(1) Authority of the solemnizing officer [except Art 35(2)]

BY ATTY. JUDY LARDIZABAL (incumbent member of the judiciary; priest, rabbi, imam, or
minister of any church or religious sect; ship captain or airplane
NATIONALITY RULE – Art 15 NCC- Laws relating to family rights and chief (articulo mortis, between passengers/crew member,
duties, or to the status, condition and legal capacity of persons are plane in flight or ship at sea even at ports of call); military
binding upon citizens of the Philippines, even though living abroad. commander of a unit to which a chaplain is assigned, in the
absence of the latter, during a military operation (Articulo
LEX REI SITAE – Art 16 (1st par) - Real property as well as personal Mortis); consul-general, consul or vice-consul (between
property is subject to the law of the country where it is stipulated Filipino citizens abroad); LOCAL GOVT CODE – Mayors
Except: Nationality Rule (2nd par) - intestate and testamentary (2) A valid marriage license [valid for 120days; unless exempt:
successions - 1. order of succession; 2. amount of successional articulo mortis; residents of remote place; between muslims
rights; and 3. intrinsic validity of testamentary provisions, shall and members of ethnic cultural communities; cohabiting for at
be regulated by the national law of the person whose least 5 years)
succession is under consideration, whatever may be the nature (3) A marriage ceremony
of the property and regardless of the country wherein said
property may be found. Status of marriage in relation to requisites
(1) The absence of any of the essential or formal requisites shall
LEX LOCI CELEBRATIONIS – Art 17 - The forms and solemnities of render the marriage void ab initio (Art 35, 37 and 38)
contracts, wills, and other public instruments shall be governed by the (2) A defect in any of the essential requisite makes marriage
laws of the country in which they are executed. voidable (Art 45)
 Before the diplomatic or consular officials of the Republic of (3) Irregularity in the formal requisite shall not affect the validity
the Philippines in a foreign country, the solemnities of the marriage but the party or parties responsible for the
established by Philippine laws shall be observed in their irregularity shall be civilly, criminally and administratively
execution. liable.

CIVIL PERSONALITY – Art 40 - Birth determines civil personality, but the Motives for entering in marriage will not affect validity - So long as all
conceived child shall be considered born for all purposes that are the essential and formal requisites prescribed by law are present, and it
favorable to it, provided it be born later with the conditions specified in is not void or voidable under the grounds provided by law, it shall be
the following article. declared valid.
 Art 41 – fetus is considered born if it is alive at the time it is - Motives for entering into a marriage are varied and complex. The State
completely delivered from the mother's womb. If the fetus had does not and cannot dictate on the kind of life that a couple chooses to
an intra-uterine life of less than 7 months, it is not deemed lead. Any attempt to regulate their lifestyle would go into the realm of
born if it dies within 24 hours after its complete delivery from their right to privacy and would raise serious constitutional questions.
the maternal womb. The right to marital privacy allows married couples to structure their
marriages in almost any way they see fit, to live together or live apart, to
PRESUMPTION ON SURVIVORSHIP - Art. 43. If parties are bound to have children or no children, to love one another or not, and so on.
