, Is the defense put up by Lino valid? Explain? (1987
211 SCRA 291; Villongco Realty v. Bormaheco, Bar)
65 SCRA 352).
c) Simeon cannot justify his refusal to proceed SUGGESTED ANSWER:
with the sale by the fact that the deal is The defense put up by Lino is invalid. Art. 1356
financially disadvantageous to him. Having of the Civil Code provides that contracts shall be
made a bad bargain is not a legal ground for obligatory in whatever form they may be,
pulling out of a binding contract of sale, in the provided all the essential requisites for their
absence of some actionable wrong by the other validity are present. In the instant case, all the
party (Vales v. Villa, 35 Phil. 769), and no such essential requisites of a contract are present, it
wrong has been committed by Bert. appearing that there is a valid cause, and object
[repair of an airplane], and there was proper
consent, as the repairs were requested by a duly
Cause of Contracts authorized representative of Lino. All the
elements of a contract being present, the same
Lolita was employed in a finance company. Because is binding on Lino. Incidentally, while Art. 1724
she could not account for the funds entrusted to her, states that the contractor cannot ask for a higher
she was charged with estafa and ordered arrested. price unless the additional work and price has
In order to secure her release from jail, her parents been authorized in writing, the same applies
executed a promissory note to pay the finance only to structures built on land, which is not the
company the amount allegedly misappropriated by case here, as the same involves repair of an
their daughter. The finance company then executed airplane (See Royal Lines, Inc. v. CA, 143 SCRA
an affidavit of desistance which led to the withdrawal 608)
of the information against Lolita and her release
from jail. The parents failed to comply with their Simon owned a townhouse that he rented out to
promissory note and the finance company sued Shannon, a flight attendant with Soleil Philippine
them for specific performance. Will the action Airlines (SPA). They had no written contract but
prosper or not? (2000 Bar) merely agreed on a three (3)-year lease. Shannon
had been using the townhouse as her base in
SUGGESTED ANSWER: Manila and had been paying rentals for more than a
The action will prosper. The promissory note year when she accepted a better job offer from Sing
executed by Lolita’s parents is valid and Airlines. This meant that Singapore was going to be
binding, the consideration being the her new base and so she decided, without informing
extinguishment of Lolita’s civil liability and not Simon, to sublease the townhouse to Sylvia, an
the stifling of the criminal prosecution. office clerk in SPA.
a) Can Simon compel Shannon to reduce the
ALTERNATIVE ANSWER: lease agreement into writing? (2018 Bar)
The action will not prosper because the
consideration for the promissory note was the SUGGESTED ANSWER:
non-prosecution of the criminal case for estafa. a) Yes, Simon can compel Shannon to reduce
This cannot be done anymore because the the lease agreement into writing.
information has already been filed in court and
to do it is illegal. That the consideration for the Under the Civil Code, an agreement for the
promissory note is the stifling of the criminal leasing of real property for a period longer than
prosecution is evident from the execution by the one year has to be in writing, otherwise the
finance company of the affidavit of desistance same will be unenforceable under the Stature of
immediately after the execution by Lolita’s Frauds. However, when a contract falling under
parents of the promissory note. The the Statute of Frauds is partially performed, the
consideration being illegal, the promissory note same is no longer unenforceable. The Civil Code
is invalid and may not be enforced by court further provides that contracts creating real
action. rights must appear in a public instrument, for
the convenience of the parties.

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In the instant case, the three-year contract of protect some incompatible and preferred right
lease between Simon and Shannon has already by the contract.
been partially performed, with Shannon paying
rentals thereon for more than a year. b) No, the extension of the lease should be upon
Accordingly, the same is valid between the the mutual agreement of the parties.
parties. As the same creates a real right (the
lease being for a period longer than one year) In December 1985, Salvador and the Star
Simon can have the same reduced into a public Semiconductor Company (SSC) executed a Deed of
instrument, as provided for by the Civil Code. Conditional Sale wherein the former agreed to sell
his 2,000 square meter lot in Cainta, Rizal, to the
Rescissible contracts latter for the price of P1,000,000.00, payable
P100,000.00 down, and the balance 60 days after
Briefly explain whether the following contracts are the squatters in the property have been removed. If
valid, rescissible, unenforceable, or void: the squatters are not removed within six months, the
e) Jenny’s sale of her car to Celestine in order to P100,000.00 down payment shall be returned by the
evade attachment by Jenny’s creditors. (2017 Bar) vendor to the vendee.
Salvador filed ejectment suits against the squatters,
SUGGESTED ANSWER: but in spite of the decisions in his favor, the
e) Rescissible. Contracts entered into in fraud of squatters still would not leave. In August, 1986,
creditors are rescissible (1381[3]), in case the Salvador offered to return the P100,000.00 down
creditors cannot in any other manner collect on payment to the vendee, on the ground that he is
the claims due them. Since the sale of the car unable to remove the squatters on the property.
was for the sole purpose of evading attachment SSC refused to accept the money and demanded
of the same by Jenny’s creditors, the same was that Salvador execute a deed of absolute sale of the
clearly undertaken in fraud of her creditors. property in its favor, at which time it will pay the
Accordingly, the sale is rescissible. balance of the price. Incidentally, the value of the
land had doubled by that time.
Dux leased his house to Iris for a period of 2 years, Salvador consigned the P100,000.00 in court, and
at the rate of P25,000.00 monthly, payable annually filed an action for rescission of the deed of
in advance. The contract stipulated that it may be conditional sale, plus damages. Will the action
renewed for another 2-year period upon mutual prosper? Explain. (1996 Bar)
agreement of the parties. The contract also granted
Iris the right of first refusal to purchase the property SUGGESTED ANSWER:
at any time during the lease, if Dux decides to sell No, the action will not prosper. The action for
the property at the same price that the property is rescission may be brought only by the aggrieved
offered for sale to a third party. Twenty-three months party to the contract. Since it was Salvador who
after execution of the lease contract, Dux sold the failed to comply with his conditional obligation,
house to his mother for P2 million. Iris claimed that he is not the aggrieved party who may file the
the sale was a breach of her right of first refusal. action for rescission but the Star Semiconductor
Dux said there was no breach because the property Company. The company, however, is not opting
was sold to his mother who is not a third party. Iris to rescind the contract but has chosen to waive
filed an action to rescind the sale and to compel Dux Salvador’s compliance with the condition which
to sell the property to her at the same price. it can do under Art. 1545, Civil Code.
Alternatively, she asked the court to extend the
lease for another 2 years on the same terms. ALTERNATIVE ANSWER:
The action for rescission will not prosper. The
a) Can Iris seek rescission of the sale of the buyer has not committed any breach, let alone a
property to Dux’s mother? substantial or serious one, to warrant the
b) Will the alternative prayer for extension of the rescission/resolution sought by the vendor. On
lease prosper? (2008 Bar) the contrary, it is the vendor who appears to
have failed to comply with the condition
SUGGESTED ANSWER: imposed by the contract the fulfillment of which
a) Iris can seek rescission because, pursuant to would have rendered the obligation to pay the
Equatorial Realty Co. v. Mayfair Theater (264 balance of the purchase price demandable.
SCRA 483), rescission is a relief allowed in Further, far from being unable to comply with
disputes involving a violation of the right of first what is incumbent upon it, i.e., pay the balance
refusal (where the property is sold to somebody of the price - the buyer has offered to pay it even
else without the seller first offering the property without the vendor having complied with the
to the person with the right of first refusal), for suspensive condition attached to the payment of
the protection of one of the contracting parties the price, thus waiving such condition as well as
and even third persons from all injury and the 60-day term in its favor. The stipulation that
damage the contract of sale may cause or to the P100,000.00 down payment shall be returned
by the vendor to the vendee if the squatters are
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not removed within six months, is also a In inexistent contracts, one or more requisites of
covenant for the benefit of the vendee, which the a valid contract are absent. In anullable
latter has validly waived by implication when it contracts, all the elements of a contract are
offered to pay the balance of the purchase price present except that the consent of one of the
upon- the execution of a deed of absolute sale contracting parties was vitiated or one of them
by the vendor. (Art. 1545, Civil Code) has no capacity to give consent.

In a 20-year lease contract over a building, the Briefly explain whether the following contracts are
lessee is expressly granted a right of first refusal valid, rescissible, unenforceable, or void:
should the lessor decide to sell both the land and b) A contract of sale between Lana and Andy
building. However, the lessor sold the property to a wherein 16-year old Lana agreed to sell her
third person who knew about the lease and in fact grand piano for P5,000.00. (2017 Bar)
agreed to respect it. Consequently, the lessee brings
an action against both the lessor-seller and the SUGGESTED ANSWER:
buyer (a) to rescind the sale and (b) to compel a) Voidable. A contract where one of the
specific performance of his right of first refusal in the parties is incapable of giving consent is voidable
sense that the lessor should be ordered to execute a (Art. 1390[1]). Since Lana is 16 years old, she is
deed of absolute sale in favor of the lessee at the incapable of giving consent, hence the contract
same price. The defendants contend that the plaintiff between her and Andy is voidable.
can neither seek rescission of the sale nor compel
specific performance of a “mere” right of first refusal. Jackie, 16, inherited a townhouse. Because she
Decide the case. (1998 Bar) wanted to study in an exclusive school, she sold her
townhouse by signing a Deed of Sale and turning
SUGGESTED ANSWER: over possession of the same to the buyer. When the
The action filed by the lessee, for both buyer discovered that she was still a minor, she
rescission of the offending sale and specific promised to execute another Deed of Sale when
performance of the right of first refusal which she turns 18. When Jackie turned 25 and was
was violated, should prosper. The ruling in already working, she wanted to annul the sale and
Equatorial Realty Development, Inc. v. Mayfair return the buyer's money to recover her townhouse.
Theater, Inc. (264 SCRA 483), a case with similar Was the sale contract void, voidable or valid? Can
facts, sustains both rights of action because the Jackie still recover the property? Explain. (2015
buyer in the subsequent sale knew the existence Bar)
of right of first refusal, hence in bad faith.
SUGGESTED ANSWER:
ANOTHER ANSWER: The sale is voidable. Article 1390 of the Civil
The action to rescind the sale and to compel the Code provides that a contract shall be voidable
right to first refusal will not prosper. (Ang Yu if one of the parties thereto is incapable of
Asuncion v. CA, 238 SCRA 602). The Court ruled giving consent to the contract. In the instant
in a unanimous en banc decision that the right case, the seller Jackie was a minor, hence, the
of first refusal is not founded upon contract but sale of the townhouse is a voidable contract.
on a quasi-delictual relationship covered by the
principles of human relations and unjust Jackie can no longer recover the property. While
enrichment (Art. 19, et seq. Civil Code). Hence the contract of sale is a voidable one, Article
the only action that will prosper according to the 1391 of the Civil Code provides that an action to
Supreme Court is an “action for damages in a annul a voidable contract based on minority of
proper forum for the purpose.” one of the parties must be brought within four
years from the time the minor reached majority
age. In this case, Jackie is already 25 years old.
Voidable contracts Seven years have already passed since the time
she reached the age of majority. The action has
A. Distinguish briefly but clearly between inexistent already prescribed.
contracts and annullable contracts. (2004 Bar)
X was the owner of a 10,000 square meter property.
SUGGESTED ANSWER: X married Y and out of their union, A, B and C were
The distinctions are as follows: born. After the death of Y, X married Z and they
Inexistent contracts are considered as not begot as children, D, E and F. After the death of X,
having been entered into and, therefore, void ab the children of the first and second marriages
initio. They do not create any obligation and executed an extrajudicial partition of the aforestated
cannot be ratified or validated, as there is no property on May 1, 1970. D, E and F were given a
agreement to ratify or validate. On the other one thousand square meter portion of the property.
hand, annullable or voidable contracts are valid They were minors at the time of the execution of the
until invalidated by the court but may be ratified. document. D was 17 years old, E was 14 and F was

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12; and they were made to believe by A, B and C donee, not of the donor, he has no legal capacity
that unless they sign the document they will not get to sue for revocation of the donation. Although
any share. Z was not present then. In January 1974, he is not seeking such revocation but an
D, E and F filed an action in court to nullify the suit annulment of the sale which his mother, the
alleging they discovered the fraud only in 1973. donee, had executed in violation of the condition
a) Can the minority of D, E and F be a basis to imposed by the donor, an action for annulment
nullify the partition? Explain your answer. of a contract may be brought only by those who
b) How about fraud? Explain your answer. (1990 are principally or subsidiarily obliged thereby
Bar) (Art. 1397, Civil Code). As an exception to the
rule, it has been held that a person not so
SUGGESTED ANSWER: obliged may nevertheless ask for annulment if
a) Yes, a partition may be rescinded or annulled he is prejudiced in his rights regarding one of
for the same causes as contracts. Minority of the contracting parties (DBP v. CA, 96 SCRA 342
one of the parties is a ground for annulment of a and other cases) and can show the detriment
contract hence, can be a basis to nullify the which would result to him from the contract in
partition. D, E and F were not properly which he had no intervention. (Teves v. PHHC,
represented by their parents or guardians at the 23 SCRA 1141).
time they contracted the extrajudicial partition. Such detriment or prejudice cannot be shown by
(Articles 1097 in relation to 1390, 1327, Civil Armando. As a forced heir, uiando’s interest in
Code). The action must be brought within four the property was, at best, a mere expectancy.
years, counted from the time guardianship over The sale of the land by his mother did not impair
D, E, and F ceases. At the time of the filing, the 4 any vested right. The fact remains that the
years had not yet elapsed. premature sale made by his mother (premature
because only half of the period of the ban had
b) In the case of fraud, the same is likewise a elapsed) was not voidable at all, none of the
ground for annulment of contracts, hence may vices of consent under Art. 1390 of the Civil
also be used in setting aside a partition. When Code being present. Hence, the motion to
through insidious words or machinations of one dismiss should be granted.
party the other is induced to enter into the
contract without which he would not have
agreed to, there is fraud. The action has not also Unenforceable contracts
prescribed because under Art. 1391 of the Civil
Code, in case of fraud, the action for annulment Suppose that in an oral contract, which by its terms
may be brought within four years from the is not to be performed within one year from the
discovery of the fraud. Four years have not execution thereof, one of the contracting parties has
elapsed from the execution of the partition, already complied within the year with the obligations
much more discovery of the fraud. imposed upon him by said contract, can the other
party avoid fulfillment of those incumbent upon him
Sometime in 1955, Tomas donated a parcel of land by invoking the Statute of Frauds? (1988 Bar)
to his stepdaughter Irene, subject to the condition
that she may not sell, transfer or cede the same for SUGGESTED ANSWER:
twenty years. Shortly thereafter, he died. In 1965, No, he cannot. This is so, because the Statute of
because she needed money for medical expenses, Frauds aims to prevent and not to protect fraud.
Irene sold the land to Conrado. The following year, It is well-settled that when the law declares that
Irene died, leaving as her sole heir a son by the an agreement which by its terms is not to be
name of Armando. When Armando learned that the performed within a year from the making thereof
land which he expected to inherit had been sold by is unenforceable by action, unless the same, or
Irene to Conrado, he filed an action against the latter some note or memorandum thereof, be in
for annulment of the sale, on the ground that it writing, and subscribed by the party charged, or
violated the restriction imposed by Tomas. Conrado by his agent, it refers only to an agreement
filed a motion to dismiss, on the ground that which by its terms is not to be performed on
Armando did not have the legal capacity to sue. either side within a year fom the execution
If you were the judge, how will you rule on this thereof. Hence, one which has already been fully
motion to dismiss? Explain. (1996 Bar) performed on one side within a year is taken out
of the operation of the statute. (PNB v. Phil.
SUGGESTED ANSWER: Vegetable Oil Co., 49 Phil. 857; Shoemaker v. La
As judge, I will grant the motion to dismiss. Non- Tondeña, 68 Phil. 24.)
compliance with a condition imposed by a donor
gives rise to an action to revoke the donation Simon owned a townhouse that he rented out to
under Art. 764, Civil Code. However, the right of Shannon, a flight attendant with Soleil Philippine
action belongs to the donor, is transmissible to Airlines (SPA). They had no written contract but
his heirs, and may be exercised against the merely agreed on a three (3)-year lease. Shannon
donee’s heirs. Since Armando is an heir of the had been using the townhouse as her base in
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Manila and had been paying rentals for more than a Esperanza and Caridad, offered to sell the leased
year when she accepted a better job offer from Sing property to Maria which the latter accepted. The
Airlines. This meant that Singapore was going to be sale was not reduced into writing, but Maria started
her new base and so she decided, without informing to make partial payments to Fe, which the latter
Simon, to sublease the townhouse to Sylvia, an received and acknowledged. After giving the full
office clerk in SPA. payment, Maria demanded for the execution of a
deed of absolute sale which Esperanza and
a) Can Simon compel Shannon to reduce the Caridad refused to do. Worst, Maria learned that the
lease agreement into writing? (2018 Bar) siblings sold the same property to Manuel. This
compelled Maria to file a complaint for the
SUGGESTED ANSWER: annulment of the sale with specific performance and
Yes, Simon can compel Shannon to reduce the damages.
lease agreement into writing.
If you are the judge, how will you decide the case?
Under the Civil Code, an agreement for the (2014 Bar)
leasing of real property for a period longer than
one year has to be in writing, otherwise the SUGGESTED ANSWER:
same will be unenforceable under the Stature of If I were the Judge, I would award one-third of
Frauds. However, when a contract falling under the property to Maria; that is, the sale of the
the Statute of Frauds is partially performed, the property to Manuel should be set aside as to
same is no longer unenforceable. The Civil Code one-third thereof. Fe, Esperanza, and Caridad
further provides that contracts creating real are co-owners of the property. Fe’s act of selling
rights must appear in a public instrument, for the entire property is an act of alteration which
the convenience of the parties. requires the consent of all the co-owners.
Absent any such authorization on the part of
In the instant case, the three-year contract of Esperanza and Caridad, the sale does not bind
lease between Simon and Shannon has already the latter two (it would be unenforceable as to
been partially performed, with Shannon paying them). However, the sale would be valid as to
rentals thereon for more than a year. Fe’s one-third share in the property, limited
Accordingly, the same is valid between the however, to whatever may be adjudicated as
parties. As the same creates a real right (the Fe’s share in the partition of the property, hence
lease being for a period longer than one year) Maria would be entitled to a one-third share of
Simon can have the same reduced into a public the property.
instrument, as provided for by the Civil Code.

Briefly explain whether the following contracts are The fact that the sale was not reduced to writing
valid, rescissible, unenforceable, or void: is of no moment. While the sale of real property
c) A barter of toys executed by 12-year old Clarence or an interest therein is covered by the Statute
and 10-year old Czar of Frauds, the same applies only to executory
d) A sale entered by Barri and Garri, both minors, contracts, not to partially executed ones. As
which their parents later ratified. (2017 Bar) Maria has already paid for the property in full,
the same is no longer executory, hence no
SUGGESTED ANSWER: longer covered by the Statute of Frauds. Given
c) Unenforceable. A contract between the bad faith of Fe, an award of damages in
parties who are both incapable of giving consent favor of Maria would also be in order.
is unenforceable (Art. 1403[3]). Since Clarence
and Czar are both minors, they both do not have (NOTE: This answer assumes that neither Fe or
capacity, hence the contract between them is Manuel has yet registered or taken possession of
unenforceable. the property, otherwise the rules laid down by Art.
d) Valid. A contract, unenforceable because both 1544 on double sales might need to be taken into
parties are minors, becomes a valid one if the consideration).
same is ratified by the legal representatives of
the incapacitated parties (Art. 1407). In the “X” came across an advertisement in the “Manila
instant case, while the contract between Barri Daily Bulletin” about the rush sale of three slightly
and Garri was initially unenforceable, as the used TOYOTA cars, Model 1989 for only P200,000
parties were both minors; the same became each. Finding the price to be very cheap and in
valid when their legal representatives, their order to be sure that he gets one unit ahead of the
parents, ratified the same. others, “X” immediately phoned the advertiser “Y”
and place an order for one car. “Y” accepted the
Fe, Esperanza, and Caridad inherited from their order and promised to deliver the ordered unit on
parents a 500 sq. m. lot which they leased to Maria July 15, 1989. On the said date, however, “Y” did not
for three (3) years. One year after, Fe, claiming to deliver the unit. “X” brings an action to compel “Y” to
have the authority to represent her siblings
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deliver the unit. Will such action prosper? Give your Absolute Sale is merely a scheme to allow the
reasons. (1989 Bar) winner of a card game to collect his winnings. If
the winner cannot file an action to collect his
SUGGESTED ANSWER: winnings, neither may he be allowed to collect
The contract in this case has been perfected. the same indirectly through a Deed of Sale, the
However, the contract is unenforceable under consideration of which is a gambling debt. In
the statute of frauds. The action will prosper if this connection, Article 1409 pertinently
there is no objection to the oral evidence, which provides that contracts whose cause, object or
amounts to a waiver of the statute of frauds. purpose is contrary to law, morals, good
customs, public order or public policy are
inexistent and void from the beginning. The
Void and inexistent contracts Deed of Sale would thus be inexistent and void
as its cause, a gambling debt, is contrary to
A. Distinguish briefly but clearly between inexistent morals, public order and public policy.
contracts and annullable contracts. (2004 Bar)
Z may file an action to have the Deed of Sale
SUGGESTED ANSWER: declared as inexistent and void, its cause being
The distinctions are as follows: contrary to morals, public order and public
Inexistent contracts are considered as not policy.
having been entered into and, therefore, void ab
initio. They do not create any obligation and In 1972, Luciano de la Cruz sold to Chua Chung
cannot be ratified or validated, as there is no Chun, a Chinese citizen, a parcel of land in Binondo.
agreement to ratify or validate. On the other Chua died in 1990, leaving behind his wife and three
hand, annullable or voidable contracts are valid children, one of whom, Julian, is a naturalized
until invalidated by the court but may be ratified. Filipino citizen. Six years after Chua’s death, the
heirs executed an extrajudicial settlement of estate,
In inexistent contracts, one or more requisites of and the parcel of land was allocated to Julian. In
a valid contract are absent. In anullable 2007, Luciano filed suit to recover the land he sold
contracts, all the elements of a contract are to Chua, alleging that the sale was void because it
present except that the consent of one of the contravened the Constitution which prohibits the
contracting parties was vitiated or one of them sale of private lands to aliens. Julian moved to
has no capacity to give consent. dismiss the suit on grounds of pari delicto, laches
and acquisitive prescription. Decide the case with
Briefly explain whether the following contracts are reasons. (2009 Bar)
valid, rescissible, unenforceable, or void:
b) A contract of lease of the Philippine Sea entered SUGGESTED ANSWER:
by and between Mitoy and Elsa. (2017 Bar) Luciano’ suit should be dismissed. As a general
rule, the rule on pari delicto cannot apply to sale
SUGGESTED ANSWER: of private lands to aliens, Art. 1416 of the Civil
b) Void. A contract where the object is Code providing that “When the agreement is not
outside the commerce of man is inexistent and illegal per se but is merely prohibited, and the
void (Art. 1409[4]). The Philippine Sea, being prohibition by the law is designated for the
inalienable property of the State, is outside the protection of the plaintiff, he may, if public policy
commerce of man, hence the contract of lease of is thereby enhanced, recover what he has paid
the same is inexistent and void. or delivered.” The Filipino vendor may thus,
recover the land which he has sold to an alien
Z, a gambler, wagered and lost P2 Million in (see Phil. Banking Corporation v. Lui She, 21
baccarat, a card game. He was pressured into SCRA 52).
signing a Deed of Absolute Sale in favor of the
winner covering a parcel of land with improvements However, the right of the vendor to recover
worth P20 Million. One month later, the supposed disappears if in the interim, the buyer becomes a
vendee of the property demanded that he and his naturalized Filipino or the land is subsequently
family vacate the property subject of the deed of transferred to a Filipino. In these cases, the flaw
sale. Was the deed of sale valid? What can Z do? in the original transaction is considered cured
(2015 Bar) and the title of the transferee is rendered valid.
In the instant case, since the land has already
SUGGESTED ANSWER: been transferred to Julian, a Filipino citizen, the
The deed of sale is not valid. Gambling is sale may no longer be contested by Luciano.
discouraged by law, and in pursuance of this
policy, Article 2014 of the Civil Code provides In addition, more than 35 years has elapsed from
that no action can be maintained by the winner the sale by Luciano to his filing of the suit to
for the collection of what he has won in a game recover, hence he is likewise barred by laches
of chance. In the instant case, the Deed of from recovering the property (see United Church
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 193

Board for World Ministries v. Sebastian, 159 The sale of the land by A to B 3 years after
SCRA 446; De Castro v. Tan, 129 SCRA 85). issuance of the homestead patent, being in
violation of Section 118 of the Public Land Act,
Krystal owns a parcel of land covered by TCT No. is void from its inception.
12345 in Angeles City. Due to severe financial The action filed by the heirs of B to declare the
constraints, Krystal was forced to sell the property nullity or inexistence of the contract and to
to RBP Corporation, a foreign corporation based in recover the land should be given due course.
South Korea. Subsequently, RBP Corporation sold B’s defense of prescription is untenable because
the property to Gloria, one of its most valued clients. an action which seeks to declare the nullity or
Wanting her property back, Krystal, learning of the inexistence of a contract does not prescribe.
transfer of the property from RBP Corporation to (Article 1410; Banaga v. Soler, 2 SCRA 755)
Gloria, sued both of them in the Regional Trial Court On the other hand, B’s defense of pari delicto is
(RTC) for annulment of sale and for reconveyance. equally untenable. While as a rule, parties who
She alleged that the sale by RBP Corporation to are in pari delicto have no recourse against each
Gloria was void because RBP Corporation was a other on the principle that a transgressor cannot
foreign corporation prohibited by the Constitution profit from his own wrongdoing, such rule does
from acquiring and owning lands in the Philippines. not apply to violations of Section 118 of the
Will Krystal’s suit for annulment of sale and Public Land Act because of the underlying
reconveyance prosper? Explain your answer. (2017 public policy in the said Act “to conserve the
Bar) land which a homesteader has acquired by
gratuitous grant from the government for
SUGGESTED ANSWER: himself and his family”. In keeping with this
Krystal’s suit for annulment of sale and policy, it has been held that one who purchases
reconveyance will not prosper. Under the law, a homestead within the five-year prohibitory
only Filipinos and Filipino corporations can own period can only recover the price which he has
land in the Philippines (Art. XII, Constitution). paid by filing a claim against the estate of the
Accordingly, the sale by Krystal to RBP deceased seller’ (Labrador v. Delos Santos 66
Corporation, a foreign corporation, is void. Phil. 579) under the principle that no one shall
However, under the doctrine of pari delicto, enrich himself at the expense of another.
when both parties are at fault in a contract with Applying the pari delicto rule to violation of
an illegal cause or object, neither may recover Section 118 of the Public Land Act, the Court of
what he has given by way of the contract. More, Appeals has ruled that “the homesteader suffers
in contracts of sale of land to foreigners, should the loss of the fruits realized by the vendee who
the land be later on re-sold to a Filipino, the in turn forfeits the improvement that he has
same can no longer be contested, as the introduced into the land.” (Obot v. Sandadillas,
objective of the law – ownership of land only by 62 OG, April 25, 1966)
Filipinos – is again met. In the instant case, both
Krystal and RBP are at fault, as they are both FIRST ALTERNATIVE ANSWER:
presumed to know that the sale is prohibited by The action to declare the nullity of the sale did
law, illegal and void. Being both at fault, the pari not prescribe (Art. 1410), such sale being one
delicto rule applies, hence Krystal may not be expressly prohibited and declared void by the
allowed to file an action for reconveyance of the Public Lands Act [Art. 1409, par. (7)]. The
land. It is the Solicitor General who is the proper prohibition of the law is clearly for the protection
party to initiate reconveyance proceedings, not of the heirs of A such that their recovering the
Krystal. And should Gloria be a Filipino, the property would enhance the public policy
same would further bar Krystal from filing an regarding ownership of lands acquired by
action for reconveyance, as the sale to Gloria homestead patent (Art. 1416). The defense of
may no longer be contested by Krystal, pari delicto is not applicable either, since the law
ownership of the land having reverted to a itself allows the homesteader to reacquire the
Filipino. land even if it has been sold.

In 1950, the Bureau of Lands issued a Homestead SECOND ALTERNATIVE ANSWER:

patent to A. Three years later, A sold the homestead Prescription does not arise with respect to
to B. A died in 1990, and his heirs filed an action to actions to declare a void contract a nullity
recover the homestead from B on the ground that its (Article 1410). Neither is the doctrine of pari
sale by their father to the latter is void under Section delicto applicable because of public policy. The
118 of the Public Land Law. B contends, however, law is designed for the protection of the plaintiff
that the heirs of A cannot recover the homestead so as to enhance the public policy of the Public
from him anymore because their action has Land Act to give land to the landless.
prescribed and that furthermore, A was in pari If the heirs are not allowed to recover, it could be
delicto. Decide. (1999 Bar) on the ground of laches inasmuch as 40 years
had elapsed and the owner had not brought any
SUGGESTED ANSWER: action against B especially if the latter had
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improved the land. It would be detrimental to B if intestate heirs, after the settlement of the debts
the plaintiff is allowed to recover. of the deceased, pays a legacy in compliance
with a clause in the defective will, the payment is
effective and irrevocable.
Natural obligations
Distinguish briefly but clearly between civil obligation
How is a civil obligation distinguished from a natural and natural obligation. (2004 Bar)
obligation? Give an example of a natural obligation.
(1989 Bar) SUGGESTED ANSWER:
The distinctions are as follows:
SUGGESTED ANSWER: Civil obligation is a juridical necessity to give, to
Civil obligations give a right of action to compel do and not to do. It gives the creditor the legal
their performance. Natural obligations, not being right to compel by an action in court the
based on positive law but on equity and natural performance of such obligation.
law, do not grant a right of action to enforce
their performance, but after voluntary fulfillment A natural obligation is based on equity and
by the obligor, they authorize the retention of natural law. There is no legal right to compel
what has been delivered on rendered by reason performance thereof but if the debtor voluntarily
thereof. pays it, he cannot recover what was paid.
Example of a natural obligation (one example
out of any of the following): Sara borrowed P50,000.00 from Julia and orally
1. When a right to sue upon a civil obligation has promised to pay it within six months. When Sara
lapsed by extinctive prescription, the obligor tried to pay her debt on the 8 th month, Julia
who voluntarily performs the contract cannot demanded the payment of interest of 12% per
recover what he has delivered or the value of the annum because of Sara's delay in payment. Sara
service he has rendered. paid her debt and the interest claimed by Julia. After
2. When without the knowledge or against the rethinking, Sara demanded back from Julia the
will of the debtor a third person pays a debt amount she had paid as interest. Julia claims she
which the obligor is not legally bound to pay has no obligation to return the interest paid by Sara
because the action thereon has prescribed, but because it was a natural obligation which Sara
the debtor later voluntarily reimburses the third voluntarily performed and can no longer recover. Do
person, the obligor cannot recover what he has you agree? Explain. (2015 Bar)
paid.
3. When a minor between eighteen and twenty- SUGGESTED ANSWER:
one years of age who has entered into a contract Yes, I agree with Julia’s contention. Article 1960
without the consent of the parent or guardian, of the Civil Code provides that if the borrower
after the annulment of the contract voluntarily pays interest when there has been no stipulation
returns the whole thing or price received, therefor, the provisions of this Code concerning
notwithstanding the fact that he has not been solutio indebiti, or natural obligations, shall be
benefited thereby, there is no right to demand applied, as the case may be. In the instant case,
the thing or price thus returned. the parties were aware that their loan contract
4. When a minor between eighteen and twenty- had no stipulation for interest, as in fact, the
one years of age, who has entered into a lender only demanded interest because of the
contract without the consent of the parent or delay in payment. Accordingly, there was no
guardian, voluntarily pays a sum of money or mistaken belief on the part of Sara at the time
delivers a fungible thing in fulfillment of the she paid the interest that the same was undue. It
obligation, there shall be no right to recover the was a voluntary act on her part. It was only after
same from the obligee who has spent or she had paid that she had second thoughts on
consumed it in good faith. the payment. There being no mistake, solutio
5. When, after an action to enforce a civil indebiti does not apply. On the other hand, Sara
obligation has failed, the defendant voluntarily had promised to pay her loan within six months.
performs the obligation, he cannot demand the She was unable to do so. While their contract
return of what he has delivered or the payment did not provide for interest, the demands of
of the value of the service he has rendered. equity and natural law call for additional
6. When a testate or intestate heir voluntarily compensation due to Sara’s delayed payment.
pays a debt of the decedent exceeding the value Plainly, the payment of interest, while not
of the property which he received by will or by stipulated, is a natural obligation which
the law of intestacy from the estate of the authorizes Julia to retain said payment.
deceased, the payment is valid and cannot be
rescinded by the payer. Distinguish civil and natural obligations. (2015 Bar)
7. When a will is declared void because it has
not been executed in accordance with the SUGGESTED ANSWER:
formalities required by law, but one of the
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In civil obligations and natural obligations, there

exists a juridical tie binding two persons. SUGGESTED ANSWER:
However, in civil obligations this juridical tie is The Civil Code enumerates only two (2) kinds of
given effect by law, enforceable by action; while estoppel: estoppel in pais or, by conduct and
in natural obligations, the juridical tie is not estoppel by deed. Estoppel in pais or by conduct
given effect by law, it cannot be enforced by arises when one by his act, representation, oral
action. However, if a natural obligation is admission or by his silence induces another to
voluntarily performed by the debtor, the law believe certain facts to exist and the other
authorizes the retention of what has been realize an act on such belief.
delivered or rendered by reason thereof. Estoppel by deed is that by virtue of which a
party to a deed and his privies are precluded
In 1978, Bobby borrowed P1,000,000.00 from Chito from asserting as against the other party any
payable in two years. The loan, which was right or title in derogation of the deed or any fact
evidenced by a promissory note, was secured by a asserted therein.
mortgage on real property. No action was filed by
Chito to collect the loan or to foreclose the ALTERNATIVE ANSWER:
mortgage. But in 1991, Bobby, without receiving any The Civil Code gives two (2) kinds of estoppel,
amount from Chito, executed another promissory namely: estoppel in pais and estoppel by deed;
note which was worded exactly as the 1978 and jurisprudence gives a third, namely:
promissory note, except for the date thereof, which estoppel by laches.
was the date of its execution. Estoppel in pais or by conduct arises when one
a) Can Chito demand payment on the 1991 by his act, representation, oral admission or by
promissory note in 1994? his silence induces another to believe certain
b) Can Chito foreclose the real estate mortgage if facts to exist and the other realize an act on
Bobby fails to make good his obligation under the such belief.
1991 promissory note? (1994 Bar) Estoppel by deed is that by virtue of which a
party to a deed and his privies are precluded
SUGGESTED ANSWER: from asserting as against the other party by
a) Yes, Chito can demand payment on the 1991 which any right or title in derogation of the deed
promissory note in 1994. Although the 1978 or any fact asserted therein.
promissory note for P1 million payable two Laches is negligence or omission to assert a
years later or in 1980 became a natural right within a reasonable time giving rise to the
obligation after the lapse of ten (10) years, such presumption that the party entitled to assert it
natural obligation can be a valid consideration of either has abandoned it or declined to assert it.
a novated promissory note dated in 1991 and
payable two years later, or in 1993. One-half of a parcel of land belonging to A and B
was sold by X to Y for the amount of P1,500.00. The
All the elements of an implied real novation are sale was executed verbally. One year later, A and B
present: sold the entire land to X. Is the sale executed
1. an old valid obligation; verbally by X to Y valid and binding? Reasons.
2. a new valid obligation; (1988 Bar)
3. capacity of the parties:
4. animus novandi or intention to novate; and SUGGESTED ANSWER:
5. The old and the new obligation should be The sale, although not contained in a public
incompatible with each other on all material instrument or formal writing, is nevertheless
points (Article 1292). The two promissory notes valid and binding for the time-honored rule is
cannot stand together, hence, the period of that even a verbal contract of sale of real estate
prescription of ten (10) years has not yet lapsed. produces legal effects between the parties. In
the premises, Art. 1434 of the Civil Code, which
b) No. The mortgage being an accessory declares that when a person who is not the
contract prescribed with the loan. The novation owner of a thing sells or alienates and delivers
of the loan, however, did not expressly include it, and later the seller or grantor acquires title
the mortgage, hence, the mortgage is thereto, such title passes by operation of law to
extinguished under Article 1296 of the Civil the buyer or grantee, is applicable. (Bucton v.
Code. The contract has been extinguished by Gabar, 55 SCRA 499.)
the novation or extinction of the principal
obligation insofar as third parties are concerned. ALTERNATIVE ANSWER:
1) The contract of sale is valid and enforceable
in view of the payment of the price of P1,500 but
Estoppel there is no showing the problem that there was
delivery of the land. Accordingly, Article 1434
What do you understand by ESTOPPEL? What are does not apply. However, Y can compel under
the different kinds of estoppel? Explain. (1989 Bar) Article 1357 to observe the proper form of a
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deed of sale involving real property and the land. In May 1994, Remigio filed a case against
simultaneously compel specific performance to Remedios for the reconveyance of the land to him.
deliver. Remedios, in her answer, averred that the action
2) The verbal sale of land is unenforceable since already prescribed. How should the matter be
there is no statement in the problem that the decided? (1997 Bar)
agreed price of P1,500 was paid, nor was the
land delivered. Being, Article 1434 will not apply SUGGESTED ANSWER:
since it is predicated on a valid or enforceable The matter should be decided in favor of
contract of sale. Remigio (trustee) because the action has not
prescribed. The case at bar involves an express
Fred sold to Juan a parcel of land, belonging to his trust which does not prescribe as long as they
minor son, Lino, then under his guardianship, have not been repudiated by the trustee (Diaz v.
without judicial approval. After the sale, Juan Gorricho, 103 Phil. 261).
immediately took possession of the land, built a
house and religiously paid the taxes thereon. Nine
years thereafter, Lino, no longer a minor, rented the Resulting trust
ground floor of the house built by Juan. Lino paid the
rent for the first month, then stopped paying. Two In 1980, Maureen purchased two lots in a plush
years thereafter, when pressed for payment of the subdivision registering Lot 1 in her name and Lot 2
accrued rent, Lino refused, claiming ownership over in the name of her brother Walter with the latter’s
the property, alleging that the sale of the property to consent. The idea was to circumvent a subdivision
Juan while he was a minor without the approval of policy against the acquisition of more than one lot by
the guardianship court rendered the sale null and one buyer. Maureen constructed a house on Lot 1
void. with an extension on Lot 2 to serve as a guest
Is the claim of Lino valid and meritorious? Explain. house. In 1987, Walter who had suffered serious
(1987 Bar) business losses demanded that Maureen remove
the extension house since the lot on which the
SUGGESTED ANSWER: extension was built was his property. In 1992,
No, Lino’s claim is not valid and meritorious. Maureen sued for the reconveyance to her of Lot 2
Article 1436 of the Civil Code provides that “a asserting that a resulting trust was created when
lessee or bailee is estopped from asserting title she had the lot registered in Walter’s name even if
to the thing leased or received, as aginst the she paid the purchase price. Walter opposed the
lessor or bailor.” Since Lino entered into a suit arguing that assuming the existence of a
contract of lease with Juan, he can no longer resulting trust the action of Maureen has already
assail the right and title of Juan, his lessor, and prescribed since ten years have already elapsed
cannot claim ownership of the property as from the registration of the title in his name. Decide.
against the latter. Parenthetically, while the sale Discuss fully. (1995 Bar)
was initially voidable because it was made
without judicial authority when Lino was still a SUGGESTED ANSWER:
minor, his entering into a contract of lease over This is a case of an implied resulting trust. If
the same when he was already of majority age Walter claims to have acquired ownership of the
ratified the said contract. Furthermore, Juan has land by prescription or if he anchors his defense
already been in possession of the property for on extinctive prescription, the ten year period
over ten years. Juan has also already become must be reckoned from 1987 when he demanded
the owner of the land by ordinary acquisitive that Maureen remove the extension house on
prescription. Lot No. 2 because such demand amounts to an
express repudiation of the trust and it was made’
known to Maureen. The action for reconveyance
Trusts filed in 1992 is not yet barred by prescription.
(Spouses Huang v. Court of Appeals, Sept. 13,
Express trust does not prescribe 1994).

On 01 January 1980, Redentor and Remedios Joaquin Reyes bought from Julio Cruz a residential
entered into an agreement by virtue of which the lot of 300 square meters in Quezon City for which
former was to register a parcel of land in the name Joaquin paid Julio the amount of P300,000.00.
of Remedios under the explicit covenant to reconvey When the deed was about to be prepared Joaquin
the land to Remigio, son of Redentor, upon the son’s told Julio that it be drawn in the name of Joaquina
graduation from college. In 1981, the land was Roxas, his acknowledged natural child. Thus, the
registered in the name of Remedios. deed was so prepared and executed by Julio.
Redentor died a year later or in 1982. In March Joaquina then built a house on the lot where she,
1983, Remigio graduated from college. In February her husband and children resided. Upon Joaquin’s
1992, Remigio accidentally found a copy of the death, his legitimate children sought to recover
document so constituting Remedios as the trustee of possession and ownership of the lot, claiming that
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Joaquina Roxas was but a trustee of their father. is one that arises in order to satisfy the demands
Will the action against Joaquina Roxas prosper? of justice. It does not come about by agreement
(1993 Bar) or intention but mainly operation of law and
construed as a trust against one who, by fraud,
SUGGESTED ANSWER: duress or abuse of confidence, obtains or holds
No, the action will not prosper. While an implied the legal right to property which he ought not, in
trust is said to arise in favor of the person who equity and good conscience, to hold (Heirs of
provided the price when property is purchased Lorenzo Yap v. Court of Appeals, 371 Phil.
by one person but the title is placed in another 5231199911.
person’s name, no such presumption arises The following are examples of constructive
when the person to whom the title is conveyed is trust:
the child of the purchaser. Rather, the 1. Article 1456 Civil Code which provides:
presumption is that the same is a gift to the “If property is acquired through mistakes or
child. Consequently, the presumption raised fraud, the person obtaining it is, by force of law
herein is that the residential lot was a gift by considered a trustee of an implied trust for the
Joaquin to his child Joaquina. (Art. 1448, Civil benefit of the person from whom the property
Code; De los Santos v. Reyes, 206 SCRA 437). comes.”
However, the donation should be collated to the 2. Article 1451 Civil Code which provides:
hereditary estate and the legitime of the other “When land passes by succession to any person
heirs should be preserved. and he causes the legal title to be put in the
name of another, a trust is established by
Mr. A, a businessman, put several real estate implication of law for the benefit of the true
properties under the name of his eldest son X owner.”
because at that time, X was the only one of legal 3. Article 1454 Civil Code which provides:
age among his four children. He told his son he was “If an absolute conveyance of property is made
to hold those assets for his siblings until they in order to secure the performance of an
become adults themselves. X then got married. obligation of the grantor toward the grantee, a
After 5 years, Mr. A asked X to transfer the titles trust by virtue of law is established. If the
over three properties to his three siblings, leaving fulfillment of the obligation is offered by the
two properties for himself. To A's surprise, X said grantor when it becomes due, he may demand
that he can no longer be made to transfer the the reconveyance of the property to him.”
properties to his siblings because more than 5 4. Article 1455 (Civil Code which provides:
years have passed since the titles were registered “When any trustee, guardian or other person
in his name. Do you agree? Explain. (2015 Bar) holding a fiduciary relationship uses trust funds
for the purchase of property and causes the
SUGGESTED ANSWER: conveyance to be made to him or to a third
I do not agree with X’s contention. Article 1449 person, a trust is established by operation of law
of the Civil Code provides that an implied trust in favor of the person to whom the funds
is create when a donation is made to a person belong.”
but it appears that although the legal estate is
transmitted to the donee, he nevertheless is DPO went to a store to buy a pack of cigarettes
either to have no beneficial interest or only a worth P225.00 only. He gave the vendor, RRA, a
part thereof. In the instant case, the intention of P500-peso bill. The vendor gave him the pack plus
A from the very beginning is that X would have a P375.00 change. Was there a discount, an
beneficial interest only in a part of the oversight, or an error in the amount given? What
properties conveyed to him, the other properties would be DPO’s duty, if any, in case of an excess in
being intended for his siblings who were still the amount of change given by the vendor? How is
minors. Clearly, an implied trust was created in this situational relationship between DPO and RRA
favor of X’s siblings. It is well-settled that an denominated? Explain. (2004 Bar)
action for reconveyance based on implied trust
prescribes in ten years. As the ten-year period SUGGESTED ANSWER:
has not yet elapsed, X can still be made to a) There was error in the amount of change
reconvey the property to his siblings. given by RRA. This is a case of solutio indebiti
in that DPO received something that is not due
Constructive trust him. He has the obligation to return the P100.00;
otherwise, he will unjustly enrich himself at the
Explain the concept of trust de son tort (Constructive expense of RRA. (Art. 2154, Civil Code)
trust) and give an example (2007 Bar)
ALTERNATIVE ANSWER:
SUGGESTED ANSWER: DPO has the duty to return to RRA the excess
A constructive trust is a trust not created by any P100 as trustee under Article 1456 of the Civil
word or phrase, either expressly or impliedly, Code which provides: If property is acquired
evincing a direct intention to create a trust, but through mistake or fraud, the person obtaining it
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is, by force of law, considered a trustee of an ownership over the thing sold at the time of
implied trust for the benefit of the person from delivery because he was not the owner thereof,
whom the property comes. There is, in this case, he shall be liable for breach of contract.
an implied or constructive trust hi favor of RRA.
Distinguish between a contract of sale and a
contract to sell. (1988 Bar)
Sales
SUGGESTED ANSWER:
A foreign manufacturer of computers and a The two may be distinguished from each other in
Philippine distributor entered into a contract whereby the following ways:
the distributor agreed to order 1,000 units of the (1) In the first, title passes to the vendee upon
manufacturer’s computers every month and to resell delivery of the thing sold, whereas in the
them in the Philippines at the manufacturer’s second, by agreement, ownership is reserved in
suggested prices plus 10%. All unsold units at the the vendor and is not to pass until full payment
end of the year shall be bought back by the of the price.
manufacturer at the same price they were ordered. (2) In the first, nonpayment is a negative
The manufacturer shall hold the distributor free and resolutory condition, whereas in the second, full
harmless from any claim for defects in the units. Is payment is a positive suspensive condition.
the agreement one for sale or agency? (2000 Bar) (3) In the first, the vendor has lost and cannot
recover ownership until and unless the contract
SUGGESTED ANSWER: is resolved or rescinded, whereas in the second,
The contract is one of agency not sale. The title remains in the vendor, and when he seeks to
notion of sale is negated by the following eject the vendee because of noncompliance by
indicia: (1) the price is fixed by the manufacturer such vendee with the suspensive condition
with the 10% mark-up constituting the stipulated, he is enforcing the contract and not
commission; (2) the manufacturer reacquires the resolving the same. (Santos v. Santos, CA, 47
unsold units at exactly the same price; and (3) Off. Gaz, 6372.)
warranty for the units was borne by the
manufacturer. The foregoing indicia negate sale A contract to sell is the same as a conditional
because they indicate that ownership over the contract of sale. Do you agree? Explain your
units was never intended to transfer to the answer. (2012 Bar)
distributor.
SUGGESTED ANSWER:
A granted B the exclusive right to sell his brand of No. A contract to sell is a species of conditional
Maong pants in Isabela, the price for his sale. The contract to sell does not sell a thing or
merchandise payable within 60 days from delivery, property; it sells the right to buy property. A
and promising B a commission of 20% on all sales. conditional sale is a sale subject to the
After the delivery of the merchandise to B but before happening or performance of a condition, such
he could sell any of them, B’s store in Isabela was as payment of the full purchase price, or the
completely burned without his fault, together with all performance of other prestation to give, to do or
of A’s pants. Must B pay A for his lost pants? Why? not to do. Compliance with the condition
(1999 Bar) automatically gives the right to the vendee to
demand the delivery of the object of the sale. In
SUGGESTED ANSWER: a contract to sell, however, the compliance with
The contract between A and B is a sale not an the condition does not automatically sell the
agency to sell because the price is payable by B property to the vendee. It merely gives the
upon 60 days from delivery even if B is unable to vendee the right to compel the vendor to
resell it. If B were an agent, he is not bound to execute the deed of absolute sale.
pay the price if he is unable to resell it.
As a buyer, ownership passed to B upon State the basic difference (only in their legal effects)
delivery and, under Art. 1504 of the Civil Code, -
the thing perishes for the owner. Hence, B must a) Between a contract to sell, on the one hand, and
still pay the price. a contract of sale, on the other;
b) Between a conditional sale, on the one hand, and
May a person sell something that does not belong to an absolute sale, on the other hand. (1997 Bar)
him? Explain. (2003 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER: a) In a contract of sale, ownership is transferred
Yes, a person may sell something which does to the buyer upon delivery of the object to him
not belong to him. For the sale to be valid, the while in a contract to sell, ownership is retained
law does not require the seller to be the owner of by the seller until the purchase price is fully
the property at the time of the sale. (Article 1434, paid. In a contract to sell, delivery of the object
Civil Code). If the seller cannot transfer does not confer ownership upon the buyer. In a
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contract of sale, there is only one contract was no longer for sale. Due to the refusal,
executed between the seller and the buyer, while Bernadette caused the annotation of her adverse
in a contract to sell, there are two contracts, first claim upon TCT No. 12345 on December 19, 2016.
the contract to sell (which is a conditional or Later on, Bernadette discovered that Alice had sold
preparatory sale) and a second, the final deed of the property to Chona on February 5, 2016, and that
sale or the principal contract which is executed TCT No. 12345 had been cancelled and another
after full payment of the purchase price. one issued (TCT No. 67891) in favor of Chona as
b) A conditional sale is one where the vendor is the new owner.
granted the right to unilaterally rescind the Bernadette sued Alice and Chona for specific
contract predicated on the fulfillment or non- performance, annulment of sale and cancellation of
fulfillment, as the case may be, of the prescribed TCT No. 67891. Bernadette insisted that she had
condition. An absolute sale is one where the title entered into a contract of sale with Alice; and that
to the property is not reserved to the vendor or if because Alice had engaged in double sale, TCT No.
the vendor is not granted the right to rescind the 67891 should be cancelled and another title be
contract based on the fulfillment or non- issued in Bernadette’s favor.
fulfillment, as the case may be, of the prescribed a) Did Alice and Bernadette enter into a contract of
condition. sale of the lot covered by TCT No. 12345?
Explain your answer.
Alice agreed to sell a parcel of land with an area of b) Did Alice engage in double sale of the property?
500 square meters registered in her name and Explain your answer. (2017 Bar)
covered by TCT No. 12345 in favor of Bernadette
for the amount of P900,000.00. Their agreement SUGGESTED ANSWER:
dated October 15, 2015 reads as follows: a) Alice and Bernadette did not enter into a
contract of sale, they entered into a contract to
I, Bernadette, agree to buy the lot sell. In a contract of sale, one of the contracting
owned by Alice covered by TCT No. parties obligates himself to transfer the
12345 for the amount of ownership of and to deliver a determinate thing,
P900,000.00 subject to the and the other to pay therefor a price certain in
following schedule of payment: money or its equivalent. Thus, in a contract of
sale, upon the execution of the contract,
Upon signing of ownership of the thing passes to the buyer.
agreement – However, if the seller reserves ownership of the
thing sold despite delivery of the same, on the
P100,000.00 condition that the same will pass to the buyer
November 15, 2015 upon the happening of a condition, usually the
– full payment of the price, the same is a contract
to sell. In the instant case, the terms of Alice and
P200,000.00 Bernadette’s agreement state that title to the
December 15, 2015 property would be transferred upon full payment
– of the P900,000.00. Where the vendor promises
to transfer title to the property only upon the
P200,000.00 completion by the vendee of the payment of the
January 15, 2016 price, the contract is only a contract to sell.
Accordingly, the parties diod not enter into a
– contract of sale.
b) Alice did not engage in double sale of the
P200,000.00 property. For double sale of property to occur,
February 15, 2016 the law requires that there be two valid sales.
– Since, as earlier stated, the contract entered into
by Alice and Bernadette was not a contract of
P200,000.00 sale, but rather a contract to sell, which was not
perfected, given the failure of Bernadette to pray
Title to the property shall be the full price within the period agreed upon,
transferred upon full payment of there is only one valid sale in this situation, the
P900,000.00 on or before February sale of the property by Alice to Chona. Since
15, 2016. there is only one sale, the provision of Article
1544 of the Civil Code on double sales is
After making the initial payment of P100,000.00 on inapplicable.
October 15, 2015, and the second instalment of
P200,000.00 on November 15, 2015, Bernadette Peter and Paul entered into a Contract to Sell
defaulted despite repeated demands from Alice. whereby Peter, the lot owner, agreed to sell to Paul
In December 2016, Bernadette offered to pay her his lot on November 6, 2016 for the price of
balance but Alice refused and told her that the land
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PI,000,000.00 to be paid at the residence of Peter paid in one payment, the sale would not be an
in Makati City at 1:00 p.m. If the full price is paid in installment payment and RA 6552 would not
cash at the specified time and place, then Peter will apply. In that case, the answer given earlier
execute a Deed of Absolute Sale and deliver the would apply — the contract is non-existent and
title to Paul. there is no need to rescind the same. In the
On November 6, 2016, Paul did not show up and absence of stipulation, and to prevent unjust
was not heard of from that date on. In view of the enrichment, Peter has to return the
nonperformance by Paul of his obligation, Peter downpayment to Paul, as the purpose of the
sent a letter to Paul that he is expressly and extra- same was not achieved.
judicially declaring the Contract to Sell rescinded
and of no legal and binding effect. Peter further Arturo gave Richard a receipt which states:
stated that failure on the part of Paul to contest the
rescission within thirty (30) days from receipt of said “Receipt
letter shall mean that the latter agreed to the Received from Richard as down payment for my
rescission. 1995 Toyota Corolla with plate No. XYZ-123
Paul did not reply to this letter for five (5) years. P50,000.00
Thus, Peter decided to sell his lot to Henry in 2021. Balance payable 12/30/01 P50,000.00
After hearing that Henry bought the lot, Paul now
questions the sale of the lot to Henry and files a September 15, 2001.
complaint for nullification of the sale. (Sgd.) Arturo
b) Is the exercise by Peter of his power to rescind
extra-judicially the Contract to Sell the proper Does this receipt evidence a contract to sell? Why?
and legal way of rescinding said contract? (2001 Bar)
Explain.
c) In case Paul made a downpayment pursuant to SUGGESTED ANSWER:
a stipulation in the Contract to Sell, what is the It is a contract of sale because the seller did not
legal remedy of Peter? (2016 Bar) reserve ownership until he was fully paid.

SUGGESTED ANSWER: Mr. and Mrs. X migrated to the US with all

a) No, the extra-judicial exercise by Peter of the their children. As they had no intention of coming
power to rescind is improper. In a contract to back, they offered their house and lot for sale to
sell, the seller retains title to the thing to be sold their neighbors, Mr. and Mrs. A (the buyers) who
until the purchaser pays the agreed purchase agreed to buy the property for P8 Million. Because
price. Payment of the price is a positive Mr. and Mrs. A needed to obtain a loan from a bank
suspensive condition, the non-fulfillment of first, and since the sellers were in a hurry to
which is not a breach of contract but merely an migrate, the latter told the buyers that they could
event that prevents the seller from conveying already occupy the house, renovate it as it was
title to the purchaser. The non-payment of the already in a state of disrepair, and pay only when
purchase price renders the contract to sell their loan is approved and released. While waiting
ineffective and without force and effect (see for the loan approval, the buyers spent PI Million in
Ayala Life Assurance, Inc. v. Ray Burton Dev. repairing the house. A month later, a person
Corp., 479 SCRA 462). In the instant case, Paul carrying an authenticated special power of attorney
never paid the purchase price. Accordingly, the from the sellers demanded that the buyers either
contract to sell was rendered ineffective, without immediately pay for the property in full now or
force, and non-existent. There is no need to vacate it and pay damages for having made
rescind said contract, as you cannot rescind improvements on the property without a sale having
what does not exist. been perfected.

b) If Paul made a downpayment, Peter’s remedy a) What are the buyers' options or legal rights with
would depend on how the remaining balance respect to the expenses they incurred in improving
would be paid. If their agreement was that the the property under the circumstances?
remaining balance would be paid in two or more b) Can the buyers be made to immediately vacate
installments, their agreement would be a sale on on the ground that the sale was not perfected?
installments, hence would be covered by the Explain briefly. (2015 Bar)
Maceda Law (RA 6552), as the same applies to .
Peter would then have to give Paul a notice of SUGGESTED ANSWER:
cancellation by notarial act for the contract a)The buyers are not liable for damages for the
between them to be declared non-existent. Note improvements they have made on the property,
that there would be no need for Peter to give a as in fact, they are already owners of the
refund, Paul having made less than two years of property, as well as the improvements they have
installment payments. On the other hand, if their made thereon. The contract entered into by the
agreement was for the remaining balance to be parties is a conditional deed of sale, the sellers
having agreed to sell, and the buyers having
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agreed to buy, the house and lot for P8 Million, of the purchase price. In other words, in a
on the condition that payment would be sourced contract to sell, the full payment of the
from the loan that the buyers would obtain from purchase price gives rise to the obligation on
a bank. Notably, the sellers did not reserve the part of the owner to “sell” or execute a deed
ownership in themselves until payment of the of sale over the property in favor of the buyer. In
price, hence with the occupation of the house the instant case, there is nothing in the contract
by the buyers, there was already a transfer of that states that Nante retains or reserves
ownership of the house and lot to the buyers, ownership of the property until full payment of
the same having already been delivered to the the purchase price. Clearly, the contract is a
latter. In sum, the expenses incurred by the contract of sale, not a contract to sell as
buyers in improving the property were expenses asserted by Nante.
incurred as owners already of the property.
Bert offers to buy Simeon’s property under the
b) The buyers cannot be made to vacate the following terms and conditions: P1 million purchase
house and lot. As stated earlier, the contract price, 10% option money, the balance payable in
entered into by the parties was a conditional cash upon the clearance of the property of all illegal
deed of sale. There was already a meeting of the occupants. The option money is promptly paid and
minds between the parties as to the thing and Simeon clears the property of all illegal occupants in
cause which are to constitute the contract – the no time at all. However, when Bert tenders payment
house and lot for P8 Million, the same to be paid of the balance and asks Simeon for the deed of
from the loan which the buyers would procure absolute sale, Simeon suddenly has a change of
from a bank. With the delivery of the house and heart, claiming that the deal is disadvantageous to
lot to the buyers, ownership was already him as he has found out that the property can fetch
transferred to them, despite the non-payment three times the agreed purchase price. Bert seeks
yet of the price, as ownership was not reserved specific performance but Simeon contends that he
by the sellers. Consequently, the buyers may no has merely given Bert an option to buy and nothing
longer be made to immediately vacate the more, and offers to return the option money which
premises, they being already the owners of the Bert refuses to accept.
same. a) Explain the nature of an option contract.
b) Will Bert’s action for specific performance
Nante, a registered owner of a parcel of land in prosper? Explain.
Quezon City, sold the property to Monica under a c) May Simeon justify his refusal to proceed with the
deed of sale which reads as follows: sale by the fact that the deal is financially
disadvantageous to him? Explain. (2002 Bar)
“That for and in
consideration of the sum of SUGGESTED ANSWER:
P500,000.00, value to be paid and a) An option contract is one granting a privilege
delivered to me, and receipt of to buy or sell within an agreed time and at a
which shall be acknowledged by determined price. It must be supported by a
me to the full satisfaction of consideration distinct from the price. (Art. 1479
Monica, referred to as Vendee, I and 1482, Civil Code)
hereby sell, transfer, cede, convey, b) Bert’s action for specific performance will
and assign, as by these presents, I prosper because there was a binding agreement
do have sold, transferred, ceded, of sale, not just an option contract. The sale was
conveyed and assigned a parcel of perfected upon acceptance by Simeon of 10% of
land covered by TCT No. 2468 in the agreed price. This amount is in reality
favor of the Vendee.” earnest money which, under Art. 1482, “shall be
considered as part of the price and as proof of
After delivery of the initial payment of P100,000.00, the perfection of the contract” (Topacio v. CA,
Monica immediately took possession of the 211 SCRA 291; Villongco Realty v. Bormaheco,
property. Five (5) months after, Monica failed to pay 65 SCRA 352).
the remaining balance of the purchase price. Nante c) Simeon cannot justify his refusal to proceed
filed an action for the recovery of possession of the with the sale by the fact that the deal is
property. Nante alleged that the agreement was one financially disadvantageous to him. Having
to sell, which was not consummated as the full made a bad bargain is not a legal ground for
contract price was not paid. Is the contention of pulling out of a binding contract of sale, in the
Nante tenable? Why? (2014 Bar) absence of some actionable wrong by the other
party (Vales v. Villa, 35 Phil. 769), and no such
SUGGESTED ANSWER: wrong has been committed by Bert.
No, the contention of Nante is not tenable. In a
contract to sell, the owner retains or reserves
the ownership of the property until full payment Delivery of the Thing Sold

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Juliet offered to sell her house and lot, together with acquired by E from the moment it was delivered
all the furniture and appliances therein, to Dehlma. to him. Having acquired ownership, E bears the
Before agreeing to purchase the property, Dehlma risk of the loss of the thing under the doctrine of
went to the Register of Deeds to verify Juliet’s title. res perit domino. (Articles 1496, 1497, Civil
She discovered that while the property was Code).
registered in Juliet’s name under the Land
Registration Act, as amended by the Property Using a falsified manager’s check, Justine, as the
Registration Decree, it was mortgaged to Elaine to buyer, was able to take delivery of a second hand
secure a debt of P80,000. Wanting to buy the car which she had just bought from United Car
property, Dehlma told Juliet to redeem the property Sales, Inc. The sale was registered with the Land
from Elaine, and gave her an advance payment to Transportation Office. A week later, the seller
be used for purposes of releasing the mortgage on learned that the check had been dishonored, but by
the property. When the mortgage was released, that time, Justine was nowhere to be seen. It turned
Juliet executed a Deed of Absolute Sale over the out that Justine had sold the car to Jerico, the
property which was duly registered with the Registry present possessor who knew nothing about the
of Deeds, and a new TCT was issued in Dehlma’s falsified check. In a suit by United Car Sales, Inc.
name. Dehlma immediately took possession over against Jerico for recovery of the car, plaintiff alleges
the house and lot and the movables therein. it had been unlawfully deprived of its property
Thereafter, Dehlma went to the Assessor’s Office to through fraud and should, consequently, be allowed
get a new tax declaration under her name. She was to recover it without having to reimburse the
surprised to find out that the property was already defendant for the price the latter had paid. Should
declared for tax purposes in the name of XYZ Bank the suit prosper? (1998 Bar)
which had foreclosed the mortgage on the property
before it was sold to her. XYZ Bank was also the SUGGESTED ANSWER:
purchaser in the foreclosure sale of the property. At No, the suit will not prosper. The sale is valid as
that time, the property was still unregistered but XYZ Jerico is a buyer in good faith. Under the law on
Bank registered the Sheriff’s Deed of Conveyance in Sales, when the thing sold is delivered by the
the day book of the Register of Deeds under Act. seller to the buyer without reservation of
3344 and obtained a tax declaration in its name. ownership, the ownership is transferred to the
Who owns the movables inside the house? (2008 buyer. Accordingly, when United Car Sales sold
Bar) and delivered the car to Justine, ownership was
transferred to Justine. While said ownership
SUGGESTED ANSWER: may have been voidable, due to the unfunded
Unless there is a contrary stipulation in the check, when Justine sold the car to Jerico, said
absolute deed of sale, Dehlma owns the ownership, which had not yet been nullified, was
movables covered by the Deed of Sale and her then transferred to the latter. Given that Jerico
ownership is perfected by the execution and had no knowledge of the falsified check, as an
delivery of public document of sale. The delivery innocent purchaser for value, his ownership of
of the absolute deed of sale is a symbolical the car is now plenary and without any defect
delivery of the house and lot, including the whatsoever, hence United Car may no longer
contents of the house. This is an obligation to recover the car from him. United Car Sales, Inc.
deliver a specific thing, which includes the may, however, still proceed against Justine.
delivery of the specific thing itself and all of its Incidentally, United Car Sales’ allegation that it
accessions and accessories even though they has been unlawfully deprived of its property
may not have been mentioned (Art. 1166, Civil applies to the proceeds of the check, not to the
Code). car it sold, hence Art. 559 applies to the amount
covered by the check issued by Justine, not to
D sold a second-hand car to E for P150,000.00 The the car sold. (EDCA Publishing and Distributing
agreement between D and E was that half of the Corp. v. Santos, 184 SCRA 614).
purchase price, or P75,000.00, shall be paid upon
delivery of the car to E and the balance of Donna pledged a set of diamond ring and
P75,000.00 shall be paid in five equal monthly earrings to Jane for P200,000.00 She was made to
installments of P15,000.00 each. The car was sign an agreement that if she cannot pay her debt
delivered to E, and E paid the amount of P75,000.00 within six months, Jane could immediately
to D. Less than one month thereafter, the car was appropriate the jewelry for herself. After six months,
stolen from E’s garage with no fault on E’s part and Donna failed to pay. Jane then displayed the
was never recovered. Is E legally bound to pay the earrings and ring set in her jewelry shop located in a
said unpaid balance of P75,000.00? Explain your mall. A buyer, Juana, bought the jewelry set for
answer. (1990 Bar) P300,000.00.