succeed to each other - If there is a doubt, in the absence of proof, it is - Marriages entered into for other purposes, limited or otherwise, such
presumed that they died at the same time and there shall be no as convenience, companionship, money, status, and title, provided that
transmission of rights from one to the other. Apply Rule 131 if not bound they comply with all the legal requisites, are equally valid. Love, though
to succeed each other. the ideal consideration in a marriage contract, is not the only valid cause
for marriage. Other considerations, not precluded by law, may validly
MARRIAGE - a special contract of permanent union between a man and support a marriage. (Rep. vs. Albios)
a woman for the establishment of conjugal and family life; the
foundation of the family whose nature, consequences, and incidents are Other void marriages under the Family Code:
governed by law and not subject to stipulation, except for marriage 1. Article 36 – marriage contracted by any party who, at the time
settlements. of celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage;
2 Essential requisites of marriage: characterized by gravity, incurability and juridical antecedence
(1) Legal capacity of the contracting parties who must be a male
and a female 2. Article 53 as mentioned in Article 35 (6) - Void subsequent
(age-minimum age is 18; sexes -must be male and female; marriage due to non-compliance with Art. 52 (The judgment of
relationship –parties should not be related under Art 37 annulment or of absolute nullity of the marriage, the partition
(incestuous), or Art 38 (void due to public policy); legal and distribution of the properties of the spouses and the
impediment of existing marriage- if either or both are married, delivery of the children's presumptive legitimes shall be
second marriage is bigamous under Art 35(4), if exiting recorded in the appropriate civil registry and registries of
marriage is void, Art 40 requires court declaration of nullity for property)
purpose of remarriage) NOTE: Children conceived or born of Art 36 and Art 53 void
(2) Consent freely given in the presence of the solemnizing marriages are legitimate (Art 54)
officer. 3. Article 40: void subsequent marriage which was entered into
(consent must be (1) freely given and (2) made in the presence without judicial declaration of nullity of the previous marriage
of a solemnizing officer. Consent must be real - not vitiated 4. Article 44: Void Article 41 subsequent marriage after
nor rendered defective by any of the vices of consent under declaration of presumptive death when both parties acted in
Articles 45 and 46 of the Family Code, such as fraud, force, bad faith.
intimidation, and undue influence – otherwise marriage is  Article 41 marriage -All bigamous marriages are void, except
voidable; Art 35 (5) void marriage due to absence of consent - under Article 41 – presumptive death of absent spouse
mistake as to identity of other party,) without prejudice to reappearance (Note: it is the
registration of the affidavit of re-appearance at the LCR of
the place where parties of the second marriage are residing,
with due notice to them that automatically terminates the
validity of the second marriage).
 Four (4) essential requisites for the declaration of
presumptive death:
CIVIL LAW - KOKOBAR 2018 1
 1. That the absent spouse has been missing for four govern. Note: if marriage was entered prior to FC, default property
consecutive years, or two consecutive years if the regime is conjugal partnership of gains
disappearance occurred where there is danger of death under (1) SYSTEM OF ABSOLUTE COMMUNITY -Art. 91 - consists of all
the circumstances laid down in Article 391, Civil Code; the property owned by the spouses at the time of the
2. That the present spouse wishes to remarry; celebration of the marriage or acquired thereafter.
3. That the present spouse has a well–founded belief that the EXCLUDED:
absentee is dead; and (1) Property acquired during the marriage by gratuitous title by
4. That the present spouse files a summary proceeding for the either spouse, and the fruits as well as the income thereof, if
declaration of presumptive death of the absentee. any, unless it is expressly provided by the donor, testator or
• To be able to comply with this requirement of “well-founded grantor that they shall form part of the community property;
belief”, the present spouse must prove that his/her belief (2) Property for personal and exclusive use of either spouse.
was the result of diligent and reasonable efforts and inquiries However, jewelry shall form part of the community property;
to locate the absent spouse and that based on these efforts (3) Property acquired before the marriage by either spouse
and inquiries, he/she believes that under the circumstances, who has legitimate descendants by a former marriage, and the
the absent spouse is already dead. It requires exertion of fruits as well as the income, if any, of such property.
active effort (not a mere passive one).
(2) CONJUGAL PARTNERSHIP OF GAINS - Under the regime of
Article 26 FC conjugal partnership of gains, the husband and wife place in a
– (1st par) marriages solemnized abroad are valid here if valid in the place common fund the proceeds, products, fruits and income from
of solemnization, except marriages affecting legal capacity/absence of their separate properties and those acquired by either or both
essential requisites, Art 36; spouses through their efforts or by chance.
- Relate to Art 15 (nationality rule) and Art 17 (lex loci celebrationis) of EXCLUDED:
NCC; (1) That which is brought to the marriage as his or her own;
- (2nd par) divorce obtained abroad by foreign spouse consistent with (2) That which each acquires during the marriage by
national law of foreigner, capacitating him to remarry, may be gratuitous title;
recognized in the Phils and capacitate Filipino spouse to remarry (3) That which is acquired by right of redemption, by barter or
- Requisites: Marriage between Filipino and foreign national; Divorce by exchange with property belonging to only one of the
validly obtained in accordance with the national law of the foreign spouses; and
spouse capacitating him/her to remarry (4) That which is purchased with exclusive money of the wife
- FC does not distinguish between a Filipino or alien-initiated divorce or of the husband.
proceedings for as long as it is filed and granted in accordance with the
national law of the foreign spouse (Rep vs Manalo) • PROPERTY PURCHASED ON INSTALLMENT - Art. 118. Property
bought on installments paid partly from exclusive funds of
Art. 45. Voidable Marriages (Valid MARRIAGE until annulled) either or both spouses and partly from conjugal funds belongs
(1) Lack of parental consent - convalidation by party’s voluntary to the buyer or buyers if full ownership was vested before the
cohabitation upon 21, prescribes 5 years from 21, if parent is the marriage and to the conjugal partnership if such ownership
petitioner action should be filed before child reaches age of 21; was vested during the marriage. In either case, any amount
(2) Insanity - convalidation by insane’s voluntary cohabitation upon advanced by the partnership or by either or both spouses shall
regaining sanity, may be filed before death of either party by the be reimbursed by the owner or owners upon liquidation of the
parent/guardian of insane, the sane spouse or insane upon regaining partnership.
sanity/lucid interval;
(3) Vitiated consent due to Fraud (Art. 46. Four Circumstances of Fraud, (3) SEPARATION OF PROPERTY
exclusive) – convalidation by aggrieved party’s voluntary cohabitation  Art. 145. Each spouse shall own, dispose of, possess,
after discovery, prescribes in 5 years upon discovery) administer and enjoy his or her own separate estate, without
(4) Vitiated consent due to Force, intimidation or undue influence - need of the consent of the other. To each spouse shall belong
convalidation by aggrieved party’s voluntary cohabitation after all earnings from his or her profession, business or industry
discovery, prescribes in 5 years upon cessation of force, intimidation, and all fruits, natural, industrial or civil, due or received
undue influence during the marriage from his or her separate property.
(5) Impotency – continuing and appears to be incurable, no  Art. 146. Both spouses shall bear the family expenses in
convalidation, prescribes in 5 years from marriage proportion to their income, or, in case of insufficiency or
default thereof, to the current market value of their separate
GROUNDS FOR DENIAL OF ANNULMENT -Convalidation (Article 45); properties.
Prescription (Article 47); Not filed by the proper person (Article 47)  The liabilities of the spouses to creditors for family expenses
shall, however, be solidary.
LEGAL SEPARATION
• Grounds (Article 55) PETITION FOR JUDICIAL SEPARATION OF PROPERTY - Art. 134. In the
• Denial (Article 56) absence of an express declaration in the marriage settlements, the
• Prescriptive period (Article 57) separation of property between spouses during the marriage shall not
• Cooling-off period (Article 58), if ground is abuse under RA 9262 take place except by judicial order. Such judicial separation of property
(VAWC), cooling off period of 6 months is dispensed with. may either be voluntary (Art. 136) or for sufficient cause (Art. 135).
• The spouses shall be entitled to live separately from each other, but
the marriage bonds shall not be severed (Article 63) (4) Property Regime of Unions Without Marriage (CO-
• SUCCESSIONAL RIGHTS OWNERSHIP)
- ANNULMENT – ART. 43 (5) The spouse who contracted the  Capacitated to marry - Art. 147. When a man and a
subsequent marriage in bad faith shall be disqualified to inherit woman who are capacitated to marry each other, live
from the innocent spouse by testate and intestate succession. exclusively with each other as husband and wife without
- LEGAL SEPARATION -ART. 63 (4) The offending spouse shall be the benefit of marriage or under a void marriage, their
disqualified from inheriting from the innocent spouse by wages and salaries shall be owned by them in equal
intestate succession. Moreover, provisions in favor of the shares and the property acquired by both of them
offending spouse made in the will of the innocent spouse shall through their work or industry shall be governed by the
be revoked by operation of law. Note: offending spouse is not rules on co-ownership.