SUGGESTED ANSWER: Can Donna redeem the jewelry set from Juana by
Yes, E is legally bound to pay the balance of paying the amount she owed Jane to Juana?
P75,000.00. The ownership of the car sold was Explain with legal basis. (2015 Bar)
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buyer knew of the second sale. The fact that he

SUGGESTED ANSWER: knew of the second sale at the time of his
No, Donna may not redeem the jewelry set from registration does not make him as acting in bad
Juana, even if she is amenable to paying the faith because the sale to him was ahead in time,
amount she borrowed from Jane to Juana. As hence, has a priority in right. What creates bad
stated earlier, Jane could not immediately faith in the case of double sale of land is
appropriate the jewelry pledged by Donna, the knowledge of a previous sale.
same being in the nature of pactum b) The first buyer is still to be preferred, where
commissorium and thus void. She did not the second sale is registered ahead of the first
become the owner of the jewelry. sale but with knowledge of the latter. This is
because the second buyer, who at the time he
As a general rule, where goods are sold by a registered his sale knew that the property had
person who is not the owner thereof, and who already been sold to someone else, acted in bad
does not sell them under authority or with the faith. (Article 1544, C.C.)
consent of the owner, the buyer acquires no
better title to the goods than the seller had. In 1950, A executed a power of attorney authorizing
However, under Article 1505 of the Civil Code, an B to sell a parcel of land consisting of more than 14
innocent purchaser acquires a better title than hectares. A died in 1954. In 1956, his four children
his vendor if he buys the goods in a merchant’s sold more than 12 hectares of the land to C. In
store, or in a fair or market. In the instant case, 1957, B sold 8 hectares of the same land to D. It
even if Jane was not the owner of the jewelry, appears that C did not register the sale executed by
the same was displayed in her jewelry shop in a the children. D, who was not aware of the previous
mall, and thereafter purchased by Juana. The sale, registered the sale executed by B, whose
jewelry having been purchased in a merchant’s authority to sell was annotated at the back of the
store by Juana, who appears to be an innocent Original Certificate of Title.
purchaser for value, the same may no longer be Assuming that B still had the authority to sell the
recovered by Donna, even if she offers to pay land — who has a better right over the said land, C
the amount she borrowed from Jane. or D? (1988 Bar)

SUGGESTED ANSWER:
Double sale, Article 1544 As the case at bar is a case of double sale of
registered land he who recorded the sale in
If the same thing should have been sold to different good faith has a better right in conformity with
vendees, to whom shall the ownership be Art. 1544 of the Civil Code. Since D was not
transferred? (1989 Bar) aware of the previous sale, he had to rely on the
face of the certificate of title of the registered
SUGGESTED ANSWER: owner. Hence, he now has a better right to the
If the same thing should have been sold to land. (Buason v. Panuyas, supra.)
different vendees, the ownership shall be
transferred to the person who may have first Miguel, Carlos and Lino are neighbors. Miguel
taken possession thereof in good faith, if it owned a piece of registered land which both Carlos
should be movable property. and Lino wanted to buy. Miguel sold the land to
Should it be immovable property, the ownership Carlos. The sale was not registered upon the
shall belong to the person acquiring it who in request of Miguel. Later on, the same property was
good faith first recorded it in the Registry of sold by Miguel to Lino. Miguel told Carlos about the
Property. second sale. Carlos immediately tried to see Lino to
Should there be an inscription, the ownership discuss the matter and inform him of the previous
shall pertain to the person who in good faith was sale to him (Carlos) of the same property but Lino
first in the possession; and, in the absence refused to see Carlos. Thereupon Carlos annotated
thereof, to the person who presents the oldest in the Registry of Property his adverse claim on the
title, provided there is good faith. property. A week later, Lino registered the sale on
his favor and had a new transfer certificate of title
On June 15, 1995, Jesus sold a parcel of registered issued in his name. However, the adverse claim of
land to Jaime. On June 30, 1995, he sold the same Carlos was duly annotated in the title.
land to Jose. Who has a better right if: Notwithstanding, Lino took possession of the
a) the first sale is registered ahead of the second property and built a small bungalow thereon.
sale, with knowledge of the latter. Why? (a) Who is the rightful owner of the property?
b) the second sale is registered ahead of the first Explain.
sale, with knowledge of the latter? Why? (2001 Bar) (b) To whom would the bungalow built by Lino on the
property belong? Explain. (1987 Bar)
SUGGESTED ANSWER:
a) The first buyer has the better right if his sale SUGGESTED ANSWER:
was first to be registered, even though the first
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a. Carlos is the rightful owner of the property. Title to the property shall be
Under Article 1544, if the same thing should transferred upon full payment of
have been sold to two different vendees, the P900,000.00 on or before February
land sold belongs to the persons who in good 15, 2016.
faith first registers the sale with the Register of
Deeds. If there is no registration, it belongs to After making the initial payment of P100,000.00 on
the person who in good faith was first in October 15, 2015, and the second instalment of
possession. And if there is no possession, to P200,000.00 on November 15, 2015, Bernadette
the person with the oldest title, provided there is defaulted despite repeated demands from Alice.
good faith. In the instant case, while Lino may In December 2016, Bernadette offered to pay her
have registered the sale and took possession of balance but Alice refused and told her that the land
the property first, prior to the registration and was no longer for sale. Due to the refusal,
possession, Carlos had already had his claim Bernadette caused the annotation of her adverse
annotated on the title of the property. Clearly, claim upon TCT No. 12345 on December 19, 2016.
Lino was not in good faith when he registered Later on, Bernadette discovered that Alice had sold
and took possession of the property. There the property to Chona on February 5, 2016, and that
being no good faith on the part of Lino, Carlos, TCT No. 12345 had been cancelled and another
who has the oldest title would be the rightful one issued (TCT No. 67891) in favor of Chona as
owner of the property. the new owner.
b. The bungalow built by Lino belongs to Carlos. Bernadette sued Alice and Chona for specific
Article 449 provides that he who builds in bad performance, annulment of sale and cancellation of
faith on the land of another loses what it built TCT No. 67891. Bernadette insisted that she had
without right to indemnity. As Lino was aware, at entered into a contract of sale with Alice; and that
the time he constructed the bungalow, that the because Alice had engaged in double sale, TCT No.
property had already been sold earlier to Carlos, 67891 should be cancelled and another title be
he was in bad faith. Being in bad faith, he loses issued in Bernadette’s favor.
the same in favor of Carlos. c) Did Alice and Bernadette enter into a contract of
sale of the lot covered by TCT No. 12345?
Alice agreed to sell a parcel of land with an area of Explain your answer.
500 square meters registered in her name and d) Did Alice engage in double sale of the property?
covered by TCT No. 12345 in favor of Bernadette Explain your answer. (2017 Bar)
for the amount of P900,000.00. Their agreement
dated October 15, 2015 reads as follows: SUGGESTED ANSWER:
a) Alice and Bernadette did not enter into a
I, Bernadette, agree to buy the lot contract of sale, they entered into a contract to
owned by Alice covered by TCT No. sell. In a contract of sale, one of the contracting
12345 for the amount of parties obligates himself to transfer the
P900,000.00 subject to the ownership of and to deliver a determinate thing,
following schedule of payment: and the other to pay therefor a price certain in
money or its equivalent. Thus, in a contract of
Upon signing of sale, upon the execution of the contract,
agreement – ownership of the thing passes to the buyer.
However, if the seller reserves ownership of the
P100,000.00 thing sold despite delivery of the same, on the
November 15, 2015 condition that the same will pass to the buyer
– upon the happening of a condition, usually the
full payment of the price, the same is a contract
P200,000.00 to sell. In the instant case, the terms of Alice and
December 15, 2015 Bernadette’s agreement state that title to the
– property would be transferred upon full payment
of the P900,000.00. Where the vendor promises
P200,000.00 to transfer title to the property only upon the
January 15, 2016 completion by the vendee of the payment of the
price, the contract is only a contract to sell.
– Accordingly, the parties diod not enter into a
contract of sale.
P200,000.00
February 15, 2016
–

P200,000.00

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b) Alice did not engage in double sale of the rescission under Art. 1592 of the Civil Code is
property. For double sale of property to occur, necessary (Taguba v. de Leon, 132 SCRA 722.),
the law requires that there be two valid sales. which requirements BPI have not complied with.
Since, as earlier stated, the contract entered into
by Alice and Bernadette was not a contract of A sold to B a house and lot for P50,000.00 payable
sale, but rather a contract to sell, which was not 30 days after the execution of the deed of sale. It
perfected, given the failure of Bernadette to pray was expressly agreed in the deed that the sale
the full price within the period agreed upon, would ipso facto be of no effect upon the buyer’s
there is only one valid sale in this situation, the failure to pay as agreed. B failed to pay on maturity,
sale of the property by Alice to Chona. Since and A sued to declare the contract of no force and
there is only one sale, the provision of Article effect. If B tendered payment before the action was
1544 of the Civil Code on double sales is filed, but subsequent to the stipulated date of
inapplicable. payment, would the action prosper? Why? (1988
Bar)

Obligations of the vendee SUGGESTED ANSWER:

The action would not prosper in such a case.
LT applied with BPI to purchase a house and lot in According to the law, “in the sale of immovable
Quezon City, one of its acquired assets. The amount property, even though it may have been
offered was P1,000,000.00 payable, as follows: stipulated that upon failure to pay the price at
P200,000.00 down payment, the balance of the time agreed upon the rescission of the
P800,000.00 payable within 90 days from June 1, contract shall of right take place, the vendee
1985. BPI accepted the offer, whereupon LT drew a may pay, even after the expiration of the period,
check for P200,000.00 in favor of BPI which the so long as no demand for the rescission of the
latter thereafter deposited in its account. On contract has been made upon him either
September 5, 1985, LT wrote BPI requesting judicially or by notarial act. After the demand,
extension until October 10, 1985, within which to the court may not grant him a new term.” (Art.
pay the balance, to which BPI agreed. On October 1592, CC.) Here, at the time B tendered payment
5, 1985, due to the expected delay in the remittance of the purchase price, there was still no demand
of the needed amount by his financier from the made upon him by A for the payment of said
United States, LT wrote BPI requesting a last purchase price either judicially or by notarial act.
extension until October 30, 1985, within which to
pay the balance. BPI denied LT’s request because X sold a parcel of land to Y on 01 January 2002,
another had offered to buy the same property for payment and delivery to be made on 01 February
P1,500,000.00, cancelled its agreement with LT and 2002. It was stipulated that if payment were not to
offered to return to him the amount of P200,000.00 be made by Y on 01 February 2002, the sale
that LT had paid to it. On October 20, 1985, upon between the parties would automatically be
receipt of the amount of P800,000.00 from his US rescinded. Y failed to pay on 01 February 2002, but
financier, LT offered to pay the amount by tendering offered to pay three days later, which payment X
a cashier’s check therefor but which BPI refused to refused to accept, claiming that their contract of sale
accept. LT then filed a complaint against BPI in the had already been rescinded. Is X’s contention
RTC for specific performance and deposited in court correct? Why? (2003 Bar)
the amount of P800,000.00. Is BPI legally correct in
cancelling its contract with LT? (1993 Bar) SUGGESTED ANSWER:
No, X is not correct. In the sale of immovable
SUGGESTED ANSWER: property, even though it may have been
BPI is not correct in cancelling the contract with stipulated, as in this case, that upon failure to
LT. The general rule is that rescission (more pay the price at the time agreed upon the
appropriately, resolution ) of a contract will not rescission of the contract shall of right take
be permitted for a slight or casual breach, but place, the vendee may pay, even after the
only for such substantial and fundamental expiration of the period, as long as no demand
violations as would defeat the very object of the for rescission of the contract has been made
parties in making the agreement. In the instant upon him either judicially or by a notarial act
case, LT’s failure to pay the balance on time is (Article 1592, Civil Code). Since no demand for
merely a slight breach of their agreement. Delay rescission was made on Y, either judicially or by
in the fulfillment of the obligation (Art. 1169, Civil a notarial act, X cannot refuse to accept the
Code) is a ground to rescind only if time is of the payment offered by Y three (3) days after the
essence. Otherwise, the court may refuse the expiration of the period.
rescission if there is a just cause for the fixing of
a period. There is no showing that time is of the ANOTHER SUGGESTED ANSWER:
essence in the agreement in question, hence BPI This is a contract to sell and not a contract of
may not use the same as a ground for absolute sale, since as there has been no
rescission. Secondly, notarial or judicial delivery of the land. Article 1592 of the Civil
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Code is not applicable. Instead, Article 1595 of An equitable mortgage arises from a transaction,
the Civil Code applies. The seller has two regardless of its form, which results into a
alternative remedies: (1) specific performance, security, or an offer or attempt to pledge land as
or (2) rescission or resolution under Article 1191 security for a debt or liability. Its essence is the
of the Civil Code. In both remedies, damages are intent of the parties to create a mortgage, lien or
due because of default. charge on the property sufficiently described or
identified to secure an obligation, which intent
ALTERNATIVE ANSWER: must be clearly established in order that such a
Yes, the contract was automatically rescinded mortgage may exist.
upon Y’s failure to pay on 01 February 2002. By Defendant’s defense that he acquired the land
the express terms of the contract, there is no through an Absolute Deed of Sale and not
need for X to make a demand in order for through pacto de retro is untenable. The
rescission to take place. (Article 1191, Civil presumption of equitable mortgage under Article
Code; Suria v. IAC, 151 SCRA 661; U.P. v. de los 1602 of the Civil Code, equally applies to a
Angeles, 35 SCRA 102). contract purporting to be an absolute sale
(Article 1604, Civil Code). The facts and
circumstances that Pedro retained possession
Extinguishment of sale, conventional redemption of the Owner’s Duplicate Copy of the Certificdte
of Title; that he remained in possession of the
Distinguish between a contract of real estate land as lessee; that he bound himself to pay the
mortgage and a contract of sale with right of realty taxes during the period of lease, are
repurchase. (1989 Bar) matters collectively and strongly indicating that
the Deed of Absolute Sale is an equitable
SUGGESTED ANSWER: mortgage. In case of doubt, the Deed of Sale
1. Real estate mortgage is an accessory should be considered as a loan with mortgage,
contract. A contract of sale with right of because this juridical relation involves a lesser
repurchase is a principal contract. transmission of rights and interests.
2. Real estate mortgage involves no transfer of If the transaction is proven to be an equitable
title. A contract of sale involves a conditional mortgage, Pedro’s prayer for reformation of the
transfer of title. instrument should be granted in accordance
3. Real estate mortgage involves no transfer of with Article 1605 of the Civil Code. Thus, in case-
possession. A contract of sale involves a of non-payment, he may foreclose the mortgage
conditional transfer of possession. and consolidate his ownership of the land. In
4. In a real estate mortgage the creditor has no that event, Juan’s counterclaim to recover
rights to the fruits. In a contract of sale, the possession of the land and to compel Pedro to
vendee is entitled to the fruits. surrender the Owner’s Duplicate Copy of the title
5. In a real estate mortgage, upon default the becomes a consequential right.
creditor is not the owner. In a contract of sale,
upon consolidation, the vendee is the owner. Eulalia was engaged in the business of buying and
selling large cattle. In order to secure the financial
On July 14, 2004, Pedro executed in favor of Juan a capital, she advanced for her employees
Deed of Absolute Sale over a parcel of land covered (biyaheros). She required them to surrender TCT of
by TCT No. 6245. It appears in the Deed of Sale their properties and to execute the corresponding
that Pedro received from Juan P120,000.00 as Deeds of Sale in her favor. Domeng Bandong was
purchase price. However, Pedro retained the not required to post any security but when Eulalia
owner’s duplicate of said title. Thereafter, Juan, as discovered that he incurred shortage in cattle
lessor, and Pedro, as lessee, executed a contract of procurement operation, he was required to execute
lease over the property for a period of one (1) year a Deed of Sale over a parcel of land in favor of
with a monthly rental of P1,000.00. Pedro, as Eulalia. She sold the property to her grandniece
lessee, was also obligated to pay the realty taxes on Jocelyn who thereafter instituted an action for
the property during the period of lease. ejectment against the Spouses Bandong. To assert
Subsequently, Pedro filed a complaint against Juan their right, Spouses Bandong filed an action for
for the reformation of the Deed of Absolute Sale, annulment of sale against Eulalia and Jocelyn
alleging that the transaction covered by the deed alleging that there was no sale intended but only
was an equitable mortgage. In his verified answer to equitable mortgage for the purpose of securing the
the complaint, Juan alleged that the property was shortage incurred by Domeng in the amount of P
sold to him under the Deed of Absolute Sale, and 70,000.00 while employed as a “biyahero” by
interposed counterclaims to recover possession of Eulalia. Was the Deed of Sale between Domeng
the property and to compel Pedro to turn over to him and Eulalia a contract of sale or an equitable
the owner’s duplicate of title. Resolve the case with mortgage? Explain. (2012 Bar)
reasons. (2005 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
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The contract between Domeng Bandong and point to the transaction between the parties
Eulalia was an equitable mortgage rather than a being an equitable mortgage. Note also that
contract of sale. The purported deed of sale was under the Civil Code, in case of doubt, a
actually intended to merely secure the payment contract purporting to be a sale with right of
of the shortage incurred by Domeng in the repurchase shall be construed as an equitable
conduct of the cattle-buying operations. Under mortgage. Accordingly, there being doubts
Art 1602, Civil Code, the contract shall be raised on the true nature of the transaction, the
presumed to be an equitable mortgage when it same must be construed to be an equitable
may be fairly inferred that the real intention of mortgage. Finally, the fact that the redemption
the parties is simply to secure the payment of a by Ariel was made one day after the period to
debt or the performance of any other obligation. repurchase expired is of no moment, as Art.
The present transaction was clearly intended to 1606 of the Civil Code provides that the vendor
just secure the shortage incurred by Eulalia may still repurchase the property within 30 days
because Bandung remained in possession of the from the time final judgment is rendered in a
property inspite of the execution of the sale. civil action on the basis that the contract was a
true sale with right of repurchase.
On March 13, 2008, Ariel entered into a Deed of
Absolute Sale (DAS) with Noel where the former On 20 December 1970, Juliet, a widow, borrowed
sold his titled lot in Quezon City with an area of from Romeo P4,000.00 and, as security therefore,
three hundred (300) square meters to the latter for she executed a deed of mortgage over one of her
the price of P300,000.00. The prevailing market two (2) registered lots which has a market value of
value of the lot was P3,000.00 per square meter. P15,000.00. The document and the certificate of title
On March 20, 2008, they executed another of the property were delivered to Romeo.
“Agreement To Buy Back/Redeem Property” where
Ariel was given an option to repurchase the On 2 June 1971, Juliet obtained an additional sum
property on or before March 20, 2010 for the same of P3,000.00 from Romeo. On this date; however,
price. Ariel, however, remained in actual possession Romeo caused the preparation of a deed of
of the lot. Since Noel did not pay the taxes, Ariel absolute sale of the above property, to which Juliet
paid the real property taxes to avoid a delinquency affixed her signature without first reading the
sale. document. The consideration indicated is P7,000.00.
On March 21, 2010, Ariel sent a letter to Noel, She thought that this document was similar to the
attaching thereto a manager’s check for first she signed. When she reached home, her son
P300,000.00 manifesting that he is redeeming the X, after reading the duplicate copy of the deed,
property. Noel rejected the redemption claiming that informed her that what she signed was not a
the DAS was a true and valid sale representing the mortgage but a deed of absolute sale. On the
true intent of the parties. Ariel filed a suit for the following day, 3 June 1971, Juliet, accompanied by
nullification of the DAS or the reformation of said X, went back to Romeo and demanded the
agreement to that of a Loan with Real Estate reformation of the aforesaid instrument. Romeo
Mortgage. He claims the DAS and the redemption prepared and signed a document wherein, as
agreement constitute an equitable mortgage. Noel vendee in the deed of sale above mentioned, he
however claims it is a valid sale with pacto de retro obligated and bound himself to resell the land to
and Ariel clearly failed to redeem the property. Juliet or her heirs and successors for the same
As the RTC judge, decide the case with reasons. consideration as reflected in the deed of sale
(2016 Bar) (P7,000.00) within a period of two (2) years, or until
3 June 1973. It is further stated therein that should
SUGGESTED ANSWER: the Vendor (Juliet) fail to exercise her right to
The transaction between Ariel and Noel must be redeem within the said period, the conveyance shall
declared as a loan with an equitable mortgage, be deemed absolute and irrevocable. Romeo did not
such being the actual intention of the parties. take possession of the property. He did not pay the
Art. 1602 of the Civil Code provides that a taxes thereon.
contract of sale shall be presumed to be an
equitable mortgage when the following Juliet died in January 1973 without having
circumstances, among others, are present: 1) repurchased the property. Her only surviving heir,
the price of the sale is unusually inadequate; 2) her son X, failed to repurchase the property on or
when the vendor remains in possession of the before 3 June 1973. In 1975, Romeo sold the
property as lessee or otherwise; 3) when the property to Y for P50,000.00. Upon learning of the
vendor binds himself to pay the taxes on the sale, X filed an action for the nullification of the sale
thing sold. In the instant case, these elements and for the recovery of the property on the ground
are all present. One, the price of the “sale” is that the so-called deed of absolute sale executed by
only 1/3 of the market value of the property. Two, his mother was merely an equitable mortgage,
Ariel, the vendor, remained in possession of the taking into account the inadequacy of the price and
lot sold. Third, it was the vendor, Ariel, who paid the failure of Romeo to take possession of the
the real property taxes on the property. All these property and to pay the taxes thereon. Romeo and Y
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maintain that there was a valid absolute sale and which again may not be the basis for an action
that the document signed by the former on 3 June for specific performance.
1973 was merely a promise to sell.
a) If you were the Judge, would you uphold the On January 2, 1980, A and B entered into a contract
theory of X? whereby A sold to B a parcel of land for and in
b) If you decide in favor of Romeo and Y, would you consideration of P 10,000.00, A reserving to himself
uphold the validity of the promise to sell? (1991 Bar) the right to repurchase the same. Because they
were friends, no period was agreed upon for the
SUGGESTED ANSWER: repurchase of the property.
a) I will not uphold the theory of X for the a) Until when must A exercise his right of
nullification of the sale and for the recovery of repurchase?
the property on the ground that the so-called b) If A fails to redeem the property within the
sale was only an equitable mortgage. As stated allowable period, what would you advise B to do for
in the problem itself, after the second deed was his better protection? (1993 Bar)
executed, Juliet showed the same to her son X,
with the latter advising her that the contract be SUGGESTED ANSWER:
reformed, as a consequence of which the a) A can exercise his right of repurchase within
separate deed of agreement of 3 June 1971 was four (4) years from the date of the contract (Art.
executed. It would be safe to conclude then that 1606, Civil Code).
Juliet, with the knowledge of X, had approved of b) I would advise B to file an action for
and consented to the provisions of both consolidation of title and obtain a judicial order
contracts. of consolidation which must be recorded in the
An equitable mortgage arises only if, in truth, the Registry of Property (Art. 1607, Civil Code).
sale was one with the right of repurchase. Here,
the right to repurchase was granted after the Tess leased her 1,500 sq. m. lot in Antipolo City to
absolute deed of sale was executed. As stated in Ruth for a period of three (3) years, from January
Cruzo v. Carriaga (174 SCRA 330), the right of 2010 to February 2013.
repurchase is not a right granted the vendor by
the vendee in a subsequent instrument, but is a On March 19, 2011, Tess sent a letter to Ruth, part
right reserved by the vendor in the same of which reads as follows:
instrument of sale as one of the stipulations of
the contract. Once the instrument of absolute “I am offering you to buy
sale is executed, the vendor can no longer the property you are presently
reserve the right to repurchase. Accordingly, if a leasing at P5,000.00 per sq. m. or
right to repurchase is executed independently of for a total of P7,500,000.00. You
the deed of sale, the right of repurchase would can pay the contract price by
amount only to an option to buy, or promise to installment for two (2) years without
sell, granted by the buyer to the seller. interest.
Since the contract cannot be upheld as a I will give you a period of
contract of sale with the right to repurchase, Art. one (1) year from receipt of this
1602 of the Civil Code on equitable mortgage will letter to decide whether you will buy
not apply. The rule could have been different if the property.”
both deeds were executed on the same occasion
or date, in which case, under the ruling in After the expiration of the lease contract, Tess sold
spouses Claravall v. CA (190 SCRA 439), the the property to her niece for a total consideration of
contract may still be sustained as an equitable P4 million.
mortgage, given the circumstances expressed in
Art. 1602. The reserved right to repurchase is Ruth filed a complaint for the annulment of the sale,
then deemed an original intention. reconveyance and damages against Tess and her
niece. Ruth alleged that the sale of the leased
b) If I were to decide in favor of Romeo and Y, I property violated her right to buy under the principle
would not uphold the validity of the promise to of right of first refusal. Is the allegation of Ruth
sell, so as to enforce it by an action for specific tenable? (2014 Bar)
performance. The promise to sell would only
amount to a mere offer and, therefore, it is not
enforceable unless it was sought to be exercised
before a withdrawal or denial thereof.

Even assuming the facts given at the end of the

case, there would have been no separate
consideration for such promise to sell. The
contract would at most amount to an option

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to sell the building, he will give Remigio the right of

SUGGESTED ANSWER: first refusal. On June 30, 1994, Ubaldo informed
No, the allegation of Ruth is untenable. A right of Remigio that he was willing to sell the building for P5
first refusal obligates the owner, should he Million. The following day, Remigio sent a letter to
decide to sell the property, to first offer the Ubaldo offering to buy the building at P4.5 Million.
property to the person with the right of first Ubaldo did not reply. One week later, Remigio
refusal. It obliges the owner to negotiate in good received a letter from Santos informing him that the
faith with the person with the right as to the building has been sold to him by Ubaldo for P5
terms and conditions of the sale. In the instant Million, and that he will not renew Remigio’s lease
case, there is no right of first refusal granted to when it expires. Remigio filed an action against
Ruth, Tess not having obligated herself to offer Ubaldo and Santos for cancellation of the sale, and
the property to Ruth should she decide to sell to compel Ubaldo to execute a deed of absolute sale
the property. Rather, what we have here is an in his favor, based on his right of first refusal.
offer made by Tess to Ruth, good for one year a) Will the action prosper? Explain.
from receipt of the offer. Notably, the offer has b) If Ubaldo had given Remigio an option to
already lapsed, being up to March 2012 only. purchase the building instead of a right of first
Since the offer has already lapsed, Tess was well refusal, will your answer be the same? Explain.
within her rights in selling the property to her (1996 Bar)
niece after the expiration of Ruth’s lease.
SUGGESTED ANSWER:
In a 20-year lease contract over a building, the a) No, the action to compel Ubaldo to execute
lessee is expressly granted a right of first refusal the deed of absolute sale will not prosper.
should the lessor decide to sell both the land and According to Ang Yu v. Court of Appeals (238
building. However, the lessor sold the property to a SCRA 602), the right of first refusal is not based
third person who knew about the lease and in fact on contract but is predicated on the provisions
agreed to respect it. Consequently, the lessee brings of human relations and, therefore, its violation is
an action against both the lessor-seller and the predicated on quasi-delict. Secondly, the right of
buyer (a) to rescind the sale and (b) to compel first refusal implies that the offer of the person
specific performance of his right of first refusal in the in whose favor that right was given must
sense that the lessor should be ordered to execute a conform with the same terms and conditions as
deed of absolute sale in favor of the lessee at the those given to the offeree. In this case, however,
same price. The defendants contend that the plaintiff Remigio was offering only P4.5 Million instead of
can neither seek rescission of the sale nor compel P5 Million.
specific performance of a “mere” right of first refusal.
Decide the case. (1998 Bar) ALTERNATIVE ANSWER:
No, the action will not prosper. The lessee’s right
SUGGESTED ANSWER: of first refusal does not go so far as to give him
The action filed by the lessee, for both the power to dictate on the lessor the price at
rescission of the offending sale and specific which the latter should sell his property. Upon
performance of the right of first refusal which the facts given, the lessor had sufficiently
was violated, should prosper. The ruling in complied with his commitment to give the lessee
Equatorial Realty Development, Inc. v. Mayfair a right of first refusal when he offered to sell the
Theater, Inc. (264 SCRA 483), a case with similar property to the lessee for P5 Million, which was
facts, sustains both rights of action because the the same price he got in selling it to Santos. He
buyer in the subsequent sale knew the existence certainly had the right to treat the lessee’s
of right of first refusal, hence in bad faith. counter-offer of a lesser amount as a rejection of
his offer to sell at P5 Million. Thus, he was free
ANOTHER ANSWER: to find another buyer upon receipt of such
The action to rescind the sale and to compel the unacceptable counter-offer (Art. 1319, Civil
right to first refusal will not prosper. (Ang Yu Code).
Asuncion v. CA, 238 SCRA 602). The Court ruled
in a unanimous en banc decision that the right b) Yes, the answer will be the same. The action
of first refusal is not founded upon contract but will not prosper because an option must be
on a quasi-delictual relationship covered by the supported by a consideration separate and
principles of human relations and unjust distinct from the purchase price. In this case
enrichment (Art. 19, et seq. Civil Code). Hence there is no separate consideration. Therefore,
the only action that will prosper according to the the option may be withdrawn by Ubaldo at any
Supreme Court is an “action for damages in a time. (Art. 1324, Civil Code)
proper forum for the purpose.”

Ubaldo is the owner of a building which has been Maceda Law and Recto Law
leased by Remigio for the past 20 years. Ubaldo has
repeatedly assured Remigio that if he should decide
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What are the so-called “Maceda” and “Recto” laws the surety is only payment pro tanto, and an
in connection with sales on installments? Give the action may be maintained for a deficiency debt.
most important features of each law. (1999 Bar)
Sonny, Inc. (SI) purchased several heavy
SUGGESTED ANSWER: machineries from Single Equipment Philippines, Inc.
The Maceda Law (R.A. 655) is applicable to sales (SEP) for PhP10 million, payable in 36 monthly
of immovable property on installments. The installments. A chattel mortgage was constituted on
most important features are (Rillo v. CA, 247 the same machineries as security for the amount. As
SCRA 461): additional security, the President of SI, Stan Smith,
(1) After having paid installments for at least two mortgaged his house and lot. SI failed to pay the
years, the buyer is entitled to a mandatory grace 16th and succeeding monthly installments. SEP then
period of one month for every year of installment commenced a collection suit against SI, and in the
payments made, to pay the unpaid installments course of the proceedings, a writ of attachment was
without interest. issued against SI’s properties, including the
If the contract is cancelled, the seller shall mortgaged machineries. The attached properties
refund to the buyer the cash surrender value were subsequently sold at public action, but the
equivalent to fifty percent (50%) of the total proceeds thereof were insufficient to satisfy the
payments made, and after five years of judgment credit.
installments, an additional five percent (5%)
every year but not to exceed ninety percent a) Can SEP legally recover the deficiency?
(90%) of the total payments made. b) Instead of collecting the deficiency, can SEP
commence extrajudicial proceedings to
(2) In case the installments paid were less than 2 foreclose the mortgage on Stan’s house and lot
years, the seller shall give the buyer a grace in order to recover the deficiency? (2018 Bar)
period of not less than 60 days. If the buyer fails
to pay the installments due at the expiration of SUGGESTED ANSWER:
the grace period, the seller may cancel the a) Yes, SEP may legally recover the deficiency.
contract after 30 days from receipt by the buyer
of the notice of cancellation or demand for Under Art. 1484 of the Civil Code, in sales of
rescission by notarial act. personal property on installment, the seller has
three alternative remedies, ask for specific
The Recto Law (Art. 1484) refers to sale of performance, cancel the sale if the buyer fails to
movables payable in installments and limiting pay at least two installments, or foreclose on the
the right of seller, in case of default by the buyer, chattel mortgage constituted on the property if
to one of three remedies: the buyer fails to pay at least two installments. In
a) exact fulfillment; case the buyer avails of the last remedy, he no
b) cancel the sale if two or more installments longer has any cause of action against the buyer
have not been paid; to recover any deficiency for the balance of the
c) foreclose the chattel mortgage on the things price.
sold, also in case of default of two or more
installments, with no further action against the In the instant case, SEP did not foreclose on the
purchaser. chattel mortgage constituted on the
machineries. Rather, it sought specific
AB sold to CD a motor vehicle for and in performance of SI’s obligation by filing a
consideration of P120,000.00, to be paid in twelve collection suit against the latter. The
monthly equal installments of P10,000.00, each machineries were sold at public auction, not
installment being due and payable on the 15th day because of a foreclosure but because they were
of each month starting January 1997. levied upon in consequence of the action for
To secure the promissory note, CD (a) executed a specific performance. Accordingly, the
chattel mortgage on the subject motor vehicle, and prohibition against collecting the deficiency
(b) furnished a surety bond issued by Philamlife. CD provided under Art, 1484 does not apply, and
failed to pay more than two (2) installments SEP can still collect on the deficiency of the
AB went after the surety but he was only able to price.
obtain three-fourths (3/4) of the total amount still due
and owing from CD. AB seeks your advice on how b) Yes, SEP can commence extrajudicial
he might, if at all, recover the deficiency. How would proceedings to foreclose the mortgage on Stan’s
you counsel AB? (1997 Bar) house.
SUGGESTED ANSWER: As stated earlier, Art. 1484 prohibits the recovery
Yes, he can recover the deficiency. The action of of any deficiency if the seller opts to foreclose
AB to go after the surety bond cannot be taken on the chattel mortgage constituted on the
to mean a waiver of his right to demand payment property. However, jurisprudence states that the
for the whole debt. The amount received from
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deficiency may still be recovered if the seller in Makati City at 1:00 p.m. If the full price is paid in
opts for specific performance, rather than cash at the specified time and place, then Peter will
foreclosure. execute a Deed of Absolute Sale and deliver the
title to Paul.
In the instant case, the seller has not foreclosed On November 6, 2016, Paul did not show up and
on the chattel mortgage, instead it chose was not heard of from that date on. In view of the
specific performance. Not having foreclosed on nonperformance by Paul of his obligation, Peter
the chattel mortgage, the seller is not precluded sent a letter to Paul that he is expressly and extra-
from availing of other remedies to collect on the judicially declaring the Contract to Sell rescinded
deficiency, to include extra-judicially foreclosing and of no legal and binding effect. Peter further
on the real estate mortgage constituted by 3 rd stated that failure on the part of Paul to contest the
persons as security for the principal obligation. rescission within thirty (30) days from receipt of said
letter shall mean that the latter agreed to the
Spouses Macario and Bonifacia Dakila entered into rescission.
a contract to sell with Honorio Cruz over a parcel of Paul did not reply to this letter for five (5) years.
industrial land in Valenzuela, Bulacan for a price of Thus, Peter decided to sell his lot to Henry in 2021.
Three Million Five Hundred Thousand Pesos After hearing that Henry bought the lot, Paul now
(P3,500,000.00). The spouses would give a questions the sale of the lot to Henry and files a
downpayment of Five Hundred Thousand Pesos complaint for nullification of the sale.
(P500,000.00) upon the signing of the contract, d) Is the exercise by Peter of his power to rescind
while the balance would be paid for the next three extra-judicially the Contract to Sell the proper
(3) consecutive months in the amount of One and legal way of rescinding said contract?
Million Pesos (P1,000,000.00) per month. The Explain.
spouses paid the first two (2) installments but not e) In case Paul made a downpayment pursuant to
the last installment. After one (1) year, the spouses a stipulation in the Contract to Sell, what is the
offered to pay the unpaid balance which Honorio legal remedy of Peter? (2016 Bar)
refused to accept.
SUGGESTED ANSWER:
The spouses filed a complaint for specific a) No, the extra-judicial exercise by Peter of the
performance against Honorio invoking the power to rescind is improper. In a contract to
application of the Maceda Law. If you are the judge, sell, the seller retains title to the thing to be sold
how will you decide the case? (2014 Bar) until the purchaser pays the agreed purchase
price. Payment of the price is a positive
SUGGESTED ANSWER: suspensive condition, the non-fulfillment of
The Maceda Law is inapplicable as said law which is not a breach of contract but merely an
expressly excludes the sale of industrial lots event that prevents the seller from conveying
from its coverage. Given the foregoing, the title to the purchaser. The non-payment of the
general rule on contracts should apply. Per purchase price renders the contract to sell
jurisprudence, in a contract to sell, the payment ineffective and without force and effect (see
of the purchase price in full is the condition Ayala Life Assurance, Inc. v. Ray Burton Dev.
precedent for the owner to be obliged to sell his Corp., 479 SCRA 462). In the instant case, Paul
property. Since the spouses failed to comply never paid the purchase price. Accordingly, the
with the condition precedent, they cannot, as a contract to sell was rendered ineffective, without
general rule, ask for specific performance, as force, and non-existent. There is no need to
the said remedy applies only in a contract of rescind said contract, as you cannot rescind
sale, not in contracts to sell. However, given what does not exist.
that the spouses have paid a substantial portion
of the purchase price (P2.5M of the agreed b) If Paul made a downpayment, Peter’s remedy
P3.5M); coupled with the fact that Honorio Cruz would depend on how the remaining balance
has not notified the spouses that he was would be paid. If their agreement was that the
considering the contract to sell as rescinded remaining balance would be paid in two or more
prior to the offer of the spouses to pay the installments, their agreement would be a sale on
unpaid balance, considerations of justice and installments, hence would be covered by the
equity call for the spouses to be allowed to pay Maceda Law (RA 6552), as the same applies to .
the remaining balance on the property, and Peter would then have to give Paul a notice of
thereafter have a deed of sale over the property cancellation by notarial act for the contract
executed in their favor. between them to be declared non-existent. Note
that there would be no need for Peter to give a
Peter and Paul entered into a Contract to Sell refund, Paul having made less than two years of
whereby Peter, the lot owner, agreed to sell to Paul installment payments. On the other hand, if their
his lot on November 6, 2016 for the price of agreement was for the remaining balance to be
PI,000,000.00 to be paid at the residence of Peter paid in one payment, the sale would not be an

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installment payment and RA 6552 would not not by a notarial act. Besides, the seller may still
apply. In that case, the answer given earlier pay within 30 days from such notarial notice
would apply — the contract is non-existent and before rescission may be effected. All these
there is no need to rescind the same. In the requirements for a valid rescission were not
absence of stipulation, and to prevent unjust complied with by the seller. Hence, the
enrichment, Peter has to return the rescission is invalid.
downpayment to Paul, as the purpose of the
same was not achieved. Bernie bought on installment a residential
subdivision lot from DEVLAND. After having
Priscilla purchased a condominium unit in Makati faithfully paid the installments for 48 months, Bernie
City from the Citiland Corporation for a price of P10 discovered that DEVLAND had failed to develop the
Million, payable P3 Million down and the balance subdivision in accordance with the approved plans
with interest thereon at 14% per annum payable in and specifications within the time frame in the plan.
sixty (60) equal monthly installments of P He thus wrote a letter to DEVLAND informing it that
198,333.33. They executed a Deed of Conditional he was stopping payment. Consequently, DEVLAND
Sale in which it is stipulated, that should the vendee cancelled the sale and wrote Bernie, informing him
fail to pay three (3) successive installments, the sale that his payments are forfeited in its favor.
shall be deemed automatically rescinded without the
necessity of judicial action and all payments made a) Was the action of DEVLAND proper? Explain
by the vendee shall be forfeited in favor of the b) Discuss the rights of Bernie under the
vendor by way of rental for the use and occupancy circumstances.
of the unit and as liquidated damages. For 46 c) Supposing DEVLAND had fully developed the
months, Priscilla paid the monthly installments subdivision but Bernie failed to pay further
religiously, but on the 47th and 48th months, she installments after 4 years due to business reverses.
failed to pay. On the 49th month, she tried to pay the Discuss the rights and obligations of the parties.
installments due but the vendor refused to receive (2005 Bar)
the payments tendered by her. The following month,
the vendor sent her a notice that it was rescinding SUGGESTED ANSWER:
the Deed of Conditional Sale pursuant to the a) Assuming that the land is a residential
stipulation for automatic rescission, and demanded subdivision project under P.D. No. 957 (The
that she vacate the premises. She replied that the Subdivision and Condominium Buyers
contract cannot be rescinded without judicial Protective Decree), DEVLAND’s action is not
demand or notarial act pursuant to Article 1592 of proper because under Section 23 of said Decree,
the Civil Code. no installment payment shall be forfeited to the
a) Is Article 1592 applicable? owner or developer when the buyer, after due
b) Can the vendor rescind the contract? (2000 Bar) notice, desists from further payment due to the
failure of the owner-developer to develop the
SUGGESTED ANSWER: subdivision according to the approved plans
a) Article 1592 of the Civil Code does not apply and within the time limit for complying with the
to a conditional sale. In Valarao v. CA, 304 SCRA same.
155, the Supreme Court held that Article 1592
applies only to a contract of sale and not to a b) Under the same Section of the Decree, Bernie
Deed of Conditional Sale where the seller has may, at his option, be reimbursed the total
reserved title to the property until full payment amount paid including amortization interests but
of the purchase price. The law applicable is the excluding delinquency interests at the legal rate.
Maceda Law. He may also ask the Housing and Land Use
Regulatory Board to apply penal sanctions
SUGGESTED ANSWER: against DEVLAND consisting of payment of
b) No, the vendor cannot rescind the contract administrative fine of not more than P20,000.00
under the circumstances. Under the Maceda and/or imprisonment for not more than 20 years.
Law, which is the law applicable, the seller on
installment may not rescind the contract till after c) Under RA, No. 6552 (Maceda Law), DEVLAND
the lapse of the mandatory grace period of 30 has the right to cancel the contract but it has to
days for every one year of installment payments, refund Bernie the cash surrender value of the
and only after 30 days from notice of payments on the property equivalent to 50% of
cancellation or demand for rescission by a the total payments made.
notarial act. In this case, the refusal of the seller
to accept payment from the buyer on the 49th ADDITIONAL SUGGESTED ANSWER:
month was not justified because the buyer was c) Bernie has the right to pay, without additional
entitled to 60 days grace period and the payment interest, the unpaid installments within the grace
was tendered within that period. Moreover, the period granted him by R.A. 6552 equivalent to
notice of rescission served by the seller on the one-month for every year of installment
buyer was not effective because the notice was payments, or four months in this case. After the
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lapse of four months DEVLAND may cancel the suspensive condition attached to the payment of
contract after thirty days from and after Bernie the price, thus waiving such condition as well as
receives a notice of cancellation or demand for the 60-day term in its favor. The stipulation that
rescission of the contract by notarial act. (Sec. 4, the P100,000.00 down payment shall be returned
R.A. 6552) Bernie also has the right to sell or by the vendor to the vendee if the squatters are
assign his rights before the cancellation of the not removed within six months, is also a
contract (Sec. 5) covenant for the benefit of the vendee, which the
latter has validly waived by implication when it
offered to pay the balance of the purchase price
Sale, conditions may be waivcd upon- the execution of a deed of absolute sale
by the vendor. (Art. 1545, Civil Code)
In December 1985, Salvador and the Star
Semiconductor Company (SSC) executed a Deed of
Conditional Sale wherein the former agreed to sell Legal redemption
his 2,000 square meter lot in Cainta, Rizal, to the
latter for the price of P1,000,000.00, payable Adele and Beth are co-owners of a parcel of land.
P100,000.00 down, and the balance 60 days after Beth sold her undivided share of the property to
the squatters in the property have been removed. If Xandro, who promptly notified Adele of the sale and
the squatters are not removed within six months, the furnished the latter a copy of the deed of absolute
P100,000.00 down payment shall be returned by the sale. When Xandro presented the deed for
vendor to the vendee. registration, the register of deeds also notified Adele
Salvador filed ejectment suits against the squatters, of the sale, enclosing a copy of the deed with the
but in spite of the decisions in his favor, the notice. However, Adele ignored the notices. A year
squatters still would not leave. In August, 1986, later, Xandro filed a petition for the partition of the
Salvador offered to return the P100,000.00 down property. Upon receipt of summons, Adele
payment to the vendee, on the ground that he is immediately tendered the requisite amount for the
unable to remove the squatters on the property. redemption. Xandro contends that Adele lost her
SSC refused to accept the money and demanded right of redemption after the expiration of 30 days
that Salvador execute a deed of absolute sale of the from her receipt of the notice of the sale given by
property in its favor, at which time it will pay the him. May Adele still exercise her right of
balance of the price. Incidentally, the value of the redemption? Explain. (2002 Bar)
land had doubled by that time.
Salvador consigned the P100,000.00 in court, and SUGGESTED ANSWER:
filed an action for rescission of the deed of Yes, Adele may still exercise her right of
conditional sale, plus damages. Will the action redemption notwithstanding the lapse of more
prosper? Explain. (1996 Bar) than 30 days from notice of the sale given to her
because Article 1623 of the Civil Code requires
SUGGESTED ANSWER: that the notice in writing of the sale must come
No, the action will not prosper. The action for from the prospective vendor or vendor as the
rescission may be brought only by the aggrieved case may be. In this case, the notice of the sale
party to the contract. Since it was Salvador who was given by the vendee and the Register of
failed to comply with his conditional obligation, Deeds. The period of 30 days never tolled. She
he is not the aggrieved party who may file the can still avail of that right.
action for rescission but the Star Semiconductor
Company. The company, however, is not opting ALTERNATIVE ANSWER:
to rescind the contract but has chosen to waive Adele can no longer exercise her right of
Salvador’s compliance with the condition which redemption. As co-owner, she had only 30 days
it can do under Art. 1545, Civil Code. from the time she received written notice of the
sale which in this case took the form of a copy
ALTERNATIVE ANSWER: of the deed of sale being given to her (Conejero
The action for rescission will not prosper. The v. CA, 16 SCRA 775). The law does not prescribe
buyer has not committed any breach, let alone a any particular form of written notice, nor any
substantial or serious one, to warrant the distinctive method for notifying the
rescission/resolution sought by the vendor. On redemptioner (Etcuban v. CA, 148 SCRA 507). So
the contrary, it is the vendor who appears to long as the redemptioner was informed in
have failed to comply with the condition writing, he has no cause to complain (Distrito v.
imposed by the contract the fulfillment of which CA, 197 SCRA 606). In fact, in Distrito, a written
would have rendered the obligation to pay the notice was held unnecessary where the co-
balance of the purchase price demandable. owner had actual knowledge of the sale, having
Further, far from being unable to comply with acted as middleman and being present when the
what is incumbent upon it, i.e., pay the balance vendor signed the deed of sale.
of the price - the buyer has offered to pay it even
without the vendor having complied with the
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Betty and Lydia were co-owners of a parcel of land. assignment of credit under Article 1624 of the
Last January 31, 2001, when she paid her real Civil Code. However, the provisions on the
estate tax, Betty discovered that Lydia had sold her contract of sale (Article 1475 Civil Code) will
share to Emma on November 10, 2000. The apply, and the transaction is covered by the
following day, Betty offered to redeem her share Statute of Frauds. (Art. 1403 par. (2), Civil Code)
from Emma, but the latter replied that Betty’s right to
redeem has already prescribed. Is Emma correct or
not? Why? (2001 Bar) Lease

SUGGESTED ANSWER: MULTIPLE CHOICE. Isaac leased the apartment of

Emma, the buyer, is not correct. Betty can still Dorotea for two (2) years. Six (6) months after,
enforce her right of legal redemption as a co- Isaac subleased a portion of the apartment due to
owner. Article 1623 of the Civil Code gives a co- financial difficulty. Is the sublease contract valid?
owner 30 days from written notice of the sale by a) Yes, it is valid for as long as all the elements of a
the vendor to exercise his right of legal valid sublease contract are present.
redemption. In the present problem, the 30-day b) Yes, it is valid if there is no express prohibition for
period for the exercise by Betty of her right of subleasing in the lease contract.
redemption had not even begun to run because c) No, it is void if there is no written consent on the
no notice in writing of the sale appears to have part of the lessor.
been given to her by Lydia. d) No, it is void because of breach of the lease
contract. (2014 Bar)

Assignment of credits SUGGESTED ANSWER:

b)
Peter Co, a trader from Manila, has dealt business
with Allied Commodities in Hongkong for five years. Ana rented a safety deposit box at the Alto Bank,
All through the years, Peter Co accumulated an paid the rental fee and was given the key. Ana put
indebtedness of P500,000.00 with Allied her jewelry and gold coins in the box. Days after,
Commodities. Upon demand by its agent in Manila, three armed men gained entry into the Alto Bank,
Peter Co paid Allied Commodities by check the opening its vault and several safety deposit boxes,
amount owed. Upon deposit in the payee’s account including Ana’s and emptied them of their contents.
in Manila, the check was dishonored for insufficiency Could Ana hold the Alto Bank liable for the loss of
of funds. For and in consideration of P1.00, Allied the contents of her deposit box? Explain. (1987 Bar)
Commodities assigned the credit to Hadji Butu who
brought suit against Peter Co in the RTC of Manila SUGGESTED ANSWER:
for recovery of the amount owed. Peter Co moved to It depends. In Sia v. CA (222 SCRA 24) the
dismiss the complaint against him on the ground Supreme Court declared that a contract for the
that Hadji Butu was not a real party in interest and, use of a safety deposit box is not a contract of
therefore, without legal capacity to sue and that he lease; this is because full and absolute
had not agreed to a subrogation of creditor. Will possession and control of the safety deposit
Peter Co’s defense of absence of agreement to a box is not given to the party renting. The safety
subrogation of creditor prosper? (1993 Bar) deposit box is located on bank premises; is
under the bank’s control; and renters cannot
SUGGESTED ANSWER: open their respective boxes unless the bank
No, Co’s defense will not prosper. This is not a cooperates by presenting and using the guard
case of subrogation, but an assignment of key to the box. The Supreme Court then
credit. Assignment of credit is the process of declared that a contract for the use of a safety
transferring the right of the assignor to the deposit box is is a special kind of deposit, not
assignee. The assignment may be done either strictly governed by the Civil Code provision on
gratuitously or onerously, in which case, the deposit. The relation between a bank renting out
assignment has an effect similar to that of a sale safe deposit boxes and its customer with
(Nyco Sales Corp. v. BA Finance Corp., 200 respect to the contents of the box is that of a
SCRA 637). As a result of the assignment, the bailor and bailee, governed by Title I, Book IV of
plaintiff acquired all the rights of the assignor the Civil Code. Accordingly, the bank would be
including the right to sue in his own name as the liable if, in performing its obligation, it is found
legal assignee. In assignment, the debtor’s guilty of fraud, negligence, delay or
consent is not essential for the validity of the contravention of the tenor of the agreement.
assignment (Art. 1624; 1475, Civil Code; Accordingly, if the armed men gained entry into
Rodriguez v. CA, et al., 207 SCRA 553). the bank due to the latter’s fault or negligence, it
would be liable to Ana for the loss of the
ALTERNATIVE ANSWER: contents of her safety deposit box. If, however,
No, the defense of Peter Co will not prosper. there was no fault or negligence on the part of
Hadji Butu validly acquired his right by an the bank, the taking by the armed men of the
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contents of Ana’s safety deposit box would be a that the 5-year basic lease would expire. Since
fortuitous event and the bank would not be liable the assignment is void, Victor can get the
for the loss. property back because of the violation of the
lease. Both Joel and Ernie have to surrender
A leased his house to B with a condition that the possession and are liable for damages. But
leased premises shall be used for residential Conrad has not yet incurred any liability on the
purposes only. B subleased the house to C who sublease which still subsisted at the time of the
used it as a warehouse for fabrics. Upon learning filing of the action on May 15, 1992
this, A demanded that C stop using the house as a
warehouse, but C ignored the demand. A then filed Ernie can file a cross-claim against Joel for
an action for ejectment against C, who raised the damages on account of the rescission of the
defense that there is no privity of contract between contract of assignment. Conrad can file a
him and A, and that he has not been remiss in the counter-claim against Victor for damages for
payment of rent. Will the action prosper? (2000 Bar) lack of causes of action at the time of the filing
of the suit.
SUGGESTED ANSWER:
Yes, the action will prosper. Under Article 1651 A leased a parcel of land to B for a period of two
of the Civil Code, the sublessee is bound to the years. The lease contract did not contain any
lessor for all acts which refer to the use and express prohibition against the assignment of the
preservation of the thing leased in the manner leasehold or the subleasing of the leased premises.
stipulated between the lessor and the lessee. During the third year of the lease, B subleased the
land to C. In turn, C, without A’s consent, assigned
Under a written contract dated December 1, 1989, the sublease to D. A then filed an action for the
Victor leased his land to Joel for a period of five (5) rescission of the contract of lease on the ground that
years at a monthly rental of P1,000.00, to be B has violated the terms and conditions of the lease
increased to P1,200.00 and P1,500.00 on the third agreement. If you were the judge, how would you
and fifth year, respectively. On January 1, 1991, Joel decide the case, particularly with respect to the
subleased the land to Conrad for a period of two (2) validity of:
years at a monthly rental of P1,500.00. a) B’s sublease to C? and
On December 31, 1992, Joel assigned the lease to b) C’s assignment of the sublease to D?
his compadre, Ernie, who acted on the belief that Explain your answers. Answer: (1990 Bar)
Joel was the rightful owner and possessor of the
said lot. Joel has been faithfully paying the SUGGESTED ANSWER:
stipulated rentals to Victor. When Victor learned on a) B’s sublease to C is valid. Although the
May 15, 1992 about the sublease and assignment, original period of two years for the lease
he sued Joel, Conrad and Ernie for rescission of the contract has expired, the lease continued with
contract of lease and for damages. the acquiescence of the lessor during the third
a) Will the action prosper? If so, against whom? year. Hence, there has been an implied renewal
Explain. of the contract of lease. Under Art. 1650 of the
b) In case of rescission, discuss the rights and Civil Code, the lessee may sublet the thing
obligations of the parties. (2005 Bar) leased, in whole or in part, when the contract of
lease does not contain any express prohibition.
SUGGESTED ANSWER: (Articles 1650, 1670 Civil Code). A’s action for
a) Yes, the action for rescission of the lease will rescission should not prosper on this ground.
prosper because Joel cannot assign the lease to b) C’s assignment of the sublease to D is not
Ernie without the consent of Victor. (Art. 1649, valid. Under Art. 1649, of the Civil Code, the
Civil Code). But Joel may sublet to Conrad lessee cannot assign the lease without the
because there is no express prohibition (Art. consent of the lessor, unless there is a
1650, Civil Code; Alipio v. Court of Appeals, 341 stipulation to the contrary. There is no such
SCRA 441). stipulation in the contract. If the law prohibits
Victor can rescind the contract of lease with assignment of the lease without the consent of
Joel, and the assignment of the lease to Ernie, the lessor, all the more would the assignment of
on the ground of violation of law and of contract. a sublease be prohibited without such consent.
The sub-lease to Conrad remained valid for two This is a violation of the contract and is a valid
(2) years from January 1, 1991, and had not yet ground for rescission by A.
lapsed when the action was filed on May 15,
1992. May a lessee sublease the property leased without
the consent of the lessor, and what are the
b) In case of rescission, the rights and respective liabilities of the lessee and sub-lessee to
obligations of the parties should be as follows: the lessor in case of such sublease? (1999 Bar)
At the time that Victor filed suit on May 15, 1992,
the assignment had not yet lapsed. It would SUGGESTED ANSWER:
lapse on December 1, 1994, the very same date
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Yes, provided that there is no express In the instant case, there is no express
prohibition against subleasing. Under the law, prohibition against subletting the property.
when in the contract of-lease of things there is Accordingly, Shannon could validly sublease
no express prohibition, the lessee may sublet the premises to Sylvia; and Simon may not use
the thing leased without prejudice to his said sublease as a ground to terminate the lease
responsibility for the performance of the contract between him and Shannon.
contract toward the lessor. (Art. 1650)

In case there is a sublease of the premises being Rights and Obligations of the Lessor and the Lessee
leased, the sublessee is bound to the lessor for
all the acts which refer to the use and A is the owner of a lot on which he constructed a
preservation of the thing leased in the manner building in the total cost of P10,000,000.00. Of that
stipulated between the lessor and the lessee. amount B contributed P5,000,000.00 provided that
(Art. 1651) the building as a whole would be leased to him (B)
for a period of ten years from January 1, 1985 to
The sublessee is subsidiarily liable to the lessor December 31, 1995 at a rental of P100,000.00 a
for any rent due from the lessee. However, the year. To such condition, A agreed. On December 20,
sublessee shall not be responsible beyond the 1990, the building was totally burned. Soon
amount of the rent due from him. (Art. 1652) thereafter, A’s workers cleared the debris and
started construction of a new building. B then served
As to the lessee, the latter shall still be notice upon A that he would occupy the building
responsible to the lessor for the rents; bring to being constructed upon completion, for the
the knowledge of the lessor every usurpation or unexpired portion of the lease term, explaining that
untoward act which any third person may have he had spent partly for the construction of the
committed or may be openly preparing to carry building that was burned. A rejected B’s demand.
out upon the thing leased; advise the owner the Did A do right in rejecting B’s demand? (1993 Bar)
need for all repairs; to return the thing leased
upon the termination of the lease just as he SUGGESTED ANSWER:
received it, save what has been lost or impaired Yes, A was correct in rejecting the demand of B.
by the lapse of time or by ordinary wear and tear As a result of the total destruction of the
or from an inevitable cause; responsible for the building by fortuituous event, the lease was
deterioration or loss of the thing leased, unless extinguished. (Art. 1655, Civil Code.)
he proves that it took place without his fault.
Rosa was leasing an apartment in the city. Because
Simon owned a townhouse that he rented out to of the Rent Control Law, her landlord could not
Shannon, a flight attendant with Soleil Philippine increase the rental as much as he wanted to, nor
Airlines (SPA). They had no written contract but terminate her lease as long as she was paying her
merely agreed on a three (3)-year lease. Shannon rent. In order to force her to leave the premises, the
had been using the townhouse as her base in landlord stopped making repairs on the apartment,
Manila and had been paying rentals for more than a and caused the water and electricity services to be
year when she accepted a better job offer from Sing disconnected. The difficulty of living without
Airlines. This meant that Singapore was going to be electricity and running water resulted in Rosa’s
her new base and so she decided, without informing suffering a nervous breakdown. She sued the
Simon, to sublease the townhouse to Sylvia, an landlord for actual and moral damages. Will the
office clerk in SPA. action prosper? Explain. (1996 Bar)
b) Does the sublease without Simon’s
knowledge and consent constitute a ground for SUGGESTED ANSWER:
terminating the lease? (2018 Bar) Yes, based on breach of contract. The lessor has
the obligation to undertake repairs to make the
SUGGESTED ANSWER: apartment habitable and to maintain the lessee
No, the sublease is not a ground for terminating in the peaceful and adequate enjoyment of the
the lease. lease for the entire duration of the contract
(Article 1654, Civil Code). Since there was willful
breach of contract by the lessor, the lessee is
The Civil Code provisions on Lease provide that
entitled to moral damages under Article 2220,
if there is no express prohibition in the contract
Civil Code. She is also entitled to actual
of lease against subletting the property to
damages, e.g. loss of income, medical expenses,
others, the lessee may validly sublease the
etc., which she can prove at the trial.
leased property to 3rd persons; although the
lessee remains principally liable to the lessor on
ANOTHER ANSWER:
his contract of lease.
Yes, based on contract and/or on tort. The lessor
willfully breached his obligations under Article
1654, Civil Code, hence; he is liable for breach of
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contract. For such breach, the lessee may prohibition against sublease, the sublease is
recover moral damages under Art. 2220 of the lawful, the rule being that in the absence of an
Civil Code, and actual damages that she may express prohibition a lessee may sublet the
have suffered on account thereof. And since the thing leased, in whole or in part, without
conduct of the lessor was contrary to morals, he prejudice to his/its responsibility to the lessor
may also be held liable for quasi-delict. The for the performance of the contract.
lessee may recover moral damages under Article
2219 (10) in relation to Article 21, and all actual Jude owned a building which he had leased to
damages which she may have suffered by several tenants. Without informing his tenants, Jude
reason of such conduct under Articles 9, 20 and sold the building to Ildefonso. Thereafter, the latter
21. notified all the tenants that he is the new owner of
the building. Ildefonso ordered the tenants to vacate
In January 1993, Four-Gives Corporation leased the the premises within thirty (30) days from notice
entire twelve floors of the GQS Towers Complex, for because he had other plans for the building. The
a period of ten years at a monthly rental of tenants refused to vacate, insisting that they will only
P3,000,000.00. There is a provision in the contract do so when the term of their lease shall have
that the monthly rentals should be paid within the expired. Is Ildefonso bound to respect the lease
first five days of the month. For the month of March, contracts between Jude and his tenants? Explain
May, June, October and December 1993, the rentals your answer. (2009 Bar)
were not paid on time with some rentals being
delayed up to ten days. The delay was due to the SUGGESTED ANSWER:
heavy paper work involved in processing the Yes, Ildefonso is bound to respect the lease
checks. contracts between Jude and his tenants. Under
Four-Gives Corporation also subleased five of the the principle of relativity of contracts, as
twelve floors to wholly-owned subsidiaries. The provided for under Art. 1311 of the Civil Code,
lease contract expressly prohibits the assignment of contracts take effect between the parties, their
the lease contract or any portion thereof. The rental assigns and heirs, except in case where the
value of the building has increased by 50% since its rights and obligations arising from the contract
lease to Four-Gives Corporation. are not transmissible by their nature, or by
a) Can the building owner eject Four-Gives stipulation or by provision of law.
Corporation on grounds of the repeated delays in
the payment of the rent? In the instant case, Ildefonso is an assignee of
b) Can the building owner ask for the cancellation of Jude, hence the contract of lease entered into
the contract for violation of the provision against between Jude and his tenants is also effective
assignment? (1994 Bar) on him. Note that the rights and obligations of
the contract of lease is not intransmissible by its
SUGGESTED ANSWER: nature, or by provision of law, neither is there a
a) The building owner cannot eject Four-Gives statement in the problem that there is a
Corporation on the ground of repeated delays in stipulation between Jude and his tenants that
the payment of rentals. The “repeated delays” in the contract of lease is intransmissible. Since
the payment of rentals would, at best, be a slight the contract of lease between Jude and his
or casual breach which does not furnish a tenants do not fall under any of the exceptions,
ground for ejectment especially because the it is binding on Ildefonso, Jude’s assignee.
delays were only due to heavy paper work. Note
that there was not even a demand for payment (NOTE: Art. 1676 should not be applicable, the
obviously because the delay lasted for only a lease in questioning covering a building, rather than
few days (10 days being the longest), at the end a piece of land. This argument is further bolstered
of which time payments were presumably made by the fact that the 2nd par. of Art. 1676 refers to
and were accepted. There was, therefore, no “fruits of the harvest” and “agricultural year”,
default, Note also that there was no demand implying that the same refers to land rather than a
made upon the lessee to vacate the premises for building, as in the above case.)
non-payment of the monthly rent. There is,
therefore, no cause of action for ejectment (Art. 1676 reads - The purchaser of a piece of land
arising from the “repeated delays”. which is under a lease that is not recorded in the
Registry of Property may terminate the lease, save
b) No, the lessor cannot have the lease when there is a stipulation to the contrary in the
cancelled for alleged violation of the provision contract of sale, or when the purchaser knows of the
against assignment. Sublease is different from existence of the lease.
assignment of lease. The lessee did not assign If the buyer makes use of this right, the lessee may
the lease, or any portion thereof, to the demand that he be allowed to gather the fruits of the
subsidiaries. It merely subleased some floors to harvest which corresponds to the current
its subsidiaries. Since the problem does not agricultural year and that the vendor indemnify him
state that the contract of lease contains a for damages suffered.
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If the sale is fictitious, for the purpose of therein. The damages suffered by the lessee in
extinguishing the lease, the supposed vendee the problem are clearly those resulting from
cannot make use of the right granted in the first defects in the construction plans or
paragraph of this article. The sale is presumed to be specifications.
fictitious if at the time the supposed vendee
demands the termination of the lease, the sale is not
recorded in the Registry of Property.) Tacita reconduccion

MULTIPLE CHOICE. A had a 4-storey building Under what circumstances would an implied new
which was constructed by Engineer B. After five lease or a tacita reconduccion arise? (1999 Bar)
years, the building developed cracks and its
stairway eventually gave way and collapsed, An implied new lease or tacita reconduccion
resulting to injuries to some lessees. Who should arises if at the end of the contract the lessee
the lessees sue for damages? a) A, the owner should continue enjoying the thing leased for 15
b) B, the engineer days with the acquiescence of the lessor, and
c) both A & B (2010 Bar) unless a notice to the contrary by either parties
has previously been given (Art. 1670). In short,
SUGGESTED ANSWER: in order that there may be tacita reconduccion
c) Both A & B. The lessee may proceed against A there must be expiration of the contract; there
for breach of contract, and against B for tort or must be continuation of possession for 15 days
statutory liability. Under Article 1654 (2) of the or more; and there must be no prior demand to
Civil Code, the lessor is obliged to make all the vacate.
necessary repairs in order to keep the leased
property suitable for the use to which it has
been devoted. Consequently, under Article 1659 Lease, improvements on leased property
Civil Code, the proprietor of a building or
structure is responsible for the damages Anselmo is the registered owner of a land and a
resulting from its total or partial collapse, if it is house that his friend Boboy occupied for a nominal
due to lack of necessary repairs. Under Article rental and on the condition that Boboy would vacate
1723, Civil Code, the engineer or architect who the property on demand. With Anselmo’s
drew up the plans and specifications for a knowledge, Boboy introduced renovations consisting
building is liable for damage if 15 years from the of an additional bedroom, a covered veranda, and a
completion of the structure the same should concrete block fence, at his own expense.
collapse by a reason of a defect by those plans Subsequently, Anselmo needed the property as his
and specifications, or due to the defects in the residence and thus asked Boboy to vacate and turn
ground. This liability maybe enforced against the it over to him. Boboy, despite an extension, failed to
architect or engineer even by a third party who vacate the property, forcing Anselmo to send him a
has no privity of contract with the architect or written demand to vacate. In his own written reply,
engineer under Article 2192, Civil Code. Boboy signified that he was ready to leave but
Anselmo must first reimburse him the value of the
ALTERNATIVE ANSWER: a) A, the owner. The improvements he introduced on the property as he
lessee can sue only the lessor for breach of is a builder in good faith. Anselmo refused, insisting
contract under Article 1659 in relation to Article that Boboy cannot ask for reimbursement as he is a
1654, Civil Code. The lessee cannot sue the mere lessee. Boboy responded by removing the
architect or the engineer because there was no improvements and leaving the building in its original
privity of contracts between them. When sued, state.
however, the lessor may file a third party claim a) Resolve Boboy’s claim that as a builder in good
against the architect or the engineer. faith, he should be reimbursed the value of the
improvements he introduced.
ANOTHER ALTERNATIVE ANSWER: b) B, the b) Can Boboy be held liable for damages for
Engineer. Under Article 1723 the engineer or removing the improvements over Anselmo’s
architect who drew up the plans and objection? (2013 Bar)
specifications for a building is liable for
damages if within 15 years from the completion SUGGESTED ANSWER:
of the structure, the same should collapse by a) Boboy’s claim that he is a builder in good
reason of a defect in those plans and faith has no basis. A builder in good faith is
specifications, or due to the defects in the someone who occupies the property in concept
ground. Under Article 2192 (Civil Code), of an owner. The provisions on builder-planter-
however, if the damages should be the result of sower under the Civil Code cover cases in which
any of the defects in the construction mentioned the builder, planter and sower believe
in Art 1723, Civil Code, the third person suffering themselves to be owners of the land, or at least,
damages may proceed only against the engineer to have a claim of title thereto. As Boboy is a
or architect or contractor within the period fixed lessee of the property, even if he was paying
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nominal rental, Art. 1678, Civil Code, is decides to retain the building at the time of the
applicable. Under this provision, if the lessee termination of the lease and pay the lessee one-
makes, in good faith, useful improvements half of the value of the improvements at that
which are suitable to the use for which the lease time. The lessee may remove the building even
is intended, without altering the form or though the principal thing may suffer damage
substance of the property leased, the lessor but B should not cause any more impairment
upon the termination of the lease, shall pay the upon the properly leased than is necessary. The
lessee one-half of the value of improvements at claim of B that he was a possessor and builder
that time. Should the lessor refuse to reimburse in good faith with the right of retention is not
said amount, the lessee may remove the tenable. B is not a builder in good faith, because
improvements, even though the principal thing as lessee he does not claim ownership over the
may suffer damage thereby. property leased.

b) No. Boboy cannot be held liable for damages. b) The landowner/lessor may refuse to
The lessor, Anselmo, refused to reimburse one- reimburse ½ of the value of the improvements
half of the value of the improvements, so the and require the lessee to remove the
lessee, Boboy, may remove the same, even improvements. (Article 1678, Civil Code).
though the principal thing may suffer damage
thereby. If in removing the useful improvements TX filed a suit for ejectment against BD for
Boboy caused more impairment in the property nonpayment of condominium rentals amount to
leased than is necessary he will be liable for P150,000. During the pendency of the case, BD
damages (Art. 1678, Civil Code). offered and TX accepted the full amount due as
rentals from BD, who then filed a motion to dismiss
Bartolome constructed a chapel on the land of Eric. the ejectment suit on the ground that the action is
What are Bartolome’s rights if he were a lessee of already extinguished. Is BD’s contention correct?
the land? (1996 Bar) Why or why not? Reason. (2004 Bar)

SUGGESTED ANSWER: SUGGESTED ANSWER:

The owner of the land, as lessor, can acquire the BD’s contention is not correct. TX can still
improvement by paying for one-half of its value. maintain the suit for ejectment. The acceptance
Should the lessor refuse to reimburse said by the lessor of the payment by the lessee of the
amount, the lessee may remove the rentals in arrears even during the pendency of
improvement, even though the principal thing the ejectment case does not constitute a waiver
may suffer damage thereby (Art. 1678, Civil or abandonment of the ejectment case.
Code). (Spouses Clutario v. CA, 216 SCRA 341).

A vacant lot several blocks from the center of the On January 1, 1980, Nestor leased the fishpond of
town was leased by its owner to a young Mario for a period of three years at a monthly rental
businessman B, for a term of fifteen (15) years of P1,000.00, with an option to purchase the same
renewal upon agreement of the parties. After taking during the period of the lease for the price of
possession of the lot, the lessee built thereon a P500,000.00. After the expiration of the three-year
building of mixed materials and a store. As the years period, Mario allowed Nestor to remain in the leased
passed, he expanded his business, earning more premises at the same rental rate. On June 15, 1983,
profits. By the tenth (10th) year of his possession, Nestor tendered the amount of P500,000.00 to
he was able to build a three (3)-storey building worth Mario and demanded that the latter execute a deed
at least P300,000.00. Before the end of the term of of absolute sale of the fishpond in his favor. Mario
the lease, B negotiated with the landowner for its refused, on the ground that Nestor no longer had an
renewal, but despite their attempts to do so, they option to buy the fishpond. Nestor filed an action for
could not agree on the new conditions for the specific performance. Will the action prosper or not?
renewal. Upon the expiration of the term of the Why? (2001 Bar)
lease, the landowner asked B to vacate the
premises and remove his building and other SUGGESTED ANSWER:
improvements. B refused unless he was reimbursed No, the action will not prosper. The implied
for necessary and useful expenses. B claimed that renewal of the lease on a month-to-month basis
he was a possessor and builder in good faith, with did not have the effect of extending the life of
right of retention. This issue is now before the court the option to purchase which expired at the end
for resolution in a pending litigation. of the original lease period. The lessor is correct
a) What are the rights of B? in refusing to sell on the ground that the option
b) What are the rights of the landowner? (1990 Bar) had expired.