disqualified in testamentary succession if will was executed after  Not capacitated to marry - Art. 148. In cases of
decree of legal separation cohabitation not falling under the preceding Article, only
the properties acquired by both of the parties through
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE their actual joint contribution of money, property, or
Art. 75. The future spouses may, in the marriage settlements, agree upon industry shall be owned by them in common in proportion
the regime of absolute community, conjugal partnership of gains, to their respective contributions. In the absence of proof
complete separation of property, or any other regime. to the contrary, their contributions and corresponding
In the absence of a marriage settlement, or when the regime agreed shares are presumed to be equal. The same rule and
upon is void, the system of absolute community of property shall

CIVIL LAW - KOKOBAR 2018 2

 presumption shall apply to joint deposits of money and • Rule of preference of lines – descending preferred over ascending,
evidences of credit.. ascending preferred over collateral
• Representation – descending is ad infinitum, none in ascending, in
PATERNITY AND FILIATION collateral limited to nephews and nieces, no representation among
1. LEGITIMATE - Art. 164. Children conceived or born during the voluntary heirs
marriage of the parents are legitimate. Children conceived as • Nephews and nieces inherit either by representation or in their
a result of artificial insemination of the wife with the sperm of own right (Art. 1005).
the husband or that of a donor or both are likewise legitimate • They inherit by right of representation when they concur with
children of the husband and his wife, provided, that both of aunts and uncles, who divide per capita, while nephews/nieces
them authorized or ratified such insemination in a written divide per stirpes. (Calisterio v. Calisterio, G.R. 136467, April 6,
instrument executed and signed by them before the birth of 2000).
the child. • They inherit in their own right when they do not concur with aunts
2. ILLEGITIMATE - Art. 165. Children conceived and born outside and uncles; in this case, they divide per capita or equally (Art. 975).
a valid marriage are illegitimate, unless otherwise provided in • Art 992 – Iron curtain rule – illegitimate child has no right to inherit
this Code. ab intestado from the legitimate children and relatives of his father
3. LEGITIMATED - Art. 177. Only children conceived and born or mother, nor such relatives inherit in the same manner from the
outside of wedlock of parents who, at the time of the illegitimate child. Note: The iron curtain rule only applies in
conception of the former, were not disqualified by any intestate succession. There is a barrier recognized by law between
impediment to marry each other (except from minority) may the legitimate relatives and the illegitimate child so that one
be legitimated. (R.A. 9858) cannot inherit from the other and vice-versa.

GROUNDS FOR IMPUGNING LEGITIMACY LEGAL SUCCESSION/ INTESTACY

(1) That it was physically impossible for the husband to have sexual • Nephews and nieces inherit either by representation or in their
intercourse with his wife within the first 120 days of the 300 days which own right (Art. 1005).
immediately preceded the birth of the child because of: • They inherit by right of representation when they concur with
• (a) the physical incapacity of the husband to have sexual aunts and uncles, who divide per capita, while nephews/nieces
intercourse with his wife; divide per stirpes. (Calisterio v. Calisterio, G.R. 136467, April 6,
• (b) the fact that the husband and wife were living separately in 2000).
such a way that sexual intercourse was not possible; or • They inherit in their own right when they do not concur with aunts
• (c) serious illness of the husband, which absolutely prevented and uncles; in this case, they divide per capita or equally (Art. 975).
sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the Order of Intestate Succession:
child could not have been that of the husband, except in the instance 1. Legitimate Children/Descendants
provided in the second paragraph of Article 164; or 2. Illegitimate Children/Descendants
(3) That in case of children conceived through artificial insemination, the 3. Legitimate Parents/Ascendants
written authorization or ratification of either parent was obtained 4. Illegitimate Parents
through mistake, fraud, violence, intimidation, or undue influence. 5. Surviving Spouse
6. Brothers, sisters, nephews, nieces (concurs with Surviving Spouse)
SUCCESSION -mode of acquisition by virtue of which property, rights and 7. Other Collaterals – to the 5th degree (child of first cousin, first
obligations to the extent of the value of the inheritance of a person are cousin of parents, brother/sister of great grand parents, great
transmitted through his death to another or others either by his will or grand children of brother and sister
by operation of law 8. State
 Rules of Exclusion and Concurrence- Legit child excludes the
LEGITIME - is that part of the testator’s property which he cannot Parents/Ascendants; Illegit Child excludes Illegit Parents; SS
dispose of because the law has reserved it for certain heirs who are always concurs with children, parents as well as
called compulsory heirs (Art 886) brothers/sisters/nephews/nieces; Nos. 1-6 excludes other
• Compulsory Heirs – are those for whom the law has reserved collateral relatives and State; Collateral relatives up to 5th degree
a portion of the testator’s estate which is known as the excludes the State; State is the last heir in the absence of
legitime. collateral relatives up to 5th degree.