SUGGESTED ANSWER:
a) B has the right to remove the building and Special Provisions for Leases of Rural Lands
other improvements unless the landowner
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In 1995, Mark leased the rice land of Narding in the way to school because he was running late,
Nueva Ecija for an annual rental of P1,000.00 per and drove across an unmanned railway crossing.
hectare. In 1998, due to the El Nino phenomenon, At the time, Porfirio was wearing earphones
the rice harvest fell to only 40% of the average because he loved to hear loud music while
harvest for the previous years. Mark asked Narding driving. As he crossed the railway tracks, a
for a reduction of the rental to P500.00 per hectare speeding PNR train loudly blared its horn to warn
for that year but the latter refused. Is Mark legally Porfirio, but the latter did not hear the horn
entitled to such reduction? (2000 Bar) because of the loud music. The train inevitably
rammed into the school bus. The strong impact of
SUGGESTED ANSWER: the collision between the school bus and the train
No, Mark is not entitled to a reduction. Under resulted in the instant death of one of the
Article 1680 of the Civil Code, the lessee of a classmates of Jovencio’s younger son.
rural land is entitled to a reduction of the rent The parents of the fatality sued Jovencio for
only in case of loss of more than ½ of the fruits damages based on culpa contractual alleging
through extraordinary and unforeseen fortuitous that Jovencio was a common carrier; Porfirio for
events. While the drought brought about by the being negligent; and the PNR for damages based
“El Nino” phenomenon may be classified as on culpa aquitiana.
extraordinary, it is not considered as Jovencio denied being a common carrier. He
unforeseen. insisted that he had exercised the diligence of a
good father of a family in supervising Porfirio,
ALTERNATIVE ANSWER: claiming that the latter had had no history of
Yes, Mark is entitled to a reduction of the rent. negligence or recklessness before the fatal
His loss was more than ½ of the fruits and the accident.
loss was due to an extraordinary and unforeseen a) Did his operation of the school bus service for a
fortuitous event. The “El Nino” phenomenon is limited clientele render Jovencio a common
extraordinary because it is uncommon; it does carrier? Explain your answer.
not occur with regularity. And neither could the b) In accordance with your answer to the
parties have foreseen its occurrence. The event preceding question, state the degree of
should be foreseeable by the parties so that the diligence to be observed by Jovencio, and the
lessee can change the time for his planting, or consequences thereof. Explain your answer.
refrain from planting, or take steps to avoid the (2017 Bar)
loss. To be foreseeable, the time and the place of
the occurrence, as well as the magnitude of the SUGGESTED ANSWER:
adverse effects of the fortuitous event must be a) Article 1732 of the Civil Code defines a
capable of being predicted. Since the exact “common carrier” as “any person, corporation,
place, the exact time, and the exact magnitude of firm or association engaged in the business of
the adverse effects of the “El Nino” carrying or transporting passengers or goods or
phenomenon are still unpredictable despite the both, by land, water, or air, for compensation,
advances in science, the phenomenon is offering their services to the public.” According
considered unforeseen. to the Supreme Court, Article 1732 does not
distinguish between a carrier offering its
services to the ‘general public,’ i.e., the general
Lease, effect of death community or population, and one who offers
services or solicits business to a limited
Stating briefly the thesis to support your answer, will clientele. Accordingly, even if Jovencio ferries
the death of the lessee extinguish the lease only five other classmates of his children, he
agreement? (1997 Bar) would still be a common carrier as he is
engaged in the business of transporting
SUGGESTED ANSWER: passengers for compensation, albeit for a
No. The death of the lessee will not extinguish limited clientele.
the lease agreement, since lease is not personal b) Article 1733 requires common carriers to
in character and the right is transmissible to the observe extraordinary diligence for the safety of
heirs. (Heirs of Dimaculangan v. IAC, 170 SCRA passengers transported by them. More, Art. 1756
393). states that a common carrier is presumed to be
at fault in case of death or injuries to
passengers. Since Jovencio is a common
Common Carriers carrier, he is required to observe extraordinary
diligence in transporting his passengers; and in
Jovencio operated a school bus to ferry his two this case, he is presumed to be at fault, one of
sons and five of their schoolmates from their his passengers having died while being
houses to their school, and back. The parents of transported by Jovencio.
the five schoolmates paid for the service. One
morning, Porfirio, the driver, took a short cut on
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Despite a warning from the police that an attempt to father of a family in the selection and supervision of
hijack a PAL plane will be made in the following its driver.
week, the airline did not take extra precautions, such
as frisking of passengers, for fear of being accused a) Is SBL liable for actual damages? Moral
of violating human rights. Two days later, an armed damages? (2018 Bar)
hijacker did attempt to hijack a PAL flight to Cebu.
Although he was subdued by the other passengers, SUGGESTED ANSWER:
he managed to fire a shot which hit and killed a Yes, SBL is liable for actual damages.
female passenger. The victim’s parents sued the
airline for breach of contract, and the airline raised A common carrier is bound to carry its
the defense of force majeure. Is the airline liable or passengers safely as far as human care and
not? (2000 Bar) foresight can provide, using the utmost
diligence of very cautious persons, with due
SUGGESTED ANSWER: regard to all the circumstances. More, in a
The airline is liable. In case of death of a contract of carriage, it is presumed that the
passenger, common carriers are presumed, to common carrier was at fault or was negligent
have been at fault or to have acted negligently, when a passenger dies or is injured.
unless they prove that they observed Accordingly, in actions for breach of contract of
extraordinary diligence (Article 1756, Civil Code). carriage, one only has to prove the existence of
The failure of the airline to take extra the contract and the fact that the common
precautions despite a police warning that an carrier failed to transport his passenger safely to
attempt to hijack the plane would be made, was his destination. Common carriers are then
negligence on the part of the airline. Being presumed to have been at fault or have acted
negligent, it is liable for the death of the negligently, and the court need not even make
passenger. The defense of force majeure is not an express finding of fault or negligence on the
tenable since the shooting incident would not part of the common carrier. This presumption
have happened had the airline taken steps that may only be overcome by evidence that the
could have prevented the hijacker from boarding carrier exercised extraordinary diligence.
the plane.
In the instant case, the defense of SBL is that
ALTERNATIVE ANSWER: the driver of the truck was the proximate cause
Under Article 1763 of the Civil Code, the of the collision between the bus and the truck
common carrier is not required to observe and that it exercised due diligence in the
extraordinary diligence in preventing injury to its selection of its employees. It did not prove that it
passengers on account of the willful acts or exercised extraordinary diligence in the
negligence of other passengers or of strangers. transport of its passengers. Not having rebutted
The common carrier, in that case, is required to the presumption, it is deemed at fault, hence is
exercise only the diligence of a good father of a liable to Simeon for actual damages.
family; hence, the failure of the airline to take
EXTRA precautions in frisking the passengers Notably, the Civil Code provides that common
and by leaving that matter to the security carriers are liable for the death of or injuries to
personnel of the airport, does not constitute a passengers through the negligence or willful
breach of that duty so as to make the airline acts of the former’s employees, although such
liable. Besides, the use of irresistible force by employees may have acted beyond the scope of
the hijackers was force majeure that could not their authority or in violation of the orders of the
have been prevented even by the observance of common carriers. This liability of the common
extraordinary diligence. carriers does not cease upon proof that they
exercised all the diligence of a good father of a
Simeon was returning to Manila after spending a family in the selection and supervision of their
weekend with his parents in Sariaya, Quezon He employees.
boarded a bus operated by the Sabbit Bus Line
(SBL) on August 30, 2013. In the middle of the However, SBL is not liable for moral damages.
journey, the bus collided with a truck coming in the
opposite direction, which was the overtaking the Under Art. 2219 of the Civil Code, moral
vehicle in front of the truck. Though the driver of the damages are not recoverable in actions for
SBL bus tried to avoid the truck, a mishap occurred damages predicated on a breach of contract,
as the truck hit the left side of the bus. As a result of unless death of a passenger results, or it is
the accident, Simeon suffered a fractured leg and proved that the carrier was guilty of fraud or bad
was unable to report for work for one week. He sued faith, even if death does not result.
SBL for actual and moral damages. SBL raised the
defense that it was the driver of the truck who was at In the instant case, Simeon only suffered
fault, and that it exercised the diligence of a good injuries. Furthermore, the presumption is

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persons are in good faith. Bad faith or fraud 1) The Articles of Incorporation of the
must be proven. Simeon has not proven that corporation expressly allows the corporation to
SBL acted in bad faith or with fraud, hence moral enter into partnerships;
damages may not be awarded to him. 2) The Articles of Partnership must provide that
all partners will manage the partnership, and
they shall be jointly and severally liable; and
Partnership 3) In case of a foreign corporation, it must be
licensed to do business in the Philippines.
TRUE or FALSE. An oral partnership is valid. (2009
Bar) ANOTHER ANSWER:
No. A corporation may not be a general partner
SUGGESTED ANSWER: because the principle of mutual agency in
TRUE. Under the Civil Code, a partnership may general partnership allowing the other general
be constituted in any form except where partner to bind the corporation will violate the
immovable property or real rights are corporation law principle that only the board of
contributed thereto, in which case the same directors may bind the corporation.
must be in a public instrument to be valid.
c) No, for the same reasons given in the Answer
a) Can a husband and wife form a limited to b) above.
partnership to engage in real estate business, with
the wife being a limited partner? In this jurisdiction, is a joint venture (i.e., a group of
b) Can two corporations organize a general corporations contributing resources for a specific
partnership under the Civil Code of the Philippines? project and sharing the profits therefrom)
c) Can a corporation and an individual form a considered a partnership? (2015 Bar)
general partnership? (1994 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER: No, a joint venture is not considered a
a) Yes. The Civil Code prohibits a husband and partnership in the Philippines. While a joint
wife from constituting a universal partnership. venture has features similar to a partnership,
Since a limited partnership is not a universal such as the contribution by the parties thereto of
partnership, a husband and wife may validly money, property or other identifiable asset for
form one. the undertaking of a commercial enterprise or
the achievement of a common purpose or
ANOTHER ANSWER: objective, it is not a partnership in the legal
b) Yes. While spouses cannot enter into a sense. A partnership has a juridical personality
universal partnership, they can enter into a separate and distinct from that of each member,
limited partnership or be members thereof (CIR while a joint venture has no juridical personality.
v. Suter, et al., 27 SCRA 152). A joint venture involves a single undertaking
temporary in nature, while a partnership usually
b) No. A corporation is managed by its board of involves a general business of a particular kind.
directors. If the corporation were to become a Lastly, while corporations may enter into a joint
partner, co-partners would have the power to venture, they cannot enter into a partnership.
make the corporation party to transactions in an
irregular manner since the partners are not Distinguish co-ownership from partnership. (1988
agents subject to the control of the Board of Bar)
Directors. But a corporation may enter into a
joint venture with another corporation as long as SUGGESTED ANSWER:
the nature of the venture is in line with the Co-ownership is distinguished from an ordinary
business authorized by its charter (Tuason & partnership in the following ways:
Co., Inc. v. Bolan, 95 Phil. 106). (1) As to creation: Whereas co-ownership may
be created by law, contract, succession,
ANOTHER ANSWER: fortuitous event, or occupancy, partnership is
b) As a general rule a corporation may not form always created by contract.
a general partnership with another corporation (2) As to purpose: Whereas the purpose of co-
or an individual because a corporation may not ownership is the common enjoyment of the
be bound by persons who are neither directors thing or right owned in common, the purpose of
nor officers of the corporation. a partnership is to obtain profits.
However, a corporation may form a general (3) As to personality: Whereas a co-ownership
partnership with another corporation or an has no juridical personality which is separate
individual provided the following conditions are and distinct from that of the owners, a
met: partnership has.
(4) As to duration: Whereas an agreement not to
divide the community property for more than ten
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years is not allowed by law, such an agreement “Hungry Toppings” that will be established at Mall
would be perfectly valid in the case of Uno, Mall Dos, and Mall Tres.
partnerships. This is so, because under the law,
there is no limitation upon the duration of The pertinent provisions of the MOA
partnerships. provides:
(5) As to power of members: Whereas a co-
owner has no power to represent the co- 1. Timothy shall be considered a
ownership, unless there is an agreement to that partner with thirty percent
effect, a partner has the power to represent the (30%) share in all of the stores
partnership, unless there is a stipulation to the to be set up by Kristopher;
contrary. 2. The proceeds of the business,
(6) As to effect of disposition of shares: If a co- after deducting expenses, shall
owner transfers his share to a third person, the be used to pay the principal
latter becomes automatically a co-owner, but if a amount of P500,000.00 and the
partner transfers his share to a third person, the interest therein which is to be
latter does not become a partner, unless agreed computed based on the bank
upon by all of the partners. rate, representing the bank loan
(7) As to division of profits: Whereas in co- secured by Timothy;
ownership the division of the benefits and
charges is fixed by law, in a partnership the 3. The net profits, if any, after
division of profits and losses may be subject to deducting the expenses and
the agreement of the partners. payments of the principal and
(8) As to effect of death: Whereas the death of a interest shall be divided as
co- owner has no effect upon the existence of follows: seventy percent (70%)
the co-owner- ship, the death of a partner shall for Kristopher and thirty percent
result in the dissolution of the partnership. (30%) for Timothy;
4. Kristopher shall have a free
“X” used his savings from his salaries amounting to hand in running the business
a little more than P2,000 as capital in establishing a without any interference from
restaurant. “Y” gave the amount of P4,000 to “X” as Timothy, his agents,
“financial assistance” with the understanding that “Y” representatives, or assigns, and
would be entitled to 22% of the annual profits should such interference
derived from the operation of the restaurant. After happen, Kristopher has the
the lapse of 22 years, “Y” filed a case demanding his right to buy back the share of
share in the said profits. “X” denied that there was a Timothy less the amounts
partnership and raised the issue of prescription as already paid on the principal
“Y” did not assert his rights anytime within ten (10) and to dissolve the MOA; and
years from the start of the operation of the 5. Kristopher shall submit his
restaurant. Is “Y” a partner of “X” in the business? monthly sales report in
Why? What is the nature of the right to demand connection with the business to
one’s share in the profits of a partnership? Does this Timothy.
right prescribe? (1989 Bar)
What is the contractual relationship between
SUGGESTED ANSWER: Timothy and Kristopher? (2014 Bar)
Yes, because there is an agreement to contribute
to a common fund and an intent to divide profits.
SUGGESTED ANSWER:
It is founded upon an express trust. It is
Timothy and Kristopher are partners, with
imprescriptible unless repudiated.
Kristopher as the Managing Partner and Timothy
as a Capitalist/Silent Partner. Under the Civil
ALTERNATIVE ANSWER:
Code, the receipt by a person of a share in the
No, “Y” is not a partner because the amount is
net profits is prima facie evidence that he is a
extended in the form of a financial assistance
partner in the business. The agreement between
and therefore it is a loan, and the mere sharing
Timothy and Kristopher is such an agreement,
of profits does not establish a partnership. The
hence they are to be considered as partners.
right is founded upon a contract of loan whereby
the borrower is bound to pay principal and
interest like all ordinary obligations. Yes, his More, while Timothy may have procured a loan
right prescribes in six or ten years depending of P500,000 for the benefit of the partnership,
upon whether the contract is oral or written. there is nothing in their agreement that points to
Timothy being a mere creditor of the business or
Timothy executed a Memorandum of Agreement that his share in the net profits is by way of
(MOA) with Kristopher setting up a business repayment of the loan that he secured. Likewise,
venture covering three (3) fastfood stores known as there is no agreement limiting the liability of
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Timothy as to 3rd persons dealing with the Justine, without the knowledge and consent of Dielle
business. All in all, the circumstances point to and Karlo.
Timothy being partners with Kristopher in the
business, albeit a silent one. What are the rights of Justine, if any, should she
desire to participate in the management of the
partnership and in the distribution of a net profit of
Obligations of the Partners Among Themselves P360,000.00 which was realized after her purchase
of Una’s interest? (1998 Bar)
Joe and Rudy formed a partnership to operate a car
repair shop in Quezon City. Joe provided the capital SUGGESTED ANSWER:
while Rudy contributed his labor and industry. On Justine cannot interfere or participate in the
one side of their shop, Joe opened and operated a management or administration of the
coffee shop, while on the other side, Rudy put up a partnership business or affairs. She may,
car accessories store. May they engage in such however, receive the net profits to which Una
separate businesses? Why? (2001 Bar) would have otherwise been entitled. In this case,
P120,000 (Art. 1813, Civil Code)
SUGGESTED ANSWER:
Joe, the capitalist partner, may engage in the A partner cannot demand the return of his share
restaurant business because it is not the same (contribution) during the existence of a partnership.
kind of business the partnership is engaged in. Do you agree? Explain your answer. (2012 Bar)
On the other hand, Rudy may not engage in any
other business unless their partnership SUGGESTED ANSWER:
expressly permits him to do so because as an Yes, he is not entitled to the return of his
industrial partner he has to devote his full time contribution to the capital of the partnership, but
to the business of the partnership (Art. 1789, only to the net profits from the partnership
Civil Code). business during the life of the partnership
period. If he is a limited partner, however, he
W, X, Y and Z organized a general partnership with may ask for the return of his contributions as
W and X as industrial partners and Y and Z as provided in Art 1856 and 1857, Civil Code.
capitalist partners. Y contributed P50,000.00 and Z
contributed P20,000.00 to the common fund. By a
unanimous vote of the partners, W and X were Partnership, obligation of partners with regard to
appointed managing partners, without any third persons
specification of their respective powers and duties.
A applied for the position of Secretary and B applied Tomas, Rene and Jose entered into a partnership
for the position of Accountant of the partnership. under the firm name “Manila Lumber.” Subsequently,
The hiring of A was decided upon by W and X, but upon mutual agreement, Tomas withdrew from the
was opposed by Y and Z. partnership and the partnership was dissolved.
The hiring of B was decided upon by W and Z, but However, the remaining partners, Rene and Jose,
was opposed by X and Y. did not terminate the business of “Manila Lumber.”
Who of the applicants should be hired by the Instead of winding up the business of the
partnership? Explain and give your reasons. (1992 partnership and liquidating its assets, Rene and
Bar) Jose continued the business in the name of “Manila
Lumber” apparently without objection from Tomas.
SUGGESTED ANSWER: The withdrawal of Tomas from the partnership was
A should be hired as Secretary. The decision for not published in the newspapers.
the hiring of A prevails because it is an act of Could Tomas be held liable for any obligation or
administration which can be performed by the indebtedness Rene and Jose might incur while
duly appointed managing partners, W and X. doing business in the name of “Manila Lumber” after
B cannot be hired, because in case of a tie in the his withdrawal from the partnership? Explain. (1987
decision of the managing partners, the deadlock Bar)
must be decided by the partners owning the
controlling interest. In this case, the opposition SUGGESTED ANSWER:
of X and Y prevails because Y owns the Yes. Tomas can be held liable. Under Art. 1816,
controlling interest (Art. 1801, Civil Code). all partners shall be liable pro rata with all their
property after all partnership assets have been
Dielle, Karlo and Una are general partners in a exhausted, for the contracts which may be
merchandising firm. Having contributed equal entered into in the name and for the account of
amounts to the capital, they also agree on equal the partnership. Without publication (or actual
distribution of whatever net profit is realized per notice) of a partner’s withdrawal from the
fiscal period. After two years of operation, however. partnership, 3rd persons would have a right to
Una conveys her whole interest in the partnership to continue thinking that said partner remains a
member of the partnership and that liabilities
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incurred by the partnership could be enforced necessary because the assignment to him of
against the said partner in case of exhaustion of Pauline’s interest did not make him a partner,
partnership assets. In the instant case, even if under Art. 1813 of the Civil Code.
Tomas had actually withdrawn from the
partnership, without notice to the public of such ALTERNATIVE ANSWER:
withdrawal, his assets should still be held liable Interpreting Art. 1830 (1) (c) to mean that if one
to 3rd persons who extend credit to the of the partners had assigned his interest on the
partnership thinking that he was still a member partnership to another the remaining partners
thereof. However, given that he has actually may not dissolve the partnership, the
already withdrawn from the partnership, should dissolution by Patricia and Priscilla without the
Tomas be held liable for liabilities of the consent of Pauline or Philip is not valid.
partnership after his withdrawal, he has a right
to ask for reimbursement from Rene and Jose b) No, Philip has no right to petition for
(see Singsong v. Isabela Sawmill, 88 SCRA 623) dissolution because he does not have the
standing of a partner (Art. 1813 Civil Code).

Partnership, dissolution and winding up A, B and C formed a partnership for the purpose of
contracting with the Government in the construction
Dielle, Karlo and Una are general partners in a of one of its bridges. On June 30, 1992, after
merchandising firm. Having contributed equal completion of the project, the bridge was turned over
amounts to the capital, they also agree on equal by the partners to the Government. On August 30,
distribution of whatever net profit is realized per 1992, D, a supplier of materials used in the project
fiscal period. After two years of operation, however. sued A for collection of the indebtedness to him. A
Una conveys her whole interest in the partnership to moved to dismiss the complaint against him on the
Justine, without the knowledge and consent of Dielle ground that it was the ABC partnership that is liable
and Karlo. for the debt. D replied that ABC partnership was
dissolved upon completion of the project for which
Is the partnership dissolved? (1998 Bar) purpose the partnership was formed. Will you
dismiss the complaint against A if you were the
SUGGESTED ANSWER: judge? (1993 Bar)
No. a conveyance by a partner of his whole
interest in a partnership does not of itself SUGGESTED ANSWER:
dissolve the partnership in the absence of an As Judge, I would not dismiss the complaint
agreement. (Art. 1813, Civil Code) against A, because A is still liable as a general
partner for his pro rata share of 1/3 (Art. 1816,
Pauline, Patricia and Priscilla formed a business Civil Code). Dissolution of a partnership caused
partnership for the purpose of engaging in neon by the termination of the particular undertaking
advertising for a term of five (5) years. Pauline specified in the agreement does not extinguish
subsequently assigned to Philip her interest in the obligations, which must be liquidated during the
partnership. When Patricia and Priscilla learned of “winding up” of the partnership affairs (Articles
the assignment, they decided to dissolve the 1829 and 1830, par. 1-a, Civil Code).
partnership before the expiration of its term as they
had an unproductive business relationship with A, B, and C entered into a partnership to operate a
Philip in the past. On the other hand, unaware of the restaurant business. When the restaurant had gone
move of Patricia and Priscilla but sensing their past break-even stage and started to garner
negative reaction to his acquisition of Pauline’s considerable profits, C died. A and B continued the
interest, Philip simultaneously petitioned for the business without dissolving the partnership. They in
dissolution of the partnership. fact opened a branch of the restaurant, incurring
a) Is the dissolution done by Patricia and Priscilla obligations in the process. Creditors started
without the consent of Pauline or Philip valid? demanding for the payment of their obligations.
Explain.
b) Does Philip have any right to petition for the a) Who are liable for the settlement of the
dissolution of the partnership before the expiration of partnership’s obligations? Explain?
its specified term? Explain. (1995 Bar) b) What are the creditors’ recourse/s? Explain.
(2010 Bar)
SUGGESTED ANSWER:
a) Under Art. 1830 (1) (c) of the Civil Code, the SUGGESTED ANSWER:
dissolution by Patricia and Priscilla is valid and a) The two remaining partners, A and B, are
did not violate the contract of partnership even liable. When any partner dies and the business
though Pauline and Philip did not consent is continued without any settlement of accounts
thereto. The consent of Pauline is not necessary as between him or his estate, the surviving
because she had already assigned her interest partners are held liable for continuing the
to Philip. The consent of Philip is not also
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business despite the death of C (Art 1841, 1785, end of the year shall be bought back by the
par 2, and Art 1833, Civil Code). manufacturer at the same price they were ordered.
The manufacturer shall hold the distributor free and
b) Creditors can file the appropriate actions, for harmless from any claim for defects in the units. Is
instance, an action for collection of sum of the agreement one for sale or agency? (2000 Bar)
money against the “partnership at will” and if
there are no sufficient funds, the creditors may SUGGESTED ANSWER:
go after the private properties of A and B (Art The contract is one of agency not sale. The
816, Civil Code). Creditors may also sue the notion of sale is negated by the following
estate of C. The estate is not excused from the indicia: (1) the price is fixed by the manufacturer
liabilities of the partnership even if C is dead with the 10% mark-up constituting the
already but only up to the time that he remained commission; (2) the manufacturer reacquires the
a partner (Art 1829, 1835, par 2, Civil Code; unsold units at exactly the same price; and (3)
Testate Estate of Mota v. Serra, 47 Phil 464). warranty for the units was borne by the
However, the liability of C’s individual properties manufacturer. The foregoing indicia negate sale
shall be subject first to the payment of his because they indicate that ownership over the
separate debts (Art 1835, Civil Code). units was never intended to transfer to the
distributor.

Partnership, effect of death of a partner A granted B the exclusive right to sell his brand of
Maong pants in Isabela, the price for his
Stating briefly the thesis to support your answer, will merchandise payable within 60 days from delivery,
the death of a partner terminate the partnership? and promising B a commission of 20% on all sales.
(1997 Bar) After the delivery of the merchandise to B but before
he could sell any of them, B’s store in Isabela was
SUGGESTED ANSWER: completely burned without his fault, together with all
Yes. The death of a partner will terminate the of A’s pants. Must B pay A for his lost pants? Why?
partnership, by express provision of par. 5, Art. (1999 Bar)
1830 of the Civil Code.
SUGGESTED ANSWER:
The contract between A and B is a sale not an
Agency agency to sell because the price is payable by B
upon 60 days from delivery even if B is unable to
Jo-Ann asked her close friend, Aissa, to buy some resell it. If B were an agent, he is not bound to
groceries for her in the supermarket. Was there a pay the price if he is unable to resell it.
nominate contract entered into between Jo-Ann and As a buyer, ownership passed to B upon
Aissa? In the affirmative, what was it? Explain. delivery and, under Art. 1504 of the Civil Code,
(2003 Bar) the thing perishes for the owner. Hence, B must
still pay the price.
SUGGESTED ANSWER:
Yes, there was a nominate contract. On the X was the owner of an unregistered parcel of land in
assumption that Aissa accepted the request of Cabanatuan City. As she was abroad, she advised
her close friend Jo-Ann to buy some groceries her sister Y via overseas call to sell the land and
for her in the supermarket, what they entered sign a contract of sale on her behalf.
into was the nominate contract of Agency. Y thus sold the land to B1 on March 31, 2001 and
Article 1868 of the Civil Code provides that by executed a deed of absolute sale on behalf of X. B1
the contract of agency a person binds himself to fully paid the purchase price. B2, unaware of the
render some service or to do something in sale of the land to B1, signified to Y his interest to
representation or on behalf of another, with the buy it but asked Y for her authority from X. Without
consent or authority of the latter. informing X that she had sold the land to B1, Y
sought X for a written authority to sell. X e-mailed Y
ALTERNATIVE ANSWER: an authority to sell the land. Y thereafter sold the
Yes, they entered into a nominate contract of land on May 1, 2001 to B2 on monthly installment
lease of service in the absence of a relation of basis for two years, the first installment to be paid at
principal and agent between them (Article 1644, the end of May 2001. Who between B1 and B2 has
Civil Code). a better right over the land? Explain. (2010 Bar)

A foreign manufacturer of computers and a SUGGESTED ANSWER:

Philippine distributor entered into a contract whereby B-2 has a better title. This is not a case of double
the distributor agreed to order 1,000 units of the sale. Since the first sale was void. The law
manufacturer’s computers every month and to resell provides that when a sale of a piece of land or
them in the Philippines at the manufacturer’s any interest therein is through an agent, the
suggested prices plus 10%. All unsold units at the authority of the latter shall be in writing;
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otherwise, the sale shall be void (Art 1874, Civil Dr. Jack, a surgeon, holds clinic at the St. Vincent’s
Code). The property was sold by Y to B1 without Hospital and pays rent to the hospital. The fees of
any written authority from the owner X. Hence, Dr. Jack are paid directly to him by the patient or
the sale to B1 was void. through the cashier of the hospital. The hospital
publicly displays in the lobby the names and
specializations of the doctors associated or
Agency couched in general terms accredited by it, including that of Dr. Jack. Marta
engaged the services of Dr. Jack because of
A as principal appointed B as his agent granting him recurring stomach pain. It was diagnosed that she is
general and unlimited management over A’s suffering from cancer and had to be operated on.
properties, stating that A withholds no power from B Before the operation, she was asked to sign a
and that the agent may execute such acts as he “consent for hospital care,” which reads:
may consider appropriate.
“Permission is hereby given to the
Accordingly, B leased A’s parcel of land in Manila to medical, nursing and laboratory
C for four (4) years at P60,000.00 per year, payable staff of the St. Vincent’s Hospital to
annually in advance. perform such procedures and to
administer such medications and
B leased another parcel of land of A in Caloocan treatments as may be deemed
City to D without a fixed term at P3,000.00 per necessary or advisable by the
month payable monthly. physicians of this hospital for and
during the confinement.”
B sold to E a third parcel of land belonging to A
located in Quezon City for three (3) times the price After the surgery, the attending nurses reported
that was listed in the inventory by A to B. that two (2) sponges were missing. Later, Marta
died due to complications brought about by the
All those contracts were executed by B while A was sponges that were left in her stomach. The husband
confined due to illness in the Makati Medical Center. of Marta sued the hospital and Dr. Jack for
damages arising from negligence in the medical
Rule on the validity and binding effect of each of the procedure. The hospital raised the defense that Dr.
above contracts upon A the principal. Explain your Jack is not its employee as it did not hire Dr. Jack
answers. (1992 Bar) nor pay him any salary or compensation. It has
absolutely no control over the medical services and
SUGGESTED ANSWER: treatment being provided by Dr. Jack. Dr. Jack even
The agency couched in general terms comprised signed an agreement that he holds the hospital free
only acts of administration (Art.1877, Civil and harmless from any liability arising from his
Code). The lease contract on the Manila parcel is medical practice in the hospital.
not valid, not enforceable and not binding upon
A, the same not being an act of administration, Is St. Vincent’s Hospital liable for the negligence of
being for a period longer than one year. For B to Dr. Jack? Explain your answer. (2016 Bar)
lease the property to C, for more than one (1)
year, A must provide B with a special power of SUGGESTED ANSWER:
attorney (Art. 1878, Civil Code). Yes, St. Vincent Hospital is liable for the
negligence of Dr. Jack, on the basis of the
The lease of the Caloocan City property to D is doctrine of apparent authority or agency by
valid and binding upon A. Since the lease is estoppel. For a hospital to be liable under the
without a fixed term, it is understood to be from doctrine of apparent authority, a plaintiff must
month to month, since the rental is payable show that: (1) the hospital, or its agent, acted in
monthly (Art. 1687, Civil Code), hence would be a manner that would lead a reasonable person
considered as merely an act of admninistration. to conclude that the individual who was alleged
to be negligent was an employee or agent of the
The sale of the Quezon City parcel to E is not hospital; (2) where the acts of the agent create
valid and not binding upon A, sale being an act the appearance of authority, the plaintiff must
of disposition rather than administration. B also prove that the hospital had knowledge of
needed a special power of attorney to validly sell and acquiesced in them; and (3) the plaintiff
the land (Arts. 1877 and 1878, Civil Code). The acted in reliance upon the conduct of the
sale of the land at a very good price does not hospital or its agent, consistent with ordinary
cure the defect of the contract arising from lack care and prudence (Casumpang v. Cortejo, G.R.
of authority. No. 171127, 11 March 2015). In the instant case,
St. Vincent clearly held out Dr. Jack as a
member of its medical staff, displaying Dr.
Agency by estoppel Jack’s name as a doctor accredited with it at its
lobby, and allowing him to use a consent form
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which states that permission is given to the with said bank. Is CX liable for the bank loan? Why
medical STAFF of St. Vincent to perform or why not? Justify your answer. (2004 Bar)
procedures deemed necessary by THE
PHYSICIANS OF THE HOSPITAL. Through this SUGGESTED ANSWER:
acts, St. Vincent clothed Dr. Jack with apparent CX is liable for the bank loan because he
authority thereby leading Marta and her authorized the mortgage on his property to
husband to believe that Dr. Jack was an secure the loan contracted by DY. If DY later
employee or agent of St. Vincent. St. Vincent defaults and fails to pay the loan, CX is liable to
may no longer repudiate such authority. Dr. pay. However, his liability is limited to the extent
Jack being negligent, St. Vincent, as his of the value of the said property.
apparent principal, must also be held liable for
the same. ALTERNATIVE ANSWER:
CX is not personally liable to the bank loan
because it was contracted by DY in his personal
Obligations of the agent capacity. Only the property of CX is liable.
Hence, while CX has authorized the mortgage on
X appoints Y as his agent to sell his products in his property to secure the loan of DY, the bank
Cebu City. Can Y appoint a sub-agent and if he cannot sue CX to collect the loan in case DY
does, what are the effects of such appointment? defaults thereon. The bank can only foreclose
(1999 Bar) the property of CX. And if the proceeds of the
foreclosure are not sufficient to pay the loan in
SUGGESTED ANSWER: full, the bank cannot run after CX for the
a) Yes, the agent may appoint a substitute or: deficiency.
subagent if the principal has not prohibited him
from doing so, but he shall be responsible for ALTERNATIVE ANSWER:
the acts of the substitute: While as a general rule the principal is not liable
(1) when he was not given the power to appoint for the contract entered into by his agent in case
one; the agent acted in his own name without
(2) when he was given such power, but without disclosing his principal, such rule does not
designating the person, and the person apply if the contract involves a thing belonging
appointed was notoriously incompetent or to the principal. In such case, the principal is
insolvent. liable under Article 1883 of the Civil Code. The
contract is deemed made on his behalf (Sy-juco
As an agent, AL was given a guarantee commission, v. Sy-juco 40 Phil. 634).
in addition to his regular commission, after he sold
20 units of refrigerators to a customer, HT Hotel. ALTERNATIVE ANSWER:
The customer, however, failed to pay for the units CX would not be liable for the bank loan. CX’s
sold. AL’s principal, DRBI, demanded from AL property would also not be liable on the
payment for the customer’s accountability. AL mortgage. Since DY did not specify that he was
objected, on the ground that his job was only to sell acting for CX in the transaction with the bank,
and not to collect payment for units bought by the DY in effect acted in his own name. In the case
customer. of Rural Bank of Bombon v. CA, 212 SCRA,
Is AL’s objection valid? Can DRBI collect from him or (1992), the Supreme Court, under the same facts,
not? Reason. (2004 Bar) ruled that “in order to bind the principal by a
mortgage on real property executed by an agent,
SUGGESTED ANSWER: it must upon its face purport to be made, signed
No, AL’s objection is not valid and DRBI can and sealed in the name of the principal,
collect from AL. Since AL accepted a guarantee otherwise, it will bind the agent only. It is not
commission, in addition to his regular enough merely that the agent was in fact
commission, he agreed to bear the risk of authorized to make the mortgage, if he, has not
collection and to pay the principal the proceeds acted in the name of the principal. Neither is it
of the sale on the same terms agreed upon with ordinarily sufficient that in the mortgage the
the purchaser (Article 1907, Civil Code) agent describes himself as acting by virtue of a
power of attorney, if in fact the agent has acted
in his own name and has set his own hand and
Obligations of the principal seal to the mortgage. There is no principle of law
by which a person can become liable on a real
CX executed a special power of attorney authorizing estate mortgage which she never executed in
DY to secure a loan from any bank and to mortgage person or by attorney in fact”.
his property covered by the owner’s certificate of
title. In securing a loan from Mbank, DY did not Prime Realty Corporation appointed Nestor the
specify that he was acting for CX in the transaction exclusive agent in the sale of lots of its newly
developed subdivision. Prime Realty told Nestor that
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he could not collect or receive payments from the thirty percent (30%) of Joe Miguel's share in
buyers. Nestor was able to sell ten lots to Jesus and whatever treasure that may be found in the land.
to collect the downpayments for said lots. He did not
turn over the collections to Prime Realty. Who shall Dissatisfied however with the strategies
bear the loss for Nestor’s defalcation, Prime Realty implemented by John Paul, Joe Miguel unilaterally
or Jesus? (1994 Bar) revoked the SPA granted to John Paul. Is the
revocation proper? (2014 Bar)
SUGGESTED ANSWER:
The general rule is that a person dealing with an SUGGESTED ANSWER:
agent must inquire into the authority of that Yes, the revocation is proper. Under the Civil
agent. In the present case, if Jesus did not Code, the principal may revoke the agency at
inquire into that authority, he is liable for the will. Clearly, Joe Miguel can unilaterally revoke
loss due to Nestor’s defalcation unless Article the SPA that he has granted to John Paul.
1900, Civil Code governs, in which case the Admittedly, an agency coupled with an interest
developer corporation bears the loss. cannot be revoked by the sole will of the
Art. 1900 Civil Code provides: “So far as third principal. However, to be considered as an
persons are concerned, an act is deemed to irrevocable agency because it is coupled with an
have been performed within the scope of the interest, the agent must have an interest in the
agent’s authority, if such act is within the terms subject matter of the power conferred, not
of the power of attorney, as written, even if the merely an interest in the exercise of the power
agent has in fact exceeded the limits of his because it entitles him to compensation
authority according to an understanding therefor. In the instant case, the only interest
between the principal and the agent. which John Paul has in the agency is the fact
However, if Jesus made due inquiry and he was that he gets 40% of any treasure found if he
not informed by the principal Prime Realty of the manages the treasure hunting activities on the
limits of Nestor’s authority, Prime Realty shall land, as well as files cases against trespassers.
bear the loss. He has no direct interest in the land or in the
treasure that may be found therein, hence the
ADDITIONAL ANSWER: agency conferred upon him is not coupled with
Considering that Prime Realty Corporation only such an interest as to make it an irrevocable
“told” Nestor that he could not receive or collect agency. Accordingly, the unilateral revocation of
payments, it appears that the limitation does not the SPA by Joe Miguel is proper.
appear in his written authority or power of
attorney. In this case, insofar as Jesus, who is a A lawyer was given an authority by means
third person, is concerned, Nestor’s acts of of a Special Power of Attorney by his client to sell a
collecting payments is deemed to have been parcel of land for the amount of P3 Million. Since
performed within the scope of his authority the client owed the lawyer P1 Million in attorney's
(Article 1900, Civil Code). Hence, the principal is fees in a prior case he handled, the client agreed
liable. that if the property is sold, the lawyer was entitled to
However, if Jesus was aware of the limitation of get 5% agent's fee plus P1 Million as payment for
Nestor’s power as an agent, and Prime Realty his unpaid attorney's fees. The client, however,
Corporation does not ratify the sale contract, subsequently found a buyer of his own who was
then Jesus shall be liable (Article 1898, Civil willing to buy the property for a higher amount. Can
Code). the client unilaterally rescind the authority he gave
in favor of his lawyer? Why or why not? (2015 Bar)
Modes of extinguishment of agency SUGGESTED ANSWER:
The client may not unilaterally rescind the
Joe Miguel, a well-known treasure hunter in authority he has given in favor of his lawyer.
Mindanao, executed a Special Power of Attorney Article 1927 of the Civil Code provides that an
(SPA) appointing his nephew, John Paul, as his agency cannot be revoked if a bilateral contract
attorney-in-fact. John Paul was given the power to depends upon it, or if it is the means of fulfilling
deal with treasure-hunting activities on Joe Miguel's an obligation already contracted, or if a partner
land and to file charges against those who may is appointed manager of a partnership in the
enter it without the latter's authority. Joe Miguel contract of partnership and his removal from
agreed to give John Paul forty percent (40%) of the the management is unjustifiable. In the instant
treasure that may be found on the land. case, the agency granted by the client in favor
of his lawyer is the means of fulfilling his
Thereafter, John Paul filed a case for damages and obligations to said lawyer, the payment of the
injunction against Lilo for illegally entering Joe latter’s fees. Consequently, the agency may not
Miguel's land. Subsequently, he hired the legal be revoked by the client unilaterally.
services of Atty. Audrey agreeing to give the latter

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Richard sold a large parcel of land in Cebu to Leo ticket, for acts/omissions which are imputable
for P100 million payable in annual installments over to the other airline, said acts/omissions are
a period of ten years, but title will remain with now the acts of the airline which issued the
Richard until the purchase price is fully paid. To ticket, on the theory that the acts of the agent
enable Leo to pay the price, Richard gave him a are the acts of the principal.
power-of-attorney authorizing him to subdivide the
land, sell the individual lots, and deliver the In the instant case, Shasha filed a complaint
proceeds to Richard, to be applied to the purchase solely against SAL, who is deemed to be the
price. Five years later, Richard revoked the power of principal of SMA. Accordingly, the acts of SMA
attorney and took over the sale of the subdivision are now its acts for which it must be held liable
lots himself. Is the revocation valid or not? Why? for damages to Shasha. Shasha, on the other
(2001 Bar) hand, may not recover damages from SMA as
her action for breach of contract cannot include
SUGGESTED ANSWER: SMA, who is not a party to said contract.
The revocation is not valid. The power of
attorney given to the buyer is irrevocable This is not to say that SMA is excused from any
because it is coupled with an interest: the liability. SAL is not barred from filing a case to
agency is the means of fulfilling the obligation of recover damages against its agent SMA. Under
the buyer to pay the price of the land (Article the law, an agent is liable to his principal for
1927, Civil Code). In other words, a bilateral damages caused to the latter due to the
contract (contract to buy and sell the land) is negligent acts of the agent.
dependent on the agency.
b) Yes, the agency is coupled with an interest.
Shasha purchased an airline ticket Sea Airlines
(SAL) covering Manila-Bangkok-Hanoi-Manila. The Jurisprudence states that an agency is deemed
ticket was exclusively endorsable to Siam Airlines as one coupled with an interest where it is
(SMA). The contract of air transportation was established for the mutual benefit of the
between Shasha and SAL, with the latter endorsing principal and of the agent, or for the interest of
to SMA the Hanoi-Manila segment of the journey. All the principal AND OF THIRD PERSONS, and it
her flights were confirmed by SAL before she left cannot be revoked by the principal so long as
Manila. Shasha took the flight from Manila to the interest of the agent or of a third person
Bangkok on board SAL using the ticket. When she subsists.
arrived in Bangkok, she went to the SAL ticket
counter and confirmed her return trip from Hanoi to In the instant case, the airline ticket creating the
Manila on board SMA Flight No SA 888. On the date agency between the issuing airline and the
of her return trip, she checked in for SMA Flight No. airline covering a leg of the flight, is issued to
SA 888, boarded the plane, and before she could passengers, who are 3rd persons to the agency.
even settle in on her assigned seat, she was off- The ticket is also for the benefit or interest of the
loaded and treated rudely by the crew. She lost her passenger, hence the agency created must be
luggage and missed an important business meeting. considered one with an interest. Emphatically,
She thereafter filed a complaint solely against SAL the business of a common carrier is imbued with
and argued that it was solidarily liable with SMA for public interest, hence contracts involving the
the damages she suffered since the latter was only same must answer to a higher standard for the
an agent of the former. benefit of passengers.

a) Should either, or both, SAL and SMA be held

liable for damages that Shasha suffered? Effect of death of agent
b) Assuming that one is an agent of the other, is
the agency coupled with interest? (2018 Bar) Stating briefly the thesis to support your answer, will
the death of an agent end an agency? (1997 Bar)
SUGGESTED ANSWER:
a) SAL should solely be held liable for the SUGGESTED ANSWER:
damages Shasha suffered. Yes. The death of an agent extinguishes the
agency, by express provision of par. 3, Art 1919
In cases where an airline passenger purchases of the Civil Code.
a ticket for a flight composed of several legs,
with one or more legs of said flight being In 1950, A executed a power of attorney authorizing
serviced by another airline, that other airline is B to sell a parcel of land consisting of more than 14
considered to be an agent of the airline issuing hectares. A died in 1954. In 1956, his four children
the ticket. Accordingly, when the passenger sold more than 12 hectares of the land to C. In
files a complaint for breach of contract of 1957, B sold 8 hectares of the same land to D. It
carriage against the airline which issued the appears that C did not register the sale executed by

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the children. D, who was not aware of the previous amount she had paid as interest. Julia claims she
sale, registered the sale executed by B, whose has no obligation to return the interest paid by Sara
authority to sell was annotated at the back of the because it was a natural obligation which Sara
Original Certificate of Title. voluntarily performed and can no longer recover. Do
What was the effect of the death of A upon B’s you agree? Explain. (2015 Bar)
authority to sell the land? (1988 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER: Yes, I agree with Julia’s contention. Article 1960
While the death of the principal in 1954 ended of the Civil Code provides that if the borrower
the authority of the agent to sell the land, it has pays interest when there has been no stipulation
not been shown that he was aware of his therefor, the provisions of this Code concerning
principal’s demise. Hence, the act of such agent solutio indebiti, or natural obligations, shall be
is valid and shall be fully effective with respect applied, as the case may be. In the instant case,
to third persons which may have contracted with the parties were aware that their loan contract
him in good faith in conformity with Art. 1931 of had no stipulation for interest, as in fact, the
the Civil Code. (Buason v. Panuyas, 105 Phil. lender only demanded interest because of the
795, Herrera v. Luy, 110 Phil. 1020.) delay in payment. Accordingly, there was no
mistaken belief on the part of Sara at the time
ALTERNATIVE ANSWER: she paid the interest that the same was undue. It
The agency is terminated upon the death of was a voluntary act on her part. It was only after
either the principal or agent. Exceptionally, a she had paid that she had second thoughts on
transaction entered into by the agent with a third the payment. There being no mistake, solutio
person where both had acted in good faith is indebiti does not apply. On the other hand, Sara
valid. Article 1930 of the Civil Code provides had promised to pay her loan within six months.
that: She was unable to do so. While their contract
“The agency shall remain in full force and effect did not provide for interest, the demands of
even after the death of the principal, if it has equity and natural law call for additional
been constituted in the common interest of the compensation due to Sara’s delayed payment.
latter and of the agent, or in the interest of a Plainly, the payment of interest, while not
third person who has accepted the stipulation in stipulated, is a natural obligation which
his favor.” authorizes Julia to retain said payment.
and Article 1931 provides that:
“Anything done by the agent, without knowledge
of the death of the principal or of any other Commodatum
cause which extinguishes the agency, is valid
and shall be fully effective with respect to third Distinguish briefly but clearly between mutuum and
persons who may have contracted with him in commodatum. (2004 Bar)
good faith.”
SUGGESTED ANSWER:
The distinctions are as follows:
Loan In mutuum, the object borrowed must be a
consumable thing the ownership of which is
MULTIPLE CHOICE. The parties to a bailment are transferred to the borrower who incurs the
the: obligation to return the same consumable to the
a) bailor; lender in an equal amount, and of the same kind
b) bailee; and quality. In commodatum, the object
c) comodatario; borrowed is usually a non-consumable thing the
d) all of the above; ownership of which is not transferred to the
e) letters a and b (2007 Bar) borrower who incurs the obligation to return the
very thing to the lender.
SUGGESTED ANSWER:
1. e (letters a & b) Distinguish commodatum from mutuum. (2017 Bar)

ALTERNATIVE ANSWER: SUGGESTED ANSWER:

1. d (all of the above) Commodatum distinguished from mutuum
1. Commodatum ordinarily involves non-
Sara borrowed P50,000.00 from Julia and orally consumable goods, although consumable
promised to pay it within six months. When Sara goods may be the object of commodatum if
tried to pay her debt on the 8 th month, Julia the purpose of the contract is not for
demanded the payment of interest of 12% per consumption; mutuum involves money or
annum because of Sara's delay in payment. Sara other consumable thing
paid her debt and the interest claimed by Julia. After
rethinking, Sara demanded back from Julia the
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2. In commodatum, ownership is retained by enable the bailee to “make use” of the fruits
the lender; in mutuum, ownership is (Arts. 1939 & 1940, Civil Code). Usufruct maybe
transferred to the borrower onerous while commodatum is always or
3. Commodatum is essentially gratuitous; essentially gratuitous (Arts. 1933 & 1935, Civil
mutuum may be gratuitous or onerous Code). The contract constituting usufruct is
4. In commodatum, the bailee must return the consensual, while commodatum is a real
very same thing borrowed; in mutuum, the contract (perfected only by delivery of the
borrower needs to pay only the same subject matter thereof). However, both involve
amount of the same kind and quality the enjoyment by a person of the property of
5. Commodatum may involve real or personal another, differing only as to the extent and
property; mutuum involves personal scope of such enjoyment (jus fruendi in one and
property jus utendi in the other); both may have as
6. The purpose of commodatum is temporary subject matter either an immovable or a
use or possession; while mutuum involves movable; and, both may be constituted over
consumption consumable goods (Arts. 574 & 1936, Civil
7. In commodatum, the bailor may, in case of Code).
urgent need, demand the return of the thing A consumable thing may be the subject-matter
loaned; in mutuum, the lender cannot of an abnormal usufruct but in a normal
demand the return of the thing prior to the usufruct, the subject-matter may be used only
expiration of the period for exhibition. A commodatum of a consumable
8. In commodatum, risk of loss is suffered by thing may be only for the purpose of exhibiting,
the bailor; while in mutuum, risk of loss is not consuming it.
suffered by the borrower
9. Commodatum is purely personal; while Before he left for Riyadh to work as a mechanic,
mutuum is not purely personal Pedro left his Adventure van with Tito, with the
understanding that the latter could use it for one
Distinguish usufruct from commodatum and state year for his personal or family use while Pedro
whether these may be constituted over consumable works in Riyadh. He did not tell Tito that the brakes
goods. (1998 Bar) of the van were faulty. Tito had the van tuned up and
the brakes repaired. He spent a total amount of
SUGGESTED ANSWER: P15,000.00. After using the vehicle for two weeks,
Usufruct is a right given to a person Tito discovered that it consumed too much fuel. To
(usufructuary) to enjoy the property of another make up for the expenses, he leased it to Annabelle.
with the obligation of preserving its form and Two months later, Pedro returned to the Philippines
substance. (Art. 562, Civil Code) and asked Tito to return the van.
On the other hand, commodatum is a contract
by which one of the parties (bailor) delivers to Unfortunately, while being driven by Tito, the van
another (bailee) something not consumable so was accidentally damaged by a cargo truck without
that the latter may use it for a certain time and his fault.
return it.
In usufruct the usufructuary gets the right to the a) Who shall bear the P15,000.00 spent for the
use and to the fruits of the same, while in repair of the van? Explain.
commodatum, the bailee only acquires the use b) Who shall bear the costs for the van’s fuel, oil and
of the thing loaned but not its fruits. other materials while it was with Tito? Explain.
Usufruct may be constituted on the whole or a c) Does Pedro have the right to retrieve the van
part of the fruits of the thing. (Art. 564, Civil even before the lapse of one year? Explain.
Code). It may even be constituted over d) Who shall bear the expenses for the accidental
consumables like money (Alunan v. Veloso, 52 damage caused by the cargo truck, granting that the
Phil. 545). On the other hand, in commodatum, truck driver and truck owner are insolvent? Explain.
consumable goods may be subject thereof only (2005 Bar)
when the purpose of the contract is not the
consumption of the object, as when it is merely SUGGESTED ANSWER:
for exhibition. (Art. 1936, Civil Code) a) The contract between Pedro and Tito is one of
commodatum. Of the P15,000.00 spent, Pedro,
ANOTHER ANSWER: the bailor, shall bear the expenses for the repair
There are several points of distinction between of the faulty brakes, they being extraordinary
usufruct and commodatum. Usufruct is expenses incurred due to the non-disclosure by
constituted by law, by contract, by testamentary the bailor of the defect or fault; Tito, on the other
succession, or by prescription (Art. 1933, Civil hand, shall shoulder that part of the P15,000.00
Code). Usufruct creates a real right to the fruits spent for the tune-up, said expense being
of another’s property, while commodatum ordinary for the use and preservation of the van.
creates only a purely personal right to use
another’s property, and requires a stipulation to
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b) The costs for the fuel and other materials are borrowed is usually a non-consumable thing the
considered ordinary expenses, and ownership of which is not transferred to the
consequently Tito, the bailee, shall shoulder borrower who incurs the obligation to return the
them. (Art. 1941, Civil Code) very thing to the lender.

c) No, Pedro cannot demand the return of the Siga-an granted a loan to Villanueva in the amount
van until after the expiration of the one-year of P 540, 000.00. Such agreement was not reduced
period stipulated. However, if in the meantime he to writing. Siga-an demanded interest which was
should have urgent need of the van, he may paid by Villanueva in cash and checks. The total
demand its return or temporary use. amount Villanueva paid accumulated to P
1,200,000.00. Upon advice of her lawyer, Villanueva
d) Both Tito and Pedro shall bear equally the demanded for the return of the excess amount of P
costs of the extraordinary expenses, having 660, 000.00 which was ignored by Siga-an.
been incurred on the occasion of actual use of a) Is the payment of interest valid? Explain.
the van by Tito, the bailee, even though he acted b) Is solutio indebiti applicable? Explain. (2012 Bar)
without fault. (Art. 1949(2), Civil Code)
SUGGESTED ANSWER:
A, upon request, loaned his passenger jeepney to B a) No, Art. 1956, Civil Code, provides that “no
to enable B to bring his sick wife from Paniqui, interest shall be due unless it has been
Tarlac to the Philippine General Hospital in Manila expressly stipulated in writing.”
for treatment. On the way back to Paniqui, after
leaving his wife at the hospital, people stopped the b) Yes, solutio indebiti is applicable because
passenger jeepney. B stopped for them and allowed Villanueva overpaid by P600,000.00 representing
them to ride on board, accepting payment from them interest payment which is not due. He can,
just as in the case of ordinary passenger jeepneys therefore, demand its return.
plying their route. As B was crossing Bamban, there
was an onrush of lahar from Mt. Pinatubo. The jeep Saachi opened a savings bank account with
that was loaned to him was wrecked. Shanghainese Bank. He made an initial deposit of
a) What do you call the contract that was entered PhP100,000. Part of the bank opening forms that he
into by A and B with respect to the passenger was required to sign when he opened the account
jeepney that was loaned by A to B to transport the was a Holdout Agreement which provided that,
latter’s sick wife to Manila? should he incur any liability or obligation to the bank,
b) Is B obliged to pay A for the use of the passenger the bank shall have the right to immediately and
jeepney? automatically take over his savings account deposit.
c) Is B liable to A for the loss of the jeepney? (1993 After he opened his deposit account, the
Bar) Shanghainese Bank discovered a scam wherein the
funds in the account of another depositor in the bank
SUGGESTED ANSWER: was withdrawn by an impostor. Shanghainese Bank
a) The contract is called “commodatum”. (Art. suspected Saachi to be the impostor, and filed a
1933, Civil Code) criminal case of estafa against him. While the case
was still pending with the Prosecutor’s office, the
b) No, B is not obliged to pay A for the use of the bank took over Saachi’s savings deposit on the
passenger jeepney because commodatum is basis of the Holdout Agreement.
essentially gratuitous. (Art. 1933, Civil Code) a) What kind of contract is created when a
depositor opens a deposit account with a bank?
c) Yes, because B devoted the thing to a b) In this case, did the bank have the right to take
purpose different from that for which it has been over Saachi’s bank deposit? (2018 Bar)
loaned (Art. 1942, par. 2, Civil Code)
SUGGESTED ANSWER:
a) The contract created when a depositor opens
Simple loan or mutuum a deposit account with a bank is a contract of
loan.
Distinguish briefly but clearly between mutuum and
commodatum. (2004 Bar) Article 1980 of the Civil Code provides that fixed,
savings, and current deposits of money in banks
SUGGESTED ANSWER: and similar institutions shall be governed by the
The distinctions are as follows: provisions concerning simple loan.
In mutuum, the object borrowed must be a
consumable thing the ownership of which is Accordingly, a deposit account opended by a
transferred to the borrower who incurs the depositor with a bank will be considered as a
obligation to return the same consumable to the loan of money by the depositor to the bank.
lender in an equal amount, and of the same kind
and quality. In commodatum, the object
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b) No, the Bank does not have any right to take B claims that the depository, A, by force majeure
over Saachi’s bank deposit. had obtained the bag of money in place of the box of
money deposited by B.
As a general rule, a bank is allowed to set-off the
debts which a depositor owes to it with the The Mayor of Manila, on the other hand, claims that
deposit of said depositor, as a deposit is actually the bag of money should be deposited with the
a loan of money to the bank by the depositor; Office of the Mayor as required of the finder by the
which can then be subject to compensation of provisions of the Civil Code. The bank resists the
loans owed by the depositor to the bank. claims of B and the Mayor of Manila. To whom
However, for compensation to occur between a should A deliver the bag of money? Decide with
bank and its depositor, the depositor must be a reasons. (1992 Bar)
debtor to the bank.
SUGGESTED ANSWER:
In the instant case, there is nothing yet for the B would have no right to claim the money.
bank to compensate or set-off against the loan Article 1990 of the Civil Code is not applicable.
which it owes to the depositor. Emphatically, the The law refers to another thing received in
Holdout Agreement itself provides that the bank substitution of the object deposited and is
will have a right to take over the account only predicated upon something exchanged.
when the depositor incurs any obligation or
liability to the bank. As the estafa case is still The Mayor of Manila cannot invoke Article 719 of
pending with the Prosecutor’s Office, it cannot the Civil Code which requires the finder to
yet be said that Saachi is already liable or deposit the thing with the Mayor only when the
obligated to the bank. Consequently, the Bank previous possessor is unknown.
cannot, as of yet, invoke the Holdout Agreement
and take over Saachi’s bank deposit. (see In this case, A must return the bag of money to
Metrobank v. Rosales, G.R. No. 183204, January the bank as the previous possessor and known
13, 2014) owner (Arts. 719 and 1990, Civil Code).

Ana rented a safety deposit box at the Alto Bank,

Deposit paid the rental fee and was given the key. Ana put
her jewelry and gold coins in the box. Days after,
A deposit made in compliance with a legal obligation three armed men gained entry into the Alto Bank,
is: opening its vault and several safety deposit boxes,
a) an extrajudicial deposit; including Ana’s and emptied them of their contents.
b) a voluntary deposit; Could Ana hold the Alto Bank liable for the loss of
c) a necessary deposit; the contents of her deposit box? Explain. (1987 Bar)
d) a deposit with a warehouseman;
e) letters a and b (2007 Bar) SUGGESTED ANSWER:
It depends. In Sia v. CA (222 SCRA 24) the
SUGGESTED ANSWER: Supreme Court declared that a contract for the
c) necessary deposit use of a safety deposit box is not a contract of
lease; this is because full and absolute
X and Y staged a daring bank robbery in Manila at possession and control of the safety deposit
10:30 A.M. in the morning of a regular business day, box is not given to the party renting. The safety
and escaped with their loot of two (2) bags, each deposit box is located on bank premises; is
bag containing P50,000.00. under the bank’s control; and renters cannot
open their respective boxes unless the bank
During their flight to elude the police, X and Y cooperates by presenting and using the guard
entered the nearby locked house of A, then working key to the box. The Supreme Court then
in his Quezon City office. From A’s house, X and Y declared that a contract for the use of a safety
stole a box containing cash totalling P50,000.00 deposit box is is a special kind of deposit, not
which box A had been keeping in deposit for his strictly governed by the Civil Code provision on
friend B. deposit. The relation between a bank renting out
safe deposit boxes and its customer with
In their hurry, X and Y left in A’s bedroom one (1) of respect to the contents of the box is that of a
the bags which they had taken from the bank. bailor and bailee, governed by Title I, Book IV of
the Civil Code. Accordingly, the bank would be
With X and Y now at large and nowhere to be found, liable if, in performing its obligation, it is found
the bag containing P50,000.00 is now claimed by B, guilty of fraud, negligence, delay or
by the Mayor of Manila, and by the bank. contravention of the tenor of the agreement.
Accordingly, if the armed men gained entry into
the bank due to the latter’s fault or negligence, it
would be liable to Ana for the loss of the
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contents of her safety deposit box. If, however, Aleatory contracts, insurance
there was no fault or negligence on the part of
the bank, the taking by the armed men of the M/S Philippines, operated by United Shipping Lines,
contents of Ana’s safety deposit box would be a loaded in Japan for shipment to Manila 50 crates of
fortuitous event and the bank would not be liable pipes consigned to Standard Blooming Mills. The
for the loss. shipment was insured againts marine risks with
Marine Insurance Company. Enroute, the ship
Due to the continuous heavy rainfall, the major caught fire resulting in the total loss of ship and
streets in Manila became flooded. This compelled cargo. The insurance company paid the consignee
Cris to check-in at Square One Hotel. As soon as and thereafter sought recovery and reimbursement
Cris got off from his Toyota Altis, the Hotel's parking from the United Shipping Lines as subrogee unto
attendant got the key of his car and gave him a the rights of the insured. Evidence was presented
valet parking customer's claim stub. The attendant establishing the fact that from the time the goods
parked his car at the basement of the hotel. Early in were stored in the ship’s hatch, no regular
the morning, Cris was informed by the hotel inspection was made during the voyage such that
manager that his car was carnapped. the fire must have started 24 hours before it was
a) What contract, if any, was perfected between noticed.
Cris and the Hotel when Cris surrendered the key of Could the insurance company claim reimbursement
his car to the Hotel's parking attendant? of the amount it had paid its insured from the United
b) What is the liability, if any, of the Hotel for the loss Shipping Lines? Explain. (1987 Bar)
of Cris' car? (2014 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER: Yes. Under Article 2207, the insurer is
a) A contract of deposit was created between subrogated to the rights of the insured against
Cris and the hotel. The deposit of effects made the wrongdoer or the person who violated the
by travellers in hotels or inns; as well as of contract when the insurer pays or indemnifies
vehicles in a hotel or its annexes by a hotel the insured for the injury or loss arising out of
guest is considered a necessary deposit under the wrong or breach of contract complained of.
the Civil Code. Notably, common carriers are bound to observe
extraordinary diligence in the vigilance over the
b) Under Art. 1999 of the Civil Code, goods transported by them. In the instant case,
hotelkeepers are liable for vehicles placed in the the insurance company paid the consignee for
annexes of the hotel. Plainly, the parking the loss of the cargo. Likewise, there was
attendant, being an employee of the hotel, was negligence on the part of the shipping line, as
acting as an agent of the latter. Hence, the hotel the fire that had destroyed the cargo was not
would be liable for the loss of the car. Notably, noticed until after 24 hours had elapsed. Plainly,
while a hotelkeeper is excused from the shipping line did not observe the
responsibility for loss if the same is due to force extraordinary diligence required of it. There
majeure, the act of a thief or robber is not being a breach of contract of carriage in view of
considered force majeure unless it is done with the negligence of the shipping line and the
the use of arms or through irresistible force. consequent loss of the cargo insured, the
There being no showing that the carnapping consignee would have a right to claim
was effected through the use of arms or through reimbursement from the shipping line. Marine
irresistible force, the hotel is not excused from Insurance Company, being the subrogee of the
liability for the loss. consignee, may thus claim reimbursement of the
amount it paid from United Shipping Lines.
MULTIPLE CHOICE. Who enjoys the Right of
Retention? (2014 Bar)
Aleatory contracts, gambling

a) Depositary until full payment of what may be due Mr. ZY lost P100,000 in a card game called Russian
him in deposit. poker, but he had no more cash to pay in full the
b) Lessee if he advances the expenses for the winner at the time session ended. He promised to
repair of the leased premises. pay PX, the winner, two weeks thereafter. But he
c) Bailee if bailor owes him something. failed to do so despite the lapse of two months, so
d) Builder in bad faith for the recovery of necessary PX filed in court a suit to collect the amount of
and useful expenses. P50,000 that he won but remained unpaid. Will the
collection suit against ZY prosper? (2004 Bar)
SUGGESTED ANSWER:
a) Depositary until full payment of what may be SUGGESTED ANSWER:
due him in deposit. The suit by PX to collect the balance of what he
won from ZY will not prosper. Under Article 2014
of the Civil Code, no action can be maintained
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by the winner for the collection of what he has petition in exchange for ½ of what he would have
won in a game of chance. Although poker may received as inheritance if he were recognized as an
depend in part on ability, it is fundamentally a illegitimate child. As the judge, would you approve
game of chance. such a compromise? (2015 Bar)

Z, a gambler, wagered and lost P2 Million in SUGGESTED ANSWER:

baccarat, a card game. He was pressured into No, I would not approve such a compromise.
signing a Deed of Absolute Sale in favor of the Article 2035 of the Civil Code provides that no
winner covering a parcel of land with improvements compromise can be had on questions involving
worth P20 Million. One month later, the supposed the civil status of persons. The petition filed by
vendee of the property demanded that he and his the child involves a question of civil status, that
family vacate the property subject of the deed of of the child’s illegitimacy, hence in accordance
sale. Was the deed of sale valid? What can Z do? with Art. 2035, the same may not be the subject
(2015 Bar) of a compromise.

SUGGESTED ANSWER:
The deed of sale is not valid. Gambling is Arbitrations
discouraged by law, and in pursuance of this
policy, Article 2014 of the Civil Code provides TRUE or FALSE. A clause in an arbitration contract
that no action can be maintained by the winner granting one of the parties the power to choose
for the collection of what he has won in a game more arbitrators than the other renders the
of chance. In the instant case, the Deed of arbitration contract void. (2009 Bar)
Absolute Sale is merely a scheme to allow the
winner of a card game to collect his winnings. If SUGGESTED ANSWER:
the winner cannot file an action to collect his FALSE. Art. 2045 of the Civil Code provides that
winnings, neither may he be allowed to collect “Any clause giving one of the parties power to
the same indirectly through a Deed of Sale, the choose more arbitrators than the other is void
consideration of which is a gambling debt. In and of no effect.” Clearly, it is only the clause
this connection, Article 1409 pertinently itself which is void, not the entire arbitration
provides that contracts whose cause, object or contract.
purpose is contrary to law, morals, good
customs, public order or public policy are
inexistent and void from the beginning. The Guaranty
Deed of Sale would thus be inexistent and void
as its cause, a gambling debt, is contrary to What is the difference between “guaranty” and
morals, public order and public policy. “suretyship”? (2010 Bar)

Z may file an action to have the Deed of Sale SUGGESTED ANSWER:

declared as inexistent and void, its cause being Guaranty and Suretyship distinguished
contrary to morals, public order and public (1)The obligation in guaranty is secondary;
policy. whereas, in suretyship, it is primary.
(2) In guaranty, the undertaking is to pay if the
principal debtor cannot pay; whereas, in
Compromises suretyship, the undertaking is to pay if the
principal debtor does not pay.
Julie had a relationship with a married man who had (3) In guaranty, the guarantor is entitled to the
legitimate children. A son was born out of that illicit benefit of excussion; whereas, in suretyship the
relationship in 1981. Although the putative father did surety is not entitled.
not recognize the child in his certificate of birth, he (4) Liability in guaranty depends upon an
nevertheless provided the child with all the support independent agreement to pay the obligations of
he needed and spent time regularly with the child the principal if he fails to do so; whereas, in
and his mother. When the man died in 2000, the suretyship, the surety assumes liability as a
child was already 18 years old so he filed a petition regular party.
to be recognized as an illegitimate child of the
putative father and sought to be given a share in his Jerico, the project owner, entered into a
putative father's estate. The legitimate family Construction Contract with Ivan for the latter to
opposed, saying that under the Family Code his construct his house. Jojo executed a Surety
action cannot prosper because he did not bring the undertaking to guarantee the performance of the
action for recognition during the lifetime of his work by Ivan. Jerico and Ivan later entered into a
putative father. Memorandum of Agreement (MOA) revising the
b) Wishing to keep the peace, the child during the work schedule of Ivan and the subcontractors. The
pendency of the case decides to compromise with MOA stated that all the stipulations of the original
his putative father's family by abandoning his contract not in conflict with said agreement shall
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remain valid and legally effective. Jojo filed a suit to against Kevin first? Explain your answer. (2017
declare him relieved of his undertaking as a result Bar)
of the MOA because of the change in the work
schedule. Jerico claims there is no novation of the SUGGESTED ANSWER:
Construction Contract. Decide the case and Yes, ABC Bank can proceed directly against
explain. (2016 Bar) Rosella. Art. 2047 of the Civil Code provides that
if a person binds himself solidarily with the
SUGGESTED ANSWER: principal debtor, the contract is one of
Jojo should be declared as relieved of his suretyship, with the surety becoming directly,
undertaking as surety. In several cases, the primarily, and equally bound with the principal
Supreme Court has already declared that a debtor for the fulfillment of the obligation. More,
surety is released from its obligation when it is not the denomination given to the contract
there is a material alteration of the principal by the parties which determine its nature,
contract in connection with which the bond is whether as a mere guaranty or a suretyship, but
given, such as a change which imposes a new the actual provisions themselves. In the instant
obligation on the promising party, or which case, even if the contract is titled as a “guaranty
takes away some obligation already imposed, or agreement”, the fact that Rosella expressly
one which changes the legal effect of the agreed to be solidarily liable for the obligations
original contract and not merely its form. of Kevin makes her a surety of the latter.
Similarly, Article 2079 of the Civil Code provides Accordingly, she is likewise directly, primarily,
that “An extension granted to the debtor by the and equally bound to fulfill the obligation, hence
creditor without the consent of the guarantor ABC Bank can directly proceed against her,
extinguishes the guaranty.” without proceeding against Kevin first.

Accordingly, if the MOA entered into by Jerico

and Ivan shortens the work schedule of Ivan and Pledge, mortgage and antichresis
the subcontractors, the same would be a
material alteration of the principal contract, as In the province, a farmer couple borrowed money
shortening the period would make the from the local merchant. To guarantee payment,
construction of the house more onerous. There they left the Torrens Title of their land with the
being a novation, Jojo would then be relieved of merchant, for him to hold until they pay the loan. Is
his undertaking. On the other hand, if the MOA there a -
entered into by Jerico and Ivan extends the work a) contract of pledge,
schedule of Ivan and the subcontractors, Article b) contract of mortgage,
2079 would become applicable. With the c) contract of antichresis, or
extension granted to Ivan, Jojo, not having d) none of the above? Explain. (1996 Bar)
consented thereto, would also be released from
his undertaking, as the surety would be SUGGESTED ANSWER:
extinguished. In sum, whether the MOA shortens None of the above. There is no pledge because
or extends the period, Jojo would, in both cases, only movable property may be pledged (Art.
be relieved from his undertaking as a surety. 2094, Civil Code). If at all, there was a pledge of
the paper or document constituting the Torrens
TRUE or FALSE. An oral promise of guaranty is Title, as a movable by itself, but not of the land
valid and binding. (2009 Bar) which the title represents. There is no mortgage
because no deed or contract was executed in
ANSWER: the manner required by law for a mortgage (Arts.
FALSE. While the contract of guaranty is 2085 to 2092, Civil Code; 2124 to 2131, Civil
perfected by mere consent, it is covered by the Code). There is no contract of antichresis
Statute of Frauds, being “a special promise to because no right to the fruits of the properly was
answer for the debt, default, or miscarriage of given to the creditor (Art. 2132 Civil Code).
another,” hence an oral promise of guaranty is A contract of simple loan was entered into with
unenforceable and would not be binding upon security arrangement agreed upon by the parties
the promissor. which is not one of those mentioned above.

Kevin signed a loan agreement with ABC Bank. A, about to leave the country on a foreign
To secure payment, Kevin requested his girlfriend assignment, entrusted to B his brand new car and its
Rosella to execute a document entitled certificate of registration. Falsifying A’s signature, B
“Continuing Guaranty Agreement” whereby she sold A’s car to C for P200,000.00. C then registered
expressly agreed to be solidarily liable for the the car in his name. To complete the needed
obligation of Kevin. amount, C borrowed P100,000.00 from the savings
Can ABC Bank proceed directly against Rosella and loan association in his office, constituting a
upon Kevin’s default even without proceeding chattel mortgage on the car. For failure of C to pay
the amount owed, the savings and loan association
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filed in the RTC a complaint for collection with What do you understand by antichresis? How is it
application for issuance of a writ of replevin to obtain distinguished from pledge and mortgage? (1989
possession of the vehicle so that the chattel Bar)
mortgage could be foreclosed. The RTC issued the
writ of replevin. The car was then seized from C and SUGGESTED ANSWER:
sold by the sheriff at public auction at which the Antichresis is a contract whereby the creditor
savings and loan association was the lone bidder. acquires the right to receive the fruits of an
Accordingly, the car was sold to it. A few days later, immovable of his debtor with the obligation to
A arrived from his foreign assignment. Learning of apply them to the payment of interest if owing
what happened to his car, A sought to recover and thereafter to the principal.
possession and ownership of it from the savings and Pledge is an accessory and real contract
loan association. Can A recover his car from the whereby the debtor delivers to the creditor
savings and loan association? Explain your answer. movable property as security for the
(1993 Bar) performance of a principal obligation upon the
fulfillment of which the thing pledged shall be
SUGGESTED ANSWER: returned to the debtor.
Under the prevailing rulings of the Supreme A real estate mortgage is an accessory contract
Court, A can recover the car from the Savings whereby the debtor guarantees the performance
and Loan Association provided he pays the of the principal obligation by subjecting real
price at which the Association bought the car at property or real right as security for the
a public auction. Under that doctrine, there has performance of such obligation.
been an unlawful deprivation by B of A of his car
and, therefore, A can recover it from any person ALTERNATIVE ANSWER:
in possession thereof. But since it was bought at By the contract of antichresis the creditor
a public auction in good faith by the Savings and acquires the right to receive the fruits of an
Loan Association, he must reimburse the immovable of his debtor, with the obligation to
Association at the price for which the car was apply them to the payment of the interest, if
bought. owing, and thereafter to the principal of his
credit.
ALTERNATIVE ANSWER:
Yes, A can recover his car from the Savings and Antichresis distinguished from pledge:
Loan Association. In a Chattel Mortgage, the 1. Antichresis is consensual, pledge is a real
mortgagor must be the absolute owner of the contract.
thing morgaged. Furthermore, the person 2. Antichresis involves real property, pledge
constituting the mortgage must have the free involves personal property.
disposal of the property, and in the absence 3. In antichresis, the principal and the interest
thereof, must be legally authorized for the must be provided in writing for validity. In
purpose. In the case at bar, these essential pledge, the date and description of the pledge
requisites did not apply to the mortgagor B. must be in a public instrument to affect third
hence the Chattel Mortgage was not valid. persons.

Distinguish between a contract of real estate Antichresis distinguished from mortgage:

mortgage and a contract of sale with right of 1. In antichresis the fruits that are applied to the
repurchase. (1989 Bar) interest and thereafter to the principal. In
mortgage the fruits are not applied to the
SUGGESTED ANSWER: principal obligation.
1. Real estate mortgage is an accessory 2. In antichresis, the creditor is in possession. In
contract. A contract of sale with right of mortgage, the debtor is in possession.
repurchase is a principal contract. 3. The principal and interest must be in writing
2. Real estate mortgage involves no transfer of for validity. In mortgage, registration is required
title. A contract of sale involves a conditional to bind third persons.
transfer of title. 4. In antichresis, the creditor pays the taxes. In
3. Real estate mortgage involves no transfer of mortgage, taxes are not imposed on the creditor.
possession. A contract of sale involves a
conditional transfer of possession. Distinguish antichresis from usufruct? (2017 Bar)
4. In a real estate mortgage the creditor has no
rights to the fruits. In a contract of sale, the SUGGESTED ANSWER:
vendee is entitled to the fruits. Antichresis is a contract whereby the creditor
5. In a real estate mortgage, upon default the acquires the right to receive the fruits of an
creditor is not the owner. In a contract of sale, immovable of his debtor with the obligation to
upon consolidation, the vendee is the owner. apply them to the payment of interest if owing
and thereafter to the principal; while usufruct
gives the right to enjoy the property of another,
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with the obligation of preserving its form and declared to be a mortgagee in bad faith, and the
substance. real mortgage in its favor declared null and void.

Antichresis distinguished from usufruct: Does an action to foreclose a real estate mortgage
1. Antichresis arises from contract; usufruct is affecting registered land under the Torrens System
constituted by law, by the will of private persons prescribe? Give your reasons. (1989 Bar)
expressed in acts inter vivos or in a last will and
testament, and by prescription. SUGGESTED ANSWER:
2. Antichresis involves real property; usufruct Even if the property given as collateral is
may involve real property or personal property. covered by a Torrens Title, the right to foreclose
3. In antichresis, the principal and the interest a real estate mortgage thereon prescribes. This
must be provided in writing for validity; there is is really an action to enforce collection of the
no such requirement for usufruct loan.
4. In antichresis, the fruits are to be applied to
the payment of interest, if owing, then to the a) Distinguish a contract of chattel mortgage from a
principal; in usufruct, the fruits belong to the contract of pledge.
usufructuary. b) Are the right of redemption and the equity of
5. The purpose of antichresis is the fulfillment of redemption given by law to a mortgagor the same?
a principal obligation contracted by the debtor Explain.
who owns the immovable; the purpose of c) X borrowed money from Y and gave a piece of
usufruct is for the usufructuary to enjoy the land as security by way of mortgage. It was
property of another, with the obligation of expressly agreed between the parties in the
preserving its form and substance. mortgage contract that upon nonpayment of the debt
on time by X, the mortgaged land would already
Ellen entrusted her title over the lot where she is belong to Y. If X defaulted in paying, would Y now
residing to Patrick, her nephew, for safekeeping become the owner of the mortgaged land? Why?
because of her poor eyesight. Patrick, a gambler, d) Suppose in the preceding question, the
prepared a Special Power of Attorney empowering agreement between X and Y was that if X failed to
him to mortgage the lot. Ellen’s signature was pay the mortgage debt on time, the debt shall be
forged. With the help of Julia who represented paid with the land mortgaged by X to Y. Would your
herself as Ellen, Mega Bank granted a loan to answer be the same as in the preceding question?
Patrick secured by a mortgage on Ellen’s lot. Due to Explain. (1999 Bar)
non-payment, Mega Bank foreclosed the mortgage
and was declared the highest bidder. Title was later SUGGESTED ANSWER:
registered in the name of the bank. When Ellen was a) In a contract of chattel mortgage possession
notified that she should vacate the premises, she belongs to the creditor, while in a contract of
filed a complaint to nullify the loan with mortgage, pledge possession belongs to the debtor.
the auction sale and the title of Mega Bank on the A chattel mortgage is a formal contract while a
ground that the bank is not a mortgagee in good pledge is a real contract.
faith. Decide the case with reasons. (2016 Bar) A contract of chattel mortgage must be recorded
in a public instrument to bind third persons
SUGGESTED ANSWER: while a contract of pledge must be in a public
Ellen’s complaint should be granted. Under the instrument containing description of the thing
Civil Code, it is essential for the validity of a pledged and the date thereof to bind third
mortgage that the mortgagor be the absolute persons.
owner of the thing mortgaged, so much so that if
the same is constituted by an impostor, the b) The equity of redemption is different from the
same would be void. More, a higher degree of right of redemption. Equity of redemption is the
diligence is required if the mortgagor is not the right of the mortgagor after judgment in a
registered owner of the property mortgaged. judicial foreclosure to redeem the property by
Further, banks, being impressed with public paying to the court the amount of the judgment
interest, are mandated to exercise a higher debt before the sale or confirmation of the sale.
degree of care and diligence in real estate On the other hand, right of redemption is the
transactions than individuals. In consonance right of the mortgagor to redeem the property
with the foregoing principles, Mega Bank should sold at an extra-judicial foreclosure by paying to
have been more cautious in granting the loan to the buyer in the foreclosure sale the amount
Patrick. Notably, Ellen was residing on the lot paid by the bt.yer within one year from such
mortgaged. Had Mega Bank even just conducted sale.
an ocular inspection of the lot, it could have
readily ascertained who the real owner of the lot c) No, Y would not become, the owner of the
was. Plainly, Mega Bank was negligent in land. The stipulation is in the nature of pactum
granting the loan. Accordingly, it must be commissorium which is prohibited by law. The
property should be sold at public auction and
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the proceeds thereof applied to the specifically, that the notice of auction sale
indebtedness. Any excess shall be given to the should be published in a newspaper of general
mortgagor. circulation.

d) No, the answer would not be the same. This is ANOTHER ANSWER:
a valid stipulation and does not constitute The problem that Vini mortgaged the land by
pactum commissorium. In pactum way of a chattel mortgage is untenable. Land
commissorium, the acquisition is automatic can only be the subject matter of a real estate
without need of any further action. In the instant mortgage and only an absolute owner of real
problem another act is required to be performed, property may mortgage a parcel of land. (Article
namely, the conveyance of the property as 2085 (2) Civil Code). Hence, there can be no
payment (dacion en pago). foreclosure.
But on the assumption that what was mortgaged
Donna pledged a set of diamond ring and earrings by way of chattel mortgage was the building on
to Jane for P200,000.00 She was made to sign an leased land, then the parties are treating the
agreement that if she cannot pay her debt within six building as chattel. A building that is not merely
months, Jane could immediately appropriate the superimposed on the ground is an immovable
jewelry for herself. After six months, Donna failed to property and a chattel mortgage on said building
pay. Jane then displayed the earrings and ring set in is legally void but the parties cannot be allowed
her jewelry shop located in a mall. A buyer, Juana, to disavow their contract on account of estoppel
bought the jewelry set for P300,000.00. by deed. However, if third parties are involved
such chattel mortgage is void and has no effect.
Was the agreement which Donna signed with Jane
valid? Explain with legal basis. (2015 Bar) Rosario obtained a loan of P100,000.00 from
Jennifer, and pledged her diamond ring. The
SUGGESTED ANSWER: contract signed by the parties stipulated that if
The agreement which Donna signed with Jane Rosario is unable to redeem the ring on due date,
allowing the latter to immediately appropriate she will execute a document in favor of Jennifer
the jewelry pledged if Donna could not pay her providing that the ring shall automatically be
loan is void, being in the nature of a pactum considered full payment of the loan.
commissorium. Article 2088 of the Civil Code
specifically provides that the creditor cannot a) Is the contract valid? Explain.
appropriate the things given by way of pledge or b) Will your answer to a) be the same if the contract
mortgage, or dispose of them. Any stipulation to stipulates that upon failure of Rosario to redeem the
the contrary is null and void. In accordance with ring on due date, Jennifer may immediately sell the
the foregoing, Jane’s immediate appropriation of ring and appropriate the entire proceeds thereof for
the jewelry is clearly null and void. herself as full payment of the loan? Reasons. (2009
Bar)
Vini constructed a building on a parcel of land he
leased from Andrea. He chattel mortgaged the land SUGGESTED ANSWER:
to Felicia. When he could not pay Felicia, Felicia a) The contract is valid. A pactum
initiated foreclosure proceedings. Vini claimed that commissorium, which is prohibited by law,
the building he had constructed on the leased land contemplates the automatic appropriation by the
cannot be validly foreclosed because the building creditor of the thing pledged upon the failure of
was, by law, an immovable. Is Vini correct? (1994 the debtor to pay his debt. In this case, there is
Bar) no automatic appropriation since Rosario is still
obligated, upon her failure to redeem the ring on
SUGGESTED ANSWER: the due date, to execute a document in favor of
If it was the land which Vini chattel mortgaged, Jennifer providing that the ring shall be full
such mortgage would be void, or at least payment of the loan. Prior to her execution of
unenforceable, since he was not the owner of said document, even if she has already failed to
the land. pay for her debt, the ring does not become the
If what was mortgaged as a chattel is the property of Jennifer, hence it may not be said
building, the chattel mortgage is valid as that there is automatic appropriation of her
between the parties only, on grounds of estoppel property.
which would preclude the mortgagor from
assailing the contract on the ground that its b) My answer will be the same. If the contract
subject-matter is an immovable. Therefore Vini’s stipulates that Jennifer may sell the ring and
defense is untenable, and Felicia can foreclose appropriate the entire proceeds of the sale upon
the mortgage over the building, observing, failure of Rosario to redeem the ring on the due
however, the procedure prescribed for the date, there would still be no automatic
execution of sale of a judgment debtor’s appropriation of the ring by the creditor, as in
immovable under Rule 39, Rules of Court, fact, the creditor would still have to sell the ring
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in order to recover on the loan she has owner of the property upon default of the
advanced. This is not a pactum commissorium, mortgagor. The bank has to sell the property and
hence the contract would be valid. apply the proceeds to the indebtedness.

In order to secure a bank loan, XYZ Corporation ABC loaned to MNO P40,000 for which the latter
surrendered its deposit certificate, with a maturity pledged 400 shares of stock in XYZ Inc. It was
date of 01 September 1997 to the bank. The agreed that if the pledgor failed to pay the loan with
corporation defaulted on the due repayment of the 10% yearly interest within four years, the pledgee is
loan, prompting the bank to encash the deposit authorized to foreclose on the shares of stock. As
certificate. XYZ Corporation questioned the above required, MNO delivered possession of the shares
action taken by the bank as being a case of pactum to ABC with the understanding that the shares would
commissorium. The bank disagrees. What is your be returned to MNO upon the payment of the loan.
opinion? (1997 Bar) However, the loan was not paid on time. A month
after 4 years, may the shares of stock pledged be
SUGGESTED ANSWER: deemed owned by ABC or not? Reason. (2004 Bar)
We submit that there is no pactum
commissorium here. Deposits of money in SUGGESTED ANSWER:
banks and similar institutions are governed by The shares of stock cannot be deemed owned
the provisions on simple loans (Art. 1980, Civil by ABC upon default of MNO. They have to be
Code). The relationship between the depositor foreclosed. Under Article 2088 of the Civil Code,
and a bank is one of creditor and debtor. the creditor cannot appropriate the things given
Basically this is a matter of compensation as all by way of pledge. And even if the parties have
the elements of compensation are present in this stipulated that ABC becomes the owner of the
case (BPI v. CA, 232 SCRA 302). shares in case MNO defaults on the loan, such
stipulation is void for being a pactum
ADDITIONAL ANSWER: commissorium.
Where the security for the debt is also money
deposited in a bank, it is not illegal for the Lito obtained a loan of P1,000,000 from Ferdie,
creditor to encash the time deposit certificates payable within one year. To secure payment, Lito
to pay the debtor’s overdue obligation. (Chu v. executed a chattel mortgage on a Toyota Avanza
CA, et al., 177 SCRA 793). and a real estate mortgage on a 200-square meter
piece of property. Would it be legally significant -
To secure a loan obtained from a rural bank, Purita from the point of view of validity and enforceability -
assigned her leasehold rights over a stall in the if the loan and the mortgages were in public or
public market in favor of the bank. The deed of private instruments? (2013 Bar)
assignment provides that in case of default in the
payment of the loan, the bank shall have the right to SUGGESTED ANSWER:
sell Purita’s rights over the market stall as her From the point of view of validity and
attorney-in-fact, and to apply the proceeds to the enforceability, there would be legal significance
payment of the loan. if the mortgage was in a public or private
a) Was the assignment of leasehold rights a instrument. As for the loan, there is no legal
mortgage or a cession? Why? significance except of interest were charged on
b) Assuming the assignment to be a mortgage, does the loan, in which case, the charging of interest
the provision giving the bank the power to sell must be in writing. A contract of loan is a real
Purita’s rights constitute pactum commissorium or contract and is perfected upon delivery of the
not? Why? (2001 Bar) object of the obligation (Art 1934, Civil Code).
Thus, a contract of loan is valid and enforceable
SUGGESTED ANSWER: even if it is neither in a private nor in a public
a) The assignment was a mortgage, not a document. As a rule, contracts shall be
cession, of the leasehold rights. A cession obligatory in whatever form they may have been
would have transferred ownership to the bank. entered into provided all the essential requisites
However, the grant of authority to the bank to for their validity are present. With regards to its
sell the leasehold rights in case of default is enforceability, a contact of loan is not among
proof that no such ownership was transferred those enumerated under Art. 1403 (2) of the Civil
and that a mere encumbrance was constituted. Code, which are covered by the Statute of
There would have been no need for such Frauds. It is important to note that under Art.
authority had there been a cession. 1358 of the Civil Code, all the other contracts
b) No, the clause in question is not a pactum where the amount involved exceeds Five
commissorium. It is pactum commissorium Hundred pesos (P500.00) must appear in writing,
when default in the payment of the loan even in private one. However, the requirement is
automatically vests ownership of the not for validity of the contract, but only for its
encumbered property in the bank. In the problem greater efficacy. With regard to the chattel
given, the bank does not automatically become mortgage, Art. 1508, the Chattel Mortgage Law,
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requires an affidavit of good faith stating that the valid foreclosure of real estate mortgage is
chattel mortgage is supposed to stand as absent. In the case of DBP v. Licuanan (516
security of the loan; thus, for the validity of the SCRA 644), it was held that: “the issue of
chattel mortgage, it must be in a public whether demand was made before the
document and recorded in the Chattel Mortgage foreclosure was effected is essential. If demand
Register in the Register of Deeds. A real estate was made and duly received by the respondents
mortgage, under the provisions of Art. 2125 of and the latter still did not pay, then they were
the Civil Code, requires that in order that a already in default and foreclosure was proper.
mortgage may be validly constituted the However, if demand was not made, then the
document in which it appears be recorded. If the loans had not yet become due and demandable.
instrument is not recorded, the mortgage is This meant that respondents had not defaulted
nevertheless valid and binding between the in their payment and the foreclosure was
parties. Hence, for validity of both chattel and premature”.
real estate mortgages, they must appear in a
public instrument. But the purpose of ALTERNATIVE ANSWER:
enforceability, it is submitted that the form of the No. Although the principal obligation of loan is
contract, whether in a public or private due and demandable without need of further
document, would be immaterial (Mobil Oil v. demand the foreclosure of the accessory
Diocaresa, 29 SCRA 656, 1969). Also, under Art contract of real estate mortgage, there is a need
1358, acts and contracts which have for their of notice and demand.
object the creation or transmission of real rights
over immovable property must be in a public ANOTHER ANSWER:
document for greater efficacy and a real estate Yes. Recardo’s property can be foreclosed to
mortgage is a real right over immovable pay the full balance of the loan. He is admittedly
property. “individually and collectively” liable. His liability
is solidary. He and Eduardo have waived notice
Eduardo was granted a loan by XYZ Bank for the for a prior demand as provided in the
purpose of improving a building which XYZ leased promissory note.
from him. Eduardo, executed the promissory note
(“PN”) in favor of the bank, with his friend Recardo “X” mortgaged his land to the Philippine National
as co-signatory. In the PN, they both acknowledged Bank (PNB) to secure a promissory note. He
that they are “individually and collectively” liable and defaulted in the payment of the loan so that the land
waived the need for prior demand. To secure the was sold at public auction on January 20, 1960, for
PN, Recardo executed a real estate mortgage on his P3,500 with the PNB as the highest bidder. On
own property. When Eduardo defaulted on the PN, January 20, 1970, “X” offered to redeem the
XYZ stopped payment of rentals on the building on property in the amount of P3,500. He enclosed a
the ground that legal compensation had set in. Since postal money order for P1,000 as partial payment
there was still a balance due on the PN after and stated that the balance is to be paid in 12
applying the rentals, XYZ foreclosed the real estate monthly installments. The PNB then discovered that
mortgage over Recardo’s property. Recardo the sheriff’s certificate of sale prepared after the
opposed the foreclosure on the ground that he is public auction of the land was not registered so that
only a co-signatory; that no demand was made upon it caused the same to be registered on January 30,
him for payment, and assuming he is liable, his 1970. The PNB refused the offer of “X” contending
liability should not go beyond half the balance of the that the offer to redeem was beyond the one-year
loan. Further, Recardo said that when the bank period provided under Act No. 3135 and that it was
invoked compensation between the rentals and the not accompanied by an actual and simultaneous
amount of the loan, it amounted to a new contract or tender of the entire repurchase price. In view of the
novation, and had the effect of extinguishing the refusal of the PNB, “X” filed an action to repurchase
security since he did not give his consent (as owner on February 20, 1970. Will the action prosper? Give
of the property under the real estate mortgage) your reasons. (1989 Bar)
thereto. Can Recardo’s property be foreclosed to
pay the full balance of the loan? (2008 Bar) SUGGESTED ANSWER:
Yes, the action should prosper. The one (1) year
SUGGESTED ANSWER: period of redemption is counted from the
No, because there was no prior demand on registration of the sheriff’s certificate of sale
Recardo, depriving him of the right to hence the action has not yet prescribed.
reasonably block the foreclosure by payment. However, there need not be a tender of the
The waiver of prior demand in the PN is against redemption price because the filing of the
public policy and violates the right to due judicial action to enforce the right of redemption
process. Without demand, there is no default within the redemption period suffices.
and the foreclosure is null and void. Since the
mortgage, insofar as Ricardo is concerned is not A diamond ring and a female cow were pledged to
violated, a requirement under Act 3135 for a secure a loan in the amount of P100,000. The
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pledge appeared in a public instrument. A month

later, the cow gave birth. When the amount of the Article 1994 provides that the depositary may
loan was not paid upon its maturity date, the retain the thing in pledge until the full payment
pledgee caused to be sold at a public auction the of what may be due him by reason of the
ring, the cow and the cow’s offspring and the deposit.
amount of P150,000 as realized. The pledgor, upon
learning of the sale, demanded from the pledgee the Article 1914 provides that the agent may retain
excess in the price over and above the amount of in pledge the things which are the object of the
the principal obligation, claiming that he is entitled to agency until the principal effects the
the excess and that the offspring was not included in reimbursement and pays the indemnity set forth
the pledge. The pledgee refused to comply with the in Articles 1912 and 1913.
demand. How would you decide this conflict? Give
your reasons. (1989 Bar) Article 1707 provides that the laborer’s wages
shall be a lien on the goods manufactured or the
SUGGESTED ANSWER: work done.
Debtor/pledgor is not entitled to the excess
unless the contrary is agreed upon. The Finally, Article 2004 provides that the hotel-
offspring shall pertain to the pledgor but is keeper has a right to retain the things brought
subject to the pledge if there is no stipulation to into the hotel by the guest, as a security for
the contrary. credits on account of lodging, and supplies
usually furnished to hotel guests.
In 1982, Steve borrowed P400,000.00 from Danny,
collateralized by a pledge of shares of stock of MULTIPLE CHOICE. A contract of antichresis is
Concepcion Corporation worth P800,000.00. In always:
1983, because of the economic crisis, the value of a) a written contract;
the shares pledged fell to only P100,000.00. Can b) a contract with a stipulation that the debt will be
Danny demand that Steve surrender the other paid through receipt of the fruits of an immovable;
shares worth P700,000.00? (1994 Bar) c) involves the payment of interests, if owing;
d) all of the above;
SUGGESTED ANSWER: e) letters a and b. (2007 Bar)
No. Bilateral contracts cannot be changed
unilaterally. A pledge is only a subsidiary SUGGESTED ANSWER:
contract, and Steve is still indebted to Danny for d) all of the above
the amount of P400,000.00 despite the fall in the
value of the stocks pledged. Olivia owns a vast mango plantation which she can
no longer properly manage due to a lingering illness.
ALTERNATIVE ANSWER: Since she is indebted to Peter in the amount of
No. Danny’s right as pledgee is to sell the P500,000.00 she asks Peter to manage the
pledged shares at a public sale and keep the plantation and apply the harvest to the payment of
proceeds as collateral for the loan. There is no her obligation to him, principal and interest, until her
showing that the fall in the value of the pledged indebtedness shall have been fully paid. Peter
property was attributable to the pledger’s fault agrees.
or fraud. On the contrary, the economic crisis a) What kind of contract is entered into between
was the culprit. Had the pledgee been deceived Olivia and Peter? Explain.
as to the substance or quality of the pledged b) What specific obligations are imposed by law on
shares of stock, he would have had the right to Peter as a consequence of their contract?
claim another thing in their place or to the c) Does the law require any specific form for the
immediate payment of the obligation. This is not validity of their contract? Explain
the case here. d) May Olivia re-acquire the plantation before her
entire indebtedness shall have been fully paid?
Give an example of a pledge created by operation of Explain. (1995 Bar)
law. (2015 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER: a) A contract of antichresis was entered into
Article 546 creates a pledge in favor of the between Olivia and Peter. Under Article 2132 of
possessor in good faith who has incurred the New Civil Code, by a contract of antichresis
necessary and useful expenses over a movable the creditor acquires the right to receive the
property. He is allowed to retain the thing until fruits of an immovable of his debtor, with the
he has been reimbursed said expenses. obligation to apply them to the payment of the
interest, and thereafter to the principal of his
Article 1731 provides that he who has executed credit.
work upon a movable has a right to retain it by b) Peter must pay taxes and charges upon the
way of pledge until he is paid. land and bear the necessary expenses for
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preservation and repair which he may deduct The responsibility of two or more officious
from the fruits. (Art. 2135, Civil Code) managers shall be solidary, unless management
c) The amount of the principal and interest must was assumed to save the thing or business from
be specified in writing, otherwise the antichresis imminent danger.
will be void. (Art. 2134, Civil Code) Art. 2147. The officious manager shall be liable
d) No. Art. 2136 specifically provides that the for any fortuitous event:
debtor cannot re-acquire the enjoyment of the (1) If he undertakes risky operations which the
immovable without first having totally paid what owner was not accustomed to embark upon;
he owes the creditor. However, it is potestative (2) If he has preferred his own interest to that of
on the part of the creditor to do so in order to the owner;
exempt him from his obligation under Art. 2135, (3) If he fails to return the property or business
Civil Code. The debtor cannot re-acquire the after demand by the owner;
enjoyment unless Peter compels Olivia to enter (4) If he assumed the management in bad faith.
again the enjoyment of the property. Art. 2148. Except when the management was
assumed to save the property or business from
imminent danger, the officious manager shall be
Negotiorum gestio liable for fortuitous events
(1) If he is manifestly unfit to carry on the
Armando owns a row of residential apartments in management;
San Juan, Metro Manila, which he rents out to (2) If by his intervention he prevented a more
tenants. On 1 April 1991 he left for the United States competent person from taking up the
without appointing any administrator to manage his management.
apartments such that uncollected rentals Art. 2149. The ratification of the management by
accumulated for three (3) years. Amparo, a niece of the owner of the business produces the effects
Armando, concerned with the interest of her uncle, of an express agency, even if the business may
took it upon herself to administer the property. As a not have been successful.
consequence, she incurred expenses in collecting Art. 2150. Although the officious management
the rents and in some instances even spent for may not have been expressly ratified, the owner
necessary repairs to preserve the property. of the property or business who enjoys the
a) What juridical relation between Amparo and advantages of the same shall be liable for
Armando, if any, has resulted from Amparo’s obligations incurred in his interest, and shall
unilateral act of assuming the administration of reimburse the officious manager for the
Armando’s apartments? necessary and useful expenses and for the
Explain. damages which the latter may have suffered in
b) What rights and obligations, if any, does Amparo the performance of his duties.
have under the circumstances? Explain. (1995 Bar) The same obligation shall be incumbent upon
him when the management had for its purpose
SUGGESTED ANSWER: the prevention of an imminent and manifest loss,
a) Negotiorum gestio existed between Amparo although no benefit may have been derived.
and Armando. She voluntarily took charge of the Art. 2151. Even though the owner did not derive
agency or management of the business or any benefit and there has been no imminent and
property of her uncle without any power from manifest danger to the property or business, the
her uncle whose property was neglected. She is owner is liable as under the first paragraph of
called the gestor negotiorum or officious the preceding article, provided:
manager. (Art. 2144, Civil Code) (1) The officious manager has acted in good
faith, and
b) The rights and obligations of Amparo as (2) The property or business is intact, ready to
officious manager are: be returned to the owner.
Art. 2152. The officious manager is personally
Art. 2145. The officious manager shall perform liable for contracts which he has entered into
his duties with all the diligence of a good father with third persons, even though he acted in the
of a family, and pay the damages which through name of the owner, and there shall be no right of
his fault or negligence may be suffered by the action between the owner and third persons.
owner of the property or business under These provisions shall not apply:
management. (1) If the owner has expressly or tacitly ratified
The courts may, however, increase or moderate the management, or
the indemnity according to the circumstances of (2) When the contract refers to things pertaining
each case. to the owner of the business.
Art. 2146. If the officious manager delegates to
another person all or some of his duties, he shall (NOTE: It is recommended by the Committee that
be liable for the acts of the delegate; without an enumeration of any two (2) obligations and any
prejudice to the direct obligation of the latter two (2) rights as enumerated in Arts. 2145 to 2152,
toward the owner of the business. Civil Code would entitle the examinee to full credit.)
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Thereafter, Y borrowed money from W and used the

In September, 1972, upon declaration of martial rule money to buy new supplies of fish fry and to prepare
in the Philippines, A, together with his wife and the fishpond for the next crop.
children, disappeared from his residence along A. a) What is the juridical relation between X and Y
Mabini Street, Ermita, Manila. B, his immediate during X’s absence?
neighbor, noticing that mysterious disappearance of b) Upon the return of X to the barangay, what are
A and his family, closed the doors and windows of the obligations of Y to X as regards the contract with
his house to prevent it from being burglarized. Years Z?
passed without B hearing from A and his family. B c) Upon X’s return, what are the obligations of X as
continued taking care of A’s house, even causing regards Y’s contract with W?
minor repairs to be done at his house to preserve it. d) What legal effects will result if X expressly ratifies
In 1976, when business began to perk up in the Y’s management and what would be the obligations
area, an enterprising man, C, approached B and of X in favor of Y?
proposed that they build stores at the ground floor of Explain all your answers (1992 Bar)
the house and convert its second floor into a
pension house. B agreed to C’s proposal and SUGGESTED ANSWER:
together they spent for the construction of stores at a) The juridical relation is that of the quasi-
the ground floor and the conversion of the second contract of “negotiorum gestio”. Y is the
floor into a pension house. While construction was “gestor” or “officious manager” and X is the
going on, fire occurred at a nearby house. The “owner” (Art. 2144, Civil Code).
houses at the entire block, including A’s, were b) Y must render an account of his operations
burned. After the EDSA revolution in February 1986, and deliver to X the price he received for the sale
A and his family returned from the United States of the harvested fish (Art. 2145, Civil Code).
where they took refuge in 1972. Upon learning of c) X must pay the loan obtained by Y from W
what happened to his house, A sued B for damages. because X must answer for obligations
B pleaded as a defense that he merely took charge contracted with third persons in the interest of
of his house under the principle of negotiorum the owner (Art. 2150, Civil Code).
gestio. He was not liable as the burning of the house d) Express ratification by X provides the effects
is a fortuitous event. Is B liable to A for damages of an express agency and X is liable to pay the
under the foregoing circumstances? (1993 Bar) commissions habitually received by the gestor
as manager (Art. 2149, Civil Code).
SUGGESTED ANSWER:
No, B is not liable for damages because he is a
gestor in negotiorum gestio (Art. 2144, Civil Solutio Indebiti
Code)
Furthermore, B is not liable to A because Article Siga-an granted a loan to Villanueva in the amount
2147 of the Civil Code is not applicable. of P 540, 000.00. Such agreement was not reduced
B did not undertake risky operations which the to writing. Siga-an demanded interest which was
owner was not accustomed to embark upon: paid by Villanueva in cash and checks. The total
a) he has not preferred his own interest to that of amount Villanueva paid accumulated to P
the owner: 1,200,000.00. Upon advice of her lawyer, Villanueva
b) he has not failed to return the property or demanded for the return of the excess amount of P
business after demand by the owner; and 660, 000.00 which was ignored by Siga-an.
c) he has not assumed the management in bad a) Is the payment of interest valid? Explain.
faith. b) Is solutio indebiti applicable? Explain. (2012 Bar)

ALTERNATIVE ANSWER: SUGGESTED ANSWER:

He would be liable under Art. 2147 (1) of the Civil a) No, Art. 1956, Civil Code, provides that “no
Code, because he used the property for an interest shall be due unless it has been
operation which the operator is not accustomed expressly stipulated in writing.”
to, and in so doing, he exposed the house to
increased risk, namely the operation of a b) Yes, solutio indebiti is applicable because
pension house on the second floor and stores Villanueva overpaid by P600,000.00 representing
on the first floor. interest payment which is not due. He can,
therefore, demand its return.
In fear of reprisals from lawless elements besieging
his barangay, X abandoned his fishpond, fled to DPO went to a store to buy a pack of cigarettes
Manila and left for Europe. Seeing that the fish in the worth P225.00 only. He gave the vendor, RRA, a
fishpond were ready for harvest, Y, who is in the P500-peso bill. The vendor gave him the pack plus
business of managing fishponds on a commission P375.00 change. Was there a discount, an
basis, took possession of the property, harvested oversight, or an error in the amount given? What
the fish and sold the entire harvest to Z. would be DPO’s duty, if any, in case of an excess in
the amount of change given by the vendor? How is
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this situational relationship between DPO and RRA (b) If you were counsel for the electric cooperative,
denominated? Explain. (2004 Bar) what defenses would you offer?
(c) If you were judge, how would you decide the
SUGGESTED ANSWER: case? (1987 Bar)
There was error in the amount of change given
by RRA. This is a case of solutio indebiti in that SUGGESTED ANSWER:
DPO received something that is not due him. He a. As counsel for the parents, I would claim that
has the obligation to return the P100.00; the cooperative was negligent in the
otherwise, he will unjustly enrich himself at the maintenance of its electric wires; as well as
expense of RRA. (Art. 2154, Civil Code) negligent in preventing harm after it had already
been informed about live wires having fallen to
ALTERNATIVE ANSWER: the ground after the typhoon. As for the
DPO has the duty to return to RRA the excess damages, I would ask for the following:
P100 as trustee under Article 1456 of the Civil 1. civil indemnity for death of a
Code which provides: If property is acquired person, amounting to
through mistake or fraud, the person obtaining it P50,000.00;
is, by force of law, considered a trustee of an 2. actual and compensatory
implied trust for the benefit of the person from damages, to include loss of
whom the property comes. There is, in this case, the child’s earning capacity;
an implied or constructive trust hi favor of RRA. 3. moral damages for the mental
anguish suffered by the
parents;
Quasi-delicts 4. exemplary damages to deter
other like-minded entities.
What are the requisites in order that the defendant b. As counsel for the electric cooperative, I
can be held liable for damages in a quasi-delict would raise the defense of “fortuitous event,”
case? (1988 Bar) claiming that the strong typhoon was a
fortuitous event that could not be foreseen and
SUGGESTED ANSWER: even if foreseen, could not be avoided. I would
In actions based on quasi-delicts, before the likewise claim that the direct and proximate
person injured can recover damages from the cause of the boy’s death was the negligence of
defendant, it is necessary that he must be able the parents in allowing their child to walk on the
to prove the following facts: streets immediately after a typhoon.
(1) The fault or negligence of the defendant; c. As judge, I would rule in favor of the parents.
(2) The damages suffered or incurred by the Notably, the cooperative was already aware that
plaintiff; and falling branches would affect its wires, as the
(3) The relation of cause and effect between the same had happened in the past, yet it did not
fault or negligence of the defendant and the prune the acacia trees adjacent to its wires,
damage incurred by the plaintiff. (Taylor v. despite reminders from townspeople to do so.
Manila Electric Co., 16 Phil. 8.) More, when a wire fell due to the typhoon, it was
also informed, through its employee, about it,
The X Electric Cooperative services a small town yet it failed to take measures to prevent danger
where the roads are lined with lush acacia trees. befalling to others. Plainly, there was negligence
Normally these trees are pruned before the onset of on the part of the cooperative, and this
the rainy season by the cooperative itself since the negligence directly caused the death of a 4 year
power lines of the cooperative are not infrequently old boy by electrocution. The cooperative
affected by falling branches. This year, for financial should thus be found liable for damages due to
reasons, the electric cooperative omitted the pruning its negligence.
in spite of reminders from the townspeople. In
August this year a strong typhoon hit the town and Define quasi tort. Who are the persons liable under
live wires fell to the ground. While the cooperative quasi torts and what are the defenses available to
made a preliminary survey of the damages, it did not them? (2010 Bar)
immediately take precautionary measures against
possible harm. Thus, the attention of one of its SUGGESTED ANSWER:
employees was called to the fallen wire in the center Quasi-tort is a legal concept upholding the
of the town. Before the cooperative could make the doctrine that some legal duty exists that cannot
necessary repairs, a four-year old boy crossed the be classified strictly as a personal duty (thus
street and was electrocuted by the live wire. resulting in a tort), nor as a contractual duty but
His parents sued the electric cooperative for rather some other kind of duty recognizable by
damages. (a) If you were counsel for the parents, the law. “Tort” or “Quasi-tort” is an Anglo
what arguments would you advance to support your American or Common Law concept, while
claim for damages and how much damages would “Delict” or “Quasi-Delict” is a Civil Law concept
you demand? (Wikipedia encyclopedia).
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a) Can Dennis file an independent civil action

ALTERNATIVE ANSWER: against Carlos and his father Benjamin for damages
Quasi-tort is considered as the equivalent of based on quasi-delict? Explain.
quasi-delict. Hence the rules of the latter b) Assuming Dennis’ action is tenable, can Benjamin
pertaining to persons who can be held liable and raise the defense that he is not liable because the
their defenses would also apply. Those liable for vehicle is not registered in his name? Explain. (2006
quasi-delict include: Bar)
(1) Those tortfeasor or the person causing
damage to another through fault or negligence SUGGESTED ANSWER:
(Article 2176, Civil Code); and a) Yes, Dennis can file an independent civil
(2) Persons vicariously liable under Article 2180 action against Carlos and his father, Benjamin.
(Civil Code). The independent civil action against Carlos can
be based on Article 2176 of the Civil Code, which
The defenses available include: states that, “whoever by act or omission causes
(a) That the defendant was not negligent or that damage to another, there, being fault or
he exercised due diligence (Article 2176, Civil negligence, is obliged to pay for the damage
Code); done.” The proximate cause of the injury
(b) That although the defendant is negligent his suffered by Dennis, was the negligent driving of
negligence is not the proximate cause of the Carlo. He can thus be held personally liable by
injury (Article 2179, Civil Code); the former for said injuries.
(c) That the plaintiff's own negligence was the
immediate and proximate cause of his injury b) No, Benjamin cannot raise the defense that he
(Article 2179, Civil Code); is not liable because the vehicle is not registered
(d) That the person vicariously liable has in his name. Had Dennis sued Benjamin based
observed all the diligence of a good father of a on the latter’s liability as the owner of the
family to prevent damage (Article 2180, Civil vehicle, the non-registration of the vehicle in his
Code); and name would have been a valid defense. As held
(e) That the cause of action has prescribed after in the case of BA Finance Corporation v. CA (215
the lapse of four years (Article 1146, Civil Code). SCRA 715 (19921), it is the registered owner of
any vehicle, who should be primarily
The fact that the plaintiff had committed responsible to the public or third persons for
contributory negligence is a partial defense (Art injuries caused the latter while XIII the vehicle is
2179, Civil Code). being driven. In this case, Arturo was not sued.
If sued, Arturo should be held liable for the
Note: It is recommended that the examiner exercise injury incurred by Dennis.
leniency and liberality in grading the answers given However, Benjamin is not being sued based on
to this question. The term quasi-tort is not part of his ownership of the registered vehicle, but
legal developments in civil law. In Philippine legal rather for his responsibility as the parent of a
tradition, quasi-delict has been treated as the minor child whose negligent act resulted to
closest civil law equivalent of the common law tort. damage or injury to another. As provided in
In fact, in a number of Supreme Court decisions, the Article 2180 of the Civil Code, as amended by
two terms have been considered synonymous. In Article 221 of the Family Code, the father and
reality, however, the common law tort is much mother are responsible for the damages caused
broader in scope than the civil law quasi-delict. In by the fault and negligence of the minor children
recent developments in common law, the concept of who live in their company. This liability is
“quasi-torts” can be considered as the closest imposed upon the parents on the presumption
common law equivalent of the civil law concept of that they have failed in their duty of supervision
quasi-delict. This is because it is argued that the over their children. Regardless of the ownership
growing recognition of quasi-torts as a source of of the vehicle, Dennis, therefore, has a cause of
obligation is hinged on the acceptance at common action against Benjamin.
law of the civil law principles of quasi-delict.
(a) When would an employer’s liability for damage,
Arturo sold his Pajero to Benjamin for P1 Million. caused by an employee in the performance of his
Benjamin took the vehicle but did not register the assigned tasks, be primary and when would it be
sale with the Land Transportation Office. He allowed subsidiary in nature?
his son Carlos, a minor who did not have a driver’s b) Would the defense of due diligence in the
license, to drive the car to buy pandesal in a bakery. selection and supervision of the employee be
On the way, Carlos, driving in a reckless manner, available to the employer in both instances? (1997
sideswiped Dennis, then riding a bicycle. As a result, Bar)
he suffered serious physical injuries. Dennis filed a
criminal complaint against Carlos for reckless SUGGESTED ANSWER:
imprudence resulting in serious physical injuries. a) The employer’s liability for damage based on
culpa aquiliana under Art. 2176 and 2180 of the
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Civil Code is primary, while that under Art. 103 of the basis of culpa contractual. If the injured
the Revised Penal Code is subsidiary. persons are also passengers, Ato is likewise
b) The defense of diligence in the selection and liable on the same basis of culpa contractual.
supervision of the employee under Article 2180 However, if the injured are not passengers, then
of the Civil Code is available only to those the liability for damages of Ato will be on the
primarily liable thereunder, but not to those basis of a quasi-delict. Note, however, that
subsidiarily liable under Article 103 of the damages adjudged may be charged to the
Revised Penal Code (Yumul v. Juliano, 72 Phil. absolute community property of Ato and Maria,
94). as the oiperation of the jeepney same is
presumed to be for the benefit of the family.
As the result of a collision between a public service b. The heirs and injured persons can recover
passenger bus and a cargo truck owned by D, X from Maria, to the extent that she has a share in
sustained physical injuries and Y died. Both X and Y the absolute community property between her
were passengers of the bus. Both drivers were at and her husband Ato. Even if Ato was cohabiting
fault, and so X and Z, the only heir and legitimate with Tonia, he remains married to Maria, hence
child of the deceased Y, sued the owners of both the jeepney would still belong to the absolute
vehicles. community. Since the operation of the same is
a) May the owner of the bus raise the defense of presumed to be for the benefit of the family, the
having exercised the diligence of a good father of a absolute community between Ato and Maria
family? would be liable for damages sustained by the
b) May D raise the same defense? heirs and injured passenegers. Maria’s
c) May X claim moral damages from both paraphernal property may not be held
defendants? answerable, however.
d) May Z claim moral damages from both c. The heirs and injured persons may not
defendants? recover from Tonia. As Tonia has no share in the
Give reasons for all your answers. (1992 Bar) jeepney, she may not be held liable for damages
arising from the accident involving the jeepney.
SUGGESTED ANSWER:
a) No. The owner of the bus cannot raise the A Galant driven by John and owned by Art, and a
defense because the carrier’s liability is based Corolla driven by its owner. Gina, collided
on breach of contract. somewhere along Adriatico Street. As a result of the
b) Yes. D can raise the defense because his accident, Gina had a concussion. Subsequently,
liability is based on a quasi-delict. Gina brought an action for damages against John
c) Because X suffered physical injuries, X can and Art. There is no doubt that the collision is due to
claim moral damages against D. But as against John’s negligence. Can Art, who was in the vehicle
the owner of the bus, X can claim moral at the time of the accident, be held solidarily liable
damages only if X proves reckless negligence of with his driver. John? (1998 Bar)
the carrier amounting to fraud.
d) Z can claim moral damages against both SUGGESTED ANSWER:
defendants because the rules on damages Yes. Art may be held solidary liable with John, if
arising from death due to a quasi-delict are also it was proven that the former could have
applicable to death of a passenger caused by prevented the misfortune with the use of due
breach of contract by a common carrier (Arts. diligence. Article 2184 of the Civil Code states:
1755, 1756, 1764, 2206 and 2219. Civil Code). “In motor mishaps, the owner is solidary liable
with his driver, if the former, who was in the
Ato was the registered owner of a passenger vehicle, could have, by the use of due diligence,
jeepney, which was involved in a collision accident prevented the misfortune. x x x”
with a vegetable truck, resulting in the death of four
passengers and injuries to three. At the time of the ALTERNATIVE ANSWER:
accident, Ato was legally married to Maria but was 1. It depends. The Supreme Court in Chapman v.
cohabiting with Tonia in a relationship akin to that of Underwood (27 Phil 374), held: “An owner who
husband and wife. sits in his automobile, or other vehicle, and
Could the heirs of the dead passengers and the permits his driver to continue in a violation of
injured persons recover damages from: law by the performance of negligent acts, after
(a) Ato? he has had a reasonable opportunity to observe
(b) Maria? them and to direct that the driver cease
(c) Tonia? therefrom, becomes himself responsible for
Explain each case. (1987 Bar) such acts. x x x On the other hand, if the driver,
by a sudden act of negligence, and without the
SUGGESTED ANSWER: owner having a reasonable opportunity to
a. Yes, the heirs and injured persons can recover prevent the act or its continuance, injures a
from Ato. Insofar as the dead passengers are person or violates the criminal law, the owner of
concerned, the heirs can recover damages on the automobile, although present therein at the
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time the act was committed is not responsible, a driver himself, could have easily perceived as
either civilly or criminally, therefor. The act a reckless course of conduct.
complained of must be continued in the
presence of the owner for such a length of time Under the law on quasi-delict, aside from the
that the owner, by his acquiescence, makes his persons who caused injury to persons, who else are
driver’s act his own.” liable under the following circumstances:

Marcial, who does not know how to drive, has a) When a 7-year-old injures his playmate while
always been driven by Ben, his driver of ten years playing with his father’s rifle. Explain.
whom he had chosen carefully and has never b) When a domestic helper, while haggling for a
figured in a vehicular mishap. One day, Marcial was lower price with a fish vendor in the course of buying
riding at the back seat of his Mercedes Benz being foodstuffs for her employer’s family, slaps the fish
driven along EDSA by Ben. Absorbed in reading a vendor, causing her to fall and sustain injuries.
book, Marcial did not notice that they were Explain.
approaching the corner of Quezon Avenue, when c) A carpenter in a construction company
the traffic light had just turned yellow. Ben suddenly accidentally hits the right foot of his co-worker with a
stepped on the gas to cross the intersection before hammer. Explain.
the traffic light could turn red. But, too late. Midway d) A 15-year-old high school student stabs his
in the intersection, the traffic light changed, and a classmates who is his rival for a girl while they were
jeepney full of passengers suddenly crossed the going out of the classroom after their last class.
car’s path. A collision between the two vehicles was Explain.
inevitable. As a result, several jeepney passengers e) What defense, if any, is available to them? (2005
were seriously injured. A suit for damages based on Bar)
culpa aquiliana was filed against Marcial and Ben,
seeking to hold them jointly and severally liable for SUGGESTED ANSWER:
such injuries. May Marcial be held liable? Explain. a) Under Article 221 of the Family Code, parents
(1996 Bar) and other persons exercising parental authority
shall be civilly liable for the injuries and
SUGGESTED ANSWER: damages caused by the acts or omissions of
Marcial may not be held liable because under their unemancipated children or wards living in
Art. 2184, Civil Code, the owner who is in the their company and under their parental authority
vehicle is not liable with the driver if by the subject to the appropriate defenses provided by
exercise of due diligence he could have law.
prevented the injury. The law does not require
the owner to supervise the driver every minute b) Under Article 2180, employers shall be liable
that he was driving. Only when, through his for the damages caused by their employees and
negligence, the owner has lost an opportunity to household helpers acting within the scope of
prevent the accident would he be liable (Caedo their assigned tasks, even though the former are
v. Yu Khe Thai, 26 SCRA 410 citing Chapman v. not engaged in any business or industry. As the
Underwood and Manlangit v. Maujer, 250 SCRA domestic helper was then in the exercise of her
560). In this case, the fact that the owner was duties and acting within the scope of her
absorbed in reading a book does not assigned tasks, her employer is also liable for
conclusively show that he lost the opportunity to the damage she has caused to the fish vendor.
prevent the accident through his negligence.
ALTERNATIVE ANSWER
ALTERNATIVE ANSWER: b) The act of “slapping the fish vendor” is not
Yes, Marcial should be held liable. Art. 2184, “within the scope of the assigned tasks” of the
Civil Code makes an owner of a motor vehicle domestic helper. Hence, under Article 2180, the
solidarily liable with the driver if, being in the employer is not liable for the damages caused
vehicle at the time of the mishap, he could have by the domestic helper to the fish vendor.
prevented it by the exercise of due diligence.
The traffic conditions along EDSA at any time of c) His employer, the construction company, is
day or night are such as to require the also liable for the damages that the carpenter
observance of utmost care and total alertness in caused to the latter’s co-worker. Under Article,
view of the large number of vehicles running at 2176 and 2180 of the Civil Code, liability is based
great speed. Marcial was negligent in that he on culpa aquiliana which holds the employer
rendered himself oblivious to the traffic hazards primarily liable for tortious acts of its employees
by reading a book instead of focusing his subject, however, to the defense that the former
attention on the road and supervising the exercised all the diligence of a good father of a
manlier in which his car was being driven. Thus family in the selection and supervision of his
he failed to prevent his driver from attempting to employees. (Franco v. IAC, 178 SCRA 331
beat the traffic light at the junction of Quezon (19891).
Avenue and EDSA, which Marcial, without being
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d) Under Section 218 of the Family Code, the 2180 Civil Code) and shall cover specifically the
school, its administrators and teachers, or the following:
individual, entity or institution engaged in child a) P50,000.00 for the death of the son;
care shall have special parental authority and b) such amount as would correspond to lost
responsibility over the minor child while under earning capacity; and
their supervision, instruction or custody. c) moral damages.
Authority and responsibility shall apply to all
authorized activities whether inside or outside A collision occurred at an intersection involving a
the premises of the school, entity or institution. bicycle and a taxicab. Both the bicycle rider (a
businessman then doing his morning exercise) and
e) These persons identified by law to be liable the taxi driver claimed that the other was at fault.
may raise the defense that they exercised proper Based on the police report, the bicycle crossed the
diligence required under the circumstances. intersection first but the taxicab, crossing at a fast
Their responsibility will cease when they prove clip from the bicycle’s left, could not brake in time
that they observed all the diligence of a good and hit the bicycle’s rear wheel, toppling it and
father of a family to prevent damage. As regards throwing the bicycle rider into the sidewalk 5 meters
the employer, if he shows to the satisfaction of away. The bicycle rider suffered a fractured right
the court that in the selection and in the knee, sustained when he fell on his right side on the
supervision of his employees he has exercised concrete side walk. He was hospitalized and was
the care and diligence of a good father of a subsequently operated on, rendering him immobile
family, the presumption is overcome and he is for 3 weeks and requiring physical rehabilitation for
relieved from liability. (Layugan v. IAC, 167 SCRA another 3 months. In his complaint for damages, the
363). rider prayed for the award of P1,000,000 actual
damages, P200,000 moral damages, P200,000
Julio and Lea, both 18 years old, were sweethearts. exemplary damages, P100,000 nominal damages
At a party at the house of a mutual friend, Lea met and P50,000 attorney’s fees. Assuming the police
Jake, also 18 years old, who showed interest in her. report to be correct and as the lawyer for the bicycle
Lea seemed to entertain Jake because she danced rider, what evidence (documentary and testimonial)
with him many times. In a fit of jealousy, Julio shot and legal arguments will you present in court to
Jake with his father’s .38 caliber revolver which, justify the damages that your client claims? (2013
before going to the party he was able to get from the Bar)
unlocked drawer inside his father’s bedroom. Jake
died as a result of the lone gunshot wound he SUGGESTED ANSWER:
sustained. His parents sued Julio’s parents for I will the base the claim of my client on quasi-
damages arising from quasi-delict. At the time of the delict under Art 2176 of the Civil Code of the
incident, Julio was 18 years old living with his Philippines. The requisites for a claim under
parents. Julio’s parents moved to dismiss the quasi-delict to prosper are as follows: (1) Act or
complaint against them claiming that since Julio was omission, there being fault or negligence; (2)
already of majority age, they were no longer liable Damage or injury; and (3) Causal connection
for his acts. between the damage and the act or omission.
a) Should the motion to dismiss be granted? Why? The case clearly involves quasi-delict where my
b) What is the liability of Julio’s parents to Jake’s client, the bicycle rider, suffered injury as a
parents? Explain your answer. (1993 Bar) result of the negligence of the over-speeding
taxi driver, without fault on my client’s part. To
SUGGESTED ANSWER: prove actual damages aside from the testimony
a) No, the Motion to Dismiss should not be of client, I will present his hospital and medical
granted. Article 236 of the Family Code as bills. Receipts paid on the rehabilitation will also
amended by Republic Act 6809, provides in the be presented. I will present the testimony of the
third paragraph that “nothing in this Code shall victim as to unrealized profits he could have
be construed to derogate from the duty or earned as a businessman had he not been
responsibility of parents and guardians for injured by the collision. To corroborate this, I will
children and wards below twenty-one years of present income tax returns, contracts and other
age mentioned in the second and third documents to prove unrealized profits as a
paragraphs of Article 2180 of the Civil Code”. result of this temporary injury. I will also call the
Accordingly, it is the father, and in case of his attending physician to testify as to the extent of
death or incapacity, the mother who is the injuries suffered by my client, and to
responsible for damages caused by a child corroborate the contents of the medical
between the ages of 18 to below 21 who is living documents. Based on Art. 2202, in quasi-delicts,
in their company. Accordingly, the defense of the defendant shall be liable for all damages
Julio’s parents is without merit. which are the natural and probable
consequences of the act or omission
b) The liability of Julio’s parents to Jake’s complained of. It is not necessary that the
parents arises from quasi-delict (Arts. 2176 and damages have been foreseen or could have
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been foreseen by the defendant. Unlike actual a) Yes. It will prosper (Art. 2180) because at the
damages, no proof of pecuniary loss is time he drove the vehicle, he was not performing
necessary in order that moral, nominal, his assigned tasks as provided for by Art. 2180.
temperate liquidated or exemplary damages may With respect to SSPA, it is not liable for the acts
be adjudicated. The assessment is left to the of Peter because the latter was not an employee
discretion of the Court (Art. 2216, Civil Code). as held by Supreme Court in Filamer Christian
There must be proof pecuniary estimation, Institute v. CA, (190 SCRA 485).
however. Moral damages can be recovered by Peter belongs to a special category of students
my client under Articles 2219 and 2200. Moral who render service to the school in exchange for
damages may be recovered in case of a quasi- free tuition fees.
delict causing physical injuries. Additionally, it b) I would maintain the same answer because
must be proved that such damages were the the incident did not occur while the employee
proximate result of the act complained of. was in the performance of his duty as such
Medical certificates will be presented, along with employee. The incident occured at night time,
the testimony from my client and other and, in any case, there was no indication in the
eyewitness accounts, in order to support the problem that he was performing his duties as a
award for moral damages. Exemplary damages driver.
may be granted if the defendant acted in wanton, c) In the case of Peter, if he were to be
fraudulent, reckless, oppressive, or malevolent considered as employee, the exercise of due
manner. While the amount of exemplary diligence in the selection and supervision of
damages may not be proved, the plaintiff must Peter would not be a material issue since the
show that he is entitled to moral or conviction of Peter would result in a subsidiary
compensatory damages. In support of this, I will liability where the defense would not be
present the police report showing the available by the employer.
circumstance under which the accident took In the case of Paul, since the basis of subsidiary
place, taking into account the actions of the liability is the paterfamilias rule under Art. 2180,
parties. I will ask the officials who responded to the defense of selection and supervision of the
the accident to testify as to the conduct of the employee would be a valid defense.
parties at the time of the accident in order to
determine whether defendant was guilty of gross ALTERNATIVE ANSWER:
negligence. Finally, attorney’s fees may be c) In the case of Peter, if he were to be
recovered when exemplary damages are considered an employee, the exercise of due
awarded (Art 2208, Civil Code). diligence in the selection and supervision of
Peter would not be a material issue since the
Romano was bumped by a minivan owned by the conviction of Peter would result in a subsidiary
Solomon School of Practical Arts (SSPA). The liability where the defense would not be
minivan was driven by Peter, a student assistant available by the employer.
whose assignment was to clean the school In the case of Paul, since he was in the
passageways daily one hour before and one hour performance of his work at the time the incident
after regular classes, in exchange for free tuition. occured, the school may be held subsidiarily
Peter was able to drive the school vehicle after liable not because of the conviction of Peter, but
persuading the regular driver, Paul, to turn over the because of the negligence of Paul under Art.
wheel to him (Peter). Romano suffered serious 2180.
physical injuries. The accident happened at night
when only one headlight of the vehicle was Silvestre leased a car from Avis-Rent-A-Car Co. at
functioning and Peter only had a student driver’s the Mactan International Airport. No sooner had he
permit. driven the car outside the airport when, due to his
negligence, he bumped an FX taxi owned and
As a consequence, Peter was convicted in the driven by Victor, causing damage to the latter in the
criminal case. Thereafter, Romano sued for amount of P100,000.00. Victor filed an action for
damages against Peter and SSPA. damages against both Silvestre and Avis, based on
quasi-delict. Avis filed a motion to dismiss the
a) Will the action for damages against Peter and complaint against it on the ground of failure to state
SSPA prosper? a cause of action. Resolve the motion. (2000 Bar)
b) Will your answer be the same if, Paul, the regular
driver, was impleaded as party defendant for SUGGESTED ANSWER:
allowing Peter to drive the minivan without a regular The motion to dismiss should be granted. AVIS
driver’s license? is not the employer of Silvestre; hence, there is
c) Is the exercise of due diligence in the selection no right of action against AVIS under Article
and supervision of Peter and Paul a material issue 2180 of the Civil Code. Not being the employer,
to be resolved in this case? (1991 Bar) AVIS has no duty to supervise Silvestre. Neither
has AVIS the duty to observe due diligence in
SUGGESTED ANSWER: the selection of its customers. Besides, it was
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given in the problem that the cause of the failed to avail himself of that opportunity. He is
accident was the negligence of Silvestre. liable under the doctrine of last clear chance
(Picart v. Smith, 37 Phil. 809).
ALTERNATIVE ANSWER:
The motion should be denied. Under the Public Mr. and Mrs. R own a burned-out building, the
Service Law, the registered owner of a public firewall of which collapsed and destroyed the shop
utility is liable for the damages suffered by third occupied by the family of Mr. and Mrs. S, which
persons through the use of such public utility. resulted in injuries to said couple and the death of
Hence, the cause of action is based in law, the their daughter. Mr. and Mrs. S had been warned by
Public Service Law. Mr. Mrs. R to vacate the shop in view of its proximity
to the weakened wall but the former failed to do so.
OJ was employed as professional driver of MM
Transit bus owned by Mr. BT. In the course of his Mr. and Mrs. S filed against Mr. and Mrs. R an action
work, OJ hit a pedestrian who was seriously injured for recovery of damages the former suffered as a
and later died in the hospital as a result of the result of the collapse of the firewall. In defense, Mr.
accident. The victim’s heirs sued the driver and the and Mrs. R rely on the doctrine of “last clear chance”
owner of the bus for damages. Is there a alleging that Mr. and Mrs. S had the last clear
presumption in this case that Mr. BT, the owner, had chance to avoid the accident if only they heeded the
been negligent? If so, is the presumption absolute or former’s warning to vacate the shop, and therefore
not? Explain. (2004 Bar) Mr. and Mrs. R.s prior negligence should be
disregarded.
SUGGESTED ANSWER:
Yes, there is a presumption of negligence on the If you were the judge, how would you decide the
part of the employer. However, such case? State your reasons. (1990 Bar)
presumption is rebuttable. The liability of the
employer shall cease when they prove that they SUGGESTED ANSWER:
observed the diligence of a good father of a I would decide in favor of Mr. and Mrs. S. The
family to prevent damage (Article 2180, Civil proprietor of a building or structure is
Code). responsible for the damages resulting from its
When the employee causes damage due to his total or partial collapse, if it should be due to the
own negligence while performing his own lack of necessary repairs. (Article 2190, Civil
duties, there arises the juris tantuat presumption Code).
that the employer is negligent, rebuttable only
by proof of observance of the diligence of a As regards the defense of Mr. and Mrs. R relying
good father of a family (Metro Manila Transit v. on the doctrine of “last clear chance,” the same
CA, 223 SCRA 521; Delsan Transport Lines v. is not tenable because according to the
C&A Construction, 412 SCRA 524) Supreme Court in one case (De Roy v. Court of
Likewise, if the driver is charged and convicted Appeals, G. R. L-80718, January 29, 1988, 157
in a criminal case for criminal negligence, BT is SCRA 757) the doctrine of “last clear chance” is
subsidiarily liable for the damages arising from not applicable to instances covered by Art. 2190,
the criminal act. Civil Code

Explain the doctrine of discovered peril (last clear Further, in Phoenix Construction, Inc. v.
chance) and give an example (2007 Bar) Intermediate Appellate Court (148 SCRA 353),
the Supreme Court held that the role of the
SUGGESTED ANSWER: common law “last clear chance” doctrine in
The doctrine of last clear chance states that relation to Article 2179 of the Civil Code is
where the plaintiff was guilty of prior or merely to mitigate damages within the context of
antecedent negligence but the defendant, who contributory negligence.
had the ultimate opportunity to avoid the
impending harm failed to do so, it is the Explain the concept of vicarious liability in quasi-
defendant who is liable for all the consequences delicts. (2002 Bar)
of the accident notwithstanding the prior
negligence of the plaintiff. SUGGESTED ANSWER:
The doctrine of vicarious liability is that which
An example is where a person was riding a pony renders a person liable for the negligence of
on a bridge and improperly pulled the pony to others for whose acts or omission the law
the wrong side when he saw a car coming. The makes him responsible on the theory that they
driver of the car did nqt stop or change are under his control and supervision.
direction, and nearly hit the horse, and, the
frightened animal jumped to its death. The driver Newlyweds Sam and Sienna had contracted with
of the car is guilty of negligence because he had Sangria Hotel for their wedding reception. The
a fair opportunity to avoid the accident and couple was so unhappy with the service, claiming,
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among other things, that there was an unreasonable The insurance company is not liable because
delay in the service of dinner and that certain items when the accident occurred, Alberto was not
promised were unavailable. The hotel claims that, acting within the assigned tasks of his
while there was a delay in the service of the meals, employment. It is true that under Art. 2180 (par.
the same was occasioned by the sudden increase of 5), employers are liable for damages caused by
guests to 450 from the guaranteed expected number their employees who were acting within the
of 350, as stated in the Banquet and Meeting scope of their assigned tasks. However, the
Services Contract. In the action for damages for mere fact that Alberto was using a service
breach of contract instituted by the couple, they vehicle of the employer at the time of the
claimed that the Banquet and Meeting Services injurious accident does not necessarily mean
Contract was a contract of adhesion since they only that he was operating the vehicle within the
provided the number of guests and chose the menu. scope of his employment. In Castilex Industrial
On the other hand, the hotel’s defense was that the Corp. v. Vasquez, Jr. (321 SCRA 393), the
proximate cause of the complainant’s injury was the Supreme Court held that notwithstanding the
unexpected increase in their guests, and this was fact that the employee did some overtime work
what set the chain of events that resulted in the for the company, the former was, nevertheless,
alleged inconveniences. engaged in his own affairs or carrying out a
personal purpose when he went to a restaurant
b) Does the doctrine of proximate cause apply in at 2:00 a.m. after coming out from work. The
this case? (2018 Bar) time of the accident (also 2:00 a. m.) was outside
normal working hours.
SUGGESTED ANSWER:
No, the doctrine of proximate cause is ALTERNATIVE ANSWER:
inapplicable to the case. The insurance company is liable if Alberto was
negligent in the operation of the car and the car
Jurisprudence states that the doctrine of was assigned to him for the benefit of the
proximate cause applies only in cases of quasi- insurance company, and even though he was
delicts, not in cases where there is an existing not within the scope of his assigned tasks when
contractual relationship between the parties. The the accident happened. In one case decided by
purpose of said doctrine is to provide a link the Supreme Court, where an executive of a
between parties who have no pre-existing pharmaceutical company was given the use of a
relation between them. company car, and after office hours the
executive made personal use of the car and met
In the instant case, there is an existing Banquet an accident, the employer was also made liable
and Meeting Services Contract between the under Art. 2180 of the Civil Code for the injury
parties. Plainly, there is an existing contractual caused by the negligent operation of the car by
relationship between the parties, which provide the executive, on the ground that the car which
for their respective rights and obligations with caused the injury was assigned to the executive
respect to each other. Accordingly, the doctrine by the employer for the prestige of the company.
of proximate cause is inapplicable. The insurance company was held liable even
though the employee was not performing within
Does the presence of the owner inside the vehicle the scope of his assigned tasks when the
causing damage to a third party affect his liability for accident happened (Valenzuela v. CA, 253 SCRA
his driver’s negligence? Explain. (2002 Bar) 303).

SUGGESTED ANSWER: Rommel’s private car, while being driven by the

In motor vehicle mishaps, the owner is made regular family driver, Amado, hits a pedestrian
solidarily liable with his driver if he (the owner) causing the latter’s death. Rommel is not in the car
was in the vehicle and could have, by the use of when the incident happened.
due diligence, prevented the mishap. (Caedo v. a) Is Rommel liable for damages to the heirs of the
Yu Khe Thai, 26 SCRA 410). deceased? Explain.
b) Would your answer be the same if Rommel was
After working overtime up to midnight, Alberto an in the car at the time of the accident? Explain. (2009
executive of an insurance company drove a Bar)
company vehicle to a favorite Videoke bar where he
had some drinks and sang some songs with friends SUGGESTED ANSWER:
to “unwind”. At 2:00 a.m., he drove home, but in a) Yes, Rommel is liable for damages to the heirs
doing so, he bumped a tricycle, resulting in the of the deceased pedestrian. Under Art. 2180 of
death of its driver. May the insurance company be the Civil Code, employers are liable for damages
held liable for the negligent act of Alberto? Why? caused by their employees acting within the
(2001 Bar) scope of their assigned tasks, even though the
former is not engaged in any business or
SUGGESTED ANSWER: industry. Since Rommel is the employer of
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Amado, he is vicariously liable, under Art. 2180 from the fault of the person who has suffered
for the damages caused by the latter. He may, damage (Art 2183, Civil Code).
however, excuse himself from liability by
providing that he exercised the diligence of a Doctrine of apparent authority
good father of the family in the selection and
supervision of Amado. Dr. Jack, a surgeon, holds clinic at the St. Vincent’s
Hospital and pays rent to the hospital. The fees of
Note: Since Amado is a family driver, should a Dr. Jack are paid directly to him by the patient or
criminal case be filed against Amado and the latter through the cashier of the hospital. The hospital
is insolvent, Rommel may not be held subsidiarily publicly displays in the lobby the names and
liable for any civil liability that may be adjudged specializations of the doctors associated or
against Amado, as Art. 103 of the Revised Penal accredited by it, including that of Dr. Jack. Marta
Code refers only to subsidiary liability of employers engaged the services of Dr. Jack because of
engaged in some kind of industry. recurring stomach pain. It was diagnosed that she is
suffering from cancer and had to be operated on.
b) Art. 2184 states that in motor vehicle mishaps, Before the operation, she was asked to sign a
the owner is solidarily liable with his driver if he “consent for hospital care,” which reads:
(the owner) was in the vehicle and could have,
by the use of due diligence, prevented the “Permission is hereby given to the
mishap (Caedo v. Yu Khe Thai, 26 SCRA 410). medical, nursing and laboratory
Consequently, my answer would still be the staff of the St. Vincent’s Hospital to
same – whether in the vehicle or not, Rommel perform such procedures and to
would remain liable for damages to the heirs of administer such medications and
the deceased pedestrian, only that if he is inside treatments as may be deemed
the vehicle during the incident and could have necessary or advisable by the
prevented the same by the use of due diligence, physicians of this hospital for and
he becomes solidarily liable therefore. during the confinement.”