• Primary – Legitimate children and legit descendants,
surviving spouse, illegitimate children & descendants TESTAMENTARY CAPACITY - 1. All persons not expressly prohibited by
• Secondary – Legitimate parents & other legitimate law; 2. 18 years old and above; 3. Sound mind – Art. 799 It shall be
ascendants, Illegitimate parents sufficient if the testator was able at the time of making the will to know
the nature of the estate to be disposed of, the proper objects of his
RULES ON LEGITIME bounty, and the character of the testamentary act.
• Legitimate children always get ½ of estate • Art. 800. The law presumes that every person is of sound mind,
• Legitimate parents always get ½ (if not excluded by legit child) in the absence of proof to the contrary; but if the testator, one
• No representation in the ascending line month, or less, before making his will was publicly known to be
• Legitime of spouse is same as 1 legit child, except when there is insane, the person who maintains the validity of the will must
only one child, give ¼ taken from free portion prove that the testator made it during a lucid interval.
• Get legitime of illegit children from free portion after SS is paid, ½
of 1 legit child for each of the illegit chil KINDS OF WILLS:
• NEVER REDUCE the legitime of legitimate children and surviving • 1.Notarial will – Articles 804-806, & 807-808 in special cases
spouse because they are the preferred compulsory heirs. • 2.Holographic – Articles 804 & 810
• Legitime of illegitimate children will be reduced pro-rata and - Common requirements that apply to the 2 kinds of wills
without preference among them if the estate is insufficient. 1. In writing, and
• SS and illegit children – 1/3 SS and 1/3 illegit children regardless of 2. In a language or dialect known to the testator
number
• Legit parents, SS, illegit children – ½ LP, 1/8 SS, ¼ illegit children REQUISITES OF VALID HOLOGRAPHIC WILL:
regardless of number (in case of intestacy – ½ LP, ¼ SS, ¼ illegit 1. In writing
children) 2. Executed in a language or dialect known to the testator
• SS and Illegit Parent – ¼ SS, ¼ IP 3. Entirely written, dated & signed by the hand of the testator himself
• SS alone – ½ (if articulo mortis marriage and spouse died within 3
months- reduced to 1/3, unless living together for 5 years prior to REQUISITES OF VALID NOTARIAL WILL:
marriage – remain ½) 1. In writing
2. Executed in a language or dialect known to the testator
LEGAL SUCCESSION/ INTESTATCY 3. Subscribed by the testator himself or by the testator’s name written
• Succession prescribed by law by some other person in his presence & under his express direction at
• Rule of proximity (nearer excludes distant ones) the end thereof, at the presence of witnesses
• Rule of equality of shares among relatives in the same degree

CIVIL LAW - KOKOBAR 2018 3

4. Attested & subscribed by at least 3 credible witnesses in the presence ART 909 - Donations given to children shall be charged to their legitime.
of the testator and of one another Donations made to strangers shall be charged to that part of the estate
5. Each & every page must be signed by the testator or by the person of which the testator could have disposed by his last will. Insofar as they
requested by him to write is name, & by instrumental witnesses in the may be inofficious or may exceed the disposable portion, they shall be
presence of each other, on the left margin reduced according to the rules established by this Code.
6. Each & every page of the will must be numbered correlatively in letters  Donation propter nuptias – charged to the disposable free portion
placed on the upper part of each page not to legitime of the SS because SS was a stranger when donation
7. Must contain an attestation clause was made
8. Must be acknowledged before a notary public  Donation to children, if stated not collationable – shall be charged
to the free portion not to legitime
ATTESTATION CLAUSE - Must state the following: 1. The number of
pages of the will; 2.Fact that the testator signed the will & every page in PROPERTY
the presence of witnesses, or caused some other person to write his IMMOVABLE and MOVABLE – Arts 415 & 416
name under his express direction; 3. All witnesses signed the will & every Real Property by Nature
page thereof in the presence of the testator & of one another 1.) Land as well as buildings and other forms of construction attached to
- Attestation Clause must state the number of pages used the soil
upon which the will is written. The purpose of the law is 2.) Trees and plants, if they weren't planted by anybody
to safeguard against possible interpolation or omission of 3.) Mines, quarries and slag dumps (slag dumps form part of the bed and
one or some of its pages and prevent any increase or water)
decrease in the pages.