As a result of a collision between a taxicab owned After the surgery, the attending nurses reported that
by A and another taxicab owned by B, X, a two (2) sponges were missing. Later, Marta died
passenger of the first taxicab, was seriously injured. due to complications brought about by the sponges
X later filed a criminal action against both drivers. that were left in her stomach. The husband of Marta
May both taxicab owners raise the defense of due sued the hospital and Dr. Jack for damages arising
diligence in the selection and supervision of their from negligence in the medical procedure. The
drivers to be absolved from liability for damages to hospital raised the defense that Dr. Jack is not its
X? Reason. (2003 Bar) employee as it did not hire Dr. Jack nor pay him any
salary or compensation. It has absolutely no control
SUGGESTED ANSWER: over the medical services and treatment being
It depends. If the civil action is based on a quasi- provided by Dr. Jack. Dr. Jack even signed an
delict the taxicab owners may raise the defense agreement that he holds the hospital free and
of diligence of a good father of a family in the harmless from any liability arising from his medical
selection and supervision of the driver; if the practice in the hospital.
action against them is based on culpa
contractual or civil liability arising from a crime, Is St. Vincent’s Hospital liable for the negligence of
they cannot raise the defense. Dr. Jack? Explain your answer. (2016 Bar)

Primo owns a pet iguana which he keeps in a man- SUGGESTED ANSWER:

made pond enclosed by a fence situated in his Yes, St. Vincent Hospital is liable for the
residential lot. A typhoon knocked down the fence of negligence of Dr. Jack, on the basis of the
the pond and the iguana crawled out of the gate of doctrine of apparent authority or agency by
Primo’s residence. N, a neighbor who was passing estoppel. For a hospital to be liable under the
by, started throwing stones at the iguana, drawing doctrine of apparent authority, a plaintiff must
the iguana to move toward him. N panicked and ran show that: (1) the hospital, or its agent, acted in
but tripped on something and suffered a broken leg. a manner that would lead a reasonable person
Is anyone liable for N’s injuries? Explain. (2010 Bar) to conclude that the individual who was alleged
to be negligent was an employee or agent of the
SUGGESTED ANSWER: hospital; (2) where the acts of the agent create
No one is liable. The possessor of an animal or the appearance of authority, the plaintiff must
whoever may make use of the same is also prove that the hospital had knowledge of
responsible for the damage it may cause, and acquiesced in them; and (3) the plaintiff
although it may escape or be lost. This acted in reliance upon the conduct of the
responsibility shall cease only in case the hospital or its agent, consistent with ordinary
damage should come from force majeure or care and prudence (Casumpang v. Cortejo, G.R.
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No. 171127, 11 March 2015). In the instant case, They were not induced to agree to the upgrading
St. Vincent clearly held out Dr. Jack as a through insidious words or deceitful
member of its medical staff, displaying Dr. machination or through willful concealment of
Jack’s name as a doctor accredited with it at its material facts. Bad faith does not simply
lobby, and allowing him to use a consent form connote bad judgment or negligence; it imports
which states that permission is given to the a dishonest purpose or some moral obliquity
medical STAFF of St. Vincent to perform and conscious doing of a wrong, a breach of a
procedures deemed necessary by THE known duty through some motive or interest or
PHYSICIANS OF THE HOSPITAL. Through this ill will that partakes of the nature of fraud.
acts, St. Vincent clothed Dr. Jack with apparent Neither is Pinoy Airlines in bad faith since
authority thereby leading Marta and her Section 3 of the Economic Regulation No.7 of
husband to believe that Dr. Jack was an the Civil Aeronautics Board provides that an
employee or agent of St. Vincent. St. Vincent overbooking that does not exceed ten percent is
may no longer repudiate such authority. Dr. not considered deliberate and therefore does not
Jack being negligent, St. Vincent, as his amount to bad faith.
apparent principal, must also be held liable for As a result, the Almedas are not entitled to
the same. recover moral damages. Moral damages
predicated upon a breach of contract of carriage
may only be recoverable in instances where the
Damages, actual or compensatory damages carrier is guilty of fraud or bad faith or when the
mishap resulted in the death of a passenger.
Dr. and Mrs. Almeda are prominent citizens of the Where in breaching the contract of carriage the
country and are frequent travelers abroad. In 1996, airline is not shown to have acted fraudulently or
they booked round-trip business class tickets for the in bad faith, liability for damages is limited to the
Manila-Hongkong-Manila route of the Pinoy Airlines, natural and probable consequences of the
where they are holders of Gold Mabalos Class breach of the obligation which the parties had
Frequent Flier cards. On their return flight, Pinoy foreseen or could have reasonably foreseen. In
Airlines upgraded their tickets to first class without such a case the liability does not include moral
their consent and, inspite of their protestations to be and exemplary damages.
allowed to remain in the business class so that they It is a requisite in the grant of exemplary
could be with their friends, they were told that the damages that the act of the offender be
business class was already fully booked, and that accompanied by bad faith or done in wanton,
they were given priority in upgrading because they fraudulent or malevolent manner. Such requisite
are elite members/holders of Gold Mabalos Class is absent in this case. Moreover, to be entitled
cards. Since they were embarrassed at the thereto the claimant must first establish his right
discussions with the flight attendants, they were to moral, temperate, or compensatory damages.
forced to take the flight at the first class section Since the Almedas are not entitled to any of
apart from their friends who were in the business these damages, the award for exemplary
class. Upon their return to Manila, they demanded a damages has no legal basis. And where the
written apology from Pinoy Airlines. awards for moral and exemplary damages are
eliminated, so must the award for attorney’s
When it went unheeded, the couple sued Pinoy fees.
Airlines for breach of contract claiming moral and The most that can be awarded for the breach of
exemplary damages, as well as attorney’s fees. Will contract is an award for nominal damages. Pinoy
the action prosper? Give reasons. (2005 Bar) Airlines may be said to have disturbed the
spouses’ wish to be with their companions at the
SUGGESTED ANSWER: Business Class on their flight to Manila.
Yes, Pinoy Airlines breached its contract of (Cathay Pacific v. Spouses Vazquez, 399 SCRA
carriage by upgrading the seat accommodation 207).
of the Almedas without their consent. The object
of their contract was the transportation of the DT and MT were prominent members of the
Almedas from Manila to Hongkong and back to frequent travelers’ club of FX Airlines. In Hong Kong,
Manila, with seats in the business class section the couple were assigned seats in Business Class
of the aircraft. They should have been consulted for which they had bought tickets. On checking in,
first whether they wanted to avail themselves of however, they were told they were upgraded by
the privilege and would consent to a change of computer to First Class for the flight to Manila
seat accommodation. It should not have been because the Business Section was overbooked.
imposed on them over their vehement objection.
By insisting on the upgrade, Pinoy Airlines Both refused to transfer despite better seats, food,
breached its contract of carriage with the beverage and other services in First Class. They
Almedas. said they had guests in Business Class they should
However, the upgrading or the breach of attend to. They felt humiliated, embarrassed and
contract was not attended by fraud or bad faith. vexed, however, when the stewardess allegedly
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threatened to offload them if they did not avail of the Manila on board SMA Flight No SA 888. On the date
upgrade. Thus they gave in, but during the transfer of her return trip, she checked in for SMA Flight No.
of luggage DT suffered pain in his arm and wrist. SA 888, boarded the plane, and before she could
After arrival in Manila, they demanded an apology even settle in on her assigned seat, she was off-
from FX’s management as well as indemnity loaded and treated rudely by the crew. She lost her
payment. When none was forthcoming, they sued luggage and missed an important business meeting.
the airline for a million pesos in damages. Is the She thereafter filed a complaint solely against SAL
airline liable for actual and moral damages? Why or and argued that it was solidarily liable with SMA for
why not? Explain briefly. (2004 Bar) the damages she suffered since the latter was only
an agent of the former.
SUGGESTED ANSWER:
FX Airlines committed breach of contract when it a) Should either, or both, SAL and SMA be held
upgraded DT and MT, over their objections, to liable for damages that Shasha suffered?
First Class because they had contracted for (2018 Bar)
Business Class passage. However, although
there is a breach of contract, DT and MT are
SUGGESTED ANSWER:
entitled to actual damages only for such
SAL should solely be held liable for the
pecuniary losses suffered by them as a result of
damages Shasha suffered.
such breach. There seems to be no showing that
they incurred such pecuniary loss. There is no
showing that the pain in DT’s arm and wrist In cases where an airline passenger purchases
resulted directly from the carrier’s acts a ticket for a flight composed of several legs,
complained of. Hence, they are not entitled to with one or more legs of said flight being
actual damages. Moreover, DT could have serviced by another airline, that other airline is
avoided the alleged injury by requesting the considered to be an agent of the airline issuing
airline staff to do the luggage transfer as a the ticket. Accordingly, when the passenger
matter of duty on their part. There is also no files a complaint for breach of contract of
basis to award moral damages for such breach carriage against the airline which issued the
of contract because the facts of the problem do ticket, for acts/omissions which are imputable
not show bad faith or fraud on the part of the to the other airline, said acts/omissions are
airline. (Cathay Pacific v. Vazquez, 399 SCRA now the acts of the airline which issued the
207). However, they may recover moral damages ticket, on the theory that the acts of the agent
if the cause of action is based on Article 21 of are the acts of the principal.
the Civil Code for the humiliation and
embarrassment they felt when the stewardess In the instant case, Shasha filed a complaint
threatened to offload them if they did not avail of solely against SAL, who is deemed to be the
the upgrade. principal of SMA. Accordingly, the acts of SMA
are now its acts for which it must be held liable
ALTERNATIVE ANSWER: for damages to Shasha. Shasha, on the other
If it can be proved that DT’s pain in his arm and hand, may not recover damages from SMA as
wrist occasioned by the transfer of luggage was her action for breach of contract cannot include
caused by fault or negligence on the part of the SMA, who is not a party to said contract.
airline’s stewardess, actual damages may be
recovered. This is not to say that SMA is excused from any
liability. SAL is not barred from filing a case to
The airline may be liable for moral damages recover damages against its agent SMA. Under
pursuant to Art. 2219 (10) if the cause of action the law, an agent is liable to his principal for
is based on Article 21 or an act contrary to damages caused to the latter due to the
morals in view of the humiliation suffered by DT negligent acts of the agent.
and MT when they were separated from their
guests and were threatened to be offloaded. Simeon was returning to Manila after spending a
weekend with his parents in Sariaya, Quezon He
Shasha purchased an airline ticket Sea Airlines boarded a bus operated by the Sabbit Bus Line
(SAL) covering Manila-Bangkok-Hanoi-Manila. The (SBL) on August 30, 2013. In the middle of the
ticket was exclusively endorsable to Siam Airlines journey, the bus collided with a truck coming in the
(SMA). The contract of air transportation was opposite direction, which was the overtaking the
between Shasha and SAL, with the latter endorsing vehicle in front of the truck. Though the driver of the
to SMA the Hanoi-Manila segment of the journey. All SBL bus tried to avoid the truck, a mishap occurred
her flights were confirmed by SAL before she left as the truck hit the left side of the bus. As a result of
Manila. Shasha took the flight from Manila to the accident, Simeon suffered a fractured leg and
Bangkok on board SAL using the ticket. When she was unable to report for work for one week. He sued
arrived in Bangkok, she went to the SAL ticket SBL for actual and moral damages. SBL raised the
counter and confirmed her return trip from Hanoi to defense that it was the driver of the truck who was at
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fault, and that it exercised the diligence of a good In the instant case, Simeon only suffered
father of a family in the selection and supervision of injuries. Furthermore, the presumption is
its driver. persons are in good faith. Bad faith or fraud
must be proven. Simeon has not proven that
a) Is SBL liable for actual damages? Moral SBL acted in bad faith or with fraud, hence moral
damages? (2018 Bar) damages may not be awarded to him.

SUGGESTED ANSWER:
Yes, SBL is liable for actual damages. Actul damages, loss of earning capacity

A common carrier is bound to carry its Jovencio operated a school bus to ferry his two
passengers safely as far as human care and sons and five of their schoolmates from their
foresight can provide, using the utmost houses to their school, and back. The parents of
diligence of very cautious persons, with due the five schoolmates paid for the service. One
regard to all the circumstances. More, in a morning, Porfirio, the driver, took a short cut on
contract of carriage, it is presumed that the the way to school because he was running late,
common carrier was at fault or was negligent and drove across an unmanned railway crossing.
when a passenger dies or is injured. At the time, Porfirio was wearing earphones
Accordingly, in actions for breach of contract of because he loved to hear loud music while
carriage, one only has to prove the existence of driving. As he crossed the railway tracks, a
the contract and the fact that the common speeding PNR train loudly blared its horn to warn
carrier failed to transport his passenger safely to Porfirio, but the latter did not hear the horn
his destination. Common carriers are then because of the loud music. The train inevitably
presumed to have been at fault or have acted rammed into the school bus. The strong impact of
negligently, and the court need not even make the collision between the school bus and the train
an express finding of fault or negligence on the resulted in the instant death of one of the
part of the common carrier. This presumption classmates of Jovencio’s younger son.
may only be overcome by evidence that the The parents of the fatality sued Jovencio for
carrier exercised extraordinary diligence. damages based on culpa contractual alleging
that Jovencio was a common carrier; Porfirio for
In the instant case, the defense of SBL is that being negligent; and the PNR for damages based
the driver of the truck was the proximate cause on culpa aquitiana.
of the collision between the bus and the truck Jovencio denied being a common carrier. He
and that it exercised due diligence in the insisted that he had exercised the diligence of a
selection of its employees. It did not prove that it good father of a family in supervising Porfirio,
exercised extraordinary diligence in the claiming that the latter had had no history of
transport of its passengers. Not having rebutted negligence or recklessness before the fatal
the presumption, it is deemed at fault, hence is accident.
liable to Simeon for actual damages. c) Assuming that the fatality was a minor of only 15
years of age who had no earning capacity at the
Notably, the Civil Code provides that common time of his death because he was still a student
carriers are liable for the death of or injuries to in high school, and the trial court is minded to
passengers through the negligence or willful award indemnity, what may possibly be the legal
acts of the former’s employees, although such and factual justifications for the award of loss of
employees may have acted beyond the scope of earning capacity? Explain your answer. (2017
their authority or in violation of the orders of the Bar)
common carriers. This liability of the common
carriers does not cease upon proof that they SUGGESTED ANSWER:
exercised all the diligence of a good father of a c) Art. 2206 of the Civil Code provides that the
family in the selection and supervision of their defendant shall be liable for the loss of the
employees. earning capacity of the deceased; and that such
indemnity shall in every case be assessed and
However, SBL is not liable for moral damages. awarded by the court, unless the deceased on
account of permanent physical disability not
Under Art. 2219 of the Civil Code, moral caused by the defendant, had no earning
damages are not recoverable in actions for capacity at the time of his death. Accordingly,
damages predicated on a breach of contract, even if the fatality was not yet working, being a
unless death of a passenger results, or it is mere high school student, since he had no
proved that the carrier was guilty of fraud or bad permanent physical disability preventing him
faith, even if death does not result. from working, his parents would still be entitled
to an award for lost earning capacity.
Compensation of this nature is awarded not for
loss of time or earnings but for loss of the
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 258

deceased’s power or ability to earn money (see rate of 6% per annum. No interest, however,
Perena v. Zarate, 679 SCRA 208). shall be adjudged on unliquidated claims or
damages, except when or until the demand
Carlos sues Dino for (a) collection on a promissory can be established with reasonable certainty.
note for a loan, with no agreement on interest, on Accordingly, where the demand is
which Dino defaulted, and (b) damages caused by established with reasonable certainty, the
Dino on his (Carlos’) priceless Michaelangelo interest shall begin to run from the time the
painting on which Dino accidentally spilled acid claim is made judicially or extrajudicially
while transporting it. The court finds Dino liable on (Art. 1169, Civil Code), but when such
the promissory note and awards damages to Carlos certainty cannot be so reasonably
for the damaged painting, with interests for both established at the time the demand is made,
awards. What rates of interest may the court impose the interest shall begin to run only from the
with respect to both awards? Explain. (2002 Bar) date the judgment of the court is made (at
which time the quantification of damages
SUGGESTED ANSWER: may be deemed to have been reasonably
With respect to the collection of money or ascertained). The actual base for the
promissory note, it being a forbearance of computation of legal interest shall, in any
money, the legal rate of interest for having case, be on the amount finally adjudged.
defaulted on the payment of 12% will apply. With When the judgment of the court awarding a sum
respect to the damages to the painting, it is 6% of money becomes final and executory, the rate
from the time of the final demand up to the time of legal interest, whether or not for loans or
of finality of the decision and 12% of the total forbearance of money, shall be 6% per annum
amount from finality of judgment until judgment from such finality until its satisfaction, this
credit is fully paid. The court considers the latter interim period being deemed to be by then an
as a forbearance of money. (Eastern Shipping equivalent to a forbearance of credit.
Lines, Inc. v. CA, 234 SCRA 78; Art 2210 and
2211, Civil Code) Simeon was returning to Manila after spending a
weekend with his parents in Sariaya, Quezon He
With regard to an award of interest in the boarded a bus operated by the Sabbit Bus Line
concept of actual and compensatory damages, (SBL) on August 30, 2013. In the middle of the
please state the guidelines regarding the journey, the bus collided with a truck coming in the
manner of computing legal interest in the opposite direction, which was the overtaking the
following situations: vehicle in front of the truck. Though the driver of the
a) when the obligation is breached and it SBL bus tried to avoid the truck, a mishap occurred
consists in the payment of a sum of as the truck hit the left side of the bus. As a result of
money like a loan or forbearance of the accident, Simeon suffered a fractured leg and
money; was unable to report for work for one week. He sued
b) when the obligation does not constitute SBL for actual and moral damages. SBL raised the
a loan or forbearance of money. defense that it was the driver of the truck who was at
fault, and that it exercised the diligence of a good
Consider the issuance of BSP-MB Circular No. father of a family in the selection and supervision of
799, which became effective on July 1, 2013. its driver.
(2016 Bar)
b) Will SBL be liable to pay interest if it is required
SUGGESTED ANSWER: to pay damages and delays in the payment of
a) For obligations consisting in the payment the judgment award? What is the rate of
of a sum of money like a loan or forbearance interest, and from when should the interest start
of money, an award of interest in the concept running? (2018 Bar)
of actual and compensatory damages shall
be for the amount of interest expressly SUGGESTED ANSWER:
stated in the contract. In the absence of an An interest of 6% should be imposed, to be
express contract as to the amount of computed from the date of rendition of judgment
interest, the amount of interest shall be at 6% and not from the filing of the complaint.
per annum, as provided for by BSP-MB
Circular No. 799. More, the interest due shall The rule has been laid down in Eastern Shipping
itself earn legal interest from the time it is Lines, Inc. vs. Court of Appeals, et. al. that
judicially demanded. “when an obligation, not constituting a loan or
forbearance of money, is breached, an interest
b) For obligations that do not constitute a on the amount of damages awarded may be
loan or forbearance of money, an interest on imposed at the discretion of the court at the rate
the amount of damages awarded may be of 6% per annum. No interest, however, shall be
imposed at the discretion of the court at the adjudged on unliquidated claims or damages

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except when or until the demand can be the judgment on the civil liability had become
established with reasonable certainty. final.
Accordingly, where the demand is established
with reasonable certainty, the interest shall MULTIPLE CHOICE. A pedestrian, who was four
begin to run from the time the claim is made (4) months pregnant, was hit by a bus driver while
judicially or extrajudicially (Art. 1169, Civil crossing the street. Although the pedestrian
Code) but when such certainty cannot be so survived, the fetus inside her womb was aborted.
reasonably established at the time the demand Can the pedestrian recover damages on account of
is made, the interest shall begin to run only the death of the fetus? (2014 Bar)
from the date the judgment of the court is made
(at which time the quantification of damages a) Yes, because of Article 2206 of the Civil Code
may be deemed to have been reasonably which allows the surviving heirs to demand
ascertained). The actual base for the damages for mental anguish by reason of the death
computation of legal interest shall, in any case, of the deceased.
be on the amount finally adjudged.” This is b) Yes, for as long as the pedestrian can prove that
because at the time of the filling of the she was not at fault and the bus driver was the one
complaint, the amount of the damages to which negligent.
Pantejo may be entitled remains unliquidated c) No, because a fetus is not a natural person.
and not known, until it is definitely ascertained, d) No, if the fetus did not comply with the
assessed and determined by the court, and only requirements under Article 41 of the Civil Code.
after the presentation of proof thereon.
SUGGESTED ANSWER:
Johnny Maton’s conviction for homicide was d)
affirmed by the Court of Appeals and, in addition,
although the prosecution had not appealed at all, the
appellate court increased the indemnity for death Other kinds of damages
from P30,000.00 to P50.000.00. On his appeal to
the Supreme Court, among the other things Johnny On January 5, 1992, Nonoy obtained a loan of
Maton brought to the high court’s attention, was the P1,000,000.00 from his friend Raffy. The promissory
increase of indemnity imposed by the Court of note did not stipulate any payment for interest. The
Appeals despite the clear fact that the People had note was due on January 5, 1993 but before this
not appealed from the appellate court’s judgment. Is date the two became political enemies. Nonoy, out
Johnny Maton correct? (1994 Bar) of spite, deliberately defaulted in paying the note,
thus forcing Raffy to sue him.
SUGGESTED ANSWER: a) What actual damages can Raffy recover?
In Abejam v. Court of Appeals, the Supreme b) Can Raffy ask for moral damages from Nonoy?
Court said that even if the issue of damages c) Can Raffy ask for nominal damages?
were not raised by the appellant in the Court of d) Can Rally ask for temperate damages?
Appeals but the Court of Appeals in its findings e) Can Raffy ask for attorney’s fees? (1994 Bar)
increased the damages, the Supreme Court will
not disturb the findings of the Court of Appeals. SUGGESTED ANSWER:
a) Raffy may recover the amount of the
ALTERNATIVE ANSWER: promissory note of P1 million, together with
No, the contention of the accused is not correct interest at the legal rate from the date of judicial
because upon appeal to the Appellate Court, the or extrajudicial demand. In addition, however,
court acquired jurisdiction over the entire case, inasmuch as the debtor is in bad faith, he is
criminal as well as civil. Since the conviction of liable for all damages which may be reasonably
homicide had been appealed, there is no finality attributed to the non-performance of the
in the amount of indemnity because the civil obligation. (Art. 2201(2), Civil Code).
liability arising from the crime and the judgment b) Yes, under Article 2220, Civil Code moral
on the crime has not yet become final. damages are recoverable in case of breach of
contract where the defendant acted fraudulently
ANOTHER ANSWER: or in bad faith.
No. Courts can review matters not assigned as c) Nominal damages may not be recoverable in
errors. (Hydro Resource v. CA, 204 SCRA 309). this case because Raffy may already be
indemnified of his losses with the award of
ANOTHER ANSWER: actual and compensatory damages. Nominal
Yes. Since the civil indemnity is an award in the damages are adjudicated only in order that a
civil action arising from the criminal offense, the right of the plaintiff, which has been violated or
rule that a party cannot be granted affirmative invaded by the defendant may be vindicated or
relief unless he himself has appealed should recognized, and not for the purpose of
apply. Therefore, it was error for the Court of
Appeals to have expanded the indemnity since
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indemnifying the plaintiff for any loss suffered c) Yes, provided that the pecuniary loss suffered
by him. (Article 2231, Civil Code) should be substantiated and duly proved.
d) Raffy may ask for, but would most likely not
be awarded temperate damages, for the reason ALTERNATIVE ANSWER:
that his actual damages may already be a) He is entitled to damages claimed under (1),
compensated upon proof thereof with the (2), (3) and (5). Moral damages are due because
promissory note. Temperate damages may be they are the proximate result of the defendant’s
awarded only when the court finds that some wrongful act. Exemplary damages are due by
pecuniary loss has been suffered but its amount way of example or correction for the public
cannot, from the nature of the case, be proved good. Attorney’s fees are due if exemplary
with certainty. (Article 2224, Civil Code) damages or double judicial costs are awarded,
e) Yes, under paragraph 2, Article 2208 of the and the court deems the recovery of attorney’s
Civil Code, considering that Nonoy’s act or fees equitable.
omission has compelled Raffy to litigate to b) The amount of the exemplary damages need
protect his interests. Furthermore, attorneys’ not be proved, but the plaintiff must show that
fees may be awarded by the court when it is just he is entitled to moral, temperate or
and equitable. (Article 2208 [11] Civil Code). compensatory damages (Art. 2234, Civil Code).
c) Yes, provided that the pecuniary loss suffered
On her third month of pregnancy, Rosemarie, should be substantiated and duly proved.
married to Boy, for reasons known only to her, and
without informing Boy, went to the clinic of X, a Simeon was returning to Manila after spending a
known abortionist, who, for a fee, removed and weekend with his parents in Sariaya, Quezon He
expelled the foetus from her womb. Boy learned of boarded a bus operated by the Sabbit Bus Line
the abortion six (6) months later. (SBL) on August 30, 2013. In the middle of the
Availing of that portion of Section 12 of Article II of journey, the bus collided with a truck coming in the
the 1987 Constitution which reads: opposite direction, which was the overtaking the
The State xxx shall equally protect the life of the vehicle in front of the truck. Though the driver of the
mother and the life of the unborn from conception. “x SBL bus tried to avoid the truck, a mishap occurred
x x” as the truck hit the left side of the bus. As a result of
which he claims confers a civil personality on the the accident, Simeon suffered a fractured leg and
unborn from the moment of conception, Boy filed a was unable to report for work for one week. He sued
case for damages against the abortionist, praying SBL for actual and moral damages. SBL raised the
therein that the latter be ordered to pay him: (1) defense that it was the driver of the truck who was at
P30,000.00 as indemnity for the death of the foetus, fault, and that it exercised the diligence of a good
(2) P100,000.00 as moral damages for the mental father of a family in the selection and supervision of
anguish and anxiety he suffered, (3) P50,000.00 as its driver.
exemplary damages, (4) P20,000.00 as nominal
damages, and (5) P25;000.00 as attorney’s fees. a) Is SBL liable for actual damages? Moral
a) Is Boy entitled to the foregoing damages and damages? (2018 Bar)
attorney’s fees?
b) Should exemplary damages be proved? SUGGESTED ANSWER:
c) May actual damages be also recovered? If so, Yes, SBL is liable for actual damages.
what facts should be alleged and proved? (1991
Bar) A common carrier is bound to carry its
passengers safely as far as human care and
SUGGESTED ANSWER: foresight can provide, using the utmost
a) He is not entitled to damages claimed under diligence of very cautious persons, with due
(1) and (4) because the foetus had no civil regard to all the circumstances. More, in a
personality and no property right has been contract of carriage, it is presumed that the
invaded. But Boy is entitled to damages under common carrier was at fault or was negligent
(2), (3) and (5). Moral damages are due because when a passenger dies or is injured.
they are the proximate result of the defendant’s Accordingly, in actions for breach of contract of
wrongful act. Exemplary damages are due by carriage, one only has to prove the existence of
way of example or correction for the public the contract and the fact that the common
good. Attorney’s fees are due if exemplary carrier failed to transport his passenger safely to
damages or double judicial costs are awarded, his destination. Common carriers are then
and the court deems the recovery of attorneys presumed to have been at fault or have acted
fees equitable, negligently, and the court need not even make
b) The amount of the exemplary damages need an express finding of fault or negligence on the
not be proved, but the plaintiff must show that part of the common carrier. This presumption
he is entitled to moral, temperate or may only be overcome by evidence that the
compensatory damages. (Art. 2234, Civil Code). carrier exercised extraordinary diligence.

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there must be compensatory or actual damages

In the instant case, the defense of SBL is that as satisfactory proof of the factual basis for
the driver of the truck was the proximate cause damages. In the instant case, the court found
of the collision between the bus and the truck that there was no proof of pecuniary loss to
and that it exercised due diligence in the Peter and Paula. If there is no proof of
selection of its employees. It did not prove that it pecuniary loss on their part, there would then
exercised extraordinary diligence in the be no factual basis for damages. Without any
transport of its passengers. Not having rebutted such proof, Peter and Paula would not be
the presumption, it is deemed at fault, hence is entitled to moral damages. Similarly, an award
liable to Simeon for actual damages. for exemplary damages is only in addition to
compensatory damages; with the claimant
Notably, the Civil Code provides that common required to first establish his right to moral,
carriers are liable for the death of or injuries to temperate, liquidated or compensatory
passengers through the negligence or willful damages. More, exemplary damages requires
acts of the former’s employees, although such that the wrongful act be accompanied by bad
employees may have acted beyond the scope of faith. Not having proved their right to moral,
their authority or in violation of the orders of the temperate, liquidated or compensatory
common carriers. This liability of the common damages, Peter and Paula are not entitled to
carriers does not cease upon proof that they exemplary damages, more so that the act
exercised all the diligence of a good father of a complained of occurred because of a computer
family in the selection and supervision of their glitch, which cannot be said to be bad faith on
employees. the part of RPP.

However, SBL is not liable for moral damages. Rodolfo, married to Sharon, had an illicit affair with
his secretary, Nanette, a 19-year old girl, and begot
Under Art. 2219 of the Civil Code, moral a baby girl, Rona. Nanette sued Rodolfo for
damages are not recoverable in actions for damages: actual, for hospital and other medical
damages predicated on a breach of contract, expenses in delivering the child by caesarean
unless death of a passenger results, or it is section; moral, claiming that Rodolfo promised to
proved that the carrier was guilty of fraud or bad marry her, representing that he was single when, in
faith, even if death does not result. fact, he was not; and exemplary, to teach a lesson to
like-minded Lotharios.
In the instant case, Simeon only suffered If you were the judge, would you award all the
injuries. Furthermore, the presumption is claims of Nanette? Explain. (2009 Bar)
persons are in good faith. Bad faith or fraud
must be proven. Simeon has not proven that SUGGESTED ANSWER:
SBL acted in bad faith or with fraud, hence moral I would not award the claims of Nanette for
damages may not be awarded to him. moral and exemplary damages. As a general
rule, breach of promise to marry, by itself, is not
Peter, a resident of Cebu City, sent through Reliable an actionable wrong. It is only when there is
Pera Padala (RPP) the amount of P20,000.00 to his seduction, i.e. when the woman gives herself to
daughter, Paula, for the payment of her tuition fee. the man only because of some deceit or
Paula went to an RPP branch but was informed that inducement, that moral damages can be
there was no money remitted to her name. Peter awarded. In the instant situation, Nanette not
inquired from RPP and was informed that there was only gave herself to Rodolfo, she even had an
a computer glitch and the money was credited to illicit affair with him, hence it cannot be said that
another person. Peter and Paula sued RPP for it was solely the purported promise to marry that
actual damages, moral damages and exemplary moved her to have sex with the latter. Since
damages. The trial court ruled that there was no there is no seduction, Nanette would not be
proof of pecuniary loss to the plaintiffs but awarded entitled to moral damages. As for exemplary
moral damages of P20,000.00 and exemplary damages, under Art. 2234 of the Civil Code, to be
damages of P5,000.00. On appeal, RPP entitled to exemplary damages, the plaintiff must
questioned the award of moral and exemplary show that he is entitled to moral, temperate or
damages. Is the trial court correct in awarding compensatory damages before the court may
moral and exemplary damages? Explain. (2016 consider the question of whether or not
Bar) exemplary damages should be awarded. Given
that Nanette has no right to moral damages, she
SUGGESTED ANSWER: may not demand exemplary damages. She
The Court was wrong in awarding moral and would be entitled to actual damages, however,
exemplary damages. Moral damages is since Rodolfo is liable for part of the expenses
designed to compensate for actual injury of Nanette in giving birth to Rona, the latter also
sustained, not to impose a penalty. Accordingly, being his child.
for a person to be entitled to moral damages,
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Ortillo contracts Fabricato, Inc. to supply and install or injury to another in a manner that is contrary
tile materials in a building he is donating to his to morals, good customs or public policy shall
province. Ortillo pays 50% of the contract price as compensate the latter for damages. Immorality
per agreement. It is also agreed that the balance or dishonesty is analogous to acts contrary to
would be payable periodically after every 10% morals, and therefore covered by Article 2219.
performance until completed. After performing about
93% of the contract, for which it has been paid an As the result of a collision between a public service
additional 40% as per agreement, Fabricato, Inc. did passenger bus and a cargo truck owned by D, X
not complete the project due to its sudden cessation sustained physical injuries and Y died. Both X and Y
of operations. Instead, Fabricato, Inc. demands were passengers of the bus. Both drivers were at
payment of the last 10% of the contract despite its fault, and so X and Z, the only heir and legitimate
non-completion of the project. Ortillo refuses to pay, child of the deceased Y, sued the owners of both
invoking the stipulation that payment of the last vehicles.
amount of 10% shall be upon completion. Fabricato, a) May the owner of the bus raise the defense of
Inc. brings suit for the entire 10%, plus damages, having exercised the diligence of a good father of a
Ortillo counters with claims for (a) moral damages family?
for Fabricato, Inc.’s unfounded suit which has b) May D raise the same defense?
damaged his reputation as a philanthropist and c) May X claim moral damages from both
respected businessman in his community, and (b) defendants?
attorney’s fees. d) May Z claim moral damages from both
a) Does Ortillo have a legal basis for his claim for defendants?
moral damages? Give reasons for all your answers. (1992 Bar)
b) How about his claim for attorney’s fees, having
hired a lawyer to defend him? (2002 Bar) SUGGESTED ANSWER:
a) No. The owner of the bus cannot raise the
SUGGESTED ANSWER: defense because the carrier’s liability is based
a) There is no legal basis to Ortillo’s claim for on breach of contract.
moral damages. It does not fall under the b) Yes. D can raise the defense because his
coverage of Article 2219 of the Civil Code. liability is based on a quasi-delict.
c) Because X suffered physical injuries, X can
b) Ortillo is entitled to attorney’s fees because claim moral damages against D. But as against
Fabricato’s complaint is a case of malicious the owner of the bus, X can claim moral
prosecution or a clearly unfounded civil action. damages only if X proves reckless negligence of
(Art. 2208 [4] and [11], Civil Code). the carrier amounting to fraud.
d) Z can claim moral damages against both
Under Article 2219 of the Civil Code, moral damages defendants because the rules on damages
may be recovered in the cases specified therein, arising from death due to a quasi-delict are also
several of which are enumerated below. Choose the applicable to death of a passenger caused by
case wherein you cannot recover moral damages. breach of contract by a common carrier (Arts.
Explain. (2006 Bar) 1755, 1756, 1764, 2206 and 2219. Civil Code).
a) A criminal offense resulting in physical injuries
b) Quasi-delicts causing physical injuries
c) Immorality or dishonesty
d) Illegal search
e) Malicious prosecution Preference of credits

SUGGESTED ANSWER: Lawrence, a retired air force captain, decided to go

Moral damages may not be recovered in (c) into the air transport business. He purchased an
immorality or dishonesty because it is not aircraft in cash except for an outstanding balance of
included in the enumeration in Article 2219 of P500,000.00. He incurred an indebtedness of
the Civil Code. P300,000.00 for repairs with an aircraft repair
company. He also borrowed P1 Million from a bank
ANOTHER SUGGESTED ANSWER: for additional capital and constituted a chattel
Moral damages may be recovered in all of the mortgage on the aircraft to secure the loan.
five instances enumerated above. While While on a test flight the aircraft crashed causing
“immorality” and “dishonesty” are not included physical injuries to a third party who was awarded
in the ten instances enumerated in Article 2219 damages of P200,000.00.
of the Civil Code, the same article provides that Lawrence’s insurance claim for damage to the
moral damages may be recovered “in the aircraft was denied thus leaving him nothing else but
following and analogous cases”. Article 2219(10) the aircraft which was then valued only at P1 Million.
provides and includes: “Acts and actions Lawrence was declared insolvent.
referred to in Article 21...”. Article 21 in turn Assuming that the aircraft was sold for P1 Million,
provides: “Any person who willfully causes loss give the order of preference of the creditors of
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Lawrence and distribute the amount of P1 Million. transaction affecting unregistered land is
(1995 Bar) entered in a book provided for the purpose but
the registration thereof is purely voluntary and
SUGGESTED ANSWER: does not adversely affect third persons who
Assuming that the aircraft was sold for P1 have a better right.
Million, there is no order of preference. The P1
Million will all go to the bank as a chattel ANOTHER ANSWER:
mortgagee because a chattel mortgage under By recording and registering with the Register of
Art. 2241 (4) Civil Code, defeats Art. 2244 (12) Deeds of the place where the land is located, in
and (14). Art. 2241 (3) and (5) are not applicable accordance with Act 3344. However, P.D. 892
because the aircraft is no longer in the required holders of Spanish title to bring the
possession of the creditor. same under the Torrens System within 6 months
from its effectivity on February 16, 1976.

LAND TITLES AND DEEDS In passing upon the registrability of a document

sought to be registered, what formal requisites is the
Distinguish the Torrens system of land registration Register of Deeds charged to determine, under his
from the system of recording of evidence of title. responsibility, whether or not they have been
(1994 Bar) complied with?

SUGGESTED ANSWER: SUGGESTED ANSWER:

The Torrens system of land registration is a To be registerable, a voluntary document
system for the registration of title to the land. affecting registered land must be sufficient in
Thus, under this system what is entered in the law. (Section 51, P.D. 1529) Sufficiency refers to
Registry of Deeds, is a record of the owner’s both substance and form. As to form, it is the
estate or interest in the land, unlike the system ROD’s responsibility to check such items as the
under the Spanish Mortgage Law or the system full name and signature of vendor or grantor, the
under Section 194 of the Revised Administrative marital consent of the wife if the land sold is
Code as amended by Act 3344 where only the conjugal, the full name, nationality, the civil
evidence of such title is recorded. In the latter status, the name of spouse, if married, the
system, what is recorded is the deed of resident and postal address of the grantee. If the
conveyance from whence the owner’s title grantee is a corporation, the deed must be
emanated-and not the title itself. accompanied with the Articles of Incorporation,
a board resolution authorizing the corporation to
ANOTHER ANSWER: buy and another resolution of the Board naming
Torrens system of land registration is that which the corporate officer authorized to execute and
is prescribed in Act 496 (now PD 1529), which is sign the contract. This is not to mention the
either judicial or quasi-judicial. System or proper observance of the requirements in the
recording of evidence of title is merely the acknowledgment portion of the deed.
registration of evidence of acquisitions of land
with the Register of Deeds, who annotates the May the owner of a building constructed on an
same on the existing title, cancels the old one unregistered land belonging to another apply for the
and issues a new title based on the document registration of such building under the Land
presented for registration. Registration Act and P.D. 1529? What should he do
to protect his rights in case the owner of the land
How do you register now a deed of mortgage of a applied for registration thereof? Give your reasons.
parcel of land originally registered under the (1989 Bar)
Spanish Mortgage Law? (1994 Bar)
SUGGESTED ANSWER:
SUGGESTED ANSWER: The Land Registration Act and PD 1529 apply to
After the Spanish Mortgage Law was abrogated registration of land only. It may include the
by PD 892 on February 16, 1976, all lands building as an accessory but the building cannot
covered by Spanish titles that were not brought be registered independently of the land because
under the torrens system within six (6) months registration contemplated under this Act refers
from the date thereof have been considered as only to ownership of land.
“unregistered private lands.” The owner of the building should file an
Thus, a deed of mortgage affecting land opposition or answer to the application for
originally registered under the Spanish registration and ask the court that his right to
Mortgage Law is now governed by the system of the building be annotated in the decree and later
registration of transactions or instruments in the certificate of title.
affecting unregistered land under Section 194 of
the Revised Administrative Code as amended by On March 27, 1980, Cornelio filed an application for
Act No. 3344. Under this law, the instrument or land registration involving a parcel of agricultural
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land that he had bought from Isaac identified as Lot Section 48(b) of CA 141. To require that
No. 2716 with an area of one (1) hectare. During petitions under Sec. 48(b) apply only to land
the trial, Cornelio claimed that he and his already declared alienable and disposable as of
predecessors-in-interest had been in open, June 12, 1945 or earlier would render the said
continuous, uninterrupted, public and adverse section useless, as there would hardly be any
possession and occupation of the land for more such land existing. Accordingly, given that
than thirty (30) years. He likewise introduced in Arthur and his predecessors-in-interest have
evidence a certification dated February 12, 1981 been in possession of the lot since 1936, and
citing a presidential declaration to the effect that on given that the lot was declared alienable and
June 14, 1980, agricultural lands of the public disposable in 1993, before the filing of the
domain, including the subject matter of the application, the petition for registration should
application, were declared alienable and disposable be granted.
agricultural land. In 1960, Rigor and Mike occupied two separate but
adjacent tracts of land in Mindoro. Rigor’s tract was
If you are the judge, will you grant the application classified as timber land while Mike’s was classified
for land registration of Cornelio? (2014 Bar) as agricultural land. Each of them fenced and
cultivated his own tract continuously for 30 years. In
SUGGESTED ANSWER: 1991, the Government declared the land occupied
No, I would not grant the application for land by Mike as alienable and disposable, and the one
registration. A petition for judicial confirmation cultivated by Rigor as no longer intended for public
of imperfect title requires that the land sought to use or public service.
be registered must have already been declared Rigor and Mike now come to you today for legal
as alienable and disposable land of the public advice in asserting their right of ownership of their
domain PRIOR to the filing of the petition. respective lands based on their long possession
Absent such a declaration at the time of the and occupation since 1960.
filing of the petition, there would be no title to a) What are the legal
confirm. consequences of the 1991
declarations of the Government
On February 28, 1998, Arthur filed an application respecting the lands? Explain
for registration of title of a lot in Ternate, Cavite your answer.
before the Regional Trial Court of Naic, Cavite b) Given that, according to Section 48(b)
under Section 48(b) of Commonwealth Act No. 141 of Commonwealth Act No. 141, in
(CA 141) for judicial confirmation of imperfect title. relation to Section 14(1) of Presidential
Section 48(b) of CA 141 requires possession Decree No. 1529, the open, continuous,
counted from June 12, 1945. Arthur presented exclusive and notorious possession and
testimonial and documentary evidence that his occupation of alienable and disposable
possession and that of his predecessors-in- interest lands of the public domain as basis for
started in 1936. The lot was declared alienable and judicial confirmation of imperfect title
disposable (A and D) in 1993 based on a PENRO must be from June 12, 1945, or earlier,
certification and a certified true copy of the original may Mike nonetheless validly base his
classification made by the DENR Secretary. The assertion of the right of ownership on
government opposed the application on the ground prescription under the Civil Code?
that the lot was certified A and D only in 1993 while Explain your answer.
the application was instituted only in 1998. Arthur’s d) Does Rigor have legal basis for his application
possession of five (5) years from the date of for judicial confirmation of imperfect title based
declaration does not comply with the 30-year period on prescription as defined by the Civil Code
required under CA 141. Should the possession of given that, like Mike, his open, continuous,
Arthur be reckoned from the date when the lot was exclusive and notorious possession and
declared A and D or from the date of actual occupation was not since June 12, 1945, or
possession of the applicant? Explain. (2016 Bar) earlier, and his tract of land was timber land
until the declaration in 1991? Explain your
SUGGESTED ANSWER: answer. (2017 Bar)
Arthur’s possession must be reckoned from the
date of his actual possession of the lot. In Heirs SUGGESTED ANSWER:
of Malabanan versus Republic (587 SCRA 172) a) For the agricultural land occupied by Mike,
the Supreme Court declared that for petitions the declaration of the same as alienable and
for judicial confirmation of imperfect title based disposable rendered the same susceptible to
on possession and occupation since June 12, acquisition by confirmation of imperfect title.
1945 it is enough that the land sought to be Notably, only agricultural land of the public
registered is alienable and disposable AT THE domain can be alienated. However, even if
TIME OF THE FILING OF THE APPLICATION. agricultural, so long as public land is not
This is the only reasonable interpretation of declared as alienable and disposable, the same

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cannot be acquired by private persons. As for A’s application for lack of sufficient evidence. A
the timber land occupied by Rigor, the appealed to the Court of Appeals.
declaration of the same as no longer intended The appellant urged that the RTC erred in
for public use or public service converted the dismissing his application for registration and in not
same from public land into patrimonial property ordering registration of his title to the parcel of land
of the State. in question despite the fact that there was no
b) No, Mike may not assert ownership of the opposition filed by anybody to his application.
land he occupies on the basis of prescription Did the RTC commit the error attributed to it? (1993
under the Civil Code. Under the law, alienable Bar)
and disposable land of the State is either i)
patrimonial property; or ii) alienable and SUGGESTED ANSWER:
disposable agricultural land of the public No, the RTC did not commit the error attributed
domain. It is only patrimonial property of the to it. In an application for judicial confirmation of
State which can be acquired by private imperfect or incomplete title to public
individuals through prescription of thirty years. agricultural land under Section 48 of the Public
Alienable and disposable agricultural land Land Act, the lack of opposition and the
cannot be acquired by thirty-years prescription, consequent order of default against those who
but can only be acquired by confirmation of did not answer or show up on the date of initial
imperfect title if possessed from June 12, 1945. hearing, does not guarantee the success of the
Since the property occupied by Mike is not application. It is still incumbent upon the
patrimonial property, but alienable and applicant to prove with well nigh incontrovertible
disposable agricultural land, the thirty year evidence that he has acquired a title to the land
prescriptive period provided by the Civil Code that is fit for registration. Absent such
does not apply, as the same is applicable only to registrable title, it is the clear duty of the Land
patrimonial lands of the State. Registration Court to dismiss the application
c) Rigor does not have legal basis for and declare the land as public land.
confirmation of imperfect title based on An application for land registration is a
prescription. Under Article 1137, ownership of proceeding in rem. Its main objective is to
immovables can be acquired through establish the status of the res whether it is still
possession for thirty years. However, under part of our public domain as presumed under
Article 1113 of the Civil Code, property of the the Regalian doctrine or has acquired the
State not patrimonial in character cannot be the character of a private property. It is the duty of
subject of prescription. So, prescription for the applicant to overcome that presumption with
property declared as patrimonial begins to run sufficient evidence.
only from the time the said property was
converted into patrimonial property, or only What are the essential requisites or elements for the
from the time of the same as no longer intended allowance of the reopening or review of a decree of
for public use or public service. Accordingly, registration? (1992 Bar)
Rigor can only avail of prescription from 1991,
when the property was declared as no longer SUGGESTED ANSWER:
intended for public use or public service. His The essential elements are: (1) that the petitioner
previous possession before then, even if the has a real or dominical right; (2) that he has
same started in 1960, may not be counted for been deprived thereof through fraud; (3) that the
purposes of prescription. Since only twenty-six petition is filed within one (1) year from the
years have elapsed, from 1991 to 2017, Rigor issuance of the decree; and (4) that the property
cannot yet avail himself of prescription. has not yet been transferred to an innocent
purchaser (Rublico v. Orellana 30 SCRA 511;
On June 30, 1986, A filed in the RTC of Abra an Libudan v. Gil 45 SCRA 17).
application for registration of title to a parcel of land
under P. D. No. 1529, claiming that since June 12, ALTERNATIVE ANSWER:
1945, he has been in open, continuous, exclusive Petition for review of the Decree of Registration.
and notorious possession and occupation of said A remedy expressly provided in Section 32 of P.
parcel of land of the public domain which was D. No. 1529 (formerly Section 38, Act 496), this
alienable and disposable, under a bona fide claim of remedy has the following elements:
ownership. After issuance of the notice of initial a) The petition must be filed by a person
hearing and publication, as required by law, the claiming dominical or other real rights to the
petition was heard on July 29, 1987. On the day of land registered in the name of respondent.
the hearing nobody but the applicant appeared. b) The registration of the land in the name of
Neither was there anyone who opposed the respondent was procured by means of actual,
application. Thereupon, on motion of the applicant, (not just constructive) fraud, which must be
the RTC issued an order of general default and extrinsic. Fraud is actual if the registration was
allowed the applicant to present his evidence. That made through deceit or any other intentional act
he did. On September 30, 1989, the RTC dismissed of downright dishonesty to enrich oneself at the
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expense of another. It is extrinsic when it is 1) No because under Section 47, P.D. 1529, no
something that was not raised, litigated and title to registered land in derogation of that of
passed upon in the main proceedings. the registered owner shall be acquired by
c) The petition must be filed within one (1) year prescription or adverse possession. A similar
from the date of the issuance of the decree. provision is found in the Civil Code. The reason
d) Title to the land has not passed to an innocent is that once a piece of land is registered under
purchaser for value (Libudan v. Gil, 45 SCRA 27), the Torrens System, it operates as a notice to
Rublico v. Orrelana, 30 SCRA 511; RP v. CA, 148 the whole world. All persons are bound by it. No
SCRA 480). one can plead ignorance of the registration.
(2) The right to recover the land from another
Distinguish a direct attack from a collateral attack on person holding it is equally imprescriptible, the
a title. (2015 Bar) reason being that possession is a mere
consequence of ownership.
SUGGESTED ANSWER: (3) While a Torrens Title is imprescriptible, under
A direct attack on a title is an action against a certain exceptional circumstances, it may yield
judgment granting the title whose main objective to the equitable principle of laches. In other
is to annul, set aside, or enjoin the enforcement words, certain circumstances such as inaction
of such judgment if not yet implemented, or to or utter neglect on the part of the owner and the
seek recovery if the property titled under the intervention of rights by third parties may, for
judgment had been disposed of. On the other reasons of equity, convert the claim of
hand, a collateral attack occurs when, in another imprescriptibility into a stale demand. (Mejia v.
action to obtain a different relief and as an Gamponia, 100 Phil. 277; Miguel v. Catalino, 26
incident of the present action, an attack is made SCRA 234; Heirs of Batiog Lacamen v. Heirs of
against the judgment granting the title. Laruan, 65 SCRA 605).

Mr. and Mrs. Roman and Mr. and Mrs. Cruz filed an Subsequent to the original registration of a parcel of
application for registration of a parcel of land which land bordering a river, its area was increased by
after due proceedings was granted by the RTC accession. This additional area was not included in
acting as a land registration court. However, before the technical description appearing on the Torrens
the decree of registration could be issued, the Certificate of Title having been acquired subsequent
spouses Roman and the spouses Cruz sold the lot to the registration proceedings. May such additional
to Juan. In the notarized deed of sale, the sellers area be acquired by third persons thru prescription?
expressly undertook to submit the deed of sale to Give your reasons. (1989 Bar)
the land registration court so that the title to the
property would be directly issued in Juan's name. SUGGESTED ANSWER:
If the title is issued in the names of the original The Land Registration Law provides that no title
sellers, would a motion filed by Juan in the same in derogation of the registered owner may be
case to correct or amend the title in order to reflect acquired by adverse possession or acquisitive
his name as owner be considered a collateral possession. Since the law refers to registered
attack? (2015 Bar) lands, the accession mentioned in this question
may be acquired by a third person through
SUGGESTED ANSWER: adverse possession or acquisitive possession.
No, the same should be considered as a direct
attack. A collateral attack is an attack made in ALTERNATIVE ANSWER:
another action to obtain a different relief than If the accession is man-made, then it cannot be
that of setting aside the judgment granting the considered as private property. It belongs to the
title. In the instant case, the motion is filed in the public domain, and, therefore, cannot be
same case and the relief sought is the setting acquired by adverse possession or acquisitive
aside of the judgment to reflect the alleged real possession.
owner of the property, hence it should be
considered as a direct attack on the judgment Before migrating to Canada in 1992, the spouses
granting the title. Teodoro and Anita entrusted all their legal papers
and documents to their nephew, Atty. Tan. Taking
1) Is title to registered land subject to prescription? advantage of the situation, Atty. Tan forged a deed
Explain your answer. of sale, making it appear that he had bought the
2) How about the right of the registered owner to couple’s property in Quezon City. In 2000, he
recover possession, is it equally imprescriptible? succeeded in obtaining a TCT over the property in
Why? his name. Subsequently, Atty. Tan sold the same
3) What effect has the equitable principle of laches property to Luis, who built an auto repair shop on
on the imprescriptibility of Torrens Title? Explain. the property. In 2004, Luis registered the deed of
(1988 Bar) conveyance, and title over the property was
transferred in his name.
SUGGESTED ANSWER:
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In 2006, the spouses Teodoro and Anita came to the SUGGESTED ANSWER:
Philippines for a visit and discovered what had The complaint for the annulment of Catalino’s
happened to their property. They immediately hire title will prosper. In the first place, the second
you as lawyer. What action or actions will you owner’s copy of the title secured by him from
institute in order to vindicate their rights? Explain the Land Registration Court is void ab initio, the
fully. (2009 Bar) owner’s copy thereof having never been lost, let
alone the fact that said second owner’s copy of
SUGGESTED ANSWER: the title was fraudulently procured and
A forged deed is an absolute nullity and conveys improvidently issued by the Court. In the second
no title. The fact that a forged deed was place, the Transfer Certificate of Title procured
registered and a certificate of title was issued in by Catalino is equally null and void, it having
the forger’s name, does not operate to vest upon been issued on the basis of a simulated or
the forger ownership over the property. forged Deed of Sale. A forged deed is an
However, once the title to the land is registered absolute nullity and conveys no title.
in the name of the forger and title to the land The mortgage in favor of Desiderio is likewise
thereafter falls into the hands of an innocent null and void because the mortgagor is not the
purchaser for value, the latter acquires a clean owner of the mortgaged property. While it may
title thereto. be true that under the “Mirror Principle” of the
Torrens System of Land Registration, a buyer or
Thus, if Luis is unaware that Atty. Tan’s title over mortgagee has the right to rely on what appears
the property is based on a forged deed of sale, on the Certificate of Title, and in the absence of
he would be an innocent purchaser for value, anything to excite suspicion, is under no
and the spouses Teodoro and Anita may not obligation to look beyond the certificate and
recover the property from him anymore. In such investigate the mortgagor’s title, this rule does
a case, the only remedy left to the spouses not find application in the case at hand because
would be an action for damages against Atty. here, Catalino’s title suffers from two fatal
Tan. If Atty. Tan is insolvent, an action for infirmities, namely:
recovery of damages against the Assurance 1. The fact that it emanated from a forged deed
Fund may be filed by the spouses. of a simulated sale;
2. The fact that it was derived from a fraudulently
However, if Luis was aware that Atty. Tan’s title procured or improvidently issued second
was based on a forged deed of sale, he would owner’s copy, the real owner’s copy being still
not be an innocent purchaser for value and an intact and in the possession of the true owner,
action for reconveyance of the property may be Bruce.
filed against him by the spouses. The mortgage to Desiderio should be cancelled
without prejudice to his right to go after Catalino
In both cases, the spouses may also file a and/or the government for compensation from
criminal action, as well as a disbarment case, the assurance fund.
against Atty. Tan for the forgery he has
committed. Rommel was issued a certificate of title over a
parcel of land in Quezon City. One year later
Bruce is the registered owner of a parcel of land with Rochelle, the legitimate owner of the land,
a building thereon and is in peaceful possession discovered the fraudulent registration obtained by
thereof. He pays the real estate taxes and collects Rommel. She filed a complaint against Rommel for
the rentals therefrom. Later, Catalino, the only reconveyance and caused the annotation of a notice
brother of Bruce, filed a petition where he, of lis pendens on the certificate of title issued to
misrepresenting to be the attorney-in-fact of Bruce Rommel. Rommel now invokes the indefeasibility of
and falsely alleging that the certificate of title was his title considering that one year has already
lost, succeeded in obtaining a second owner’s elapsed from its issuance. He also seeks the
duplicate copy of the title and then had the same cancellation of the notice of lis pendens.
transferred in his name through a simulated deed of a) Will Rachelle’s suit for reconveyance prosper?
sale in his favor. Catalino then mortgaged the Explain.
property to Desiderio who had the mortgage b) May the court cancel the notice of lis pendens
annotated on the title. Upon learning of the even before final judgment is rendered? Explain.
fraudulent transaction, Bruce filed a complaint (1995 Bar)
against Catalino and Desiderio to have the title of
Catalino and the mortgage in favor of Desiderio SUGGESTED ANSWER:
declared null and void. a) Yes, Rachelle’s suit will prosper because all
elements for an action for reconveyance are
Will the complaint prosper, or will the title of Catalino present, namely:
and the mortgage to Desiderio be sustained? (1991 1. Rachelle is claiming dominical rights over the
Bar) same land.
2. Rommel procured his title to the land by fraud.
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3. The action was brought within the statutory Juliet executed a Deed of Absolute Sale over the
period of four (4) years from discovery of the property which was duly registered with the Registry
fraud and not later than ten (10) years from the of Deeds, and a new TCT was issued in Dehlma’s
date of registration of Rommel’s title. name. Dehlma immediately took possession over
4. Title to the land has not passed into the hands the house and lot and the movables therein.
of an innocent purchaser for value. Thereafter, Dehlma went to the Assessor’s Office to
get a new tax declaration under her name. She was
Rommel can invoke the indefeasibility of his title surprised to find out that the property was already
if Rachelle had filed a petition to reopen or declared for tax purposes in the name of XYZ Bank
review the decree of registration. But Rachelle which had foreclosed the mortgage on the property
instead filed an ordinary action in personam for before it was sold to her. XYZ Bank was also the
reconveyance. In the latter action, indefeasibility purchaser in the foreclosure sale of the property. At
is not a valid defense because, in filing such that time, the property was still unregistered but XYZ
action, Rachelle is not seeking to nullify nor to Bank registered the Sheriff’s Deed of Conveyance in
impugn the indefeasibility of Rommel’s title. She the day book of the Register of Deeds under Act.
is only asking the court to compel Rommel to 3344 and obtained a tax declaration in its name.
reconvey the title to her as the legitimate owner a) Was Dehlma a purchaser in good faith?
of the land. b) Who as between Dehlma and XYZ Bank has a
better right to the house and lot? (2008 Bar)
ALTERNATIVE ANSWER:
Yes. The property registered is deemed to be SUGGESTED ANSWER:
held in trust for the real owner by the person in a) Yes, Dehlma is a purchaser in good faith. She
whose name it is registered. The Torrens system learned about the XYZ tax declaration and
was not designed to shield one who had foreclosure sale only after the sale to her was
committed fraud or misrepresentation and thus registered. She relied on the certificate of title of
holds the title in bad faith, Walstrom v. Mapa, Jr., her predecessor-in-interest. Under the Torrens
(181 SCRA 431). system, a buyer of registered lands is not
required by law to inquire further than what the
b) A notice of lis pendens may be canceled even Torrens certificate indicates on its face. If a
before final judgment upon proper showing that person proceeds to buy it relying on the title,
the notice is for the purpose of molesting or that person is considered a buyer in good faith.
harassing the adverse party or that the notice of The “priority in time” rule could not be invoked
lis pendens is not necessary to protect the right by XYZ Bank because the foreclosure sale of the
of the party who caused it to be registered. land in favor of the bank was recorded under Act
(Section 77, P.D. No. 1529) No. 3344, the law governing transactions
In this case, it is given that Rachelle is the affecting unregistered land, and thus, does not
legitimate owner of the land in question. It can bind the land.
be said, therefore, that when she filed her notice
of lis pendens her purpose was to protect her b) Between Dehlma and the bank, the former has
interest in the land and not just to molest a better right to the house and lot.
Rommel. It is necessary to record the lis
pendens to protect her interest because if she In 1950’s, the Government acquired a big landed
did not do it, there is a possibility that the land estate in Central Luzon from the registered owner
will fall into the hands of an innocent purchaser for subdivision into small farms and redistribution of
for value and in that event, the court loses bona fide occupants. F was a former lessee of a
control over the land making any favorable parcel of land, five hectares in area. After completion
judgment thereon moot and academic. For these of the resurvey and subdivision, F applied to buy the
reasons, the notice of lis pendens may not be said land in accordance with the guidelines of the
canceled. implementing agency. Upon full payment of the price
in 1957, the corresponding deed of absolute sale
Juliet offered to sell her house and lot, together with was executed in his favor and was registered, and in
all the furniture and appliances therein, to Dehlma. 1961, a new title was issued in his name. In 1963, F
Before agreeing to purchase the property, Dehlma sold the said land to X; and in 1965 X sold it to Y.
went to the Register of Deeds to verify Juliet’s title. New titles were successively issued in the names of
She discovered that while the property was the, said purchasers.
registered in Juliet’s name under the Land In 1977, C filed an action to annul the deeds of sale
Registration Act, as amended by the Property to F, X and Y and their titles, on the ground that he
Registration Decree, it was mortgaged to Elaine to (C) had been in actual physical possession of the
secure a debt of P80,000. Wanting to buy the land, and that the sale to F and the subsequent
property, Dehlma told Juliet to redeem the property sales should be set aside on the ground of fraud.
from Elaine, and gave her an advance payment to Upon motion of defendants, the trial court dismissed
be used for purposes of releasing the mortgage on the complaint, upholding their defenses of their
the property. When the mortgage was released,
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being innocent purchasers for value, prescription investigations on prospective sites for acquisition
and laches. Plaintiff appealed. and development, whether developed, semi-
a) Is the said appeal meritorious? Explain your developed or raw land. The management of Bedrock
answer. asks you as the company counsel to prepare a
b) Suppose the government agency concerned manual containing a summary of the pertinent laws
joined C in filing the said action against the and regulations relating to land registration and
defendants, would that change the result of the acquisition of title to land. The manual should
litigation? Explain. (1990 Bar) include the following items:
a) What is the governing law?
SUGGESTED ANSWER: b) What properties are not registrable? Supply this
a) The appeal is not meritorious. The trial court information. (2007 Bar)
ruled correctly in granting defendant’s motion to
dismiss for the following reasons: SUGGESTED ANSWER:
1. While there is the possibility that F, a former a) The governing law is the Land Registration
lessee of the land was aware of the fact that C Act as amended by the Property Registration
was the bona fide occupant thereof and for this Decree (Act No. 496 as amended by P.D. No.
reason his transfer certificate of title may be 1529).
vulnerable, the transfer of the same land and the
issuance of new TCT’s to X and Y who are (Note: It is respectfully recommended that full
innocent purchasers for value, render the latters’ credit be given to examinees who did not give
titles indefeasible. A person dealing with the exact title or number of the law but merely
registered land may safely rely on the stated a description of the law.)
correctness of the certificate of title and the law
will not in any way oblige him to go behind the ALTERNATIVE ANSWER:
certificate to determine the condition of the In general, the governing law relating to
property in search for any hidden defect or registration and acquisition of title to land is Act
inchoate right which may later invalidate or 496 of 1902 as amended by P.D. No. 1529,
diminish his right to the land. This is the mirror otherwise known as the Property Registration
principle of the Torrens System of land Decree of June 11, 1978.
registration.
2. The action to annul the sale was instituted in 1. Chapter III-I governs original registration of
1977 or more than ten (10) years from the date of land title under the Torrens System by voluntary
execution thereof in 1957, hence, it has long or ordinary judicial proceedings.
prescribed. R.A. No. 26 governs judicial reconstitution of
3. Under Section 45 of Act 496, “the entry of a lost or destroyed originals of the certificate of
certificate of title shall be regarded as an title.
agreement running with the land, and binding 2. Chapter III-II governs compulsory registration
upon the applicant and all his successors in title of lands through cadastral proceedings.
that the land shall be and always remain 3. Section 103 governs registration of
registered land. A title under Act 496 is homestead, sales or free patent under C.A. No.
indefeasible and to preserve that character, the 141, as amended, otherwise known as the Public
title is cleansed anew with every transfer for Land Act.
value. (De Jesus v. City of Manila, 29 Phil. 73; 4. Section 104 governs registration of
Laperal v. City of Manila, 62 Phil. 313, Penullar v. certificates of land transfer, emancipation
PNB, 120 SCRA 111). patents and Certificates of Land Ownership
b) Even if the government joins C, this will not Award (CLOA) under the Comprehensive Land
alter the outcome of the case not so much Reform Law.
because of estoppel as an express provision in 10. R.A. No. 6732 governs administrative
Section 45 of Act 496 and Section 31 of P.D. No. reconstitution of lost or destroyed original
1529 that a decree of registration and the certificates of title.
certificate of title issued in pursuance thereof 11. Section 113 governs the registration of
“shall be conclusive upon and against all instruments affecting unregistered private lands.
persons, including the national government and 12. Section 117 governs “consultas”, where the
all branches thereof, whether mentioned by Register of Deeds refuses to register a deed or
name in the application or notice or not.” when he is in doubt as to what action to take on
an instrument presented for registration.
Bedrock Land & Property Development Corp. is a 5. Chapter V governs the registration of
development company engaged in developing and voluntary dealings on registered land like
selling subdivisions, condominium units and conveyances, transfers, mortgages, leases,
industrial estates. In order to replenish its powers of attorney, trusts and similar contracts
inventories, it embarked on an aggressive land inter vivos.
banking program. It employed “scouts” who roam all 6. Chapter V-II governs the registration of
over the Philippines to look for and conduct involuntary dealings on registered land like
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attachments, adverse claims, enforcement of

liens on registered land, notices of lispendens. In 1965, Renren bought from Robyn a parcel of
7. Chapter VI governs the registration of registered land evidenced by a duly executed deed
judgments, orders and partitions, condemnation of sale. The owner presented the deed of sale and
in eminent domain proceedings, judicial and the owner’s certificate of title to the Register of
extra-judicial settlement of estates. Deeds. The entry was made in the day book and
8. Sections 107, 108 and 109, governs petitions corresponding fees were paid as evidenced by
and actions after original registration like: official receipt. However, no transfer of certificate of
a) Compulsory surrender of withheld owner’s title was issued to Renren because the original
duplicate certificate of title; certificate of title in Robyn’s name was temporarily
b) Amendment and alteration of certificate of misplaced after fire partly gutted the Office of the
title; Register of Deeds. Meanwhile, the land had been
c) Replacement of lost or destroyed owner’s possessed by Robyn’s distant cousin, Mikaelo,
duplicate certificate of title. openly, adversely and continuously in the concept of
owner since 1960. It was only in April 1998 that
b) The following properties are not registrable: Renren sued Mikaelo to recover possession.
1. Properties of the public dominion; Mikaelo invoked a) acquisitive prescription and b)
2. Properties for public use or public service; laches, asking that he be declared owner of the
3. Inalienable lands of the public domain; land. Decide the case by evaluating these defenses.
4. Military installations, civil and quasi-public (1998 Bar)
lands; and
5. All lands not classified as alienable and SUGGESTED ANSWER:
disposable. a) Renren’s action to recover possession of the
land will prosper. In 1965, after buying the land
ALTERNATIVE ANSWER: from Robyn, he submitted the Deed of Sale to
1. Properties of public dominium intended for the Registry of Deeds for registration together
public use, like roads, canals, rivers, torrents, with the owner’s duplicate copy of the title, and
ports and bridges constructed by the State, paid the corresponding registration fees. Under
banks, shores, roadsteads, and the like, are Section 56 of P.D. No. 1529, the Deed of Sale to
incapable of private appropriation, much less Renren is considered registered from the time
registration (Article 420, Civil Code). This the sale was entered in the Day Book (now
includes public markets, public plazas, called the Primary Entry Book).
municipal streets and public buildings For all legal intents and purposes, Renren is
(Municipality of Antipolo v. Zapanta, 133 SCRA considered the registered owner of the land.
820); Martinez v. CA, 56 SCRA 647; Navera v. After all, it was not his fault that the Registry of
Quicho, 5 SCRA 454). Deeds could not issue the corresponding
2. Lands proclaimed or classified as forest or transfer certificate of title.
timberland, mineral lands and national parks. Mikaelo’s defense of prescription cannot be
Under Section 2, Article XII, Constitution of the sustained. A Torrens title is imprescriptible. No
Philippines, these lands are inalienable. title to registered land in derogation of the title
3. Lands that have been reserved by law or of the registered owner shall be acquired by
Presidential proclamation for military, civil or for prescription or adverse possession. (Section 47,
public or quasi-public purpose. Under Section P.D. No. 1529)
88, Chapter XII of the Public Land Act, such The right to recover possession of registered
lands shall be inalienable and shall not be land likewise does not prescribe because
subject to occupation, entry, sale, lease or other possession is just a necessary incident of
disposition. ownership.
4. In general, all lands of the public domain that b) Mikaelo’s defense of laches, however,
have not been classified as alienable and appears to be more sustainable. Renren bought
disposable under the Public Land Act. the land and had the sale registered way back in
5. Lands that form part of the seabed, riverbed 1965. From the facts. It appears that it was only
or lakebed. These lands are not susceptible to in 1998 or after an inexplicable delay of 33 years
private appropriation. that he took the first step asserting his right to
6. Foreshore lands or that strip of land that lies the land. It was not even an action to recover
between the high and low water marks and ownership but only possession of the land. By
alternately wet and dry according to the flow of ordinary standards, 33 years of neglect or
the tide belong to the public domain, and can inaction is too long and maybe considered
only be acquired by lease if not needed by the unreasonable. As often held by the Supreme
government for public or quasi-public purposes. Court, the principle of imprescriptibility
7. Lands reclaimed by the government from the sometimes has to yield to the equitable principle
sea, lakes or other bodies of water are of laches which can convert even a registered
disposable or acquisible only by lease and not land owner’s claim into a stale demand.
otherwise, under the Public Land Act.
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Mikaelo’s claim of laches, however, is weak c) Cesar cannot ask for cancellation of Don’s
insofar as the element of equity is concerned, title in the ejectment case filed by Don against
there being no showing in the facts how he him. Under Section 48 of PD 1529, the Property
entered into the ownership and possession of Registration Decree, a Torrens title shall not be
the land. subject to collateral attack. It cannot be altered,
modified or cancelled except in a direct
“A” is the owner of a registered land. The Torrens proceeding in accordance with law. The
Title is entrusted to “B”, his clerk secretary, who ejectment proceeding does not provide the
forges “A’s” signature on a deed of sale of said land proper forum for the cancellation of Don’s title.
in his (B’s) favor. A new title is issued in the name of While Cesar’s counterclaim for cancellation of
“B,” upon registration. Does “B” have a valid title Don’s title may be considered a direct attack, the
over the land? If “B” sells the property to “C”, does same should nevertheless be denied on
the latter acquire a valid title over it? (1989 Bar) procedural grounds because a Municipal or
Metropolitan Trial Court is without jurisdiction to
SUGGESTED ANSWER: cancel a Torrens title.
A forged deed is an absolute nullity and conveys
no title but it can be the root of a title. If title to Juan and his sister Juana inherited from their
the land has been transferred to a party based mother two parcels of farmland with exactly the
upon a forged deed, and later on after the same areas. For convenience, the Torrens
issuance of such title the property is transferred certificates of title covering both lots were placed in
to another who is an innocent purchaser for Juan’s name alone. In 1996, Juan sold to an
value, then the latter acquires a valid title. innocent purchaser one parcel in its entirety without
the knowledge and consent of Juana, and wrongfully
Rod, the owner of an FX taxi, found in his vehicle an kept for himself the entire price paid.
envelope containing TCT No. 65432 over a lot a) What rights of action, if any, does Juana have
registered in Cesar’s name. Posing as Cesar, Rod against Juan and/or the buyer?
forged Cesar’s signature on a Deed of Sale in Rod’s b) Since the two lots have the same area, suppose
favor. Rod registered the said document with the Juana files a complaint to have herself declared
Register of Deeds, and obtained a new title in his sole-owner of the entire remaining second lot,
name. After a year, he sold the lot to Don, a buyer in contending that her brother had forfeited his share
good faith and for value, who also registered the lot thereof by wrongfully disposing of her undivided
in his name. share in the first lot, will the suit prosper? (1998 Bar)
a) Did Rod acquire title to the land? Explain.
b) Discuss the rights of Don, if any, over the SUGGESTED ANSWER:
property. a) When, for convenience, the Torrens title to the
c) In an ejectment case filed by Don against Cesar, two parcels of land were placed in Juan’s name
can the latter ask for the cancellation of Don’s title alone, there was created an implied trust (a
considering that he (Cesar) is the rightful owner of resulting trust) for the benefit of Juana with Juan
the lot? Explain. (2005 Bar) as trustee of one-half undivided or ideal portion
of each of the two lots. Therefore, Juana can file
SUGGESTED ANSWER: an action for damages against Juan for having
a) Rod did not acquire title to the land covered fraudulently sold one of the two parcels which
by T .C. T. No. 65432 of Cesar. A forged deed is he partly held in trust for Juana’s benefit. Juana
an absolute nullity and conveys no title. may claim actual or compensatory damage for
the loss of her share in the land; moral damages
b) Don acquired a good title to the land. Under for the mental anguish, anxiety, moral shock and
the Torrens System, a forged deed can be the wounded feelings she had suffered; exemplary
root of a good title. Since the certificate of title damage by way of example for the common
was already transferred to Rod, upon the good, and attorney’s fees.
subsequent transfer thereof to Don, an innocent Juana has no cause of action against the buyer
purchaser in good faith, Don acquired a good who acquired the land for value and in good
title to the land. The registration of the land in faith, relying on the transfer certificate of title
the name of Rod was conclusive notice to the showing that Juan is the registered owner of the
whole world. Persons dealing with registered land.
land have the legal right to rely on the face of the
Torrens title and to dispense with the need to ANOTHER ANSWER:
look beyond the certificate and investigate the a) Under Article 476 of the Civil Code, Juana can
title of the vendor appearing in the certificate in file an action for quieting of title as there is a
the absence of facts and circumstances what cloud in the title to the subject real property.
would impel a reasonably cautious man to make Second, Juana can also file an action for
such inquiry. This is the “Mirror Principle” of the damages against Juan, because the settled rule
Torrens system. is that the proper recourse of the true owner of
the property who was prejudiced and
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fraudulently dispossessed of the same is to Juan, and the remaining lot be adjudicated and
bring an action for damages against those who reconveyed to her.
caused or employed the same. Third, since
Juana had the right to her share in the property ANOTHER ANSWER:
by way of inheritance, she can demand the b) The suit will prosper, applying the ruling in
partition of the thing owned in common, under Imperial v. CA cited above. Both law and equity
Article 494 of the Civil Code, and ask that the authorize such a result, said the Supreme Court.
title to the remaining property be declared as Strictly speaking, Juana’s contention that her
exclusively hers. brother had forfeited his share in the second lot
However, since the farmland was sold to an is incorrect. Even if the two lots have the same
innocent purchaser for value, then Juana has no area, it does not follow that they have the same
cause of action against the buyer consistent value. Since the sale of the first lot on the
with the established rule that the rights of an Torrens title in the name of Juan was valid, all
innocent purchaser for value must be respected that Juana may recover is the value of her
and protected notwithstanding the fraud undivided interest therein, plus damages. In
employed by the seller in securing his title. addition, she can ask for partition or
(Eduarte v. CA, 253 SCRA 391) reconveyance of her undivided interest in the
second lot, without prejudice to any agreement
ADDITIONAL ANSWER: between them that in lieu of the payment of the
a) Juana has the right of action to recover (a) her value of Juana’s share in the first lot and
one-half share in the proceeds of the sale with damages, the second lot be reconveyed to her.
legal interest thereof, and (b) such damages as
she may be able to prove as having been ALTERNATIVE ANSWER:
suffered by her, which may include actual or b) The suit will not prosper, since Juan’s
compensatory damages as well as moral and wrongful act of pocketing the entire proceeds of
exemplary damages due to the breach of trust the sale of the first lot is not a ground for
and bad faith (Imperial v. CA, 259 SCRA 65). Of divesting him of his rights as a co-owner of the
course, if the buyer knew of the co-ownership second lot. Indeed, such wrongdoing by Juan
over the lot he was buying, Juana can seek (c) does not constitute, for the benefit of Juana, any
reconvenyance of her one-half share instead but of the modes of acquiring ownership under Art.
she must implead the buyer as co-defendant and 712, Civil Code.
allege his bad faith in purchasing the entire lot.
Finally, consistent with the ruling in Imperial v. The spouses X and Y mortgaged a piece of
CA, Juana may seek instead (d) a declaration registered land to A, delivering as well the OCT to
that she is now the sole owner of the entire the latter, but they continued to possess-and
remaining lot on the theory that Juan has cultivate the land, giving ½ of each harvest to A in
forfeited his one-half share therein. partial payment of their loan to the latter. A, however,
without the knowledge of X and Y, forged a deed of
ADDITIONAL ANSWER: sale of the aforesaid land in favor of himself, got a
a) Juana can file an action for damages against TCT in his name, and then sold the land to B, who
Juan for having fraudulently sold one of the two bought the land relying on A’s title, and who
parcels which he partly held in trust for Juana’s thereafter also got a TCT in his name. It was only
benefit. Juana may claim actual or then that the spouses X and Y learned that their
compensatory damage for the loss of her share land had been titled in B’s name. May said spouses
in the land; moral damages for the mental file an action for reconveyance of the land in
anguish, anxiety, moral shock and wounded question against b? Reason. (1999 Bar)
feelings she had suffered; exemplary damage by
way of example for the common good, and SUGGESTED ANSWER:
attorney’s fees. The action of X and Y against B for
Juana has no cause of action against the buyer reconveyance of the land will not prosper
who acquired the land for value and in good because B has acquired a clean title to the
faith, relying on the transfer certificate showing property being an innocent purchaser for value.
that Juan is the registered owner of the land. A forged deed is an absolute nullity and conveys
no title. The fact that the forged deed was
SUGGESTED ANSWER: registered and a certificate of title was issued in
b) Juana’s suit to have herself declared as sole his name, did not operate to vest upon A
owner of the entire remaining area will not ownership over the property of X and Y. The
prosper because while Juan’s act in selling the registration of the forged deed will not cure the
other lot was wrongful, it did not have the legal infirmity. However, once the title to the land is
effect of forfeiting his share in the remaining lot. registered in the name of the forger and title to
However, Juana can file an action against Juan the land thereafter falls into the hands of an
for partition or termination of the co-ownership innocent purchaser for value, the latter acquires
with a prayer that the lot sold be adjudicated to a clean title thereto. A buyer of a registered land
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is not required to explore beyond what the

record in the registry indicates on its face in In 1970, the spouses Juan and Juana de la Cruz,
quest for any hidden defect or inchoate right then Filipinos, bought a parcel of unregistered land
which may subsequently defeat his right thereto. in the Philippines on which they built a house which
This is the “mirror principle” of the Torrens became their residence. In 1986, they migrated to
system which makes it possible for a forged Canada and became Canadian citizens. Thereafter,
deed to be the root of a good title. in 1990, they applied, opposed by the Republic, for
Besides, it appears that spouses X and Y are the registration of the aforesaid land in their names.
guilty of contributory negligence when they Should the application of the spouses de la Cruz be
delivered this OCT to the mortgagee without granted over the Republic’s opposition? Why? (2003
annotating the mortgage thereon. Between them Bar)
and the innocent purchaser for value, they
should bear the loss. SUGGESTED ANSWER:
Yes, the application should be granted. As a
ALTERNATIVE ANSWER: rule, the Constitution prohibits aliens from
If the buyer B, who relied on the seller A’s title, owning private lands in the Philippines. This
was not aware of the adverse possession of the rule, however, does not apply to the spouses
land by the spouses X and Y, then the latter Juan and Juana de la Cruz because at the time
cannot recover the property from B. B has in his they acquired ownership over the land, albeit
favor the presumption of good faith which can imperfect, they were still Filipino citizens. The
only be overthrown by adequate proof of bad application for registration is a mere
faith. However, nobody buys land without seeing confirmation of the imperfect title which the
the property, hence, B could not have been spouses have already acquired before they
unaware of such adverse possession. If after became Canadian citizens. (Republic v. CA, 235
learning of such possession, B simply closed SCRA 567).
his eyes and did nothing about it, then the suit
for reconveyance will prosper as the buyer’s bad Sancho and Pacifico are co-owners of a parcel of
faith will have become evident. land. Sancho sold the property to Bart. Pacifico sued
Sancho and Bart for annulment of the sale and
JV, owner of a parcel of land, sold it to PP. But the reconveyance of the property based on the fact that
deed of sale was not registered. One year later, JV the sale included his one-half pro-indiviso share.
sold the parcel again to RR, who succeeded to Pacifico had a notice of lis pendens annotated on
register the deed and to obtain a transfer certificate the title covering the property. After trial, the court
of title over the property in his own name. Who has declared Bart the owner of the property and ordered
a better right over the parcel of land, RR or PP? the cancellation of the notice of lis pendens. The
Why? Explain the legal basis for your answer. (2004 notice of lis pendens could not be cancelled
Bar) immediately because the title over the property was
with a bank to which the property had been
SUGGESTED ANSWER: mortgaged by Bart Pacifico appealed the case.
It depends on whether or not RR is an innocent While the appeal was pending and with the notice of
purchaser for value. lis pendens still uncancelled, Bart sold the property
Under the Torrens System, a deed or instrument to Carlos, who immediately caused the cancellation
operated only as a contract between the parties of the notice of lis pendens, as well as the issuance
and as evidence of authority to the Register of of a new title in his name.
Deeds to make the registration. It is the Is Carlos (a) a purchaser in good faith, or (b) a
registration of the deed or the instrument that is transferee pendente lite? If your answer is (a), how
the operative act that conveys or affects the can the right of Pacifico as co-owner be protected?
land. (Sec. 51, P.D. No. 1529). Explain. (2002 Bar)

In cases of double sale of titled land, it is a well- SUGGESTED ANSWER:

settled rule that the buyer who first registers the a) Carlos is a buyer in bad faith. The notice of lis
sale in good faith acquires a better right to the pendens was still annotated at the back of the
land. (Art. 1544, Civil Code). title at the time he bought the land from Bart.
The uncancelled notice of lis pendens operates
Persons dealing with property covered by as constructive notice of its contents as well as
Torrens title are not required to go beyond what interests, legal or equitable, included therein. All
appears on its face. (Orquiola v. CA 386, SCRA persons are charged with the knowledge of what
301; Domingo v. Roces 401 SCRA 197). Thus, it contains.
absent any showing that RR knew about, or In an earlier case, it was held that a notice of an
ought to have known the prior sale of the land to adverse claim remains effective and binding
PP or that he acted in bad faith, and being first notwithstanding the lapse of the 30 days from its
to register the sale, RR acquired a good and a inscription in the registry. This ruling is even
clean title to the property as against PP. more applicable in a lis pendens.
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Carlos is a transferee pendente lite insofar as the lapse of said period, the annotation of
Sancho’s share in the co-ownership in the land adverse claim may be canceled upon filing of a
is concerned because the land was transferred verified petition therefor by the party in
to him during the pendency of the appeal. interest.” In Equatorial Realty Devt., Inc. v.
Spouses Frogozo (426 SCRA 271), the Supreme
Pacifico can protect his right as a co-owner by Court has thus interpreted Section 70 to mean
pursuing his appeal; asking the Court of that even after the lapse of 30 days, the adverse
Appeals to order the re-annotation of the lis claim is still effective so long as the same has
pendens on the title of Carlos; and by invoking not been ordered cancelled by the Court. More,
his right of redemption of Bart’s share under levies on attachment or execution create a lien
Article 1620 of the Civil Code. over the property levied upon, but the same is
subject to LIENS AND ENCUMBRANCES
ALTERNATIVE ANSWER: ALREADY EXISTING on the property (see
a) Carlos is a purchaser in good faith. Martinez v. Garcia, 611 SCRA 537). Accordingly,
A possessor in good faith has been defined as since the adverse claim of Macario was still
“one who is unaware that there exists a flaw subsisting on the property, Alex’s levy on
which invalidates his acquisition of the thing” attachment is subordinate to the adverse claim.
(Art. 526, Civil Code). Good faith consists in the Alex is thus considered as having notice, at the
possessor’s belief that the person from whom time of the levy, that the property levied upon no
he received the thing was the owner of the same longer belongs to Ramon. Macario, being
and could convey his title. In the case in already the owner of the property, would then
question, while Carlos bought the subject have a better right than Alex over the property in
property from Bart while a notice of lis pendens dispute.
was still annotated thereon, there was also an
existing court order cancelling the same. Hence, Cesar bought a residential condominium unit from
Carlos cannot be considered as being “aware of High Rise Co. and paid the price in full. He moved
a flaw which invalidates [their] the acquisition of into the unit, but somehow he was not given the
the thing” since the alleged flaw, the notice of lis Condominium Certificate of Title covering the
pendens, was already being ordered cancelled at property. Unknown to him, High Rise Co.
the time of the purchase. On this ground alone, subsequently mortgaged the entire condominium
Carlos can already be considered a buyer in building to Metrobank as security for a loan of P500
good faith. (Po Lam v. Court of Appeals, 347 million. High Rise Co. failed to pay the loan and the
SCRA 86). bank foreclosed the mortgage. At the foreclosure
sale, the bank acquired the building, being the
To protect his right over the subject property, highest bidder. When Cesar learned about this, he
Pacifico should have timely filed an action for filed an action to annul the foreclosure sale insofar
reconveyance and reinstated the notice of lis as his unit was concerned. The bank put up the
pendens. defense that it relied on the condominium
certificates of title presented by High Rise Co.,
Macario bought a titled lot from Ramon, got the title which were clean. Hence, it was a mortgagee and
and took possession of the lot. Since Macario did buyer in good faith. Is this defense tenable or not?
not have the money to pay the taxes, fees and Why? (2001 Bar)
registration expenses, he was not able to register
the Deed of Absolute Sale. Upon advice, he merely SUGGESTED ANSWER:
executed an Affidavit of Adverse Claim and had it Metrobank’s defense is untenable. As a rule, an
annotated at the back of the title. A few years after, innocent purchaser for value acquires a good
he received a Notice of Levy on Attachment and and a clean title to the property. However, It is
Writ of Execution in favor of Alex. The notice, writ settled that one who closes his eyes to facts that
and certificate of sale were annotated at the back of should put a reasonable man on guard is not an
the title still in Ramon’s name. Alex contends that innocent purchaser for value. In the present
since the Affidavit of Adverse Claim is effective only problem the bank is expected, as a matter of
for 30 days from the date of its registration, then its standard operating procedure, to have
validity has expired. Macario posits that the conducted an ocular inspection. of the promises
annotation of his adverse claim is notice to the before granting any loan. Apparently, Metrobank
whole world of his purchase of the lot in question. did not follow this procedure, otherwise, it
Who has the superior right over the disputed should have discovered that the condominium
property - Macario or Alex? Explain. (2016 Bar) unit in question was occupied by Cesar and that
fact should have led it to make further inquiry.
SUGGESTED ANSWER: Under the circumstances, Metrobank cannot be
Macario has a better right over the disputed considered a mortgagee and buyer in good faith.
property. Section 70 of PD 1529 states that “The
adverse claim shall be effective for a period of In 1979, Nestor applied for and was granted a Free
thirty days from the date of registration. After Patent over a parcel of agricultural land with an area
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of 30 hectares, located in General Santos City. He declaration in his name. He has held the property
presented the Free Patent to the Register of Deeds, through the years in the concept of an owner and his
and he was issued a corresponding Original stay was uncontested by others. He has also
Certificate of Title (OCT) No. 375. Subsequently, conscientiously and continuously paid the realty
Nestor sold the land to Eddie. The deed of sale was taxes on the land. Michael died in 2000 and Manuel
submitted to the Register of Deeds and on the basis – as Michael’s only son and heir – now wants to
thereof, OCT No. 375 was cancelled and Transfer secure and register title to the land in his own name.
Certificate of Title (TCT) No. 4576 was issued in the He consults you for legal advice as he wants to
name of Eddie. In 1986, the Director of Lands filed a perfect his title to the land and secure its registration
complaint for annulment of OCT No. 375 and TCT in his name.
No. 4576 on the ground that Nestor obtained the a) What are the laws that you need to consider in
Free Patent through fraud. Eddie filed a motion to advising Manuel on how he can perfect his title and
dismiss on the ground that he was an innocent register the land in his name? Explain the relevance
purchaser for value and in good faith and as such, of these laws to your projected course of action.
he has acquired a title to the property which is valid, b) What do you have to prove to secure Manuel’s
unassailable and indefeasible. Decide the motion. objectives and what documentation are necessary?
(2000 Bar) (2013 Bar)

SUGGESTED ANSWER: SUGGESTED ANSWER:

The motion of Nestor to dismiss the complaint
for annulment of O.C.T. No. 375 and T.C.T. No. (Note: With all due respect, it is recommended
4576 should be denied for the following reasons: that the examiner accept and give full credit to
1) Eddie cannot claim protection as an innocent any of the answers given in each of the
purchaser for value nor can he interpose the following paragraphs.)
defense of indefeasibility of his title, because his
TCT is rooted on a void title. Under Section 91 of a) I would advise Manuel to file an application for
CA No. 141, as amended, otherwise known as registration under Sec 14 of Pres. Decree No.
the Public Land Act, statements of material facts 1529, or the Property Registration Decree (PRD),
in the applications for public land must be under specifically Sec14 (1) which requires (a) that the
oath. Section 91 of the same act provides that land applied for forms part of the alienable and
such statements shall be considered as disposable (A & D) portion of the public domain,
essential conditions and parts of the and (b) that the applicant has been in open,
concession, title, or permit issued, any false continuous and notorious possession and
statement therein, or omission of facts shall ipso occupation thereof under bona fide claim of
facto produce the cancellation of the ownership since June 12, 1945, or earlier.
concession. The patent issued to Nestor in this However, it is only necessary that the land is
case is void ab initio not only because it was already declared A & D land “at the time for
obtained by fraud but also because it covers 30 application for registration is filed” (Malabanan
hectares which is far beyond the maximum of 24 v. Republic, 591 SCRA 428). Manuel could also
hectares provided by the free patent law. invoke Sec 14 (2) of the same Decree, which
allows registration through ordinary acquisitive
2) The government can seek annulment of the prescription for thirty years, provided, however,
original and transfer certificates of title and the that the land is “patrimonial” in character, i.e.
reversion of the land to the state. Eddie’s already declared by the government (a) as A & D,
defense is untenable. The protection afforded by and (b) no longer needed for public use or public
the Torrens System to an innocent purchaser for service (Malabanan, supra). Manuel could also
value can be availed of only if the land has been file an application for “confirmation of imperfect
titled thru judicial proceedings where the issue or incomplete title’ through “judicial
of fraud becomes academic after the lapse of legalization” under Sec. 48 (b) of CA no. 141, or
one (1) year from the issuance of the decree of the Public Land Act (PLA). But, as held in
registration. In public land grants, the action of Malabanan, there is no substantial difference
the government to annul a title fraudulently between this provision and Sec 14 (1) of the
obtained does not prescribe such action and will PRD. Both refer to agricultural lands already
not be barred by the transfer of the title to an classified as alienable and disposable at the
innocent purchaser for value. time the application is filed, and require
possession and occupation since June 12, 1945.
Manuel was born on 12 March 1940 in a 1,000- The only difference is that under the PRD, there
square meter property where he grew up helping his already exists a title which is to be confirmed,
father, Michael, cultivate the land. Michael has lived whereas under the PLA, the presumption is that
on the property since the land was opened for land is still public land (Republic v. Aquino, 120
settlement at about the time of the Commonwealth SCRA 186).
government in 1935, but for some reason never
secured any title to the property other than a tax
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Manuel may also invoke “vested rights’ acquired On 7 September 1971, Percival filed a protest
under Rep. Act. No. 1942, dated June 2, 1957, alleging that Lot B which he had been occupying
which amended Sec. 48 (b) of the PLA by and cultivating since 1947 was included in the Free
providing for a prescriptive period of thirty years Patent issued in the name of Melvin. The Director of
for judicial confirmation of imperfect title. It must Lands ordered the investigation of Percival’s protest.
only be demonstrated that possession and The Special Investigator who conducted the
occupation commenced on January 24, 1947 and investigation found that Percival had been in actual
the 30-year period was completed prior to the cultivation of Lot B since 1947.
effectivity of PD No. 1073 on January 25, 1977. On 28 November 1986, the Solicitor General filed in
PD No. 1073 now requires possession and behalf of the Republic of the Philippines a complaint
occupation since June 12, 1945 (Republic v. for cancellation of the free patent and the OCT
Espinosa, 677 SCRA 92). Another alternative is issued in the name of Melvin and the reversion of
for Manuel to secure title through administrative the land to public domain on the ground of fraud and
proceedings under the homestead or free patent misrepresentation in obtaining the free patent. On
provisions of the PLA. The title issued has the the same date, Percival sued Martin for the
same efficacy and validity as a title issued reconveyance of Lot B.
through judicial proceedings, but with the Melvin filed his answers interposing the sole
limitations that the land cannot be sold or defense in both cases that the Certificate of Title
disposed of within five years from the issuance issued in his name became incontrovertible and
of patent (Sec. 118, CA No. 141, as amended). indefeasible upon the lapse of one year from the
issuance of the free patent.
b) Manuel has the burden to overcome the Given the circumstances, can the action of the
presumption of State ownership by “well-nigh Solicitor General and the case for reconveyance
incontrovertible” evidence (Ong v. Republic, 548 filed by Percival possibly prosper? (1997 Bar)
SCRA 160). Accordingly, he must show that the
land is already classified as A & D “at the time SUGGESTED ANSWER:
the application for registration is filed” and that “If fraud be discovered in the application which
he has been in “possession and occupation led to the issuance of the’ patent and Certificate
thereof” in the manner required by law since of Title, this Title becomes ipso facto null and
June 12, 1945, or earlier. Manuel may tack his void. Thus, in a case where a person who
possession to that of his predecessor-in-interest obtained a free patent, knowingly made a false
(Michael) by the testimony of disinterested and statement of material and essential facts in his
knowledgeable eyewitnesses. Overt acts of application for the same, by stating therein that
possession may consist in introducing valuable the lot in question was part of the public domain
improvements like fencing the land, not occupied or claimed by any other person,
constructing a residential house thereon, his title becomes ipso facto canceled and
cultivating the land and planting fruit bearing consequently rendered null and void.”
trees, declaring the land for taxation purposes “It is to the public interest that one who
and paying realty taxes, all of which are succeeds in fraudulently acquiring title to public
corroborative proof of possession. To identify land should not be allowed to benefit therefrom
the land, he must submit the tracing cloth plan and the State, through the Solicitor General, may
or a duly-certified blueprint or whiteprint copy file the corresponding action for annulment of
thereof (Director of Lands v. Reyes, 68 SCRA the patent and the reversion of the land involved
177; Director of Lands v. CA and Iglesia ni to the public domain” (Dinera v. Director of
Cristo, 158 SCRA 568). To show the Lands; Kayaban v. Republic L-33307, 8-20-73;
classification of the land as A & D, the Director of Lands v. Hon. Pedro Samson Animas,
application must be accompanied by (1) a L-37682, 3-29-74.)
CENRO or PENRO certification; and (2) a This action does not prescribe.
certified true copy of the original classification With respect to Percival’s action for
approved by the DENR Secretary (Republic v. reconveyance, it would have prescribed, having
Bantigue, 668 SCRA 158). A presidential or been filed more than ten (10) years after
legislative act may also be considered. registration and issuance of an O.C.T. in the
name of Melvin. were it not for the inherent
On 10 September 1965, Melvin applied for a free infirmity of the latter’s title. Under the facts, the
patent covering two lots - Lot A and Lot B - situated statute of limitations will not apply to Percival
in Santiago, Isabela. Upon certification by the Public because Melvin knew that a part of the land
Land Inspector that Melvin had been in actual, covered by his title actually belonged to
continuous, open, notorious, exclusive and adverse Percival. So, instead of nullifying in toto the title
possession of the lots since 1925, the Director of of Melvin, the court, in the exercise of equity and
Land approved Melvin’s application on 04 June jurisdiction, may grant prayer for the
1967. On 26 December 1967, Original Certificate of reconveyance of Lot B to Percival who has
Title (OCT) No. P-2277 was issued in the name of actually possessed the land under a claim of
Melvin. ownership since 1947. After all, if Melvin’s title is
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declared void ab initio and the land is reverted to a) Is the action pursued by Louie the proper
the public domain, Percival would just the same remedy?
be entitled to preference right to acquire the land b) Assuming that reconveyance is the proper
from the government. Besides, well settled is the remedy, will the action prosper if the case was filed
rule that once public land has been in open, beyond one year, but within ten years, from the entry
continuous, exclusive and notorious possession of the decree of registration? (2003 Bar)
under a bona fide claim of acquisition of
ownership for the period prescribed by Section SUGGESTED ANSWER:
48 of the Public Land Act, the same ipso jure a) An action for reconveyance against Huey is
ceases to be public and in contemplation of law not the proper remedy, because Huey is an
acquired the character of private land. Thus, innocent purchaser for value. The proper
reconveyance of the land from Melvin to Percival recourse is for Louie to go after Dewey for
would be the better procedure. (Vitale v. Anore, damages by reason of the fraudulent registration
90 Phil. 855; Peña, Land Titles and Deeds, 1982, and subsequent sale of the land. If Dewey is
Page 427) insolvent, Louie may file a claim against the
Assurance Fund (Heirs of Pedro Lopez v. De
ALTERNATIVE ANSWER: Castro, 324 SCRA 591 citing Sps. Eduarte v. CA,
The action of the Solicitor General should 323 Phil. 462, 467).
prosper, considering that the doctrine of
indefeasibility of title does not apply to free b) Yes, the remedy will prosper because the
patent secured through fraud. A certificate of action prescribes in ten (10) years, not within
title cannot be used as shield to perpetuate one (1) year when a petition for the reopening of
fraud. The State is not bound by the period of the registration decree may be filed. The action
prescription stated in Sec. 38 of Act 496. for reconveyance is distinct from the petition to
(Director of Lands v. Abanilla, 124 SCRA 358) reopen the decree of registration (Grey Alba v.
De la Cruz, 17 Phil. 49). There is no need to
The action for reconveyance filed by Percival reopen the registration proceedings, but the
may still prosper provided that the property has property should just be reconveyed to the real
not passed to an innocent third party for value owner.
(Dablo v. Court of Appeals, 226 SCRA 618), and The action for reconveyance is based on implied
provided that the action is filed within the or constructive trust, which prescribes in ten
prescriptive period of ten years (Tale v. Court of (10) years from the date of issuance of the
Appeals, 208 SCRA 266). Since the action was original certificate of title. This rule assumes that
filed by Percival 19 years after the issuance of the defendant is in possession of the land.
Melvin’s title, it is submitted that the same is Where it is the plaintiff who is in possession of
already barred by prescription. the land, the action for reconveyance would be
in the nature of a suit for quieting of title which
ALTERNATIVE ANSWER (to second part of action is imprescriptible (David v. Malay, 318
question) SCRA 711).
The action for reconveyance filed by Percival
will prosper, because the land has ceased to be Section 70 of Presidential Decree No. 1529,
public land and has become private land by concerning adverse claims on registered land,
open, continuous, public, exclusive possession provides a 30-day period of effectivity of an adverse
under a bona fide claim of ownership for more claim, counted from the date of its registration.
than thirty years, and Percival is still in Suppose a notice of adverse claim based upon a
possession of the property at present. His action contract to sell was registered on March 1, 1997 at
for reconveyance can be considered as an the instance of the BUYER, but on June 1, 1997, or
action to quiet title, which does not prescribe if after the lapse of the 30-day period, a notice of levy
the plaintiff is in possession of the property. on execution in favor of a JUDGMENT CREDITOR
(Olviga v. CA, 227 SCRA 330) was also registered to enforce a final judgment for
money against the registered owner. Then, on June
Louie, before leaving the country to train as a chef in 15, 1997 there having been no formal cancellation of
a five-star hotel in New York, U.S.A., entrusted to his his notice of adverse claim, the BUYER pays to the
first-degree cousin Dewey an application for seller-owner the agreed purchase price in full and
registration, under the Land Registration Act, of a registers the corresponding deed of sale. Because
parcel of land located in Bacolod City. A year later, the annotation of the notice of levy is carried over to
Louie returned to the Philippines and discovered the new title in his name, the BUYER brings an
that Dewey registered the land and obtained an action against the JUDGMENT CREDITOR to
Original Certificate of Title over the property in his cancel such annotation, but the latter claims that his
Dewey’s name. Compounding the matter, Dewey lien is superior because it was annotated after the
sold the land to Huey, an innocent purchaser for adverse claim of the BUYER had ipso facto ceased
value. Louie promptly filed an action for to be effective. Will the suit prosper? (1998 Bar)
reconveyance of the parcel of land against Huey.
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SUGGESTED ANSWER: only by lease when not needed by the

The suit will prosper. While an adverse claim government for public service.
duly annotated at the back of a title under (2) If the land is suited or actually used for
Section 70 of P.D. 1529 is good only for 30 days, fishpond or aquaculture purposes, it comes
cancellation thereof is still necessary to render it under the jurisdiction of the Bureau of Fisheries
ineffective, otherwise, the inscription thereof will and Aquatic Resources (BFAR) and can only be
remain annotated as a lien on the property. acquired by lease. (P.D. 705)
While the life of adverse claim is 30 days under (3) Free Patent is a mode of concession under
P.D. 1529, it continuous to be effective until it is Section 41, Chapter VII of the Public Land Act
canceled by formal petition filed with the which is applicable only for agricultural lands.
Register of Deeds. (4) The certificate of the district forester that the
The cancellation of the notice of levy is justified land is already “alienable and disposable”
under Section 108 of P.D. 1529 considering that simply means that the land is no longer needed
the levy on execution cannot be enforced for forest purposes, but the Bureau of Lands
against the buyer whose adverse claim against could no longer dispose of it by free patent
the registered owner was recorded ahead of the because it is already covered by a lease contract
notice of levy on execution. between BFAR and Regina. That contract must
be respected.
Mario sold his house and lot to Carmen for P1 (5) The free patent of Jorge is highly irregular
million payable in five (5) equal annual installments. and void ab initio, not only because the Bureau
The sale was registered and title was issued in has no statutory authority to issue a free patent
Carmen’s name. Carmen failed to pay the last three over a foreshore area, but also because of the
installments and Mario filed an. action for collection, false statements made in his sworn application
damages and attorney’s fees against her. Upon filing that he has occupied and cultivated the land
of the complaint, he caused a notice of lis pendens since July 4, 1945, as required by the free patent
to be annotated on Carmen’s title. Is the notice of lis law. Under Section 91 of the Public Land Act,
pendens proper or not? Why? (2001 Bar) any patent, concession or title obtained thru
false representation is void ab initio. In cases of
SUGGESTED ANSWER: this nature, it is the government that shall
The notice of lis pendens is not proper for the institute annulment proceedings considering
reason that the case filed by Mario against that the suit carries with it a prayer for the
Carmen is only for collection, damages, and reversion of the land to the state. However,
attorney’s fees. Regina is a party in interest and the case will
Annotation of a lis pendens can only be done in prosper because she has a lease contract for the
cases involving recovery of possession of real same land with the government.
property, or to quiet title or to remove cloud
thereon, or for partition or any other proceeding
affecting title to the land or the use or Reconstitution
occupation thereof. The action filed by Mario
does not fall on anyone of these. In 1989, the heirs of Gavino, who died on August 10,
1987, filed a petition for reconstitution of his lost or
Regina has been leasing foreshore land from the destroyed Torrens Title to a parcel of land in Ermita,
Bureau of Fisheries and Aquatic Resources for the Manila. This was opposed by Marilou, who claimed
past 15 years. Recently, she learned that Jorge was ownership of the said land by a series of sales. She
able to obtain a free patent from the Bureau of claimed that Gavino had sold the property to
Agriculture, covering the same land, on the basis of Bernardo way back in 1941, and as evidence
a certification by the District Forester that the same thereof, she presented a Tax Declaration in 1948 in
is already “alienable and disposable”. Moreover, the name of Bernardo, which cancelled the previous
Jorge had already registered the patent with the Tax Declaration in the name of Gavino. Then she
Register of Deeds of the province, and he was presented two deeds of sale duly registered with the
issued an Original Certificate of Title for the same. Register of Deeds, the first one executed by
Regina filed an action for annulment of Jorge’s title Bernardo in 1954, selling the same property to
on the ground that it was obtained fraudulently. Will Carlos, and the second one executed by Carlos in
the action prosper? (20) 1963, selling the same property to her. She also
claimed that she and her predecessors in interest
SUGGESTED ANSWER: have been in possession of the property since 1948.
An action for the annulment of Jorge’s Original If you were the judge, how will you decide the
Certificate of Title will prosper on the following petition? Explain. (1996 Bar)
grounds:
(1) Under Chapter IX of C.A. No. 141, otherwise SUGGESTED ANSWER:
known as the Public Land Act, foreshore lands If I were the judge, I will give due course to the
are disposable for residential, commercial, petition of the heirs of Gavino despite the
industrial, or similar productive purposes, and opposition of Marilou for the following reasons:
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The procedure of consulta is a mode of appeal

Judicial reconstitution of a certificate of title from denial by the Register of Deeds of the
under R.A. No. 26 partakes of a land registration registration of the instrument to the
proceeding and is perforce a proceeding in rem. Commissioner of Land Registration.
It denotes restoration of an existing instrument Within five days from receipt of the notice of
which has been lost or destroyed in its original denial, the interested party may elevate the
form and condition. The purpose of matter by consulta to the Commissioner of Land
reconstitution of title or any document is to have Registration who shall enter an order
the same reproduced, after proceedings, in the prescribing the step to be taken or memorandum
same form they were when the loss or to be made. Resolution in consulta shall be
destruction occurred. binding upon all Registers of Deeds provided
If the Court goes beyond that purpose, it acts that the party in interest may appeal to the Court
without or in excess of jurisdiction. Thus, where of Appeals within the period prescribed (Sec.
the Torrens Title sought to be reconstituted is in 117, P.D. 1529).
the name of Gavino, the court cannot receive
evidence proving that Marilou is the owner of the Public Land Act, restrictions in the disposition of
land. Marilou’s dominical claim to the land homestead, free patent
should be ventilated in a separate civil action
before the Regional Trial Court in its capacity as In 1950, the Bureau of Lands issued a Homestead
a court of general jurisdiction (Heirs of Pedro patent to A. Three years later, A sold the homestead
Pinote v. Dulay, 187 SCRA 12; Bunagan v. CFI to B. A died in 1990, and his heirs filed an action to
Cebu Branch VI, 97 SCRA 72; Republic v. IAC, recover the homestead from B on the ground that its
157 SCRA 62; Margolies v. CA, 230 SCRA 709; sale by their father to the latter is void under Section
Republic v. Feliciano, 148 SCRA 924) 118 of the Public Land Law. B contends, however,
that the heirs of A cannot recover the homestead
What is the procedure of consulta when an from him anymore because their action has
instrument is denied registration? (1994 Bar) prescribed and that furthermore, A was in pari
delicto. Decide. (1999 Bar)
SUGGESTED ANSWER:
(1) The Register of Deeds shall notify the SUGGESTED ANSWER:
interested party in writing, setting forth the The sale of the land by A to B 3 years after
defects of the instrument or the legal ground issuance of the homestead patent, being in
relied upon for denying the registration, and violation of Section 118 of the Public Land Act,
advising that if he is not agreeable to such is void from its inception.
ruling, he may, without withdrawing the
documents from the Registry, elevate the matter The action filed by the heirs of B to declare the
by Consulta to the Administrator of the Land nullity or inexistence of the contract and to
Registration Authority (LRA). recover the land should be given due course.
(2) Within five (5) days from receipt of notice of
denial, the party in interest shall file his Consulta B’s defense of prescription is untenable because
with the Register of Deeds concerned and pay an action which seeks to declare the nullity or
the consulta fee. inexistence of a contract does not prescribe.
(3) After receipt of the Consulta and payment of (Article 1410; Banaga v. Soler, 2 SCRA 755)
the corresponding fee, the Register of Deeds
makes an annotation of the pending consulta at On the other hand, B’s defense of pari delicto is
the back of the certificate of title. equally untenable. While as a rule, parties who
(4) The Register of Deeds then elevates the case are in pari delicto have no recourse against each
to the LRA Administrator with certified records other on the principle that a transgressor cannot
thereof and a summary of the facts and issues profit from his own wrongdoing, such rule does
involved. not apply to violations of Section 118 of the
(5) The LRA Administrator then conducts Public Land Act because of the underlying
hearings after due notice or may just require public policy in the said Act “to conserve the
parties to submit their memoranda. land which a homesteader has acquired by
(6) After hearing, the LRA Administrator issues gratuitous grant from the government for
an order prescribing the step to be taken or the himself and his family”. In keeping with this
memorandum to be made. His resolution in policy, it has been held that one who purchases
consulta shall be conclusive and binding upon a homestead within the five-year prohibitory
all Registers of Deeds unless reversed on appeal period can only recover the price which he has
by the Court of Appeals or by the Supreme paid by filing a claim against the estate of the
Court. (Section 117, P.D. 1529). deceased seller’ (Labrador v. Delos Santos 66
Phil. 579) under the principle that no one shall
ANOTHER ANSWER: enrich himself at the expense of another.
Applying the pari delicto rule to violation of
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Section 118 of the Public Land Act, the Court of SUGGESTED ANSWER:
Appeals has ruled that “the homesteader suffers a) The sale of the land to Juan is not valid, being
the loss of the fruits realized by the vendee who contrary to law. Therefore, no transfer of
in turn forfeits the improvement that he has ownership of the land was effected from the
introduced into the land.” (Obot v. Sandadillas, delinquent taxpayer to him. The original
62 OG, April 25, 1966) certificates of title obtained by Maria thru a free
patent grant from the Bureau of Lands (under
FIRST ALTERNATIVE ANSWER: Chapter VII, CA 141) is valid but in view of her
The action to declare the nullity of the sale did delinquency, the said title is subject to the right
not prescribe (Art. 1410), such sale being one of the City Government to sell the land at public
expressly prohibited and declared void by the auction. The issuance of the OCT did not exempt
Public Lands Act [Art. 1409, par. (7)]. The the land from the tax sales. Section 44 of P.D.
prohibition of the law is clearly for the protection No. 1529 provides that every registered owner
of the heirs of A such that their recovering the receiving a Certificate of Title shall hold the
property would enhance the public policy same free from all encumbrances, subject to
regarding ownership of lands acquired by certain exemptions.
homestead patent (Art. 1416). The defense of
pari delicto is not applicable either, since the law b) Juan may recover because he was not a party
itself allows the homesteader to reacquire the to the violation of the law.
land even if it has been sold.
c) No, the sale did not divest Maria of her title
SECOND ALTERNATIVE ANSWER: precisely because the sale is void. It is as good
Prescription does not arise with respect to as if no sale ever took place.
actions to declare a void contract a nullity In tax sales, the owner is divested of his land
(Article 1410). Neither is the doctrine of pari initially upon award and issuance of a Certificate
delicto applicable because of public policy. The of Sale, and finally after the lapse of the 1 year
law is designed for the protection of the plaintiff period from date of registration, to redeem, upon
so as to enhance the public policy of the Public execution by the treasurer of an instrument
Land Act to give land to the landless. sufficient in form and effects to convey the
If the heirs are not allowed to recover, it could be property. Maria remained owner of the land until
on the ground of laches inasmuch as 40 years another tax sale is to be performed in favor of a
had elapsed and the owner had not brought any qualified buyer.
action against B especially if the latter had
improved the land. It would be detrimental to B if
the plaintiff is allowed to recover. CONFLICTS OF LAW

Maria Enriquez failed to pay the realty taxes on her TRUE or FALSE. The doctrine of “processual
unregistered agricultural land located in Magdugo, presumption” allows the court of the forum to
Toledo City. In 1989, to satisfy the taxes due, the presume that the foreign law applicable to the case
City sold it at public auction to Juan Miranda, an is the same as the local or domestic law. (2009 Bar)
employee at the Treasurer’s Office of said City,
whose bid at P 10,000.00 was the highest. In due ANSWER:
time, a final bill of sale was executed in his favor. TRUE. Foreign laws must be pleaded and proved
in Philippine courts as our courts do not take
Maria refused to turn-over the possession of the notice of foreign laws. However, in the absence
property to Juan alleging that (1) she had been, in of proof as to the foreign law, it is presumed that
the meantime, granted a free patent and on the the same is the same as Philippine law.
basis thereof an Original Certificate of Title was
issued to her, and (2) the sale in favor of Juan is Distinguish briefly but clearly between domiciliary
void from the beginning in view of the provision in theory and nationality theory of personal law. (2004
the Administrative Code of 1987 which prohibits Bar)
officers and employees of the government from
purchasing directly or indirectly any property sold by SUGGESTED ANSWER:
the government for non-payment of any tax, fee or The distinctions are as follows:
other public charge. Domiciliary Theory posits that the personal
a) Is the sale to Juan valid? If so, what is the effect status and rights of a person are governed by
of the issuance of the Certificate of Title to Maria? the law of his domicile or the place of his
b) If the sale is void, may Juan recover the habitual residence. The Nationality Theory, on
P10,000.00? If not, why not? the other hand, postulates that it is the law of the
c) If the sale is void, did it not nevertheless, operate person’s nationality that governs such status
to divest Maria of her ownership? If it did, who then and rights.
is the owner of the property? (1991 Bar)
a) If Ligaya, a Filipino citizen residing in the United
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States, files a petition for change of name before the

District Court of New York, what law shall apply? b) No. The renvoi doctrine is relevant in cases
Explain. where one country applies the domiciliary theory
b) If Henry, an American citizen residing in the and the other the nationality theory, and the
Philippines, files a petition for change of name issue involved is which of the laws of the two
before a Philippine court, what law shall apply? countries should apply to determine the order of
Explain. (2009 Bar) succession, the amount of successional rights,
or, the intrinsic validity of testamentary
SUGGESTED ANSWER: provisions. Such issue is not involved in this
a) The name of a person is part of his status, case.
hence changing the same must be determined in
accordance with the personal law of the person ALTERNATIVE ANSWER:
who is applying for the change of the same. Yes. “Renvoi” - which means “referring back” is
There are, however, two theories of personal law relevant because here, we are applying U.S. law
– the domiciliary theory and the nationality to Mario, being already its citizen, although the
theory. The first states that the personal law of a formalities of the second marriage will be
person is the law of his domicile, while the governed by Philippine law under the principle
second holds that the personal law of a person of lex loci celebrationis.
is the law of his domicile. If the courts of New
York follow the domiciliary theory, since Ligaya A, a citizen of California, U.S.A. but domiciled in the
is residing in the United States, then U.S. law Philippines, died testate in Manila, survived by two
must be applied to her petition for change of acknowledged natural children, B and C. In his will,
name. Conversely, if the courts of New York he left more than P500,000.00 to B and only
follow the nationality theory, since Ligaya is a P3,000.00 to C. It is admitted that under the Civil
Filipino national, then Philippine law should be Code of California, the domiciliary law of the
applied to her petition for change of name. decedent shall govern questions involving the
validity of testamentary provisions. C, who is
b) Philippine courts follow the nationality theory, contesting the validity of the disposition in favor of B
hence foreigners will be governed by their now contends that the Philippine laws with respect
national law, as provided for by implication to succession are applicable. Is this correct? Give
under Art. 15 of the Civil Code. Consequently, your reasons. (1988 Bar)
Henry’s petition will be governed by American
law, he being an American citizen. SUGGESTED ANSWER:
Yes, this is correct. The doctrine of renvoi is
In 1977, Mario and Clara, both Filipino citizens, were applicable in the instant case. Although the Civil
married in the Philippines. Three years later, they Code in Art. 16 states that the intrinsic validity of
went to the United States of America and testamentary provisions shall be regulated by
established their residence in San Francisco, the decedent’s national law, nevertheless, the
California. In 1987, the couple applied for, and were Civil Code of California declares that the
granted. U.S. citizenship. In 1989, Mario, claiming to decedent’s domiciliary law shall govern. Hence,
have been abandoned by Clara, was able to secure the question shall be referred back to the
a decree of divorce in Reno, Nevada, U.S.A. decedent’s domicile. In other words, the laws of
In 1990, Mario returned to the Philippines and the Philippines with respect to succession shall
married Juana who knew well Mario’s past life. govern. Consequently, in the partition of the
a) Is the marriage between Mario and Juana valid? estate, C shall be given a share which must not
b) Would the renvoi doctrine have any relevance to be less than his legitime. (Aznar v. Garcia, 7
the case? (1997 Bar) SCRA 95).

SUGGESTED ANSWER: Give at least two reasons why a court may assume
a) Yes. In relation to Art. 15 of the Civil Code, jurisdiction over a conflict of laws case. (2010 Bar)
Conflict of Laws provides that the recognition of
an absolute divorce granted in another State SUGGESTED ANSWER: (1) Statute theory. There
rests on the citizenship of the parties at the time is a domestic law authorizing the local court to
the divorce was granted (Paras, PhiL Conflict of assume jurisdiction. (2) Comity theory. The local
Laws, p. 259). Applied in this case, the divorce court assumes jurisdiction based on the
decree issued to Clara and Mario will be principle of comity or courtesy.
recognized as valid here considering that at the
time the foreign decree was granted. both Clara ALTERNATIVE ANSWER: (1) Public Order. To
and Mario are citizens of the U.S.A., a country maintain peace and order, disputes that disturb
which grants/allows absolute divorce. Since the the peace of the forum should be settled by the
marriage between Mario and Clara has been court of the forum even though the application
validly terminated, Mario and Juana can freely of the foreign law is necessary for the purpose.
many each other. (2) Humanitarian Principle. An aggrieved party
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should not be left without remedy in a forum made is different from the place where it is to be
even though the application of the foreign law by performed, and particularly so, if the place of the
the courts of the forum is unavoidable in order making and the place of performance are the
to extend relief. same (United Airlines v. CA, 357 SCRA 99).

Felipe is a Filipino citizen. When he went to Sydney SUGGESTED ANSWER:

for vacation, he met a former business associate, b) Forum non conveniens means that a court
who proposed to him a transaction which took him to has discretionary authority to decline
Moscow. Felipe brokered a contract between jurisdiction over a cause of action when it is of
Sydney Coals Corp. (Coals), an Australian firm, and the view that the action may be justly and
Moscow Energy Corp. (Energy), a Russian firm, for effectively adjudicated elsewhere.
Coals to supply coal to Energy on a monthly basis
for three years. Both these firms were not doing, and c) No, the Philippine courts cannot acquire
still do not do, business in the Philippines. Felipe jurisdiction over the case of Felipe. Firstly, under
shuttled between Sydney and Moscow to close the the rule of forum non conveniens, the Philippine
contract. He also executed in Sydney a commission court is not a convenient forum as all the
contract with Coals and in Moscow with Energy incidents of the case occurred outside the
under which contracts he was guaranteed Philippines. Neither are both Coals and Energy
commissions by both firms based on a percentage doing business inside the Philippines. Secondly,
of deliveries for the three-year period, payable in the contracts were not perfected in the
Sydney and in Moscow, respectively, through Philippines. Under the principle of lex loci
deposits in accounts that he opened in the two contractus, the law of the place where the
cities. Both firms paid Felipe his commission for four contract is made shall apply. Lastly, the
months, after which they stopped paying him. Felipe Philippine court has no power to determine the
learned from his contacts, who are residents of facts surrounding the execution of said
Sydney and Moscow, that the two firms talked to contracts. And even if a proper decision could
each other and decided to cut him off. He now files be reached, such would have no binding effect
suit in Manila against both Coals and Energy for on Coals and Energy as the court was not able
specific performance. to acquire jurisdiction over the said
A Define or explain the principle of “lex loci corporations. (Manila Hotel Corp. v. NLRC, 343
contractus.” SCRA 1)
b) Define or explain the rule of “forum non
conveniens.”
c) Should the Philippine court assume jurisdiction Intrinsic validity of contracts, governing law
over the case? Explain. (2002 Bar)
X and Y entered into a contract in Australia, whereby
SUGGESTED ANSWER: it was agreed that X would build a commercial
a) Lex loci contractus may be understood in two building for Y in the Philippines, and in payment for
senses, as follows: the construction, Y will transfer and convey his cattle
(1) It is the law of the piece where contracts, ranch located in the United States in favor of X.
wills, and other public instruments are executed What law would govern:
and governs their “forms and solemnities”, a) The validity of the contract?
pursuant to the first paragraph, Article 17 of the b) The performance of the contract?
Civil Code; or c) The consideration of the contract? (1992 Bar)
(2) It is the proper law of the contract; i.e., the
system of law intended to govern the entire SUGGESTED ANSWER:
contract, including its essential requisites, a) The validity of the contract will be governed
indicating the law of the place with which the by Australian law, because the validity refers to
contract has its closest connection or where the the element of the making of the contract in this
main elements of the contract converge. As case:
illustrated by Zalamea v. Court of Appeals (228 (Optional Addendum: “...unless the parties
SCRA 23), it is the law of the place where the agreed to be bound by another law”.)
airline ticket was issued, where the passengers
are nationals and residents of, and where the b) The performance will be governed by the law
defendant airline company maintained its office. of the Philippines where the contract is to be
performed.
ALTERNATIVE ANSWER:
a) Under the doctrine of lex loci contractus, as a c) The consideration will be governed by the law
general rule, the law of the place where a of the United States where the ranch is located.
contract is made or entered into governs with (Optional Addendum: In the foregoing cases,
respect to its nature arid validity, obligation and when the foreign law would apply, the absence
interpretation. This has been said to be the rule of proof of that foreign law would render
even though the place where the contract was
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Philippine law applicable under the “eclectic month. Having no other choice, Alma signed the
theory”.) contract but when she returned to the Philippines,
she demanded payment of the salary differential of
On 8 December 1991 Vanessa purchased from the US$400.00 a month. Both Dragon Services, Ltd.
Manila office of Euro-Aire an airline ticket for its and its local agent claimed that the second contract
Flight No. 710 from Dallas to Chicago on 16 January is valid under the laws of Hongkong, and therefore
1992. Her flight reservation was confirmed. On her binding on Alma. Is their claim correct? Explain.
scheduled departure Vanessa checked in on time at (1996 Bar)
the Dallas airport. However, at the check-in counter
she discovered that she was waitlisted with some SUGGESTED ANSWER:
other passengers because of intentional Their claim is not correct. A contract is the law
overbooking, a Euro-Aire policy and practice. Euro- between the parties but the law can disregard
Aire admitted that Vanessa was not advised of such the contract if it is contrary to public policy. The
policy when she purchased her plane ticket. provisions of the 1987 Constitution on the
Vanessa was only able to fly two days later by taking protection of labor and on social justice (Sec. 10,
another airline. Art II) embody a public policy of the Philippines.
Vanessa sued Euro-Aire in Manila for breach of Since the application of Hongkong law in this
contract and damages. Euro-Aire claimed that it case is in violation of that public policy, the
cannot be held liable for damages because its application shall be disregarded by our Courts.
practice of overbooking passengers was allowed by (Cadalin v. POEA, 238 SCRA 762)
the U.S. Code of Federal Regulations. Vanessa on
the other hand contended that assuming that the ADDITIONAL ANSWER:
U.S. Code of Federal Regulations allowed a) Their claim is not correct. Assuming that the
intentional overbooking, the airline company cannot second contract is binding under Hongkong law,
invoke the U.S. Code on the ground that the ticket such second contract is invalid under Philippine
was purchased in Manila, hence, Philippine law law which recognizes as valid only the first
should apply, under which Vanessa can recover contract. Since the case is being litigated in the
damages for breach of contract of carriage. Decide. Philippines, the Philippine Court as the forum
Discuss fully. (1995 Bar) will not enforce any foreign claim obnoxious to
the forum’s public policy. There is a strong
SUGGESTED ANSWER: public policy enshrined in our Constitution on
Vanessa can recover damages under Philippine the protection of labor. Therefore, the second
law for breach of contract of carriage. Philippine contract shall be disregarded and the first
law should govern as the law of the place where contract will be enforced. (Cadalin v. POEA, 238
the plane tickets were bought and the contract SCRA 762).
of carriage was executed. In Zalamea v. Court of b) No, their claim is not correct. The second
Appeals (228 SCRA 23) the Supreme Court contract executed in Hongkong, partakes of the
applied Philippine law in recovery of damages nature of a waiver that is contrary to Philippine
for breach of contract of carriage for the reason law and the public policy governing Filipino
that it is the law of the place where the contract overseas workers. Art. 17, provides that our
was executed. prohibitive laws concerning persons, their acts,
or their property or which have for their object
ALTERNATIVE ANSWER: public order, public policy and good customs
If the violation of the contract was attended with shall not be rendered ineffective by laws or
bad faith, there is a ground to recover moral conventions agreed upon in a foreign country.
damages. But since there was a federal Besides, Alma’s consent to the second contract
regulation which was the basis of the act was vitiated by undue influence, being virtually
complained of, the airline cannot be in bad faith. helpless and under financial distress in a foreign
Hence, only actual damages can be recovered. country, as indicated by the given fact that she
The same is true with regards to exemplary signed because she had no choice. Therefore,
damages. the defendants claim that the contract is valid
under Hongkong law should be rejected since
Alma was hired as a domestic helper in Hongkong under the doctrine of processual presumption a
by the Dragon Services, Ltd., through its local agent. foreign law is deemed similar or identical to
She executed a standard employment contract Philippine law in the absence of proof to the
designed by the Philippine Overseas Workers contrary, and such is not mentioned in the
Administration (POEA) for overseas Filipino problem as having been adduced.
workers. It provided for her employment for one year
at a salary of US$1,000.00 a month. It was Able, a corporation domiciled in State A, but, doing
submitted to and approved by the POEA. However, business in the Philippines, hired Eric, a Filipino
when she arrived in Hongkong, she was asked to engineer, for its project in State B. In the contract of
sign another contract by Dragon Services, Ltd. employment executed by the parties in State B, it
which reduced her salary to only US$600.00 a was stipulated that the contract could be terminated
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at the company’s will, which stipulation is allowed in Since the law of the forum in this case is the
State B. When Eric was summarily dismissed by Philippine law, the issues should be resolved in
Able, he sued Able for damages in the Philippines. accordance with Philippine law.
Will the Philippine court apply the contractual
stipulation? (1994 Bar) b) The third paragraph of Art. 17 of the Civil
Code provides that:
SUGGESTED ANSWER:
No. Lex fori should be applied because the suit “Prohibitive laws concerning persons, their acts
is filed in Philippine courts and Eric was hired in or property, and those which have for their
the Philippines. The Philippine Constitution object public order, public policy and good
affords full protection to labor and the customs shall not be rendered ineffective by
stipulation as to summary dismissal runs laws or judgments promulgated, or by
counter to our fundamental and statutory laws. determinations or conventions agreed upon in a
In the American Airlines case the Court held that foreign country.”
when what is involved is paramount state
interest such as the protection of the rights of Accordingly, a state’s own conflict of laws rule
Filipino laborers, the court can disregard choice may, exceptionally be inapplicable, given public
of forum and choice of law. Therefore the policy considerations by the law of the forum.
Philippine Court should not apply the stipulation Going into the specific provisions of the
in question. contract in question, I would rule as follows:
1. The duration of the contract is not opposed to
The Japan Air Lines (JAL), a foreign corporation Philippine law and it can therefore be valid as
licensed to do business in the Philippines, executed stipulated:
in Manila a contract of employment with Maritess 2. The second provision to the effect that
Guapa under which the latter was hired as a notwithstanding duration, Japan Air Lines (JAL)
stewardess on the aircraft plying the Manila-Japan- may terminate her employment is invalid, being
Manila route. The contract specifically provides that inconsistent with our Labor laws;
(1) the duration of the contract shall be two (2) 3. That the contract shall be construed as
years, (2) notwithstanding the above duration, JAL governed under and by the laws of Japan and
may terminate the agreement at any time by giving only the courts of Tokyo, Japan shall have
her notice in writing ten (10) days in advance, and jurisdiction, is invalid as clearly opposed to the
(3) the contract shall be construed as governed aforecited third paragraph of Arts. 17 and 1700
under and by the laws of Japan and only the court in of the Civil Code, which provides:
Tokyo, Japan shall have the jurisdiction to consider
any matter arising from or relating to the contract. “Art. 1700. The relations between capital and
JAL dismissed Maritess on the fourth month of her labor are not merely contractuals. They are so
employment without giving her due notice. Maritess impressed with public interest that labor
then filed a complaint with the Labor Arbiter for contracts must yield to the common good.
reinstatement, backwages and damages. The Therefore, such contracts are subject to the
lawyer of JAL contends that neither the Labor Arbiter special laws on labor unions, collective
nor any other agency or court in the Philippines has bargaining, strikes and lockouts, closed shop,
jurisdiction over the case In view of the above wages, working conditions, hours of labor and
provision (3) of the contract which Maritess similar subjects.”
voluntarily signed. The contract is the law between
her and JAL. Decide the issue. ALTERNATIVE ANSWER:
b) Where under a State’s own conflicts rule that a) When a contract has a foreign element such
domestic law of another State should apply, may the as in the factual setting stated in the problem
courts of the former nevertheless refuse to apply the where one of the parties is a foreign corporation,
latter? If so, under what circumstance? (1991 Bar) the contract can be sustained as valid
particularly the stipulation expressing that the
SUGGESTED ANSWER: contract is governed by the laws of the foriegn
a) Labor Legislations are generally intended as country. Given this generally accepted principle
expressions of public policy on employer- of international law, the contract between
employee relations. The contract therefore, Maritess and JAL is valid and it should therefore
between Japan Air Lines (JAL) and Maritess may be enforced.
apply only to the extent that its provisions are
not inconsistent with Philippine labor laws In a class suit for damages, plaintiffs claimed they
intended particularly to protect employees. suffered injuries from torture during martial law. The
suit was filed upon President EM’s arrival on exile in
Under the circumstances, the dismissal of HI, a U.S. state. The court in HI awarded plaintiffs
Maritess without complying with Philippine the equivalent of P100 billion under the U.S. law on
Labor law would be invalid and any stipulation in alien tort claims. On appeal, EM’s Estate raised the
the contract to the contrary is considered void. issue of prescription. It argued that since said U.S.
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law is silent on the matter, the court should apply: claimed by him in his declaration, and consents
(1) HI’s law setting a two-year limitation on tort that judgment be entered against the defendant
claims; or (2) the Philippine law which appears to for a certain sum. (Words and Phrases, vol. 7,
require that claims for personal injury arising from pp. 115-166).
martial law be brought within one year. [4] Cognovit is a note authorizing a lawyer for
Plaintiffs countered that provisions of the most confession of judgment by defendant.
analogous federal statute, the Torture Victims
Protection Act, should be applied. It sets ten years b) “Borrowing Statute” - Laws of the state or
as the period of prescription. Moreover, they argued jurisdiction used by another state in deciding
that equity could toll the statute of limitations. For it conflicts questioned involved in the choice of
appeared that EM had procured Constitutional law (Black’s Law Dictionary, 5th ed. 1979) over
amendments granting himself and those acting the case in another jurisdiction. (Webster’s
under his direction immunity from suit during his Dictionary)
tenure.
In this case, has prescription set in or not? c) [1] “Characterization” is otherwise called
Considering the differences in the cited laws, which “classification” or “qualification.” It is the
prescriptive period should be applied: one year process of assigning a disputed question to its
under Philippine law, two years under HI’s law, ten correct legal category (Private International Law,
years under U.S. federal law, or none of the above? Salonga).
Explain. (2004 Bar) [2] “Characterization” is a process in
determining under what category a certain set of
SUGGESTED ANSWER: facts or rules fall. (Paras, Conflict of Laws, p. 94,
The US Court will apply US law, the law of the 1984 ed.)
forum, in determining the applicable prescriptive
period. While US law is silent on this matter, the a)What is the doctrine of forum non conveniens?
US Court will not apply Philippine law in b) What is a “long arm statute”? (1994 Bar)
determining the prescriptive period. It is
generally affirmed as a principle in private SUGGESTED ANSWER:
international law that procedural law is one of a) [1] Forum non conveniens is a principle in
the exceptions to the application of foreign law Private International Law that where the ends of
by the forum. Since prescription is a matter of justice strongly indicate that the controversy
procedural law even in Philippine jurisprudence, may be more suitably tried elsewhere, then
(Cadalin v. POEA/NLRC/Brown and Root jurisdiction should be declined and the parties
International, 238 SCRA 721), the US. Court will relegated to relief to be sought in another forum.
apply either HI or Federal law in determining the (Moreno, Philippine Law Dictionary, p. 254, 1982
applicable prescriptive period and not Philippine ed.).
law. The Restatement of American law affirms [2] Where in a broad sense the ends of justice
this principle. strongly indicate that the controversy may be
more suitably tried elsewhere, then jurisdiction
In Private International Law (Conflict of Laws) what should be declined and the parties relegated to
is: relief to be sought in another forum. (Handbook
a) Cognovit? on Private International Law, Aruego).
b) A borrowing statute? [3] Forum non conveniens means simply that a
c) Characterization? (1994 Bar) court may resist imposition upon its jurisdiction
even when jurisdiction is authorized by the letter
SUGGESTED ANSWER: of a general venue statute. (Salonga, Private
a) [1]Cognovit is a confession of judgment International Law, p. 51, 1967 ed.)
whereby a portion of the complaint is confessed [4] Forum non conveniens is a doctrine whereby
by the defendant who denies the rest thereof a court of law having full jurisdiction over a case
(Philippine Law Dictionary, 3rd Ed.) (Ocampo v. brought in a proper venue or district declines to
Florenciano, 13553, 2/23/50). determine the case on its merits because justice
[2] Cognovit is a “statement of confession”. would be better served by the trial over the case
Oftentimes, it is referred to as a “power of in another jurisdiction.
attorney” or simply as a “power”, it is the written
authority of the debtor and his direction to the b) [1] Long arm statute is a legislative act which
clerk of the district court, or justice of the peace provides for personal jurisdiction, via
to enter judgment against the debtor as stated substituted service or process, over persons or
therein. (Words and Phrases, vol. 7, pp. 115-166). corporations which are non-residents of the
[3] Cognovit is a plea in an action which state and which voluntarily go into the state,
acknowledges that the defendant did undertake directly or by agent or communicate with
and promise as the plaintiff in its declaration has persons in the state for limited purposes, in
alleged, and that it cannot deny that it owes and actions which concern claims relating to
unjustly detains from the plaintiff the sum
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performance or execution of those purposes divided equally into 12 shares to be equally

(Black’s Law Dictionary, 5th Ed. 1979). distributed among the five siblings of Alden and
[2] Long arm statute refers simply to authorized seven siblings of Stela.
substituted service.
c) No, the situation in [the problem] is not an
Alden and Stela were both former Filipino citizens. example of dépeçage. Dépeçage is a conflicts of
They were married in the Philippines but they later law concept wherein different issues within a
migrated to the United States where they were case may be governed by the laws of different
naturalized as American citizens. In their union they states. As stated earlier, as to intrinsic validity of
were able to accumulate several real properties testamentary provisions, the same is governed
both in the US and in the Philippines. Unfortunately, solely by the national law of the person whose
they were not blessed with children. In the US, they succession is under consideration, whatever
executed a joint will instituting as their common may be the nature of the property and regardless
heirs to divide their combined estate in equal of the country where said property may be
shares, the five siblings of Alden and the seven found. Plainly, only the law of one state applies,
siblings of Stela. Alden passed away in 2013 and a hence it cannot be said that the same is an
year later, Stela also died. The siblings of Alden who example of dépeçage.
were all citizens of the US instituted probate
proceedings in a US court impleading the siblings of Dr. ALX is a scientist honored for work related to the
Stela who were all in the Philippines. human genome project. Among his pioneering
efforts concern stem cell research for the cure of
a) Was the joint will executed by Alden and Stela Alzheimer’s disease. Under corporate sponsorship,
who were both former Filipinos valid? Explain with he helped develop a microbe that ate and digested
legal basis. oil spills in the sea.
b) Can the joint will produce legal effect in the Now he leads a college team for cancer research in
Philippines with respect to the properties of Alden MSS State. The team has experimented on a mouse
and Stela found here? If so, how? whose body cells replicate and bear cancerous
c) Is the situation presented in the [problem] an tumor. Called “oncomouse”, it is a life-form useful for
example of dépeçage? (2015 Bar) medical research and it is a novel creation. Its body
cells do not naturally occur in nature but are the
SUGGESTED ANSWER: product of man’s intellect, industry and ingenuity.
a) The validity of the joint will depends on the However, there is a doubt whether local property
law of the US state where Alden and Stela laws and ethics would allow rights of exclusive
resides. Article 16 of the Civil Code provides ownership on any life-form. Dr. ALX needs your
that the intrinsic validity of testamentary advice: (1) whether the reciprocity principle in
provisions shall be regulated by the national law private international law could be applied in our
of the person whose succession is under jurisdiction; and (2) whether there are legal and
consideration, whatever may be the nature of ethical reasons that could frustrate his claim of
the property and regardless of the country exclusive ownership over the life-form called
where said property may be found. Since Alden “oncomouse” in Manila? What will be your advice to
and Stela had become naturalized American him? (2004 Bar)
citizens, the intrinsic validity of their joint will
would be governed by their national law — SUGGESTED ANSWER:
American law. As each American state has its (1) The reciprocity principle in private
own law, the American law applicable would be international law may be applied in our
the law of the US state where Alden and Stela jurisdiction. Sectiop 3 of R.A. 8293, the
were residing. Accordingly, if the law of the said Intellectual Property Code, provides for
American state considers a joint will as valid, reciprocity, as follows: “Any person who is a
then the same would be valid. However, if the national, or who is domiciled, or has a real and
applicable state law prohibits joint wills, then effective industrial establishment in a country
the same would be invalid. Philippine law, which which is a party to any convention,- treaty or
prohibits joint wills, would be inapplicable, as agreement relating to intellectual property rights
Alden and Stela are no longer Filipinos. or the repression of unfair competition, to which
the Philippines is also a party, or extends
b) As stated earlier, if the joint will is allowed by reciprocal rights to nationals of the Philippines
the US state where Alden and Stela were by law, shall be entitled to benefits to the extent
residing, the same would be valid. necessary to give effect to any provision of such
Consequently, the same would produce legal convention, treaty or reciprocal law, in addition
effect in the Philippines in the sense that the to the rights to which any owner of an
properties of Alden and Stela found in the intellectual property right is otherwise entitled
Philippines would have to be distributed in by this Act. (n)” To illustrate: the Philippines may
accordance with its terms. In sum, the property refrain from imposing a requirement of local
of Alden and Stela in the Philippines would be incorporation or establishment of a local
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domicile for the protection of industrial property The “oncomouse” is a non-patentable invention.
rights of foreign nationals (citizens of Canada, Hence, cannot be owned exclusively by its
Switzerland, U.S.) if the countries of said foreign inventor. It is a method for the treatment of the
nationals refrain from imposing said human or animal body by surgery or therapy and
requirement on Filipino citizens. diagnostic methods practiced on said bodies are
not patentable under Sec. 22 of the IPC.
ALTERNATIVE ANSWER:
Reciprocity principle cannot be applied in our
jurisdiction because the Philippines is a party to
the TRIPS agreement and the WTO. The principle
involved is the most-favored nation clause
which is the principle of non-discrimination. The
protection afforded to intellectual property
protection in the Philippines also applies to
other members of the WTO. Thus, it is not really
reciprocity principle in private international law
that applies, but the most favored nation clause
under public international law.

(2) There is no legal reason why “oncomouse”

cannot be protected under the law. Among those
excluded from patent protection are “plant
varieties or animal breeds, or essentially
biological process for the production of plants
and animals” (Section 22.4 Intellectual Property
Code, R.A. No. 8293). The “oncomouse” in the
problem is not an essentially biological process
for the production of animals. It is a real
invention because its body cells do not naturally
occur in nature but are the product of man’s
ingenuity, intellect and industry.
The breeding of oncomouse has novelty,
inventive step and industrial application. These
are the three requisites of patentability. (Sec. 29,
IPC)
There are no ethical reasons why Dr. ADX and
his college team cannot be given exclusive
ownership over their invention. The use of such
genetically modified mouse, useful for cancer
research, outweighs considerations for animal
rights.
There are no legal and ethical reasons that
would frustrate Dr. ALX’s claim of exclusive
ownership over “oncomouse”. Animals are
property capable of being appropriated and
owned. In fact, one can own pet dogs or cats, or
any other animal. If wild animals are capable of
being owned, with more reason animals
technologically enhanced or corrupted by man’s
invention or industry are susceptible to
exclusive ownership by the inventor.

ALTERNATIVE ANSWER:
The oncomouse is a higher life form which does
not fall within the definition of the term
“invention”. Neither may it fall within the ambit
of the term “manufacture” which usually implies
a non-living mechanistic product.
The oncomouse is better regarded as a
“discovery” which is the common patrimony of
man.

ALTERNATIVE ANSWER:
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MULTIPLE CHOICE QUESTIONS between them, no quasi-delict could arise. Is the

airline correct?
2011 Bar Examination a) No, the breach of contract may in fact be
tortious as when it is tainted as in this case
(1)When does a declaration of absence of a missing with arbitrariness, gross bad faith, and
person take effect? malice.
a) Immediately from the issuance of the declaration b) No, denying Lennie the comfort and amenities of
of absence. the business class as provided in the ticket is a
b) 3 months after the publication of the declaration tortious act.
of absence. c) Yes, since the facts show a breach of contract,
c) 6 months after the publication of the not a quasi-delict.
declaration of absence. d) Yes, since quasi-delict presupposes the absence
d) 15 days from the issuance of the declaration of of a pre-existing contractual relation between
absence. the parties.

(2) The authority that school administrators exercise (6) Which of the following is an indispensable
over school children under their supervision, requirement in an action for “quieting of title”
instruction, or custody is called involving real property? The plaintiff must
a) legal parental authority. a) be in actual possession of the property.
b) substitute parental authority. b) be the registered owner of the property.
c) ordinary parental authority. c) have legal or equitable title to the property.
d) special parental authority. d) be the beneficial owner of the property.

(3) Can future inheritance be the subject of a (7) X and Y were to marry in 3 months. Meantime, to
contract of sale? express his affection, X donated a house and lot to
a) No, since it will put the predecessor at the risk of Y, which donation X wrote in a letter to Y. Y wrote
harm from a tempted buyer, contrary to public back, accepting the donation and took possession of
policy. the property. Before the wedding, however, Y
b) Yes, since the death of the decedent is certain to suddenly died of heart attack. Can Y’s heirs get the
occur. property?
c) No, since the seller owns no inheritance while a) No, since the marriage did not take place.
his predecessor lives. b) Yes, since all the requisites of a donation of an
d) Yes, but on the condition that the amount of the immovable are present.
inheritance can only be ascertained after the c) No, since the donation and its acceptance are
obligations of the estate have been paid. not in a public instrument.
d) Yes, since X freely donated the property to Y who
(4) Upon the proposal of a third person, a new became its owner.
debtor substituted the original debtor without the
latter’s consent. The creditor accepted the (8) Rene and Lily got married after a brief courtship.
substitution. Later, however, the new debtor became After one month, Lily discovered that while Rene
insolvent and defaulted in his obligation. What is the presented himself as a macho man he was actually
effect of the new debtor’s default upon the original gay. He would not go to bed with her. He kept
debtor? obscene magazines of nude men and always sought
a) The original debtor is freed of liability since the company of handsome boys. What legal remedy
novation took place and this relieved him of does Lily have?
his obligation. a) She can file an action for annulment of
b) The original debtor shall pay or perform the marriage on ground of fraud.
obligation with recourse to the new debtor. b) She can seek a declaration of nullity of the
c) The original debtor remains liable since he gave marriage based on Rene’s psychological
no consent to the substitution. incapacity.
d) The original debtor shall pay or perform 50% of c) She can go abroad and file for divorce in a
the obligation to avoid unjust enrichment on his country that can grant it.
part. d) She has none since she had the opportunity to
examine the goods and freely entered into the
(5) Lennie bought a business class ticket from Alta marriage.
Airlines. As she checked in, the manager
downgraded her to economy on the ground that a (9) Lucio executed a simple deed of donation of P50
Congressman had to be accommodated in the million on time deposit with a bank in favor of A, B,
business class. Lennie suffered the discomfort and C, D, and E, without indicating the share of each
embarrassment of the downgrade. She sued the donee. All the donees accepted the donation in
airlines for quasi-delict but Alta Airlines countered writing. A, one of the donees, died. Will B, C, D, and
that, since her travel was governed by a contract E get A’s share in the money?

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a) Yes, accretion will automatically apply to the joint- d) No, since Manuel already served the penalty for
donees in equal shares. his crime.
b) Yes, since the donor’s intention is to give the
whole of P50 million to the joint donees in equal (14) Arthur and Helen, both Filipinos, got married
shares. and had 2 children. Arthur later worked in Rome
c) No, A’s share will revert to the donor because where he acquired Italian citizenship. He got a
accretion applies only if the joint-donees are divorce from Helen in Rome but, on returning to the
spouses. Philippines, he realized his mistake, asked
d) No, A’s share goes to his heirs since the forgiveness of his wife, and resumed living with her.
donation did not provide for reversion to They had 2 more children. What is the status of their
donor. 4 children?
a) The children born before the divorce are
(10) Raul, Ester, and Rufus inherited a 10-hectare legitimate but those born after it are not
land from their father. Before the land could be since Arthur got the divorce when he had
partitioned, however, Raul sold his hereditary right to ceased to be a Filipino.
Raffy, a stranger to the family, for P5 million. Do b) The divorce rendered illegitimate the children
Ester and Rufus have a remedy for keeping the land born before it since the marriage that begot
within their family? them had been nullified.
a) Yes, they may be subrogated to Raffy’s right c) The children born before and after the divorce are
by reimbursing him within the required time all legitimate since Philippine law does not
what he paid Raul. recognize divorce.
b) Yes, they may be subrogated to Raffy’s right d) All the children are legitimate since they were
provided they buy him out before he registers born of the same father and mother.
the sale.
c) No, they can be subrogated to Raffy’s right only (15) Who can make a donation?
with his conformity. a) All persons who can enter into contracts and
d) No, since there was no impediment to Raul dispose of their property.
selling his inheritance to a stranger. b) All persons who are of legal age and suffer from
no civil interdiction.
(11) When one exercises a right recognized by law, c) All persons who can make a last will and
knowing that he thereby causes an injustice to testament.
another, the latter is entitled to recover damages. d) All persons, whether natural or artificial, who own
This is known as the principle of property.
a) res ipsa loquitur.
b) damnum absque injuria. (16) The liability of the partners, including industrial
c) vicarious liability. partners for partnership contracts entered into in its
d) abuse of rights. name and for its account, when all partnership
assets have been exhausted is
(12) Which of the following is NOT a basis for a) Pro-rata.
rendering a disinheritance defective or imperfect? b) Joint.
a) Its cause comes from the guilt of a spouse in c) Solidary.
a legal separation case, the innocent-spouse d) Voluntary.
having died.
b) The truth of its cause is denied and not (17) When can a missing person who left someone
sufficiently proved by evidence. to administer his property be declared an absentee
c) Its cause is not authorized by the law. by the court? When he has been missing for
d) Its cause is not specified. a) 2 years from the receipt of the last news about
him.
(13) Manuel came to Manila and married Marianne. b) 7 years from the receipt of the last news about
Unknown to Marianne, Manuel had been previously him.
convicted in Palawan of theft and served time for it. c) 10 years from the receipt of the last news about
After Marianne learned of his previous conviction, him.
she stopped living with him. Can Marianne seek the d) 5 years from the receipt of the last news about
annulment of the marriage based on Manuel’s him.
nondisclosure of his previous crime?
a) No, since the assumption is that marriage (18) Which of the following claims against the debtor
forgives all past wrongs. enjoys preference over the others with respect to his
b) Yes, since the non-disclosure of that crime is specific immovable property and real rights?
the equivalent of fraud, which is a ground a) Unpaid price of real property sold, upon the
for annulment. immovable property.
c) No, in case of doubt, the law must be construed b) Mortgage credits recorded in the registry of
to preserve the institution of marriage. property, upon the mortgaged real estate.
c) Taxes due, upon the land or building.
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d) Expenses for the preservation and improvement (23) X and Y, although not suffering from any
of property, when the law authorizes reimbursement, impediment, cohabited as husband and wife without
upon the preserved or improved immovable. the benefit of marriage. Following the birth of their
child, the couple got married. A year after, however,
(19) When bilateral contracts are vitiated with vices the court annulled the marriage and issued a decree
of consent, they are rendered of annulment. What is the present status of the
a) rescissible. child?
b) void. a) Legitimated.
c) unenforceable. b) Illegitimate.
d) voidable. c) Natural child.
d) Legitimate.
(20) An agent, authorized by a special power of
attorney to sell a land belonging to the principal (24) When A and B married, they chose conjugal
succeeded in selling the same to a buyer according partnership of gains to govern their property
to the instructions given the agent. The agent relations. After 3 years, B succeeded in getting her
executed the deed of absolute sale on behalf of his marriage to A annulled on ground of the latter’s
principal two days after the principal died, an event psychological incapacity. What liquidation procedure
that neither the agent nor the buyer knew at the time will they follow in disposing of their assets?
of the sale. What is the standing of the sale? a) They will follow the rule governing the liquidation
a) Voidable. of a conjugal partnership of gains where the party
b) Valid. who acted in bad faith forfeits his share in the net
c) Void. profits.
d) Unenforceable. b) Since the marriage has been declared void, the
rule for liquidation of absolute community of property
(21) Spouses A and B leased a piece of land shall be followed.
belonging to B’s parents for 25 years. The spouses c) The liquidation of a co-ownership applies
built their house on it worth P300,000.00. since the annulment brought their property
Subsequently, in a case that C filed against A and B, relation under the chapter on property regimes
the court found the latter liable to C for P200,000.00. without marriage.
When the sheriff was attaching their house for the d) The law on liquidation of partnerships applies.
satisfaction of the judgment, A and B claimed that it
was exempt from execution, being a family home. Is (25) X and Y agreed verbally before their marriage
this claim correct? (a) on the paternity of the illegitimate child of Y and
a) Yes, because while B’s parents own the land, (b) on the economic regime that will govern X and
they agreed to have their daughter build her family Y’s property relations. Is the verbal agreement
home on it. valid?
b) No, because there is no judicial declaration that it a) No, because a marriage settlement to be valid
is a family home. should be in writing.
c) No, since the land does not belong to A and B, b) Yes, since ante-nuptial agreements need not be
it cannot qualify as a family home. in writing.
d) Yes, because the A and B’s family actually lives in c) No, because a marriage settlement cannot
that house. include an agreement on the paternity of an
illegitimate child.
(22) Solomon sold his coconut plantation to Aragon, d) Yes, since even if it is not a valid marriage
Inc. for P100 million, payable in installments of P10 settlement, it is a valid verbal contract.
million per month with 6% interest per annum.
Solomon married Lorna after 5 months and they (26) Spouses X and Y have a minor daughter, Z,
chose conjugal partnership of gains to govern their who needs support for her education. Both X and Y,
property relations. When they married, Aragon had who are financially distressed, could not give the
an unpaid balance of P50 million plus interest in needed support to Z. As it happens, Z’s
Solomon’s favor. To whom will Aragon’s monthly other relatives are financially capable of giving that
payments go after the marriage? support. From whom may Z first rightfully demand
a) The principal shall go to the conjugal partnership support? From her
but the interests to Solomon. a) grandfather.
b) Both principal and interests shall go to Solomon b) brother.
since they are his exclusive properties. c) uncle.
c) Both principal and interests shall go to the d) first cousin.
conjugal partnership since these become due after
the marriage. (27) Fidel, a Filipino with fair complexion, married
d) The principal shall go to Solomon but the Gloria. Before the marriage, Gloria confessed to
interests to the conjugal partnership. Fidel that she was two-month pregnant with the child
of a black African who had left the country for good.
When the child was born, Fidel could not accept it
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being too black in complexion. What is the status of d) Marlon gets 3/4 and Cecilia 1/4.
the child?
a) Illegitimate, because Gloria confessed that the (33) Contracts take effect only between the parties
child is not Fidel’s. or their assigns and heirs, except where the rights
b) Illegitimate, because by the color of its skin, the and obligations arising from the contract are not
child could not possibly be that of Fidel. transmissible by their nature, by stipulation, or by
c) Legitimate, because the child was born within provision of law. In the latter case, the assigns or the
a valid marriage. heirs are not bound by the contracts. This is known
d) Legitimate, because Fidel agreed to treat the as the principle of
child as his own after Gloria told him who the father a) Relativity of contracts.
was. b) Freedom to stipulate.
c) Mutuality of contracts.
(28) The husband’s acts of forcibly ejecting his wife d) Obligatory force of contracts.
without just cause from the conjugal dwelling and
refusing to take her back constitutes (34) A buyer ordered 5,000 apples from the seller at
a) desertion. P20 per apple. The seller delivered 6,000 apples.
b) recrimination. What are the rights and obligations of the buyer?
c) constructive abandonment. a) He can accept all 6,000 apples and pay the
d) de facto separation. seller at P20 per apple.
b) He can accept all 6,000 apples and pay a lesser
(29) In his will, the testator designated X as a price for the 1,000 excess apples.
legatee to receive P2 million for the purpose of c) He can keep the 6,000 apples without paying for
buying an ambulance that the residents of his the 1,000 excess since the seller delivered them
Barangay can use. What kind of institution is this? a) anyway.
a fideicomissary institution. d) He can cancel the whole transaction since the
b) a modal institution. seller violated the terms of their agreement.
c) a conditional institution.
d) a collective institution. (35) Lino entered into a contract to sell with Ramon,
undertaking to convey to the latter one of the five
(30) X insured himself for P5 million, designating Y, lots he owns, without specifying which lot it was, for
his wife, as his sole beneficiary. The designation the price of P1 million. Later, the parties could not
was irrevocable. A few years later, X had their agree which of five lots he owned Lino undertook to
marriage annulled in court on the ground that Y had sell to Ramon. What is the standing of the contract?
an existing prior marriage. X subsequently died, Is Y a) Unenforceable.
entitled to the insurance benefits? b) Voidable.
a) Yes, since the insurance was not dependent on c) Rescissible.
the marriage. d) Void.
b) Yes, since her designation as beneficiary was
irrevocable. (36) Knowing that the car had a hidden crack in the
c) No, X’s designation of Y is revoked by operation engine, X sold it to Y without informing the latter
of law upon the annulment of their marriage based about it. In any event, the deed of sale expressly
on Y’s fault. stipulated that X was not liable for hidden defects.
d) Yes, since without judicial revocation, X’s Does Y have the right to demand from X a
designation of Y remains valid and binding. reimbursement of what he spent to repair the engine
plus damages?
(31) May a spouse freely donate communal or a) Yes. X is liable whether or not he was aware of
conjugal property without the consent of the other? the hidden defect.
a) Absolutely not, since the spouses co-own such b) Yes, since the defect was not hidden; X knew
property. of it but he acted in bad faith in not disclosing
b) Yes, for properties that the family may spare, the fact to Y.
regardless of value. c) No, because Y is in estoppel, having changed
c) Yes, provided the donation is moderate and engine without prior demand.
intended for charity or family rejoicing. d) No, because Y waived the warranty against
d) Yes, in a donation mortis causa that the donor hidden defects.
may still revoke in his lifetime.
(37) Acme Cannery produced sardines in cans
(32) The decedent died intestate leaving an estate known as “Sards.” Mylene bought a can of Sards
of P10 million. He left the following heirs: a) Marlon, from a store, ate it, and suffered from poisoning
a legitimate child and b) Cecilia, the legal spouse. caused by a noxious substance found in the
Divide the estate. sardines. Mylene filed a case for damages against
a) Marlon gets 1/4 and Cecilia gets 3/4. Acme. Which of the following defenses will hold?
b) Marlon gets 2/3 and Cecilia 1/3.
c) Marlon gets 1/2 and Cecilia gets 1/2.
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a) The expiry date of the “Sards” was clearly executed any marriage settlements. What law
printed on its can, still the store sold and Mylene governs their property relations?
bought it. a) They may choose between Spanish law and
b) Mylene must have detected the noxious Philippine law.
substance in the sardines by smell, yet she still ate b) Philippine law since they are both Filipinos.
it. c) Acme had no transaction with Mylene; she c) No regime of property relations will apply to them.
bought the “Sards” from a store, not directly from d) Spanish law since they live in Spain.
Acme.
d) Acme enjoys the presumption of safeness of its (42) Birth determines personality. Death
canning procedure and Mylene has not overcome extinguishes it. Under what circumstances may the
such presumption. personality of a deceased person continue to exist?
a) In case of re-appearance of a missing person
(38) Fernando executed a will, prohibiting his wife presumed dead.
Marina from remarrying after his death, at the pain b) In protecting the works of a deceased under
of the legacy of P100 Million in her favor becoming a intellectual property laws.
nullity. But a year after Fernando’s death, Marina c) In case of declaration of presumptive death of a
was so overwhelmed with love that she married missing spouse.
another man. Is she entitled to the legacy, the d) In the settlement of the estate of a deceased
amount of which is well within the capacity of the person.
disposable free portion of Fernando’s estate?
a) Yes, since the prohibition against remarrying is (43) Six tenants sued X, the landowner, for willfully
absolute, it is deemed not written. denying them water for their farms, which water
b) Yes, because the prohibition is inhuman and happened to flow from land under X’s control, his
oppressive and violates Marina’s rights as a free intention being to force them to leave his properties.
woman. Is X liable for his act and why?
c) No, because the nullity of the prohibition also a) No, because the tenants must be content with
nullifies the legacy. waiting for rainfall for their farms.
d) No, since such prohibition is authorized by b) No, since X owns both the land and the water.
law and is not repressive; she could remarry but c) Yes, because the tenants’ farms have the natural
must give up the money. right of access to water wherever it is located.
d) Yes, since X willfully caused injury to his
(39) X, the owner, constituted a 10-year usufruct on tenants contrary to morals, good customs or
his land as well as on the building standing on it in public policy.
Y’s favor. After flood totally destroyed the building 5
years later, X told Y that an act of God terminated (44) Illegitimate brothers and sisters, whether of full
the usufruct and that he should vacate the land. Is or half-blood, are bound to support each other,
X, the owner of the land, correct? EXCEPT when
a) No, since the building was destroyed through no a) the brother or sister who needs support lives in
fault of Y. another place.
b) No, since Y still has the right to use the land b) such brothers and sisters are not recognized by
and the materials left on it. their father.
c) Yes, since Y cannot use the land without the c) the brother or sister in need stops schooling
building. without valid reason.
d) Yes, since the destruction of the building without d) the need for support of a brother or sister,
the X’s fault terminated the usufruct. already of age, is due to the latter’s fault.

(40) In gratitude, the groom’s parents made a (45) Virgilio owned a bare and simple swimming
donation of a property in writing to the pool in his garden. MB, a 7-year old child,
bride’s parents shortly before their children’s surreptitiously entered the garden and merrily
wedding. The donation was accepted. What is the romped around the ledges of the pool. He
nature of the donation? accidentally tripped, fell into the pool, and drowned.
a) It is an ordinary donation since it was not MB’s parents sued Virgilio for damages arising from
given to the bride or groom. their child’s death, premised on the principle of
b) It is donation propter nuptias since it was given “attractive nuisance”. Is Virgilio liable for the death of
with the marriage in mind. MB?
c) It is an indirect donation propter nuptias since the a) No, the child was 7 years old and knew the
bride would eventually inherit the property from her dangers that the pool offered.
parents. b) Yes, being an attractive nuisance, Virgilio had the
d) It is a remunatory donation. duty to prevent children from coming near it.
c) No, since the pool was bare and had no
(41) X and Y, both Filipinos, were married and enticing or alluring gadgets, floats, or devices in
resided in Spain although they intend to return to the it that would attract a 7-year old child.
Philippines at some future time. They have not
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d) Yes, since Virgilio did not cover the swimming incomes already earned within the fiscal year when
pool while not in use to prevent children from falling the law took effect. Is the law valid?
into it. a) No, because laws are intended to be
prospective, not retroactive.
(46) The term of a 5-year lease contract between X b) No, the law is arbitrary in that it taxes income that
the lessor and Y the lessee, where rents were paid has already been spent.
from month to month, came to an end. Still, Y c) Yes, since tax laws are the lifeblood of the nation.
continued using the property with X’s consent. In d) Yes, tax laws are an exception; they can be given
such a case, it is understood that they impliedly retroactive effect.
renewed the lease
a) from month to month under the same (51) Rudolf borrowed P1 million from Rodrigo and
conditions as to the rest. Fernando who acted as solidary creditors. When the
b) under the same terms and conditions as before. loan matured, Rodrigo wrote a letter to Rudolf,
c) under the same terms except the rent which they demanding payment of the loan directly to him.
or the court must fix. Before Rudolf could comply, Fernando went to see
d) for only a year, with the rent raised by 10% him personally to collect and he paid him. Did Rudolf
pursuant to the rental control law. make a valid payment?
a) No, since Rudolf should have split the payment
(47) Rex, a philanthropist, donated a valuable lot to between Rodrigo and Fernando.
the municipality on the condition that it will build a b) No, since Rodrigo, the other solidary creditor,
public school on such lot within 2 years from its already made a prior demand for payment from
acceptance of the donation. The municipality Rudolf.
properly accepted the donation but did not yet build c) Yes, since the payment covers the whole
the public school after 2 years. Can Rex revoke the obligation.
donation? d) Yes, since Fernando was a solidary creditor,
a) Yes, since the donation is subject to a payment to him extinguished the obligation.
resolutory condition which was not fulfilled.
b) No, but Rex is entitled to recover the value of the (52) What happens to the property regimes that
land from the municipality. were subsisting under the Civil Code when the
c) No, the transfer of ownership has been Family Code took effect?
completed. a) The original property regimes are immutable
d) Yes, the donation is not deemed made until the and remain effective.
suspensive condition has been fulfilled. b) Those enjoying specific regimes under the Civil
Code may adopt the regime of absolute community
(48) Illegitimate children, those not recognized by of property under the Family Code.
their biological fathers, shall use the surname of c) Those that married under the Civil Code but did
their not choose any of its regimes shall now be governed
a) biological father subject to no condition. by the regime of absolute community of property.
b) mother or biological father, at the mother’s d) They are superseded by the Family Code which
discretion. has retroactive effect.
c) mother.
d) biological father unless he judicially opposes it. (53) The testator executed a will following the
formalities required by the law on succession
(49) Asiong borrowed P1 million from a bank, without designating any heir. The only testamentary
secured by a mortgage on his land. Without his disposition in the will is the recognition of the
consent, his friend Boyong paid the whole loan. testator’s illegitimate child with a popular actress. Is
Since Asiong benefited from the payment, can the will valid?
Boyong compel the bank to subrogate him in its right a) Yes, since in recognizing his illegitimate child, the
as mortgagee of Asiong’s land? testator has made him his heir.
a) No, but the bank can foreclose and pay Boyong b) No, because the non-designation of heirs defeats
back. the purpose of a will.
b) No, since Boyong paid for Asiong’s loan c) No, the will comes to life only when the proper
without his approval. heirs are instituted.
c) Yes, since a change of creditor took place by d) Yes, the recognition of an illegitimate heir is
novation with the bank’s consent. an ample reason for a will.
d) Yes, since it is but right that Boyong be able to
get back his money and, if not, to foreclose the (54) A left B, his wife, in the Philippines to work in
mortgage in the manner of the bank. Egypt but died in that country after a year’s
continuous stay. Two months after A’s death, B gave
(50) Congress passed a law imposing taxes on birth to a child, claiming it is A’s child. Who can
income earned out of a particular activity that was assail the legitimacy of the child?
not previously taxed. The law, however, taxed a) A’s other heirs apart from B.

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b) The State which has interest in the welfare of (58) X sold Y 100 sacks of rice that Y was to pick up
overseas contract workers. from X’s rice mill on a particular date. Y did not,
c) Any one who is outraged by B’s claim. however, appear on the agreed date to take delivery
d) No one since A died. of the rice. After one week, X automatically
rescinded the sale without notarial notice to Y. Is the
(55) QR and TS who had a marriage license rescission valid?
requested a newly appointed Judge in Manila to a) Yes, automatic rescission is allowed since,
marry them on the beach of Boracay. Since the having the character of movables and
Judge maintained Boracay as his residence, he consumables, rice can easily deteriorate.
agreed. The sponsors were all public officials. What b) No, the buyer is entitled to a customary 30-day
is the status of the marriage. extension of his obligation to take delivery of the
a) Valid, since the improper venue is merely an goods.
irregularity; all the elements of a valid marriage c) No, since there was no express agreement
are present. regarding automatic rescission.
b) Void, because the couple did not get local permit d) No, the seller should first determine that Y was
for a beach wedding. not justified in failing to appear.
c) Voidable, because the Judge acted beyond his
territorial jurisdiction and is administratively liable (59) The wife filed a case of legal separation against
for the same. her husband on the ground of sexual infidelity
d) Void, because the Judge did not solemnize the without previously exerting earnest efforts to come
marriage within the premises of his court. to a compromise with him. The judge dismissed the
case for having been filed without complying with a
(56) X and Y, Filipinos, got married in Los Angeles, condition precedent. Is the dismissal proper?
USA, using a marriage license issued by the a) No, efforts at a compromise will only deepen the
Philippine consul in Los Angeles, acting as Civil wife’s anguish.
Registrar. X and Y did not know that they were first b) No, since legal separation like validity of
cousins because their mothers, who were sisters, marriage is not subject to compromise
were separated when they were quite young. Since agreement for purposes of filing.
X did not want to continue with the relation when he c) Yes, to avoid a family feud that is hurtful to
heard of it, he left Y, came to the Philippines and everyone.
married Z. Can X be held liable for bigamy? d) Yes, since the dispute could have been settled
a) No since X’s marriage to Y is void ab initio or did with the parties agreeing to legal separation.
not exist.
b) No since X acted in good faith, conscious that (60) An Australian living in the Philippines acquired
public policy did not approve of marriage between shares of stock worth P10 million in food
first cousins. manufacturing companies. He died in Manila,
c) Yes since he married Z without first securing a leaving a legal wife and a child in Australia and a
judicial declaration of nullity of his marriage to Y. live-in partner with whom he had two children in
d) Yes since his first marriage to Y in Los Angeles is Manila. He also left a will, done according to
valid. Philippine laws, leaving all his properties to his live-
in partner and their children. What law will govern
(57) Allan bought Billy’s property through Carlos, an the validity of the disposition in the will?
agent empowered with a special power of attorney a) Australia law since his legal wife and legitimate
(SPA) to sell the same. When Allan was ready to child are Australians and domiciled in Australia.
pay as scheduled, Billy called, directing Allan to pay b) Australian law since the intrinsic validity of
directly to him. On learning of this, Carlos, Billy’s the provisions of a will is governed by the
agent, told Allan to pay through him as his SPA decedent’s national law.
provided and to protect his commission. Faced with c) Philippine law since the decedent died in Manila
two claimants, Allan consigned the payment in court. and he executed his will according to such law.
Billy protested, contending that the consignation is d) Philippine law since the decedent’s properties are
ineffective since no tender of payment was made to in the Philippines.
him. Is he correct?
a) No, since consignation without tender of (61) X bought a land from Y, paying him cash. Since
payment is allowed in the face of the conflicting they were friends, they did not execute any
claims on the plaintiff. document of sale. After 7 years, the heirs of X asked
b) Yes, as owner of the property sold, Billy can Y to execute a deed of absolute sale to formalize the
demand payment directly to himself. verbal sale to their father. Unwilling to do so, X’s
c) Yes, since Allan made no announcement of the heirs filed an action for specific performance against
tender. Y. Will their action prosper?
d) Yes, a tender of payment is required for a valid a) No, after more than 6 years, the action to
consignation. enforce the verbal agreement has already
elapsed.

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b) No, since the sale cannot under the Statute of

Frauds be enforced. (66) Roy and Carlos both undertook a contract to
c) Yes, since X bought the land and paid Y for it. deliver to Sam in Manila a boat docked in Subic.
d) Yes, after full payment, the action became Before they could deliver it, however, the boat sank
imprescriptible. in a storm. The contract provides that fortuitous
event shall not exempt Roy and Carlos from their
(62) A court declared Ricardo, an old bachelor, an obligation. Owing to the loss of the motor boat, such
absentee and appointed Cicero administrator of his obligation is deemed converted into one of
property. After a year, it was discovered that Ricardo indemnity for damages. Is the liability of Roy and
had died abroad. What is the effect of the fact of his Carlos joint or solidary?
death on the administration of his property? a) Neither solidary nor joint since they cannot waive
a) With Ricardo no longer an absentee but a the defense of fortuitous event to which they are
deceased person, Cicero will cease to be entitled.
administrator of his properties. b) Solidary or joint upon the discretion of Sam.
b) The administration shall be given by the court c) Solidary since Roy and Carlos failed to perform
having jurisdiction over the intestate their obligation to deliver the motor boat.
proceedings to a new administrator whom it will d) Joint since the conversion of their liability to
appoint. one of indemnity for damages made it joint.
c) Cicero automatically becomes administrator of
Ricardo’s estate until judicially relieved. (67) Joanne married James, a person with no known
d) Cicero’s alienations of Ricardo’s property will be relatives. Through James’ hard work, he and his wife
set aside. Joane prospered. When James died, his estate
alone amounted to P100 million. If, in his will, James
(63) Baldo, a rejected suitor, intimidated Judy into designates Joanne as his only heir, what will be the
marrying him. While she wanted to question the free portion of his estate.
validity of their marriage two years after the a) Joanne gets all; estate has no free portion left.
intimidation ceased, Judy decided in the meantime b) Joanne gets 1/2; the other half is free portion.
to freely cohabit with Baldo. After more than 5 years c) Joanne gets 1/3; the remaining 2/3 is free portion.
following their wedding, Judy wants to file a case for d) Joanne gets 1/4; the remaining 3/4 is free portion.
annulment of marriage against Baldo on ground of
lack of consent. Will her action prosper? (68) A warranty inherent in a contract of sale,
a) Yes, the action for annulment is imprescriptible. whether or not mentioned in it, is known as the a)
b) No, since the marriage was merely voidable warranty on quality.
and Judy ratified it by freely cohabiting with b) warranty against hidden defects.
Baldo after the force and intimidation had c) warranty against eviction.
ceased. d) warranty in merchantability.
c) No, since the action prescribed 5 years from the
date of the celebration of the marriage. (69) The doctrine of stare decisis prescribes
d) Yes, because the marriage was celebrated adherence to precedents in order to promote the
without Judy’s consent freely given. stability of the law. But the doctrine can be
abandoned
(64) Is the wife who leaves her husband without just a) When adherence to it would result in the
cause entitled to support? Government’s loss of its case.
a) No, because the wife must always be submissive b) When the application of the doctrine would cause
and respectful to the husband. great prejudice to a foreign national.
b) Yes. The marriage not having been dissolved, the c) When necessary to promote the passage of a
husband continues to have an obligation to support new law.
his wife. d) When the precedent has ceased to be
c) No, because in leaving the conjugal home beneficial and useful.
without just cause, she forfeits her right to
support. (70) Ric and Josie, Filipinos, have been sweethearts
d) Yes, since the right to receive support is not for 5 years. While working in a European country
subject to any condition. where the execution of joint wills are allowed, the
two of them executed a joint holographic will where
(65) In the order of intestate succession where the they named each other as sole heir of the other in
decedent is legitimate, who is the last intestate heirs case either of them dies. Unfortunately, Ric died a
or heir who will inherit if all heirs in the higher level year later. Can Josie have the joint will successfully
are disqualified or unable to inherit? a) Nephews probated in the Philippines?
and nieces. a) Yes, in the highest interest of comity of nations
b) Brothers and sisters. and to honor the wishes of the deceased.
c) State. b) No, since Philippine law prohibits the
d) Other collateral relatives up to the 5th degree of execution of joint wills and such law is binding
consanguinity. on
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Ric and Josie even abroad. d) Void, because Joseph is still considered married
c) Yes, since they executed their joint will out of to Jenny since the Philippines does not recognize
mutual love and care, values that the generally divorce.
accepted principles of international law accepts.
d) Yes, since it is valid in the country where it was (74) T died intestate, leaving an estate of
executed, applying the principle of “lex loci P9,000,000. He left as heirs three legitimate
celebrationis.” children, namely, A, B, and C. A has two children, D
and E. Before he died, A irrevocably repudiated his
(71) ML inherited from his father P5 million in inheritance from T in a public instrument filed with
legitime but he waived it in a public instrument in the court. How much, if any, will D and E, as A’s
favor of his sister QY who accepted the waiver in children, get from T’s estate?
writing. But as it happened, ML borrowed P6 million a) Each of D and E will get P1,500,000 by right of
from PF before the waiver. PF objected to the waiver representation since their father repudiated his
and filed an action for its rescission on the ground inheritance.
that he had the right to ML’s P5 million legitime as b) Each of D and E will get P2,225,000 because
partial settlement of what ML owed him since ML they will inherit from the estate equally with B and C.
has proved to be insolvent. Does PF, as creditor, c) D and E will get none because of the
have the right to rescind the waiver? repudiation; “B” and “C” will get A’s share by
a) No, because the waiver in favor of his sister QY right of accretion.
amounts to a donation and she already accepted it. d) Each of D and E will get P2,000,000 because the
b) Yes, because the waiver is prejudicial to the law gives them some advantage due to the demise
interest of a third person whose interest is of “A”.
recognized by law.
c) No, PF must wait for ML to become solvent and, (75) No decree of legal separation can be issued
thereafter, sue him for the unpaid loan. a) unless the children’s welfare is attended to first.
d) Yes, because a legitime cannot be waived in favor b) without prior efforts at reconciliation shown
of a specific heir; it must be divided among all the to be futile.
other heirs. c) unless the court first directs mediation of the
parties.
(72) While engaged to be married, Arnold and d) without prior investigation conducted by a public
Josephine agreed in a public instrument to adopt out prosecutor.
the economic regime of absolute community of
property. Arnold acknowledged in the same (76) X, who was abroad, phoned his brother, Y,
instrument that Josephine’s daughter Mary, is his authorizing him to sell X’s parcel of land in Pasay. X
illegitimate child. But Josephine died before the sent the title to Y by courier service. Acting for his
marriage could take place. Does the marriage brother, Y executed a notarized deed of absolute
settlement have any significance? sale of the land to Z after receiving payment. What
a) None, since the instrument containing the is the status of the sale?
marriage settlement is essentially void for containing a) Valid, since a notarized deed of absolute sale
an unrelated matter. covered the transaction and full payment was made.
b) Yes, insofar as Arnold acknowledged Mary as b) Void, since X should have authorized agent Y
his illegitimate child. in writing to sell the land.
c) None, since the marriage did not take place. c) Valid, since Y was truly his brother X’s agent and
d) Yes, if they acquired properties while living entrusted with the title needed to effect the sale.
together as husband and wife. d) Valid, since the buyer could file an action to
compel X to execute a deed of sale.
(73) Joseph, a 17-year old Filipino, married Jenny, a
21-year old American in Illinois, USA, where the (77) In a true pacto de retro sale, the title and
marriage was valid. Their parents gave full consent ownership of the property sold are immediately
to the marriage of their children. After three years, vested in the vendee a retro subject only to the
Joseph filed a petition in the USA to promptly resolutory condition of repurchase by the vendor a
divorce Jenny and this was granted. When Joseph retro within the stipulated period. This is known as
turned 25 years, he returned to the Philippines and a) equitable mortgage.
married Leonora. What is the status of this second b) conventional redemption.
marriage? c) legal redemption.
a) Void, because he did not cause the judicial d) equity of redemption.
issuance of declaration of the nullity of his
first marriage to Jenny before marrying Leonora. (78) A natural obligation under the Civil Code of the
b) Valid, because Joseph’s marriage to Jenny is Philippines is one which
void, he being only 17 years of age when he married a) the obligor has a moral obligation to do, otherwise
her. entitling the obligee to damages.
c) Valid, because his marriage to Leonora has all the b) refers to an obligation in writing to do or not to do.
elements of a valid marriage.
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c) the obligee may enforce through the court if continuously for more than 30 years. Is this claim
violated by the obligor. correct?
d) cannot be judicially enforced but authorizes a) No, the residents have not been in continuous
the obligee to retain the obligor’s payment or possession of the land since they merely passed
performance. through it in going to the highway.
b) No, the owner did not abandon his right to the
(79) The husband assumed sole administration of property; he merely tolerated his
the family’s mango plantation since his wife worked neighbors’ use of it for passage.
abroad. Subsequently, without his wife’s knowledge, c) Yes, residents of the subdivision have become
the husband entered into an antichretic transaction owners by acquisitive prescription.
with a company, giving it possession and d) Yes, community ownership by prescription
management of the plantation with power to harvest prevails over private claims.
and sell the fruits and to apply the proceeds to the
payment of a loan he got. What is the standing of (83) The owner of a thing cannot use it in a way that
the contract? will injure the right of a third person. Thus, every
a) It is void in the absence of the wife’s consent. building or land is subject to the easement which
b) It is void absent an authorization from the court. prohibits its proprietor or possessor from committing
c) The transaction is void and can neither be ratified nuisance like noise, jarring, offensive odor, and
by the wife nor authorized by the court. smoke. This principle is known as a) Jus vindicandi.
d) It is considered a continuing offer by the b) Sic utere tuo ut alienum non laedas.
parties, perfected only upon the wife’s c) Jus dispondendi.
acceptance or the court’s authorization. d) Jus abutendi.

(80) When the donor gives donations without (84) Janice and Jennifer are sisters. Janice sued
reserving sufficient funds for his support or for the Jennifer and Laura, Jennifer’s business partner for
support of his dependents, his donations are recovery of property with damages. The complaint
a) Rescissible, since it results in economic lesion of did not allege that Janice exerted earnest efforts to
more than 25% of the value of his properties. come to a compromise with the defendants and that
b) Voidable, since his consent to the donation is such efforts failed. The judge dismissed the
vitiated by mindless kindness. complaint outright for failure to comply with a
c) Void, since it amounts to wanton expenditure condition precedent. Is the dismissal in order?
beyond his means. a) No, since Laura is a stranger to the sisters,
d) Reducible to the extent that the donations Janice has no moral obligation to settle with her.
impaired the support due to himself and his b) Yes, since court should promote amicable
dependents. settlement among relatives.
c) Yes, since members of the same family, as parties
(81) Anne owed Bessy P1 million due on October 1, to the suit, are required to exert earnest efforts to
2011 but failed to pay her on due date. Bessy sent a settle their disputes before coming to court.
demand letter to Anne giving her 5 days from receipt d) No, the family council, which would ordinarily
within which to pay. Two days after receipt of the mediate the dispute, has been eliminated under the
letter, Anne personally offered to pay Bessy in Family Code.
manager’s check but the latter refused to accept the
same. The 5 days lapsed. May Anne’s obligation be (85) X borrowed money from a bank, secured by a
considered extinguished? mortgage on the land of Y, his close friend. When
a) Yes, since Bessy’s refusal of the manager’s the loan matured, Y offered to pay the bank but it
check, which is presumed funded, amounts to a refused since Y was not the borrower. Is the bank’s
satisfaction of the obligation. action correct?
b) No, since tender of payment even in cash, if a) Yes, since X, the true borrower, did not give his
refused, will not discharge the obligation without consent to Y’s offer to pay.
proper consignation in court. b) No, since anybody can discharge X’s obligation to
c) Yes, since Anne tendered payment of the full his benefit.
amount due. c) No, since Y, the owner of the collateral, has an
d) No, since a manager’s check is not considered interest in the payment of the obligation.
legal tender in the Philippines. d) Yes, since it was X who has an obligation to the
bank.
(82) The residents of a subdivision have been using
an open strip of land as passage to the highway for (86) The right of a mortgagor in a judicial foreclosure
over 30 years. The owner of that land decided, to redeem the mortgaged property after his default
however, to close it in preparation for building his in the performance of the conditions of the mortgage
house on it. The residents protested, claiming that but before the sale of the mortgaged property or
they became owners of the land through acquisitive confirmation of the sale by the court, is known as
prescription, having been in possession of the same a) accion publiciana.
in the concept of owners, publicly, peacefully, and b) equity of redemption.
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c) pacto de retro. legacy is to be set off against the P1.5 million X

d) right of redemption. owed Y. After the set off, X still owed Y P500,000.
Can Y still collect this amount?
(87) When does the regime of conjugal partnership a) Yes, because the designation of Y as legatee
of gains begin to exist? created a new and separate juridical relationship
a) At the moment the parties take and declare between them, that of testator-legatee.
each other as husband and wife before b) It depends upon the discretion of the probate
officiating officer. court if a claim is filed in the testate proceedings.
b) At the time the spouses acquire properties c) No, because the intention of the testator in giving
through joint efforts. the legacy is to abrogate his entire obligation to Y.
c) On the date the future spouses executed their d) No, because X had no instruction in his will to
marriage settlements because this is the starting deliver more than the legacy of P1 million to Y.
point of their marital relationship.
d) On the date agreed upon by the future spouses in (93) Josie owned a lot worth P5 million prior to her
their marriage settlements since their agreement is marriage to Rey. Subsequently, their conjugal
the law between them. partnership spent P3 million for the construction of a
house on the lot. The construction resulted in an
(88) Josie, 18, married Dante, 25, without her increase in the value of the house and lot to P9
parents’ knowledge and consent, and lived with him. million. Who owns the house and the lot?
After a year, Josie returned to her parents’ home, a) Josie and the conjugal partnership of gains will
complained of the unbearable battering she was own both on a 50-50 basis.
getting from Dante, and expressed a desire to have b) Josie will own both since the value of the
her marriage with him annulled. Who may bring the house and the increase in the property’s value is
action? less than her lot’s value; but she is to reimburse
a) Dante. conjugal partnership expenses.
b) Her parents. c) Josie still owns the lot, it being her exclusive
c) Josie herself. property, but the house belongs to the conjugal
d) The State. partnership.
d) The house and lot shall both belong to the
(89) X, a married man, cohabited with Y, an conjugal partnership, with Josie entitled to
unmarried woman. Their relation bore them BB, a reimbursement for the value of the lot.
baby boy. Subsequently, after X became a widower,
he married Y. Was BB legitimated by that marriage? (94) An action for reconveyance of a registered
a) Yes, since his parents are now lawfully married. piece of land may be brought against the owner
b) Yes, since he is an innocent party and the appearing on the title based on a claim that the latter
marriage rectified the wrong done him. merely holds such title in trust for the plaintiff. The
c) No, since once illegitimate, a child shall always action prescribes, however, within 10 years from the
remain illegitimate. registration of the deed or the date of the issuance
d) No, since his parents were not qualified to of the certificate of title of the property as long as the
marry each other when he was conceived. trust had not been repudiated. What is the exception
to this 10-year prescriptive period?
(90) The presence of a vice of consent vitiates the a) When the plaintiff had no notice of the deed or the
consent of a party in a contract and this renders the issuance of the certificate of title.
contract b) When the title holder concealed the matter from
a) Rescissible. the plaintiff.
b) Unenforceable. c) When fortuitous circumstances prevented the
c) Voidable. plaintiff from filing the case sooner.
d) Void. d) When the plaintiff is in possession of the
property.
(91) Can common-law spouses donate properties of
substantial value to one another? (95) Conrad and Linda, both 20 years old, applied
a) No, they are only allowed to give moderate for a marriage license, making it appear that they
gifts to each other during family rejoicing. were over 25. They married without their parents’
b) No, they cannot give anything of value to each knowledge before an unsuspecting judge. After the
other to prevent placing their legitimate relatives at a couple has been in cohabitation for 6 years, Linda’s
disadvantage. parents filed an action to annul the
c) Yes, unlike the case of legally married spouses, marriage on ground of lack of parental consent. Will
such donations are not prohibited. the case prosper?
d) Yes, as long as they leave sufficient property for a) No, since only the couple can question the
themselves and for their dependents. validity of their marriage after they became 21 of
age; their cohabitation also convalidated the
(92) X owed Y P1.5 million. In his will, X gave Y marriage.
legacy of P1 million but the will provided that this
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b) No, since Linda’s parents made no allegations b) It is Karen’s exclusive property since it is in her
that earnest efforts have been made to come to a name.
compromise with Conrad and Linda and which c) It is conjugal property having been bought during
efforts failed. the marriage.
c) Yes, since the marriage is voidable, the couple d) It is Karen’s exclusive property since she
being below 21 years of age when they married. bought it with her own money.
d) Yes, since Linda’s parents never gave their Note: this is on the assumption that the property
consent to the marriage. regime between the parties is conjugal partnership
of gains, the problem using the word “conjugal”. If
(96) Pepito executed a will that he and 3 attesting the parties were governed by absolute community of
witnesses signed following the formalities of law, property, the correct answer would be C.
except that the Notary Public failed to come. Two
days later, the Notary Public notarized the will in his (100) Because of X’s gross negligence, Y suffered
law office where all signatories to the will injuries that resulted in the abortion of the foetus she
acknowledged that the testator signed the will in the carried. Y sued X for, among other damages, P1
presence of the witnesses and that the latter million for the death of a family member. Is Y entitled
themselves signed the will in the presence of the to indemnity for the death of the foetus she carried?
testator and of one another. Was the will validly a) Yes, since the foetus is already regarded as a
notarized? child from conception, though unborn.
a) No, since it was not notarized on the occasion b) No, since X’s would not have known that the
when the signatories affixed their signatures on the accident would result in Y’s abortion.
will. c) No, since birth determines personality, the
b) Yes, since the Notary Public has to be present accident did not result in the death of a person.
only when the signatories acknowledged the d) Yes, since the mother believed in her heart that
acts required of them in relation to the will. she lost a child.
c) Yes, but the defect in the mere notarization of the
will is not fatal to its execution.
d) No, since the notary public did not require the 2012 Bar Examination
signatories to sign their respective attestations
again. 1. Which of the following is NOT included in the
attributes of juridical capacity?
(97) Venecio and Ester lived as common-law a) Juridical capacity is inherent in every natural
spouses since both have been married to other person, and therefore it is not acquired.
persons from whom they had been separated in fact b) Juridical capacity is lost only through death.
for several years. Hardworking and bright, each c) Juridical capacity is the fitness to be the subject of
earned incomes from their respective professions legal relations.
and enterprises. What is the nature of their d) Juridical capacity cannot exist without
incomes? capacity to act.
a) Conjugal since they earned the same while living
as husband and wife. 2. Which of the following is NOT a restriction on
b) Separate since their property relations with one’s capacity to act?
their legal spouses are still subsisting. a) Minority
c) Co-ownership since they agreed to work for their b) Marriage
mutual benefit. c) Deaf-mute
d) Communal since they earned the same as d) Civil Interdiction
common-law spouses. SUGGESTED ANSWER: This question should be
disregarded.
(98) What is the prescriptive period for filing an (NOTE: There is no correct answer among the
action for revocation of a donation based on acts of choices given. All choices are restrictions
ingratitude of the donee? on one’s capacity to act. While Marriage is the only
a) 5 years from the perfection of the donation. one not mentioned in Articles 38 and 39 of the Civil
b) 1 year from the perfection of the donation. Code as a restriction on capacity to act, it restricts
c) 4 years from the perfection of the donation. the capacity of a married person in cases of
d) Such action does not prescribe. adoption.)

(99) Before Karen married Karl, she inherited P5 3. This attribute or incident of a case determine
million from her deceased mother which amount she whether it is a conflict-of-laws case or one covered
brought into the marriage. She later used part of the by domestic law.
money to buy a new Mercedes Benz in her name, a) Cause of action
which Karen and her husband used as a family car. b) Foreign element
Is the car a conjugal or Karen’s exclusive property? c) Jurisdiction
a) It is conjugal property since the spouses use it as d) Forum non conveniens
a family car.
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4. The capacity of an heir to succeed shall be

governed by the: 8. If a will is executed by a testator who was born a
a) national law of the decedent’s heirs Filipino citizen but became naturalized Japanese
b) law of the country where the decedent was a citizen at the time of his death, what law will govern
resident at the time of his death its testamentary provisions if the will is executed in
c) national law of the person who died China and the property being disposed is located in
d) law of the country where the properties of the Indonesia?
decedent are located. a) Chinese law
b) Philippine law
5. Atty. BUKO, a Filipino, executed a will while he c) Indonesia law
was in Spain. The attestation clause of the said will d) Japanese law
does not contain Buko’s signature. It is valid under
Spanish law. At its probate in Manila, it is being 9. A Japanese national and a Filipino national
opposed on the ground that the attestation clause entered into a contract for services in Thailand. The
does not contain BUKO’s signature. Is the services will be rendered in Singapore. In case of
opposition correct? Choose the best answer. breach, what law will govern?
a) Yes, because it is a fatal defect. a) Thailand law
b) Yes, the will is not valid under Philippine law. b) Philippine law
c) No, attestation clause is not an act of the c) Singapore law
testator. d) Japanese law
d) No, the governing law is Spanish law.
10. Pedro (Filipino) and his wife Jane (American)
Note: The facts do not state the Law observed by executed a joint will in Canada, where such joint will
the testator in executing his will. He could have is valid. In case the joint will is probated in Japan,
observed Spanish Law or Philippine Law (see what law will govern the formalities of the joint will?
comment of Tolentino to Art. 815 Civil Code in a) American law
3Tolentino117, 1992). If he observed Spanish Law, b) Philippine law
the opposition is not correct because the will is valid c) Canadian law
under Spanish Law, hence choice (d) is the correct d) Japanese law
answer. If he observed Philippine Law, the
opposition is still not correct because Philippine Law 11. A French national revokes his will in Japan
does not require the testator to sign the Attestation where he is domiciled. He then changed his domicile
Clause of his will, said clause not being his act. In to the Philippines where he died. The revocation of
such case, choice (c) is the correct answer). his will in Japan is valid under Japanese law but
invalid under Philippine law. The affected heir is a
6. Ramon, a Filipino, executed a will in Manila, Malaysian national residing in the Philippines. What
where he left his house and located in BP Homes law will apply?
Parañaque in favor of his Filipino son, Ramgen. a) Japanese law
Ramon’s other children RJ and Ramona, both b) Philippine law
Turkish nationals, are disputing the bequest to c) French law
Ramgen. They plotted to kill Ramgen. Ramon d) Malaysian law
learned of the plot, so he tore his will in two pieces
out of anger. Which statement is most accurate? 12. In the absence of contrary stipulation in a
a) The mere act of Ramon Sr. is immaterial because marriage settlement, property relations of Filipino
the will is still readable. spouses shall be governed by ---
b) The mere act of tearing the will amounts to a) Philippines laws
revocation. b) Law of the place where the spouses reside
c) The tearing of the will may amount to c) Law of the place where the properties are situated
revocation if coupled with intent of revoking it. d) Law of the place where they were married.
d) The act of tearing the will is material.
13. The will of a Filipino executed in a foreign
7. Even if the applicable law is a foreign law, a court country ---
in the Philippines may be constrained to apply a) cannot be probated in the Philippines;
Philippine law under any of the following instances, b) may be probated in the Philippines provided that
except: properties in the estate are located in the
a) when the foreign law, judgment or contract is Philippines;
contrary to a sound and important public policy of c) cannot be probated before the death of the
the forum; testator;
b) when the property subject of the case is d) may be probated in the Philippines provided it
located outside of the Philippines; was executed in accordance with the laws of the
c) when the foreign law or judgment is penal in place where the will was executed.
nature;
d) when the foreign law is procedural in nature.
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14. Pedro (Filipino and Bill (American) entered into a 19. Ricky and Princess were sweethearts. Princess
contract in Australia, whereby it was agreed that became pregnant. Knowing that Ricky is preparing
Pedro will build a commercial building for Bill in the for the examinations, Marforth, a lawyer and cousin
Philippines, and in payment for the construction, Bill of Princess, threatened Ricky with the filing of a
will transfer and convey his cattle ranch located in complaint for immorality in the Supreme Court, thus
Japan in favor of Pedro. In case Pedro performs his preventing him from taking examinations unless he
obligation, but Bill fails or refuses to pay, what law marries Princess. As a consequence of the threat,
will govern? Ricky married Princess. Can the marriage be
a) American law annulled on the ground of intimidation under Article
b) Philippine law 45 of the Family Code? Choose the best answer.
c) Australian law a) Yes, because without the threat, Ricky would not
d) Japanese law have married Princess.
b) Yes, because the threat to enforce the claim of
(Facts for item numbers 15-18) Princess vitiates the consent of Ricky in contracting
In 1989, Charice (Filipina) and Justine (American), the marriage.
were married in the Philippines. In 1990, they c) No, because the threat made by Marforth is
separated and Justine went to Las Vegas where he just and legal.
obtained a divorce in the same year. He then d) No, because Marforth is not a party to the
married another Filipina, Lea, in Canada on January contract of marriage between Princess and Ricky.
1, 1992. They had two (2) sons, James and John
(who were both born in 1992). In 1993, after failing 20. Audrey, single, bought a parcel of land in
to hear from Justine, Charice married Bugoy (a Malolos City from Franco for P 1Million. A contract
Filipino), by whom she had a daughter, Regine. In was executed between them which already vested
2009, Regine married James (son of Justine with upon Audrey full ownership of the property, although
Lea) in California, where such marriage is valid. payable in monthly installments for a period of four
(4) years. One (1) year after the execution of the
15. What is the current status of the marriage of contract, Audrey got married to Arnel. They
Charice and Justine under Philippine laws? executed a marriage settlement whereby they
a) Valid agreed that their properties shall be governed by the
b) Void regime of conjugal partnership of gains. Thereafter,
c) Voidable subsequent installments were paid from the conjugal
d) Dissolved partnership funds. Is the land conjugal or
paraphernal?
(Note: While Art 26 of the FC does not categorically a) The land is conjugal because the installments
provide that the first marriage is dissolved by the were paid from the conjugal partnership funds.
divorce obtained by the foreign spouse abroad, but b) The land is paraphernal because ownership
provides that such divorce merely gives the Filipino thereof was acquired before the marriage.
spouse the capacity to contract a second marriage, c) The land is both conjugal and paraphernal funds
it is believed that the dissolution of the first marriage of installments were paid from both the personal
is the necessary consequence of the foreign funds of Audrey and the conjugal partnership funds.
divorce.) d) The land is paraphernal because it was Audrey
who purchased the same.
16. What is the status of the marriage between
Justine and Lea under Philippine laws? 21. Ernesto donated a mobile phone worth P 32,000
a) Valid to Hubert orally and delivered the unit to Hubert who
b) Void accepted. Which statement is most accurate?
c) Voidable a) The donation is void and Ernesto may get the
d) Unenforceable mobile phone back.
b) The donation is void but Ernesto cannot get the
17. What is the status of the marriage between mobile phone back.
Charice and Bugoy under Philippine laws? c) The donation is voidable and may be anulled.
a) Valid d) The donation is valid.
b) Void
c) Voidable 22. Agay, a Filipino citizen and Topacio, an
d) Unenforceable Australian citizen, got married in the consular office
of the Philippines in Australia. According to the laws
18. What is the status of the marriage between of Australia, a marriage solemnized by a consular
Regine and James under Philippine laws? official is valid, provided that such marriage is
a) Valid celebrated in accordance with the laws of such
b) Void consular official. Under Philippine law, what is the
c) Voidable status of the marriage of Agay and Topacio? Choose
d) Unenforceable the best answer.

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a) Void, because the consular official only has b) The half pertaining to the wife (as owner) belongs
authority to solemnize marriages between to the conjugal partnership.
Filipinos. c) One half shall belong to the husband as finder
b) Valid, because according to the laws of Australia, and the other half shall belong to the wife as owner
such consular official has authority to celebrate the of the property.
marriage. d) a and b
c) Voidable, because there is an irregularity in the
authority of the consular official to solemnize 28. Which of the following marriages is void for
marriages. reasons of public policy?
d) Valid, because such marriage is recognized as a) Between brothers and sisters, whether of the full
valid in the place where it was celebrated. or half blood.
b) Between step-parents and step children.
(Note: The issues in the problem is whether or not c) Between parents-in-law and children-in-law.
the fact that one of the parties to the marriage was d) b and c
an alien constituted absence of authority or mere
irregularity of authority. The problem only give the 29. The following constitute the different
choice, letter (a), in case it is interpreted as absence circumstances or case of fraud which will serves as
of authority. The problem does not give a choice in ground for the annulment of a marriage, except?
case it is interpreted as an irregularity thereby a) Non-disclosure of the previous conviction by final
making all the other answers wrong). judgment of the other party of a crime involving
moral turpitude.
23. Separation of property between spouses during b) Concealment of a sexually-transmissible disease,
the marriage may take place only: regardless of its nature, existing at the time of the
a) by agreement of the spouses. marriage.
b) If one of the spouses has given ground for legal c) Concealment of drug addiction, habitual
separation. alcoholism, homosexuality or lesbianism existing at
c) Upon order of the court. the time of marriage.
d) If one spouse has abandoned the other. d) Concealment by the wife or the husband of
the fact of sexual relations prior to the marriage.
24. The husband may impugn the legitimacy of his
child but not on the ground that: 30. Which of the following is not a requisite for a
a) the wife is suspected of infidelity. valid donation propter nuptias?
b) the husband had a serious illness that prevented a) The donation must be made before the
him from engaging in sexual intercourse. celebration of the marriage.
c) they were living apart. b) The donation shall be automatically revoked
d) he is physically incapable of sexual intercourse. in case of non-celebration of the marriage.
c) The donation must be made in consideration of
25. A marriage is void if: the marriage.
a) solemnized with a marriage license issued d) The donation must be made in favor of one or
without complying with the required 10-day posting. both of the future spouses.
b) solemnized by a minister whom the parties
believe to have the authority. 31. Who are illegitimate children?
c) between parties both 23 years of age but without a) Children conceived or born outside a valid
parental advice. marriage.
d) none of the above b) Children born under a valid marriage, which was
later declared void because of the psychological
26. In legal separation, which is not correct? incapacity of either or both of the spouses.
a) The aggrieved spouse may file the action within c) Children conceived and born outside a valid
five (5) years from the time of the occurrence of the marriage.
cause. d) Children born under a valid marriage, but the
b) No trial shall be held without the 6-month cooling parents later obtained a legal separation.
off period being observed.
c) The spouses will be entitled to live separately 32. An illegitimate child may use the surname of his
upon the start of the trial. father when his filiation is established in any of the
d) The prosecuting attorney has to conduct his following instances, except:
own investigation. a) Filiation has been recognized by the father
through the record of birth appearing in the civil
27. A husband by chance discovered hidden register
treasure on the paraphernal property of his wife. b) Admission of filiation by the father in a public
Who owns the discovered treasure? document.
a) The half pertaining to the husband (finder) c) Private handwritten instrument is made by the
belongs to the conjugal partnership. father acknowledging his filiation.

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d) Affidavit by the mother stating the name of his b) and he may not remove the objects for which
true father. such expenses have been incurred.
c) and he may not remove the objects for which
33. Under RA 8043, an adopter is required to be at such expenses have been incurred, unless he pays
least ____ years old and ____ years older than the the value they may have at the time he entered into
child to be adopted at the time of the application possession.
unless the adopter is the parent by nature of the d) but he may remove the objects for which such
child. expenses have been incurred.
a) 30 and 15
b) 27 and 16 39. The following are the limitations on the right of
c) 50 and 10 ownership imposed by the owner himself, except:
d) 18 and 15 a) Will/Succession
b) Mortgage
34. Under RA 8043, a child qualified to be adopted c) Pledge
is any person below _____ years old. d) Lease
a) 18
b) 21 40. A plenary action for the recovery of the
c) 15 possession of real estate, upon mere allegation and
d) 16 proof of a better right thereto, and without allegation
of proof of title. This action can only be brought after
35. Which of the following DOES NOT result in the expiration of one (1) year. What action is being
permanent termination of parental authority? referred to?
a) Death of the parents. a) Accion publiciana
b) Death of the child. b) Accion reinvindicatoria
c) Emancipation of the child. c) Accion interdictal
d) Conviction of the parents of a crime which d) Quieting of Title
carries with it the penalty of civil interdiction.
41. Action to recover real property based on
36. The court, in an action filed for the purpose, may ownership. Here, the object is the recovery of the
suspend parental authority if the parent or the dominion over the property as owner. What action is
person exercising parental authority commits any of being referred to?
the following acts, except: a) Accion publiciana
a) Treats the child with excessive harshness or b) Accion reinvindicatoria
cruelty. c) Accion interdictal
b) Gives the child corrupting orders, counsel or d) Quieting of Title
example.
c) Compels the child to take up a course in 42. A summary action to recover physical or material
college against his/her will. possession only and must be brought within one (1)
d) Subjects the child or allows him to be subjected to year from the time the cause of action arises. What
acts of lasciviousness. action is being referred to?
a) Accion publiciana
37. Which of the following statements is wrong? b) Accion reinvindicatoria
a) The possessor in bad faith shall reimburse the c) Accion interdictal
fruits received and those which the legitimate d) Quieting of Title
possessor could have received.
b) The possessor in bad faith has right of 43. The following things are property of public
reimbursement for necessary expenses and those dominion, except:
for the production, gathering and preservation of the a) ports and bridges constructed by the State.
fruits. b) vehicles and weapons of the Armed Forces of the
c) The possessor in bad faith is not entitled to a Philippines.
refund of ornamental expenses. c) rivers.
d) The possessor in bad faith is entitled to a d) lands reclaimed by the state from the sea.
refund of useful expenses.
SUGGESTED ANSWER:
38. Which phrase most accurately completes the This question should be disregarded because there
statement – The expenses incurred in is no correct answer.
improvements for the luxury or mere pleasure shall (Note: At first glance, one gets the impression that
not be refunded to the possessor in bad faith: vehicles and weapons of the AFP are not property
a) but he may remove the objects for which such of the public domain. But they are actually property
expenses have been incurred, provided that the of the public dominion under the second paragraph
thing suffers no injury thereby, and that the of Art 420 of the Civil Code. Property of the state
lawful possessor does not prefer to retain them. which are not for public use but are intended for
some public service are properties of the public
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dominion. While the vehicles and weapons of the 51. A debtor is liable for damages in case of delay if
AFP are not for public use, they are used for the he is guilty of any of the following, except: a) default
defense of the State which is a public service.) (mora)
b) mistake
44. Which of the following statements is wrong? c) negligence (culpa)
a) patrimonial property of the state, when no d) breach through contravention of the tenor thereof
longer intended for public use or for public
service, shall become property of public 52. This term refers to a delay on the part of both
dominion. the debtor and creditor in reciprocal obligations.
b) all property of the State, which is not of public a) Mora accipiendi
dominion, is patrimonial property. b) Mora solvendi
c) The property of provinces, cities and c) Compensation morae
municipalities is divided into property for public use d) Solutio indebiti
and patrimonial property.
d) Property is either of public dominion or of private 53. The following are the requisites of mora
ownership. solvendi, except:
a) Obligation pertains to the debtor and is
45. The following cannot ask for the reduction of determinate, due, demandable, and liquidated.
inofficious donation, except: b) Obligation was performed on its maturity
a) Creditors of the deceased date.
b) Devisees or legatees c) There is judicial or extrajudicial demand by the
c) Compulsory heirs of the donor creditor.
d) The surviving spouse of the donee. d) Failure of the debtor to comply with such demand.

46. Donation is perfected from the moment --- 54. It is an international evasion of the faithful
a) the donee accepts the donation. performance of the obligation.
b) the donor executes the deed of donation. a) Negligence
c) the donor knows of the donee’s acceptance b) Fraud
even if the latter has not received the copy of the c) Delay
deed of donation. d) Mistake
d) the donee confirms that the donor has learned the
former’s acceptance. 55. The following are the requisites of fortuitous
event, except:
47. The following are the elements of an obligation, a) Cause is independent of the will of the debtor.
except: b) The event is unforeseeable/unavoidable.
a) Juridical/Legal Tie c) Occurrence renders it absolutely impossible for
b) Active subject the debtor to fulfill his obligation in a normal manner;
c) Passive subject impossibility must be absolute not partial, otherwise
d) Consideration not force majeure.
d) Debtor contributed to the aggravation of the
48. It is a conduct that may consist of giving, doing, injury to the creditor.
or not doing something.
a) Obligation 56. A debtor may still be held liable for loss or
b) Juridical necessity damages even if it was caused by a fortuitous event
c) Prestation in any of the following instances, except:
d) Contract a) The debtor is guilty of dolo, malice or bad faith,
has promised the same thing to two or more
49. It is a juridical relation arising from lawful, persons who do not have the same interest.
voluntary and unilateral acts based on the principle b) The debtor contributed to the loss.
that no one should unjustly enrich himself at the c) The thing to be delivered is generic.
expense of another. d) The creditor is guilty of fraud, negligence or delay
a) Quasi-contract or if he contravened the tenor of the obligation.
b) Quasi-delict
c) Contract 57. Buko, Fermin and Toti bound themselves
d) Delict solidarily to pay Ayee the amount of P 5,000.00.
Suppose Buko paid the obligation, what is his right
50. The following are the elements of quasi-delict, as against his co-debtors?
except: a) Buko can ask for reimbursement from Fermin
a) Act or omission and Toti.
b) Fault/negligence b) Buko can sue Fermin and Toti for damages.
c) Damage/injury c) Buko can sue for rescission.
d) Pre-existing contract d) Buko can claim a refund from Ayee.

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58. Buko, Fermin and Toti bound themselves a) That each of the obligors is bound principally and
solidarily to pay Ayee the sum of P 10,000.00. When that he be the same time a principal creditor of the
the obligation became due and demandable, Ayee other.
sued Buko for the payment of the P 10,000.00. Buko b) That both debts consist in a sum of money, or if
moved to dismiss on the ground that there was the things due are consumable, they be the same
failure to implead Fermin and Toti who are kind, and also of the same quality if the latter has
indispensable parties. Will the motion to dismiss been stated.
prosper? Why? c) That the two (2) debts are not yet due.
a) Yes, because Fermin and Toti should have been d) That they be liquidated and demandable.
impleaded as their obligation is solidary.
b) No, because the creditor may proceed against 63. Which of the following statements is correct?
any one of the solidary debtors or some or all of a) All contracts are perfected by mere consent.
them simultaneously. b) All contracts are perfected by delivery of the
c) No, because a motion to dismiss is a prohibited object.
pleading. c) All contracts are required to be in writing.
d) Yes, because Fermin and Toti should also pay d) All contracts are required to have a valid
their share of the obligation. consideration.

59. Buko, Fermin and Toti are solidarily debtors of 64. It is a principle which holds that parties are
Ayee. Twelve (12) years after the obligation became bound not only by what has been expressly provided
due and demandable, Buko paid Ayee and later on for in the contract but also to the natural
asked for reimbursement of Fermin’s and Toti’s consequences that flow out of such agreement.
shares. Is Buko correct? Why? a) Obligatory force of contracts
a) No, because the obligation has already b) Mutuality of contracts
prescribed. c) Autonomy of contracts
b) Yes, because the obligation is solidary. d) Relativity of contracts
c) No, because in solidary obligation any one of the
solidary debtors can pay the entire debt. 65. It is a principle which holds that contracts must
d) Yes, because Fermin and Toti will be unduly be binding to both parties and its validity and
enriched at the expense of Buko. effectivity can never be left to the will of one of the
parties.
60. Buko, Fermin and Toti are solidary debtors under a) Obligatory force of contracts
a loan obligation of P 300,000.00 which has fallen b) Mutuality of contracts
due. The creditor has, however, condoned Fermin’s c) Autonomy of contracts
entire share in the debt. Since Toti has become d) Relativity of contracts
insolvent, the creditor makes a demand on Buko to
pay the debt. How much, if any, may Buko be 66. It refers to the rule that a contract is binding not
compelled to pay? only between parties but extends to the heirs,
a) P 200.000.00 successors in interest, and assignees of the parties,
b) P 300,000.00 provided that the contract involved transmissible
c) P 100,000.00 rights by their nature, or by stipulation or by law.
d) P 150,000.00 a) Obligatory force of contracts
b) Mutuality of contracts
61. Dina bought a car from Jai and delivered a c) Autonomy of contracts
check in payment of the same. Has Dina paid the d) Relativity of contracts
obligation? Why?
a) No, not yet. The delivery of promissory notes 67. It is rule which holds that the freedom of the
payable to order, or bills of exchange or other parties to contract includes the freedom to stipulate,
mercantile documents shall produce the effect provided the stipulations are not contrary to law,
of payment only when they have been cashed, or morals, good customs, public order or public policy.
when through the fault of the creditor they have a) Obligatory force of contracts
been impaired. b) Mutuality of contracts
b) Yes, because a check is a valid legal tender of c) Autonomy of contracts
payment. d) Relativity of contracts
c) It depends. If the check is a manager’s check or
cashier’s check it will produce the effect of payment. 68. The following are the ways by which innominate
If it’s an ordinary check, no payment. contracts are regulated,
d) Yes, because a check is as good as cash. except:
a) By the stipulation of the parties.
62. The following are the requisites of legal b) By the general principles of quasi-contracts
compensation, except: and delicts
c) By the rules governing the most analogous
nominate contracts.
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d) By the customs of the place.

75. The following are void contracts, except:
69. An offer becomes ineffective on any of the a) Pactum commissorium
following grounds, except: b) Pactum de non alienando
a) Death, civil interdiction, insanity/insolvency of c) Pactum leonina
either party before acceptance is conveyed. d) Pacto de retro
b) Acceptance of the offer by the offeree.
c) Qualified/conditional acceptance of the offer, 76. The borrower in a contract of loan or mutuum
which becomes counter-offer. must pay interest to the lender.
d) Subject matter becomes illegal/impossible before a) If there is an agreement in writing to the
acceptance is communicated. effect.
b) As a matter of course.
70. Which of the following statements is correct? c) If the amount borrowed is very large.
a) Offers in interrelated contracts are perfected upon d) If the lender so demands at the maturity date.
consent.
b) Offers in interrelated contracts require a single 77. The liability of the school, its administrators and
acceptance. teachers, or the individual, entity or institution
c) Business advertisements are definite offers that engaged in child care over the minor child or
require specific acceptance. damage caused by the acts or omissions of the
d) Advertisements for Bidders are only unemancipated minor while under their supervision,
invitations to make proposals and the advertiser instruction or custody shall be:
is not bound to accept the highest/lowest bidder, a) Joint and subsidiary
unless it appears otherwise. b) Principal and solidary
c) Principal and joint
71. The following are solemn contracts (Contracts d) Subsidiary and solidary.
which must appear in writing), except:
a) Donations of real estate or of movables if the 78. The creditor has the right to the fruits of the thing
value exceeds P 5,000.00. from the time:
b) Stipulation to pay interest in loans. a) the thing is delivered.
c) Sale of land through an agent (authority must be b) the obligation to deliver the things arises.
in writing). c) the contract is perfected.
d) Construction contract of a building. d) the fruits are delivered.

72. The following are rescissible contracts, except: 79. If one of the parties to the contract is without
a) Entered into by guardian whenever ward suffers juridical capacity, the contract is:
damage more than ¼ of value of property. a) voidable
b) Agreed upon in representation of absentees, if b) rescissible
absentee suffers lesion by more than ¼ of value of c) void
property. d) unenforceable
c) Contracts where fraud is committed on creditor
(accion pauliana). 80. When both parties to the contract are minors,
d) Contracts entered into by minors. the contract is:
a) voidable
73. The following are the requisites before a contract b) rescissible
entered into in fraud of creditors may be rescinded, c) void
except: d) unenforceable
a) There must be credited existing prior to the
celebration of the contract. 81. When the consent of one of the parties was
b) There must be fraud, or at least, the intent to vitiated, the contract is:
commit fraud to the prejudice of the creditor seeking a) voidable
rescission. b) rescissible
c) The creditor cannot in any legal manner collect c) void
his credit (subsidiary character of rescission) d) unenforceable
d) The object of the contract must be legally in
the possession of a 3rd person in good faith. 82. An obligation which is based on equity and
natural law is known as:
74. The following are the characteristics of a a) pure
voidable contract, except: b) quasi-contract
a) Effective until set aside. c) civil
b) May be assailed/attacked only in an action for d) natural
that purpose.
c) Can be confirmed or ratified.
d) Can be assailed only by either party.
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83. Consent was given by one in representation of a) Creditors are protected in cases of contracts
another but without authority. The contract is: a) intended to defraud them.
voidable b) Contracts take effect only between the parties,
b) rescissible their assign and heirs, except in case where the
c) void rights and obligations arising from the contract are
d) unenforceable not transmissible by their nature, or by stipulation or
by provision of law.
84. Michael Fermin, without the authority of Pascual c) If a contract should contain some stipulation in
Lacas, owner of a car, sold the same car in the favor of a third person, he may demand its fulfillment
name of Mr. Lacas to Atty. Buko. The contract provided he communicated his acceptance to the
between Atty. Buko and Mr. Lacas is - obligor before its revocation.
a) void because of the absence of consent from the d) In contracts creating real rights, third persons
owner, Mr. Lacas. who come into possession of the object of the
b) valid because all of the essential requisites of a contract are not bound thereby.
contract are present.
c) unenforceable because Michael Fermin had 89. Which phrase most accurately completes the
no authority but he sold the car in the name of statement – Any third person who induces another
Mr. Lacas, the owner. to violate his contract:
d) rescissible because the contract caused lesion to a) shall be liable for damages only if he is a party to
Atty. Buko. the same contract.
b) shall be liable for damages to the other
85. Which of the following contracts is void? contracting party.
a) An oral sale of a parcel of land. c) shall not be liable for damages to the other
b) A sale of land by an agent in a public contracting party.
instrument where his authority from the d) shall not be liable for damages if the parties are in
principal is oral. pari delicto.
c) A donation of a wrist watch worth P 4,500.00.
d) A relatively simulated contract 90. The requisites of succession are as follows,
except:
86. Which of the following expresses a correct a) Death of decedent
principle of law? Choose the best answer. b) Transmissible estate
a) Failure to disclose facts when there is a duty to c) Existence and capacity of successor, designated
reveal them, does not constitute fraud. by decedent or law
b) Violence or intimidation does not render a d) Payment of Taxes
contract annullable if employed not by a contracting
party but by a third person. 91. The characteristics of succession are as follows,
c) A threat to enforce one’s claim through competent except:
authority, if the claim is legal or just, does not vitiate a) It is a legal contract.
consent. b) Only property, rights and obligations to the extent
d) Absolute simulation of a contract always of the value of the inheritance are transmitted.
results in a void contract. c) The transmission takes place only at the time of
death.
87. Aligada orally offered to sell his two-hectare rice d) The transmission takes place either by will or by
land to Balane for P 10Million. The offer was orally operation of law.
accepted. By agreement, the land was to be
delivered (through execution of a notarized Deed of 92. The following rights are extinguished by death,
Sale) and the price was to be paid exactly one- except:
month from their oral agreement. Which statement is a) Legal support
most accurate? b) Parental authority
a) If Aligada refuses to deliver the land on the c) Right to inherit
agreed date despite payment by Balane, the latter d) Agency
may not successfully sue Aligada because the
contract is oral. 93. The attestation clause contains the following,
b) If Aligada refused to deliver the land, Balane may except:
successfully sue for fulfillment of the obligation even a) the number of pages used;
if he has not tendered payment of the purchase b) that the testator signed or caused another to sign
price. the will and every page thereof in the presence of
c) The contract between the parties is rescissible. the instrumental witnesses;
d) The contract between the parties is subject to c) notary public;
ratification by the parties. d) the instrumental witnesses witnessed and signed
the will and all the pages thereof in the presence of
88. Which of the following statements is wrong? the testator and one another.

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94. The following are the formalities required in the c) Sale of EGM’s car by KRP, a person stranger to
execution of holographic will, except: EGM, without EGM’s consent or authority.
a) Entirely written; d) Sale of EGM’s piece of land by KRP, a person
b) Dated; stranger to EGM, without EGM’s consent or
c) Signed by testator himself authority.
d) Notarized by a notary public.

95. The following are the grounds for disallowance 2013 Bar Examination
of wills, except:
a) The formalities required by law have not been I. Armand died intestate. His full-blood brothers,
complied with. Bobby and Conrad, and half-blood brothers, Danny,
b) The testator was insane or mentally incapable of Edward and Floro, all predeceased him. The
making will. following are the surviving relatives:
c) The will was executed through force or under 1. Benny and Bonnie, legitimate children of Bobby;
duress, or influence of fear or threats. 2. Cesar, legitimate child of Conrad;
d) The will contains an attestation clause. 3. Dante, illegitimate child of Danny;
4. Ernie, adopted child of Edward; and
96. It is the omission in the testator’s will of one, 5. Felix, grandson of Floro.
some or all of the compulsory heirs in direct line,
whether living at the time of execution of the will or The net value of Armand’s estate is Pl,200,000.
born after the death of the testator. What principle is
being referred to? (1) How much do Benny and Bonnie stand to inherit
a) reserva troncal by right of representation?
b) preterition a) P200,000
c) fideicommissary b) P300,000
d) disposicion captatoria c) P400,000
d) P150,000
97. Any disposition made upon the condition that the e) None of the above.
heir shall make some provision in his will in favor of
the testator or of any other person shall be void. SUGGESTED ANSWER:
Here, both the condition and the disposition are e) None of the above. If all the brothers/sisters
void. What principle is being referred to? are disqualified to inherit, the nephews/nieces
a) reserva troncal inherit per capita, and not by right of
b) preterition representation (Art 975, Civil Code)
c) fideicommissary
d) disposicion captatoria (2) How much is Dante’s share in the net estate?
a) P150,000.
98. Which phrase most accurately completes the b) P200,000.
statement – If at the time the contract of sale is c) P300,000.
perfected, the thing which is the object of the d) P400,000.
contract has been entirely lost: e) None of the above.
a) the buyer bears the risk of loss.
b) the contract shall be without any effect. SUGGESTED ANSWER:
c) the seller bears the risk of loss. e) None of the above. There is no showing that
d) the buyer may withdraw from the contract. Danny is an illegitimate half-blood brother of
Armand. In the absence of proof to the contrary,
99. A contract granting a privilege to a person, for the law presumes that the relationship is
which he has paid a consideration, which gives him legitimate. Thus, Dante, an illegitimate child of
the right to buy certain merchandise or specified Danny, is barred from inheriting from Armand
property, from another person, at anytime within the pursuant to the “iron curtain rule” which
agreed period, at a fixed price. What contract is disqualifies an illegitimate child from inheriting
being referred to? ab intestao from the legitimate children and
a) Option Contract relatives of his father or mother, and vice versa
b) Contract to Sell (Art 992, Civil Code).
c) Contract of Sale
d) Lease (3) How much is Ernie’s share in the net estate.
a) P 0.
100. Which of the following contracts of sale is void? b) P400,000.
a) Sale of EGM’s car by KRP, EGM’s agent, whose c) P150,000.
authority is not reduced into writing. d) P200,000.
b) Sale of EGM’s piece of land by KRP, EGM’s e) None of the above.
agent, whose authority is not reduced into
writing. SUGGESTED ANSWER:
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a) 0 or e) None of the above. The legal (1) If Amador fails to pay Basilio his loan on March
relationship created by adoption is strictly 25, 2012, can Basilio compel Cacho to pay?
between the adopter and the adopted. It does a) No, Basilio cannot compel Cacho to pay because
not extend to the relatives of either party as guarantor, Cacho can invoke the principle of
(Sayson v. CA, 205 SCRA 321). excussion, i.e., all the assets of Basilio must first be
(Note: “e) None of the above’” is another answer exhausted.
because Ernie has no share at all in the net estate). b) No, Basilio cannot compel Cacho to pay because
Basilio has not exhausted the available remedies
(4) How much is Felix’s share in the net estate? against Amador.
a) P400,000. c) Yes, Basilio can compel Cacho to pay because
b) P150,000. the nature of Cacho’s undertaking indicates that he
c) P300,000. has bound himself solidarily with Amador.
d) P0. d) Yes, Basilio can compel Cacho who bound
e) None of the above. himself to unconditionally pay in case Amador fails
to pay; thus the benefit of excussion will not apply.
SUGGESTED ANSWER: d) 0 or e) None of the
above. In the collateral line, representation is SUGGESTED ANSWER:
granted only to children of brother or sisters, b) No, Basilio cannot compel Cacho to pay
Felix is a grandson of a predeceased brother. because Basilio has not exhausted the available
(Note: “e) None of the above: is another answer remedies against Amador. The guarantor cannot
because Felix has no share at all in the net estate) be compelled to pay the creditor unless the
latter has exhausted all the property of the
II. A, B, C and D are the solidary debtors of X for debtor and has resorted to all the legal remedies
P40,000. X released D from the payment of his against the debtor (Art. 2058, Civil Code)
share of PI 0,000. When the obligation became due (Note: “a)” is not the correct answer because it
and demandable, C turned out to be insolvent. states that “all the assets of Basilio (the creditor)
Should the share of insolvent debtor C be divided must first be exhausted”)
only between the two other remaining debtors, A and
B? (2) If Amador sells his residential house and lot to
a) Yes. Remission of D’s share carries with it total Diego, can Basilio foreclose the real estate
extinguishment of his obligation to the benefit of the mortgage?
solidary debtors. a) Yes, Basilio can foreclose the real estate
b) Yes. The Civil Code recognizes remission as a mortgage because real estate mortgage creates a
mode of extinguishing an obligation. This clearly real right that attaches to the property.
applies to D. b) Yes, Basilio can foreclose the real estate
c) No. The rule is that gratuitous acts should be mortgage. It is binding upon Diego as the mortgage
restrictively construed, allowing only the least is embodied in a public instrument.
transmission of rights. c) No, Basilio cannot foreclose the real estate
d) No, as the release of the share of one debtor mortgage. The sale confers ownership on the buyer,
would then increase the burden of the other debtors Diego, who must therefore consent.
without their consent. d) No, Basilio cannot foreclose the real estate
mortgage. To deprive the new owner of ownership
SUGGESTED ANSWER: and possession is unjust and inequitable.
d) No, as the release of the share of one debtor
would then increase the burden of the other SUGGESTED ANSWER:
debtors without their consent. When one of the b) Yes, Basilio can foreclose the real estate
solidary debtors cannot, because of his mortgage. It is binding upon Diego as the
insolvency, reimburse his share to the debtor mortgage is embodied in a public instrument.
paying the obligation, such share shall be borne Since the mortgage is in a public instrument,
by all his co-debtors, in proportion to the debt of there is constructive notice to Diego, who is the
each (Art 1217, Civil Code). Additionally, D was buyer if the mortgaged property.
released only from his share of P10,000.00 not
from the solidary tie that binds him to A, B and ALTERNATIVE ANSWER:
C. c) No, Basilio cannot foreclose the real estate
mortgage. The sale confers ownership on the
III. Amador obtained a loan of P300,000 from Basilio buyer, Diego, who must therefore consent. The
payable on March25, 2012. As security for the mortgage is not registered, thus, cannot be
payment of his loan, Amador constituted a mortgage binding against third persons (Art. 2125, Civil
on his residential house and lot in Basilio’s favor. Code)
Cacho, a good friend of Amador, guaranteed and
obligated himself to pay Basilio, in case Amador fails IV. Cruz lent Jose his car until Jose finished his Bar
to pay his loan at maturity. exams. Soon after Cruz delivered the car, Jose
brought it to Mitsubishi Cubao for maintenance
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check up and incurred costs of P8,000. Seeing the be through a fortuitous event if he lends or
car’s peeling and faded paint, Jose also had the car leases the thing to a third person, who is not a
repainted for P10,000. Answer the two questions member of his household (Art 1942, Civil Code).
below based on these common facts.
V. In 2005, L, M, N, O and P formed a partnership.
(1) After the bar exams, Cruz asked for the return of L, M and N were capitalist partners who contributed
his car. Jose said he would return it as soon as Cruz P500,000 each, while O, a limited partner,
has reimbursed him for the car maintenance and contributed P1,000,000. P joined as an industrial
repainting costs of P 18,000. Is Jose’s refusal partner, contributing only his services. The Articles
justified? of Partnership, registered with the Securities and
a) No, Jose’s refusal is not justified. In this kind of Exchange Commission, designated L and O as
contract, Jose is obliged to pay for all the expenses managing partners; L was liable only to the extent of
incurred for the preservation of the thing loaned. his capital contribution; and P was not liable for
b) Yes, Jose’s refusal is justified. He is obliged to losses. In 2006, the partnership earned a net profit
pay for all the ordinary and extraordinary expenses, of P800,000. In the same year, P engaged in a
but subject to reimbursement from Cruz. different business with the consent of all the
c) Yes, Jose’s refusal is justified. The principle of partners. However, in 2007, the partnership incurred
unjust enrichment warrants the reimbursement of a net loss of P500,000. In 2008,the partners
Jose’s expenses. dissolved the partnership. The proceeds of the sale
d) No, Jose’s refusal is not justified. The expenses of partnership assets were insufficient to settle its
he incurred are useful for the preservation of the obligation. After liquidation, the partnership had an
thing loaned. It is Jose’s obligation to shoulder these unpaid liability ofP300,000.
useful expenses.
(l) Assuming that the just and equitable share of the
SUGGESTED ANSWER: industrial partner, P, in the profit in 2006 amounted
d) No, Jose’s refusal is not justified. The to P100,000, how much is the share of O, a limited
expenses he incurred are useful for the partner, in the P800,000 net profit?
preservation of the thing loaned. It is Jose’s a) P160,000.
obligation to shoulder these useful expenses. In b) P175,000.
commodatum, the bailee is obliged to pay for the c) P280,000.
ordinary expenses for the use and preservation d) P200,000.
of the thing loaned (Art 1941, Civil Code). The e) None of the above.
bailee, Jose, has no right of retention on the
ground that the bailor owes him something,
even if it may be by reason of expenses. He can
only retain it if he suffers damages by reason of
a flaw or defect in the thing loaned of which the SUGGESTED ANSWER:
bailor knows (Art 1951, Civil Code). c) P280,000. First, deduct the share of P from the
profits. P800,000 less P100,000 is P700,000.
(2) During the bar exam month, Jose lent the car to Next, get the share of O by following the
his girlfriend, Jolie, who parked the car at the Mall of proportion that the shares of L, M, N, O is
Asia’s open parking lot, with the ignition key inside 1:1:1:2, respectively.
the car. Car thieves broke into and took the car. Is
Jose liable to Cruz for the loss of the car due to (2) In 2007, how much is the share of O, a limited
Jolie’s negligence? partner, in the net loss of P500,000?
a) No, Jose is not liable to Cruz as the loss was not a) P 0.
due to his fault or negligence. b) P100,000.
b) No, Jose is not liable to Cruz. In the absence of c) P125,000.
any prohibition, Jose could lend the car to Jolie. d) P200,000.
Since the loss was due to force majeure, neither e) None of the above.
Jose nor Jolie is liable.
c) Yes, Jose is liable to Cruz. Since Jose lent the car SUGGESTED ANSWER:
to Jolie without Cruz’s consent, Jose must bear the d) P200,000 A limited partner shall not become
consequent loss of the car. liable as a general partner unless, in addition to
d) Yes, Jose is liable to Cruz. The contract between the exercise of his rights and powers as a
them is personal in nature. Jose can neither lend nor limited partner, he takes part in the control of the
lease the car to a third person. business (Art 1948, Civil Code). In the absence
of stipulation as to profits and losses, the share
SUGGESTED ANSWER: of each partner in the losses shall be
c) Yes, Jose is liable to Cruz. Since Jose lent the proportionate to what he may have contributed
car to Jolie without Cruz’s consent, Jose must (Art 1797).
bear the consequent loss of the car. The bailee
is liable for the loss of the thing, even if it should
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(3) Can the partnership creditors hold L, O and P Gary could not insist that Homer accept the tobacco
liable after all the assets of the partnership are leaves.
exhausted? d) No. Homer was not justified in refusing to accept
a) Yes. The stipulation exempting P from losses is the tobacco leaves. There was no term in the
valid only among the partners. L is liable because contract but a mixed condition. The fulfillment of the
the agreement limiting his liability to his capital condition did not depend purely on Gary’s will but on
contribution is not valid insofar as the creditors are other factors, e.g., the shipping company and the
concerned. Having taken part in the management of government. Homer should comply with his
the partnership, O is liable as capitalist partner. obligation.
b) No. P is not liable because there is a valid
stipulation exempting him from losses. Since the SUGGESTED ANSWER:
other partners allowed him to engage in an outside b) No. Homer was not justified in refusing to
business activity, the stipulation absolving P from accept the tobacco leaves. He consented to the
liability is valid. For O, it is basic that a limited terms and conditions of the sale and must abide
partner is liable only up to the extent of his capital by it. Obligations arising from contract have the
contribution. force of law between the contracting parties. It is
c) Yes. The stipulations exempting P and L from clear under the facts that the period of delivery
losses are not binding upon the creditors. O is of the tobacco leaves was not guaranteed. Gary
likewise liable because the partnership was not anticipated other factors which may prevent him
formed in accordance with the requirements of a from making the delivery within a month. True
limited partnership. enough, transportation problems and
d) No. The Civil Code allows the partners to government red tape did. Such slight delay was,
stipulate that a partner shall not be liable for losses. thus, excusable. Obligations arising from
The registration of the Articles of Partnership contract have the force of law between the
embodying such stipulations serves as constructive contracting parties and should be complied with
notice to the partnership creditors. in good faith (Art. 1160, Civil Code)
e) None of the above is completely accurate.
(2) Can Gary compel Isaac to pay his loan even
SUGGESTED ANSWER: before the end of the two-year period?
e) None of the above is completely accurate. a) Yes, Gary can compel Isaac to immediately pay
the loan. Non-compliance with the promised
VI. Gary is a tobacco trader and also a lending guaranty or security renders the obligation
investor. He sold tobacco leaves to Homer for immediately demandable. Isaac lost his right to
delivery within a month, although the period for make use of the period.
delivery was not guaranteed. Despite Gary’s efforts b) Yes, Gary can compel Isaac to immediately pay
to deliver on time, transportation problems and the loan. The delivery of the Toyota Innova is a
government red tape hindered his efforts and he condition for the loan. Isaac’s failure to deliver the
could only deliver after 30 days. Homer refused to car violated the condition upon which the loan was
accept the late delivery and to pay on the ground granted. It is but fair for Gary to demand immediate
that the agreed term had not been complied with. As payment.
lending investor, Gary granted a Pl,000,000 loan to c) No, Gary cannot compel Isaac to immediately pay
Isaac to be paid within two years from execution of the loan. The delivery of the car as security for the
the contract. As security for the loan, Isaac promised loan is an accessory contract; the principal contract
to deliver to Gary his Toyota Innova within seven (7) is still the P 1,000,000 loan. Thus, Isaac can still
days, but Isaac failed to do so. Gary was thus make use of the period.
compelled to demand payment for the loan before d) No, Gary cannot compel Isaac to immediately pay
the end of the agreed two-year term. the loan. Equity dictates that Gary should have
(l) Was Homer justified in refusing to accept the granted a reasonable extension of time for Isaac to
tobacco leaves? deliver his Toyota Innova. It would be unfair and
a) Yes. Homer was justified in refusing to accept the burdensome for Isaac to pay the P1,000,000 simply
tobacco leaves. The delivery was to be made within because the promised security was not delivered.
a month. Gary’s promise of delivery on a “best
effort” basis made the delivery uncertain. The term, SUGGESTED ANSWER:
therefore, was ambiguous. a) Yes, Gary can compel Isaac to immediately
b) No. Homer was not justified in refusing to accept pay the loan. Non-compliance with the promised
the tobacco leaves. He consented to the terms and guaranty or security renders the obligation
conditions of the sale and must abide by it. immediately demandable. Isaac lost his right to
Obligations arising from contract have the force of make use of the period. Under Art 1198 (2) of the
law between the contracting parties. Civil Code, the debtor shall lose every right to
c) Yes. Homer was justified in his refusal to accept make use of the period when he does not furnish
the delivery. The contract contemplates an to the creditor the guaranties or securities which
obligation with a term. Since the delivery was made he has promised.
after 30 days, contrary to the terms agreed upon,
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VII. Lito was a commercial pilot who flew for Pacific- unknown whether or not the absentee still lives,
Micronesian Air. In 1998, he was the co-pilot of the he shall be presumed dead doe all purposes,
airline’s Flight MA916 that mysteriously disappeared except for those of succession. This provision
two hours after take-off from Agana, Guam, was not repealed by the present Family Code.
presumably over the Pacific Ocean. No trace of the Applying this to the problem, a) may be correct.
plane and its 105 passengers and crew was ever b) may also be correct. c) and d) may also be
found despite diligent search; Lito himself was never correct under Art 41 of the Family Code.
heard of again. Lito left behind his wife, Lita, and
their two children. In 2008, Lita met and married VIII.Which of the following actions or defenses are
Jaime. They now have a child of their own. While on meritorious:
a tour with her former high school classmates in a a) An action for recovery of downpayment paid
remote province of China in 2010, Lita was under a rescinded oral sale of real property.
surprised to see Lito or somebody who looked b) A defense in an action for ejectment that the
exactly like him, but she was sure it was Lito lessor verbally promised to extend or renew the
because of the extreme surprise that registered in lease.
his face when he also saw her. Shocked, she c) An action for payment of sum of money filed
immediately fled to her hotel and post haste against one who orally promised to answer
returned to the country the next day. Lita now comes another’s debt in case the latter defaults.
to you for legal advice. She asks you the following d) A defense in an action for damages that the
questions: debtor has sufficient, but unliquidated assets to
(l) If Lito is alive, what is the status of his marriage to satisfy the credit acquired when it becomes due.
Lita? e) None of the above.
a) The marriage subsists because the marital bond
has not been terminated by death. SUGGESTED ANSWER:
b) The marriage was terminated when Lita married a) An action for recovery of down payment paid
Jaime. under a rescinded oral sale of real property. An
c) The marriage subsists because Lita’s marriage to oral sale of real property is an unenforceable
Jaime is void. contract under the Statute of Frauds. Since, in
d) The marriage is terminated because Lito is the problem, the vendee paid down payment, it
presumed dead after his plane has been missing for takes it out of the ambit of Statute of Frauds. The
more than 4 years. rescission here must be in the sense of
e) The marriage can be formally declared terminated resolution of the reciprocal obligation arising
if Lito would not resurface. from the contract of sale. If rescinded (resolved)
by the vendee on account of the vendors’ failure
SUGGESTED ANSWER: to deliver the thing sold, the parties will go back
c) The marriage subsists because Lita’s to their status prior to the contract. If the vendor
marriage to Jaime is void. For the purpose of refuses to return the down payment, then the
contracting the subsequent marriage under Art vendee can file an action to recover the down
41 of the Family Code, the spouse present must payment. If, on the other hand, the vendor and
institute a summary proceeding as provided in the vendee mutually agree to rescind i.e. cancel
the Family Code for the declaration of the contract, the vendee likewise can file an
presumptive death of the absentee, without action for the recovery of the down payment on
prejudice to the effect of the reappearance of the the basis of solutio indebiti.
absent spouse.
ALTERNATIVE ANSWER: e) None of the above.
(2) If Lito is alive, what is the status of Lita’s (a) The recovery of the down payments should
marriage to Jaime? be made in the same action for rescission.
a) The marriage is valid because Lita’s marriage to Otherwise, it would be a ground for dismissal
Lito was terminated upon Lito’s disappearance for under Rule 2, Sec 4 of Rules of Court. (b) Lease
more than seven years. of a real property is covered by the Statute of
b) The marriage is valid. After an absence of more Frauds. Furthermore, it also consists of interest
than 10 years, Lito is already presumed dead for all in real property. Hence, it must be in writing. (Art
purposes. 1403, Civil Code) (c) A contract of guaranty is a
c) The marriage is void. Lito’s mere absence, promise to answer for the debt of another and
however lengthy, is insufficient to authorize Lita to hence, it is also covered by the Statute of
contract a subsequent marriage. Frauds. It must be in writing before it can be
d) The marriage is void. If Lito is indeed alive, his enforced in a court action. (Art 1403, Civil Code)
marriage to Lita was never dissolved and they can (d) The fact that a debtor has unliquidated
resume their marital relations at any time. assets does not excuse him from paying his
debt. (e) In the technical meaning of rescission
SUGGESTED ANSWER: under Art 1191 of the Civil Code will be adhered
Any answer is correct. Under Art 390 of the Civil to, then there is no absolutely correct answer.
Code, after an absence of seven years, it being Hence, letter E is also a possible answer.
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of the possessor at a public sale, in which case,

IX. Betty entrusted to her agent, Aida, several pieces the owner cannot obtain its return without
of jewelry to be sold on commission with the express reimbursing the price (Dizon v. Suntay, 47 SCRA
obligation to turn over to Betty the proceeds of the 160).
sale, or to return the jewelries if not sold in a
month’s time. Instead of selling the jewelries, Aida Arlene owns a row of apartment houses in
pawned them with the Tambunting Pawnshop, and Kamuning, Quezon City. She agreed to lease
used the money for herself. Aida failed to redeem Apartment No. 1 to Janet for a period of 18 months
the pawned jewelries and after a month, Betty at the rate of P10,000 per month. The lease was not
discovered what Aida had done. Betty brought covered by any contract. Janet promptly gave Arlene
criminal charges which resulted in Aida’s conviction two (2) months deposit and 18 checks covering the
for estafa. Betty thereafter filed an action against rental payment for 18 months. This show of good
Tambunting Pawnshop for the recovery of the faith prompted Arlene to promise Janet that should
jewelries. Tambunting raised the defense of Arlene decide to sell the property, she would give
ownership, additionally arguing that it is duly Janet the right of first refusal.
licensed to engage in the pawnshop and lending (1) Not long after Janet moved in, she received
business, and that it accepted the mortgage of the news that her application for a Master of Laws
jewelry in good faith and in the regular course of its scholarship at King’s College in London had been
business. If you were the judge, how will you decide approved. Since her acceptance of the scholarship
the case? entailed a transfer of residence, Janet asked Arlene
a) I will rule in favor of Betty. My ruling is based on to return the advance rental payments she made.
the Civil Code provision that one who has lost any Arlene refused, prompting Janet to file an action to
movable or has been unlawfully deprived thereof recover the payments. Arlene filed a motion to
may recover it from the person in possession of the dismiss, claiming that the lease on which the action
same. Tambunting’s claim of good faith is is based, is unenforceable. If you were the judge,
inconsequential. would you grant Arlene’s motion?
b) I will rule in favor of Betty. Tambunting’s claim of a) Yes, I will grant the motion because the lease
good faith pales into insignificance in light of the contract between Arlene and Janet was not in
unlawful deprivation of the jewelries. However, writing, hence, Janet may not enforce any right
equity dictates that Tambunting must be reimbursed arising from the same contract.
for the pawn value of the jewelries. b) No, I will not grant the motion because to allow
c) I will rule in favor of Tambunting. Its good faith Arlene to retain the advance payments would
takes precedence over the right of Betty to recover amount to unjust enrichment.
the jewelries. c) Yes, I will grant the motion because the action for
d) I will rule in favor of Tambunting. Good faith is recovery is premature; Janet should first secure a
always presumed. Tambunting’s lawful acquisition in judicial rescission of the contract of lease.
the ordinary course of business coupled with good d) No. I will not grant the motion because the cause
faith gives it legal right over the jewelries. of action does not seek to enforce any right under
the contract of lease.
SUGGESTED ANSWER:
a) I will rule in favor of Betty. My ruling is based SUGGESTED ANSWER:
on the Civil Code provision that one who has d) No. I will not grant the motion because the
lost any movable or has been unlawfully cause of action does not seek to enforce any
deprived thereof may recover it from the person right under the contract of lease. Janet is not
in possession of the same. Tambunting’s claim asking for the continued use of the leased
of good faith is inconsequential. Although premises. Moreover, the contract is aside the
possession of movable property acquired in ambit of the Statute of Frauds as the same has
good faith is equivalent to a title, nevertheless, already been partially performed.
one who has lost any movable or has been
unlawfully deprived thereof may recover it from (2) Assume that Janet decided not to accept the
the person in possession of the same. Betty has scholarship and continued leasing Apartment No. 1.
been deprived unlawfully of her jewelries by the Midway through the lease period, Arlene decided to
estafa committed by Aida. The pledge of the said sell Apartment No. 1 to Jun in breach of her promise
jewelries by Aida to Tambunting pawnshop is to Janet to grant her the right of first refusal. Thus,
void because the pledgor is not the owner (Art. Janet filed an action seeking the recognition of her
2085[2], Civil Code). Tambunting’s claim of good right of first refusal, the payment of damages for the
faith is inconsequential, because, aside from violation of this right, and the rescission of the sale
good faith, Tambunting must prove also that it between Arlene and Jun. Is Janet’s action
acquired the jewelries at a public sale in order to meritorious?
be able to retain the jewelries until reimbursed a) Yes, under the Civil Code, a promise to buy and
by Betty the amount of loan including interest sell a determinate thing is reciprocally demandable.
(Art 559, Civil Code). The only exception the law b) No, the promise to buy and sell a determinate
allows is when there is acquisition in good faith thing was not supported by a consideration. c) Yes,
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Janet’s right of first refusal was clearly violated when

the property was not offered for sale to her before it
was sold to Jun.
d) No, a right of first refusal involves an interest over
real property that must be embodied in a written
contract to be enforceable.
e) None of the above.

SUGGESTED ANSWER:
d) No, a right of first refusal involves an interest
over real property that must be embodied in a
written contract to be enforceable. The right of
first refusal involves a transfer of interest in the
real property. As such, it is covered by the
Statute of Frauds under Art 1403 (2)(e) of the
Civil Code. It must be in writing in order to be
enforceable.

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1986 BAR EXAMINATION (Note: The above answer is based upon Arts. 13
and 1174 of the Civil Code. An answer based on
I. Mr. Mekanico leased some automobile repair Arts. 13 and 1262 of the Civil Code or on Arts. 13,
equipment to Mr. Masipag, who was opening his 1665 and 1667, arriving at the same conclusion
auto repair shop. The lease agreement was should also be considered correct.)
executed on February 15, 1985. It stipulated that the
period was one month only, at the expiration of ALTERNATIVE ANSWER:
which Masipag was to return the equipment of The loss occurred by fortuitous event before
Mekanico. The equipment was delivered on Masipag incurred in delay. Therefore, the general
February 15, 1985. On March 15, 1985 Mekanico, in rule applies: No one shall be held liable for loss due
a telephone call, asked Masipag, to return the to fortuitous event.
leased property that same day. Because his truck The one-month period of lease would expire only on
broke down, Masipag was unable to comply. Early March 18th while the fire occurred on the 29th day.
the next morning, the equipment was burned in an The Civil Code provides that one-month consists of
accidental fire that started in a nearby restaurant 30 days and February 1985 had only 28 days, not
and gutted Masipag’s auto repair shop. Mekaniko being a leap year.
seeks to hold Masipag liable for the value of the lost
property plus damages on the ground that he did not II. Mr. Mamirapal, 19 years old and married, seeks
return it as agreed upon. Is Mekanico’s claim to do the following:
tenable? Explain. 1. Lend his money at interest.
2. Donate a piece of his land to his infant son.
SUGGESTED ANSWER: 3. Sell his car.
Mekaniko’s claim is untenable. Under Article 1262 of 4. Sue his neighbor for damages.
the Civil Code “an obligation which consists in the
delivery of a determinate thing shall be extinguished The land, money, and car are Mamirapal’s separate
if it should be lost or destroyed without the fault of property derived from his own income. He is not
the debtor and before he has incurred in delay.” For sure whether he can legally do all these things
the debtor to be in delay, i) the obligation must without his father’s consent and assistance. He
already be demandable; ii) the debtor delays comes to you for advice. What advice will you give
performance; and iii) the creditor requires him?
performance either judicially or extrajudicially.In the
instant case, the equipment to be returned was lost SUGGESTED ANSWER:
in an accidental firem without fault on the part of I will advice Mamirapal: (1) to lend his money at
Masipag. More, Mr, Masipag has not yet incurred in interest without securing his father’s consent or
delay as the “demand” made by Mekaniko on March assistance; (2) to donate a piece of his land to his
15, 1985 was not valid. Demand must be made at a infant son, but with father’s consent; (3) to sell his
time when the obligation is already demandable. car without father’s consent or assistance; and (4) to
Since February only has 28 days, the obligation to sue his neighbor for damages, but with his father’s
return the repair equipment arose only thirty days assistance.
after February 15, or on March 17, 1985.
Accordingly, the telephone call made by Mekaniko Although Mamirapal is already emancipated, his
on March 15 did not constitute a demand as to make emancipation is not perfect or plenary in character.
Mr. Masipag in delay. Not being in delay, the Under the law, he cannot borrow money or alienate
obl;igation of Masipag to return the equipment has or encumber real property without the consent of his
clearly been extinguished, hence Mekaniko cannot father. Neither can he sue or be sued without the
recover damages from Masipag. assistance of his father. It is obvious that only Nos.
(2) and (4) fall within the purview of these
The fire of accidental origin which destroyed the exceptions.
equipment which is the object of the obligation in the
instant case is clearly fortuitous in character. (Note — The above answer is based upon Art. 399
Therefore, the doctrine of fortuitous events is of the Civil Code).
applicable. The debtor or obligator, Masipag, is not
liable. In other words, the obligation is extinguished. ALTERNATIVE ANSWER:
The fact that the loss took place on March 16, 1985,
which is one day after Mekaniko had made a The Civil Code provides that an emancipated minor
demand upon Masipag to return the leased property, cannot borrow money, alienate or encumber real
does not mean that the loss took place after the property without the consent of his parent or
obligor had already incurred in delay. It must be guardian. Neither can he sue or be sued without the
noted that the lease agreement was executed on assistance of his parent or guardian. Therefore, the
February 15, 1985. Obviously, on March 16, 1985, answer to questions:
Masipag had not yet incurred in delay, as the one 1) Yes, he can legally do it alone;
month period agreed upon had not yet elapsed. 2) No, because donation is a form of alienation;
3) Yes, as property is movable;
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4) He needs the assistance of his father. Mr. Napintas, as father, filed a suit for damages
against the bungling surgeon for the loss of the
III. After a whirlwind courtship of two weeks, Marikit, child. Will the suit prosper? Is it possible for Mr.
starry-eyed and captivated, got married to Mr. Napintas to get damages of some sort? Explain.
Masanting. Soon after the honeymoon, however,
Marikit discovers that Masanting was not the knight SUGGESTED ANSWER:
in shining armor she thought she married. She The action for damages for loss of the child (fetus)
received official information that Masanting had will not prosper because as held by the Court in the
been dishonorably discharged from the army for case of Geluz v. CA, the foetus is not a person. But
desertion. She also learned that Masanting had a moral damages may be recovered for mental
string of liaisons with all kinds of women during his anguish for loss of parental expectancy. Perhaps,
army career. What infuriated Marikit was that even exemplary damages may be recovered.
Masanting had concealed all of these from her and,
in fact, had woven tales of gallantry on the battlefield ALTERNATIVE ANSWER:
and of deep religious conviction which made him 1. It would be possible for Mr. Napintas to claim
lead a pure life. Promptly upon discovering the truth moral damages for whatever hurt feelings and
about Masanting and within the first year of their remorse he may have felt by reason of the loss of
marriage, Marikit sues to annul the marriage on the child which was a result of the negligent act of
grounds of deception and fraud. Will her action the doctor.
prosper? Explain. The act of negligence would be the basis for
damages that he may claim.
SUGGESTED ANSWER: As for the child per se, no damages may be claimed
Her action for annulment will not prosper. on behalf of the child or for the death of the child as
The fraud and deceit do not constitute fraud as a civil personality begins from the moment of birth.
ground for annulment of a marriage. The Civil Code Here, the child was never born.
provides that no other misrepresentation or deceit
as to character, rank, fortune or chastity other than 2. The suit instituted, by Mr. Napintas will not
those enumerated shall constitute fraud as well as a prosper. The basis of the suit is the loss or death of
ground for annulment of marriage. the child. True, damages may be awarded for death
caused by a crime or a quasi-delict. However, in the
ALTERNATIVE ANSWER: instant case, the unborn child never died because it
Marikit’s action will not prosper. According to the never acquired a juridical personality.
Civil Code, any of the following shall constitute fraud
which will entitle a contracting party to ask for the The law expressly limits the provisional personality
annulment of the contract of marriage: of a conceived child by imposing the condition that
(1) misrepresentation as to the identity of the the child should be subsequently born alive. Here,
contracting parties; the child was not alive when separated from its
(2) non-disclosure of the previous conviction of the mother’s womb.
other party of a crime involving moral turpitude, and
the penalty imposed was imprisonment for two years Although Mr. Napintas cannot recover damages
or more; from the bungling surgeon for the loss or death of
(3) concealment by the wife of the fact that at the the unborn child, it is submitted that lie can recover
time of the marriage, she was pregnant by a man actual damages, moral damages, exemplary
other than her husband. damages, and attorney’s fees, but the basis will be
No other misrepresentation with respect to the quasi-delict committed by the surgeon.
character, rank, fortune or chastity shall entitle a (Note — The first paragraph of the above answer is
contracting party to ask for the annulment of the based upon the case of Geluz v. CA. 2 SCRA 801,
marriage. and upon Art. 40 and 41 of the Civil Code in relation
It is clear that the misrepresentation employed by to Art. 2206 of the same Code, while the second
Masanting are merely deceptions with respect to paragraph is based upon the law on, quasi-delicts
character and chastity. Therefore, there is no ground and the law on damages.)
for Marikit’s asking for the annulment of her
marriage to Masanting. V. Mahinhin lost her diamond ring when the bus she
was riding on was held up by a band of brigands
(Note — The above answer is based on Art. 86 of who divested the passengers of all their money and
the Civil Code.) valuables. The ring found its way to the Pasanglaan
pawnshop, where one of the robbers had pawned it.
IV. Mrs. Napintas, five months pregnant, had to The pawnshop, in due time, foreclosed the pledge
undergo an emergency appendectomy but, in the and sold the ring at public auction to Mayaman, the
course of the surgery, through the negligence of the highest bidder.
surgeon, she suffered an abortion. Three years after the loss, Mahinhin was able to
trace the ring to Mayaman and demanded that the

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latter give the ring back to her. Mayaman refused, share or pro-indiviso share of the vendor, subject to
saying that he had acquired the ring in good faith. partition later on. The sale of Magaling would,
Who was the better right to the ring? Explain. therefore, only pertain to 1/3 share of the property
and the buyer cannot demand a specific portion of
SUGGESTED ANSWER: the lot.
Mahinhin, the owner, still has a better right to the
ring. She had been unlawfully deprived of the ring, ALTERNATIVE ANSWERS:
therefore, not even an innocent purchaser in a 1. Under Art. 493, a co-owner may sell his undivided
pawnshop can claim a better right. However, interest in the thing owned in common, without the
Mayaman has to be reimbursed. consent of her co-owners. However, what was sold
here was a determinate portion of the land, which
ALTERNATIVE ANSWERS: cannot be sold by a co-owner until the property is
1. Art. 559 will apply as the owner was unlawfully partitioned.
deprived on her right and may recover it even from
an innocent purchaser . However, as the buyer 2. I would like to qualify my answer. If by “part of the
bought it in a public sale, Mallinhin is duty bound to lot,” Malugod and Masanting refer to a specific
reimburse the price paid before she can recover the portion of the property owned in common, then they
ring. are correct. The buyer cannot now demand for the
delivery of the property sold by Magaling to him.
2. Mahinhin has the better right to the ring, but he However, if by, “part of the lot”, Malugod and
must reimburse Mayaman he price paid by the latter Masanting refer to the undivided or pro indiviso
in acquiring said ring at the public auction sale. share of Magaling, then they are not correct Under
the law, each co-owner may alienate his “part,” but
True, Mayaman acquired the ring in good faith. His the effect with respect to the co-owners shall be
possession, therefore, is equivalent to a title. But limited to the portion which may be alloted to him in
then, Mahinhin was unduly deprived of the ring. the division upon the termination of the co-
Under the law, one who has lost any movable or ownership.
who has been unduly deprived thereof can recover
the movable even from a possessor in good faith. (Note — The above answer is based upon Art. 493
The only exception the law allows is when the of the Civil Code. We recommend that an answer
possessor had acquired the movable in good faith at declaring that Malugod and Masanting are correct
a public sale. In such case, the owner cannot obtain using Art. 493 as reason should also be considered
its return without reimbursing the price paid therefor. correct.)
As held in so many notable decisions, even the
common law principle (that were one of two innocent VII. Mr. Magabun and Mr. Ortelano each delivered
persons must suffer by fraud perpetrated by another, 1,000 kilos of palay to Mr. Kono for milling.
the law imposes the loss upon the party who, by Magabun’s rice was Milagrosa quality and was
misplaced confidence has enabled the fraud to be worth three times more per kilo than the rice of
committed) cannot be applied in a case which is Ortelano. Before Mr. Kono could mill the rice, an
covered by an express provision of the Civil Code. accidental fire broke out in the mill. Kono was able
Between a common law principle and a statutory to save one half of the rice of both Magabun and
provision, the latter must prevail. Ortelano but in the confusion, the rice ended up
mixed and commingled. What are the respective
(Note — The above answer is based on Art. 559 of rights of Magabun and Ortelano over the—naixture?
the Civil Code and on a long line of decisions of the Explain.
Supreme Court.)
SUGGESTED ANSWER:
VI. Magaling, Malugod and Masanting are co- Magabun, owner of the Milagrosa rice, shall own 3/4
owners in equal shares, pro indiviso, of a 9,000 interest of the mixture, while Ortelano, the owner of
square meter residential lot in Quezon City. the regular rice shall own 1/4 interest in the mixture.
Magaling needs money badly and sold a specified This is because the Milagrosa rice was worth three
3,000 square meter portion of the lot, describing in times more than the ordinary rice.
the deed the metes and bounds of the part sold.
When the buyer demanded the portion sold to him, ALTERNATIVE ANSWER:
Malugod and Masanting argued that under no 1. This is a case of commixtion under Civil Code.
circumstances whatsoever may any part of the lot Both Magabun and Ortelano will be owners of the
be sold without the consent of the two other co- rice saved in the proportion of 3:1.
owners. Is their contention correct? Explain.
2. Magabun and Ortelano shall each acquire a right
SUGGESTED ANSWER: proportional to the part be onging to him, bearing in
A co-owner can always sell his share in the co- mind the value of the things mixed.
ownership without the consent of the other co- We have here a perfect example of what the law
owners. However, the sale is limited to the ideal calls commixtion effected by chance. That means
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that each shall be considered as having acted in exercise of his rights, must act with justice x x x.
good faith. Since the rice belonging to Magabun is Therefore, although technically the creditor can
worth three times more per kilo than the rice refuse the check, he could be made liable if he
belonging to Ortelano, therefore, the mixture refused the cashier’s check for no good reason or in
will be divided between the two in the proportion, of bad faith.
three is to one. Magabun shall be entitled to three-
fourths (3/4) of the mixture, while Ortelano shall be 2. Although a cashier’s check may be as good as
entitled to one-fourth (1/4). cash, still it is not legal tender, and the sheriff may
refuse to accept the check, as it does not produce
(Note — The above answer is based upon Art. 472 the effect of payment until cashed.
of the Civil Code.)
IX. On due date, Mayutang, finding himself unable to
VIII. Mr. Magaling obtained a judgment against Mr. pay Makaragdag his P500,000.00 obligation,
Mayaman in the amount of P500,000.00. A writ of proposed in a letter to Makaragdag that he would
exceution was issued pursuant to which various deed over to Makaragdag his Mercedes Benz car,
personal properties of Mayaman were levied upon “to be applied to the amount which I owe you.” The
by the sheriff. An auction sale was scheduled. following week, Mayutang sent the car to
Makaragdag with the proper deed of conveyance. It
Before the appointed day of the auction, Mayaman was accepted.
delivered to the sheriff a cashier’s check of Far East Was the arrangement a valid way of settling the
Bank in the amount of P200,000.00 and enough obligation? Explain.
cash to cover the remainder of the total amount due. After the delivery of the car would Makaragdag have
Magaling refused to accept the check and asked the any further claim against Mayutang if the value of
sheriff to proceed with the auction sale. the car is found to be less than the P500,000.00
obligation? Explain.
Did Magaling have the right to refuse the payment of
part of the obligation with a cashier’s check? SUGGESTED ANSWER:
Explain. The general rule according to commentators
(Castan and Manresa) is that dation extinguishes in
SUGGESTED ANSWER: full the obligation - the exception is a contrary
Magaling did not have the right to refuse the agreement because then it becomes assignment of
payment of part of the obligation with a cashier’s rights — hence valid only up to the value.
check.
The Central Bank Act provides that a check which ALTERNATIVE ANSWER:
has been cleared and credited to the account of the 1. The arrangement was a valid way of settling the
creditor shall be equivalent to a delivery to the obligation. The law provides that payment for an
creditor in cash in an amount equal to the amount obligation may be made by delivery of other
credited to his account. Analyzing the above property.
provision, it is clear that the cashier’s check of Far
East Bank, a reputable bank, and credited to the 2. The creditor can claim the deficiency because the
account of Mayaman has legal tender power. debt shall only be extinguished up to extent of the
Therefore, there was no basis for Magaling in value of the property given to him, since the
refusing payment of the obligation. agreement was that the car was “to be applied “to
the amount owed.
(Note: — The above answer is based on Art. 1249 of
the Civil Code. The exception in New Pacific Timber 3. Yes, the arrangement was a valid way of settling
and Supply Co. v. Seneris, 101 SCRA 686, refers to the obligation. Under the Civil Code, there are
“Certified Check” because the reason given in that several special forms of payment which will have all
case was based on Sec. 63 of the Central Bank Act. of the effects of a valid payment. One of them is
However, a contrary answer that “Cashier’s Check” dation in payment (dacion en pago). It is defined as
is payment in cash may be considered correct the transmission of the ownership of a thing by the
because the above case confused cashier’s check debtor to the creditor as the accepted equivalent of
with certified check — hence examinee should be the performance of an obligation, According to the
given benefit of doubt.) Civil Code, the law on sales shall govern the
transaction. Thus, in the instant problem, the
ALTERNATIVE ANSWER: Mercedes Benz car is considered the object of the
1. It is well settled that a cashier’s check is as good contract of sale, while the debt of P500,000 is
as cash. The law, however, provides that a creditor considered the purchase price.
may refuse payment if it is other than legal tender.
Although the creditor has the right to refuse the If the value of the car is found to be less than the
payment in the form of the check, he cannot do so P500,000.00 obligation, would Makaragdag have
without any justifiable reason. Under the Chapter on any further monetary claim against Mayutang?
Human Relations in the Civil Code, a person, in the
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 319

SUGGESTED ANSWER: and, the payment of interests in case of non-

Normally, dacion en pago has the effect of compliance. There are only three exceptions to this
extinguishing the obligation to the extent of the value rule. They are: first, when there is stipulation to the
of the thing delivered either as agreed upon or as contrary: second, when the creditor is compelled to
may be proved, unless the silence of the parties sue the debtor because of the latter’s refusal to pay
signifies that they consider the delivery of the thing the agreed penalty; and third, when the debtor is
as the equivalent of the performance of the guilty of fraud. It is clear that the instant case does
obligation. It must be observed, however, that not fall within the purview of any of the three
Makaragdag accepted the delivery of the car without exceptions. Therefore, the award in favor of the
any protest or objection. The entire obligation, plaintiff should be for P100,000.00 only.
therefore, is deemed fully complied with.
2. I shall not sustain the claim of Betis Furniture Co.
(Note: The above answer is based upon Arts. 1245 The Civil Code is explicit. According to said Code, in
and 1235 of the Civil. Code and upon Lopez vs. CA, obligations with a penal clause, the penalty shall
114 SCRA 67 I .) substitute the indemnity for damages and the
payment of interests in case of non-compliance.
ALTERNATIVE ANSWER: There are three exceptions to this rule. They are:
The arrangement is a valid way of settling the first, when there is a stipulation to the contrary;
obligation which is known as “dacion en pago.” As to second, when the creditor is compelled to sue the
whether the delivery of the car was in “full debtor because of the latter’s refusal to pay the
satisfaction” of the debt or to be merely “applied” to agreed penalty; and third, when the debtor is guilty
the whole indebtedness is another question. The of fraud. It is clear that the instant case falls within
interpretation of their agreement would depend on the purview of the third exception. The furniture
the difference between the value of the car and delivered by Betis was made, not of narra, but of
P500,000.00. If the difference is very great, the inferior wood. That indicates that the debtor
intention of the parties would be that the car is not in committed fraud in performing its obligation.
“full satisfaction” of the debt. Therefore, the award in favor of the plaintiff should
be for P200,000.00 actual damages plus the
X. The Betis Furniture Co. undertook to deliver to P100,000 penalty.
Mr. Bagongkasal specified pieces of living room,
dining room and bedroom furniture, all made of 3. Under the doctrine of G.A. Machineries, Inc. v.
narra, for a price stated in the contract. The Yaptinchay, 126 SCRA 78, there is breach of
agreement had a penal clause that any violation of contract not breach of warranty. The breach is
the contract would entitle the aggrieved party to fraudulent. Under the doctrine of Mariano Pamintuan
damages in the amount of P100,000.00. The v. CA, SCRA 556, since the debtor is guilty of fraud
furniture delivered by Betis was made, not of narra, — “The proven damages supersede the stipulated
but of inferior wood. damages (penalty)”, citing Art. 1226 Civil Code of
the Philippines).
In a suit to recover damages, Bagongkasal was able
to prove that the actual damages he sustained 4. Here there is a breach of warranty and Betis
amounted to P200,000.00. He demanded that Furniture Co. must know the difference between
amount plus the P100,000.00 penalty or a total of “narra” and other kinds of wood. Therefore, in
P300,000.00. Betis, however, countered that if it delivering the furniture made of inferior quality, it
were liable for damages at all, the maximum award undoubtedly acted fraudulently, and under the Civil
should not exceed P100,000.00 as stated in the Code the buyer in this case would be entitled to be
penal clause of the contract. reimbursed the difference in value of the furniture
and the price he paid (P200,000) and damages
Whose claim would you sustain? Why? (penalty — P100,000).

SUGGESTED ANSWER: XI. By means of a public instrument, Mr. Nagbibili

I would sustain the claim of Betis. A penal clause is sold his mango plantation to Abenturero effective
supposed to answer for damages without the immediately. The document stipulated, however, that
introduction of proof as to actual damages. It is to be delivery would be effected six months from the
noted that the penal clause has been freely agreed execution of the deed of sale. When the said period
upon between the parties precisely with the intention arrived, Abenturero demanded delivery in writing but
of doing away with having to present proof of Nagbibili dilly-dallied. It was not until a month
damages. afterwards that Nagbibili finally gave the land to
Abenturero. In the three weeks before delivery,
ALTERNATIVE ANSWER: Nagbibili sold and delivered the entire produce of
1. I shall sustain the claim of the defendant Betis the mango plantation to Mr. Commerciante for
Furniture Co. The Civil Code is explicit. According to P200,000.00. Commerciante knew nothing of the
said Code, in obligations with a penal clause the contract between Nagbibili and Abenturero.
penalty shall substitute the indemnity for damages Abenturero now seeks to recover from
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Commerciante either the full value of the mangoes How should the estate of Carlos worth P800,000.00
or a similar amount and quality of the mangoes sold. be apportioned among the above survivors?
Explain.
Does Abenturero have this right against
Commerciante? Explain. SUGGESTED ANSWER:
The estate of Carlos worth P800,000 should be
SUGGESTED ANSWER: apportioned as follows:
Abenturero does not have any right, whether 1. Josefa — one-half, or P400,000.00;
personal or real, to proceed against Commerciante. 2. Fe — one-fourth, or P200,000.00; and
In obligations to give, the creditor has a right to the 3. Gerardo — one-fourth, or P200,000.00.
thing which is the object of the obligation and to the
fruits thereof when the obligation to deliver arises. As a rule, the adopter cannot inherit from the
The obligation to deliver arises from the moment of adopted child by intestate succession. If the adopted
the perfection of the contract. In sales, once the child dies intestate, leaving no child or descendant,
contract is perfected, the vendor is bound to deliver his parents and relatives by consanguinity and not
the thing sold and the fruits, unless there is a by adoption shall be his legal heirs. There is,
stipulation to the contrary. In the instant problem, however, an exception to his rule. According to the
there is a stipulation that delivery will be effected six law, if the parents by nature of the adopted child are
months from the execution of the deed of sale. both dead, the adopter takes place of such parents
Instead of delivering the mango plantation and the in the line of succession, whether testate or
fruits of Abenturero in accordance with the intestate. Therefore, in the instant problem, Josefa
agreement, Nagbibili breached the contract by shall take place of Jaime and Maria. The
delaying the delivery of the plantation beyond the grandparents Daniel and Rosa are therefore
period agreed upon and by selling the fruits to excluded. Consequently, applying the rules of
Commerciante. However, since there was still no intestacy, Josefa shall be entitled to one-half (1/2) of
delivery of the plantation and the fruits, it is obvious the estate by substitution; Fe shall be entitled to
that the only right which Abenturero had acquired one-fourth (1/4) as surviving spouse; and Gerardo
was a personal right enforceable against Nagbibili, shall be entitled to one-fourth (1/4) as illegitimate
not a real right enforceable against the whole world. child.
Ergo, he can now proceed against Nagbibili for
indemnification for damages. He cannot proceed (Note: The above answer is based upon Arts. 984
against Commerciante who was not even aware of and 100 Civil Code and upon Art. 39, No. (4), P.D.
the existence of the contract between Nagbibili and 603).
Abenturero.
ALTERNATIVE ANSWER:
(Note — The above answer is based upon Arts. Under P.D. 603, the adopter takes place of the
1164 and 1537 of the Civil Code and upon decided parents by nature if the latter are dead, both as a
cases.) compulsory and .a legal heir. Therefore, as the
adopted is survived by his wife, an acknowledged
ALTERNATIVE ANSWER: son and his maternal grandparents, adopter inherits
1. Although the buyer is entitled to the fruits of the in the same way as a legitimate parent, and they will
land from the time of perfection of the contract, still share as follows:
he did not acquire a real right over the fruits until Josefa 1/2
they are delivered to him. Therefore, Abenturero has Fe (wife) 1/4
no right of action against Commerciante. Gerardo 1/4
(acknowledged natural child)
2. The seller is supposed to deliver to the buyer the
thing sold as well as the fruits and accessions that XIII. Mr. Burnside, a citizen of the State of California
accrue from the moment of perfection. Abenturero is but domiciled in the Philippines, made a will in
entitled to the fruits of the mango plantation from the Manila providing that his estate should be distributed
time of the execution of the public instrument which in accordance with Philippine law. At the time of his
provided that the sale was to be effective death, Burnside’s estate consisted of bank accounts
immediately. Delivery may be either actual or in various Philippine banks.
constructive. The execution of public instrument is
one of the modes of constructive delivery. Is the testamentary provision valid? Explain.

XII. Carlos, legitimate son of Jaime and Maria, was What law would govern if Burnside had not made
legally adopted by Josefa. Both Jaime and Maria such a testamentary provision. Explain.
died soon after the adoption. Carlos, himself died in
1986. His survivors are Josefa, his legitimate SUGGESTED ANSWER:
maternal grandparents Daniel and Rosa, his wife Fe The testamentary provision is not valid. According to
and his acknowledged natural son, Gerardo. the Civil Code, there are four aspects of succession
which are governed by the national law of the
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decedent if he is a foreigner. They are: first, the

order of succession; second, the amount of SUGGESTED ANSWER:
successional rights; third, the intrinsic validity of The will is not valid either as a notarial will or a
testamentary provisions; and fourth, the capacity to holographic will. It is not valid as a notarial will
succeed. It is obvious that the proviso in Burnside’s because this requires 3 attesting witnesses. Neither
will providing that his estate shall be distributed in is it a valid holographic will because the will must be
accordance with Philippine Law is contrary to the entirely written, dated and signed in the handwriting
explicit mandate of the Civil Code. Therefore, it is of the testator. The fact that the witnesses testified
void. as the date of execution did not cure the defect.
If Burnside had not made the above-stated
testamentary provision, applying the doctrine of ALTERNATIVE ANSWER:
single renvoi, the law of the Philippines shall be 1. The will is not formally valid. Whether we consider
applied. Under the law of the Philippines, the the will in the instant problem as a notarial will or as
national law of Burnside shall govern. That means a holographic will, it cannot be considered as a valid
the law of California. Now, what does the law of will. If we consider it as a notarial will, it is not be
California say? According to the conflicts-rule-law of valid because there are only two instrumental
California, the internal law of Burnside’s domicile witnesses. Under the law on notarial or ordinary
shall govern and not the law of California. So, the wills, the will should have been subscribed to and
case is referred back (renvoi) to the internal law of attested by three or more credible witnesses.
the Philippines. The law of the Philippines shall, Therefore, it is void. If we consider it as a
therefore, be applied in the distribution of Burnside’s holographic will, it is not also valid because it is not
estate. dated. Under the law on holographic wills, the will
should have been entirely written, dated and signed
(Note: The answer to the first question is based by the hand of the testator himself. Therefore, it is
upon Arts. 16, par. 2, and 1039 of the Civil Code and void.
upon Bellis vs. Bellis, 20 SCRA 358. The answer to
the second question is based upon Art. 16, par. 2, of (Note : The above answer is based upon Arts. 805
the Civil Code and upon Aznar vs. Christensen- and 810 of the Civil Code and upon decided cases.)
Garcia, 7 SCRA 95.)
2. The Civil Code provides that a holographic will
ALTERNATIVE ANSWER: must be entirely in the handwriting of the testator,
1. The validity of the testamentary provision would signed and dated by him. It need not be witnessed.
depend on whether the law of California allows such Hence lacking the date, it cannot be allowed to
choice. If Burnside had not made such testamentary probate. The law does not allow extrinsic evidence
provision, Philippine law would govern, as in the to supply the omission.
case of Aznar, it was found that California adopts the
domiciliary theory. As the decedent is domiciled in XV. Sumakay, a passenger on a bus owned and
the Philippines, the Philippine law on succession will operated by Kanlungan Bus Company suffered
apply. serious injuries when the vehicle went out of control
and rammed an electric post. Tsuper, the bus driver,
2. The laws of the country of which a person is a was, at the time of the accident, doing 100
citizen shall govern the intrinsic validity of his will — kilometers per hour in a school zone and hit the post
as to the order of succession and amounts to be because he was trying to avoid hitting school
distributed to his heirs. The testamentary provision children crossing the street.
is therefore invalid. However, the provision shall be
given effect not by reason of its validity but because In a suit for damages against the bus company for
of Philippine laws which have to govern property the driver’s gross negligence, Kanlungan interposed
situated in the Philippines. the defenses that all its drivers were under strict
Because his estate consisted only of bank accounts injunction to observe speed limits in their particular
in Philippine banks, Philippine law should still routes and that in any event, the driver should first
govern. have been sued, held liable, and found insolvent
before Kanlungan could be proceeded against.
XIV. Busalsal executed a will in his handwriting,
signed by him at the end of each page on the left Are the bus company’s defenses tenable? Explain.
marginal space of every page except the last page.
The document bore no date. However, below SUGGESTED ANSWER:
Busalsal’s every signature, were the signatures of I beg to qualify my answer. As far as the first
two witnesses, who later testified that the will was defense (that the drivers of the bus company were
executed in their presence on January 1, 1985, New under strict injunction to observe speed limits in their
Year’s Day, and that Busalsal was in full possession particular routes) is concerned, it is submitted that
of his faculties at that time and even explained to said defense is untenable. This is clearly stated by
them details of the will he was writing down. the Civil Code itself. In this jurisdiction, we have
Is the will formally valid? Explain. never adhered to the principle of respondent
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superior. We adhere instead to the principle that amount, Maganaka delivered to Matunod two rings
there is always an implied duty on the part of a in pledge. When Maganaka failed to pay, Matunod
common carrier to carry a passenger safely to his foreclosed, and had the rings sold at auction. The
place of destination. proceeds of the sale, after deducting expenses,
amounted to only P70,000.00.
Anent the second defense, if the civil action for (a) May Matunod demand the deficiency from
damages is impliedly instituted in the criminal action Maganaka? Explain.
itself, then, the defense is tenable. Under the (b) Assume that the proceeds, after deducting
principle of subsidiary liability of employers, it is expenses, had come up to P150,000.00. Would
essential that there must be a finding that the driver Matunod have been entitled to the excess? Explain.
is insolvent before the bus company can be (c) Suppose the rings, instead of being pledged, had
proceeded against. However, if the civil action for been mortgaged to Matunod, would Matunod have
damages is separated from the criminal action, then, been entitled to the deficiency if the sale’s proceeds
the defense is untenable. Under the Civil Code, the were less than the indebtedness or to the excess, if
liability of the bus company is always directed and the proceeds were more? Explain.
primary.
SUGGESTED ANSWER:
(Note: The above answer is based upon Art. 1759 of The Civil Code on pledge provides that the
the Civil Code, upon Arts. 100 to 103 of the Revised foreclosure of the pledge extinguishes the principal
Penal Code, and upon Maranan v. Perez, 20 SCRA obligation, whether the proceeds of the sale are
412.) more, or less than the obligation. Hence,
a) Matunod cannot recover the deficiency.
ALTERNATIVE ANSWER: b) Matunod is entitled to keep the excess, unless
1. The bus company, if sued based on culpa there is a stipulation to the contrary.
contractual, cannot raise the defense of diligence in If it is a chattel mortgage, Matunod can still recover
the supervision of its employees. The mere fact that the deficiency as there is no prohibition in the
there was a breach of the contract of carriage Chattel Mortgage Law similar to pledge and the
makes the company liable for damages. excess, if any should be returned to the mortgagor
(Maganaka).
If the bus company was sued based on culpa
aquiliana, it cannot raise the defense that the driver XVII. Mayroon, Magari and Kilalanin Sr. are co-
should have been first sued, held liable, and found owners in equal shares of a piece of land. Kilalanin
insolvent before it could be proceeded against Sr. sold his undivided interest to his son Kilalanin Jr.
because the company is a joint tortfeasor. The A week later, Mayroon and Magari served notice on
company, therefore, has a primary liability, because Kilalanin Jr. of their intention to redeem the portion
of culpa aquiliana and not a subsidiary one. sold. However, Kilalanin Jr. refused to allow
redemption arguing that being the son of Kilalanin
Subsidiary liability on the part of the bus company Sr., he was not a third person in contemplation of
only results if there is an action based on culpa law with respect to redemption by co-owners.
criminal against the driver. If the latter is held liable
but is insolvent, then the bus company may raise the Is the refusal by Kilalanin Jr. justified? Explain.
defense that is only subsidiarily liable for the
damages. SUGGESTED ANSWER:
The son is still a stranger, and under the Civil Code
2. Liability of the Bus Company is contractual. when a share of a co-owner is sold to a third person,
Due supervision of driver by the Bus Company, as the other co- owners may exercise the right of legal
well as violations of instructions, is not a defense. redemption.
(Art. 1759 Civil Code of the Philippines) Liability of
the Bus Company is direct and primary — hence the A third person is defined by the court in one case as
Bus driver need not be impleaded first. “one who is not a co-owner.”

3. The cause of action of the passenger against the ALTERNATIVE ANSWER:

bus company is based on the contract of 1. No. He is a 3rd person in contemplation of law.
transportation. Here, such defenses are not The law considers as a 3rd person any purchaser
available to the bus company as it is bound to who is not one of the co-owners. The fact that he is
exercise extraordinary diligence in the transport of the son of the vendor — co-owner does not make
its passengers. The driver is not a party to the him a co-owner as in fact the son had acquired the
contract of transportation and need not be joined in interest of his father by purchase.
the same action. The driver may be criminally
charged. 2. Yes. the son is not a third person (Villanueva vs.
Florendo, 139 SCRA 329).
XVI. Mr. Matunod lent Mr. Maganaka the amount of
P100,000.00. As security of the payment of said
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XVIII. Mapusok sold his lot to Masugid under a 1. The rule of Constructive Trust will not apply if the
pacto de retro sale. The lot was registered under the property is in the hands of a third person who got
Torrens system but the pacto de retro sale was not the property for value and in good faith. Since under
registered. Subsequently, Masigla obtained a money our law, love and affection are sufficient
judgment against Mapusok. Pursuant to a writ of consideration, it falls under the term “value” because
execution, the lot was attached, the attachment under our law “value” is not limited to material
being annotated on the certificate of title. The consideration. Hence, Hernandez is a third person
purchaser at the public auction was Masigla himself. within the meaning of the law. The action will not
When Masigla sought to register his title, Masugid prosper.
opposed the registration on the ground of the prior
pact de retro sale to him. 2. No. The conclusive presumption of ownership
Who as between Masugid and Masigla has the covered by a Torrens title cannot be defeated except
better right to the land? Explain. if such registration is obtained by fraud. But the
fraud that was perpetrated by the guardian is not the
SUGGESTED ANSWER: fraud that can defeat the conclusiveness of
Under the doctrine of Campillo v. CA. 129 SCRA ownership under a Torrens title. Furthermore, the
513, Masigla has a better right because at the time fact that the registration had subsisted for five years
of attachment and sale at public auction, the strengthens the indefeasibility of the title of the
property was still registered in name of Mapusok — registrant.
hence the rule on Torrens Titled land and Art. 1544
Civil Code of the Philippines (double sale) will apply. The ward can perhaps go after his guardian for the
damage or loss caused to him, but not the person
ALTERNATIVE ANSWER: who obtained the Torrens title.
1. Masigla has a better right because he is an
innocent purchaser for value. He cannot be required XX. Makisig and Marikit, who are first cousins, are
to go beyond or outside of the four corners of the Filipino citizens. They had a romantic affair and
certificate of title presented to him. begot a child Maganda, in the Philippines. They
decided to migrate to the Republic of Helios where
2. Although the Torrens system requires registration marriages between first cousins are allowed. They
of conveyances and other instruments affecting got married there. Subsequently, they drew up a
registered lands as the “operative act” to convey and joint affidavit recognizing and legitimizing Maganda.
affect the property, and if not registered, the contract Years later, they returned to the Philippines. They
is binding only as between the parties, still the never lost their Philippine citizenship. What is the
purchaser at an execution sale under the Rules of status of the marriage between Makisig and Marikit?
Court merely acquires the rights of the judgment What is Maganda’s status? Explain.
debtor in the property, and “steps into the shoes” of
the judgment debtor (Mapusok). Therefore, Masugid SUGGESTED ANSWER:
is entitled to the land as a vendee a retro and The marriage is void. Filipino citizens are bound by
Masigla (purchaser) merely acquired Mapusok’s the laws of the Philippines with regard to their
(judgment debtor) right to redeem the land under the capacity to marry, regardless of where the marriage
pacto de retro sale, from-Masugid. is celebrated. This is an incestuous marriage which
under Philippine laws is void from the very
XIX. Through fraud, Manukso was able to obtain in beginning.
his name a transfer certificate of title over a piece of
land belonging to his ward, Kamusmusan. The child is an illegitimate child other than natural,
Subsequently, Manukso donated the property to or spurious.
Hinandugan, who, completely unaware of
Manukso’s prior fraudulent conduct, obtained a ALTERNATIVE ANSWER:
Torrens Title in his name. The marriage between first cousins is void even if
valid in the place where celebrated. Philippine law
Five years after the registration in Hinandugan’s follows the citizen even if abroad, and such marriage
name, Kamusmusan filed an action for is considered incestuous under Philippine law.
reconveyance. Will the action prosper? Explain.
The child cannot be legitimated because she is not a
SUGGESTED ANSWER: natural child as her parents suffered from a legal
The Torrens system protects only an innocent impediment to many each other at the time of her
purchaser for value who relies on the certificate of conception. She is an illegitimate child, who is not a
title of the vendor. Hinandugan is not a purchase but natural child.
a mere donee. Hence the real owner Kamusmusan
can recover the land from Hinandugan on the
ground of constructive trust, which the court ruled
prescribes in 10 years.
ALTERNATIVE ANSWER:
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