- Witnesses need not understand or know the language Real Property by Incorporation
used in the will but the attestation clause must be 1.) Trees and plants that were planted (the fruit hanging on the trees is
interpreted to them. considered part of real property until harvested or removed)
2.) Things attached to the real property in such a way that they can't be
PRETERITION - consists in the omission in the testator’s will of the removed without damaging the real property
compulsory heirs in the direct line, or of anyone of them, either because 3.) Statues, paintings, reliefs that have been put there by the owner with
they are not mentioned therein, or though mentioned, they are neither the intention that they form part of the property permanently
instituted as heirs nor expressly disinherited.
• Omission of wife, brothers or sisters will not result in Real Property by Destination
preterition. 1.) Fertilizer that was actually used on the land (if it's not used, it's
considered personal property)
REQUISITES OF PRETERITION: There is a valid will; The heir omitted must 2.) In case there is an industry on the land, machinery receptacles,
be a compulsory heir in the direct line; The omission must be total and instruments or implements directly related to the industry in
complete in character. question or public works placed by the owner of the tenement
- Heir must have received nothing from the testator either by way of (i) 3.) In case of lakes, rivers or coasts, docks and other structures which
testamentary succession; (ii) legacy or devise; (iii) donation inter vivos; are intended by their nature or object to remain at a fixed place
or (iv) intestacy. (even if floating)
- The compulsory heir omitted should survive the testator, save in case 4.) Animal houses, pigeon houses, fishponds, breeding places,
of representation. beehives and even the animals in these places; in case the owner
put all these (buildings, animals, etc.) there, intending to have
PRETERITION VS. DISINHERITANCE them permanently part of the land
• Preterition is the TACIT deprivation of the legitime as Real Property by Analogy
distinguished from disinheritance which is an EXPRESS 1.) Public works contracts as well as servitudes and other real rights over
deprivation of the legitime. immovable property
• Article 915. A compulsory heir may, in consequence of
disinheritance, de deprived of his legitime, for causes expressly Personal Property (Art. 416-417)
stated by law. 1.) Those that can be appropriated but not mentioned in Art. 415
2.) Real property considered personalty by law
DISINHERITANCE - can be made only in a will; will must be valid and 3.) Forces of nature brought under the control of science (electricity,
admitted to probate; Includes not only the legitime, but also the free nuclear energy, etc.)
portion; If will is revoked, disinheritance becomes ineffective; Only 4.) All things that can be transferred from one place to another
compulsory heirs can be disinherited, so brothers and sisters cannot be without damaging the real property they're attached to
the subject of disinheritance; Reconciliation renders disinheritance 5.) Obligations and actions whose object is movable property or
ineffective. demandable sums of money
6.) Shares of stock of commercial, industrial or agricultural entities
Requisites of a valid disinheritance: even though they may have real estate
(a) Disinherited heir must be clearly identified.
(b) Must be for a cause provided for by law (Art. 915). BUILDER IN GOOD FAITH – Article 448 – entitled to indemnity and right
(c) Must be express, stating the cause in the will (Art. 916). of retention
(d) Cause must be legal, true, and existing (Art. 916). - Land owner in good faith – Options:
(e) Must be unconditional. 1. Appropriate as his own the works, sowing or planting, after
(f) Can't be partial; must be total or complete. If partial, disinheritance is payment of the indemnity for necessary and useful expenses;
not valid, and the heir gets his or her legitime. OR
- In Preterition, the whole institution of heirs is annulled. In invalid 2. Oblige the one who built or planted to pay the price of the land,
disinheritance, the disinherited heir still gets his legitime. IF the value of the land is not considerably more than that of
- Heirs of the disinherited heir represent the latter in the legitime, but the building. As to sower, oblige the sower to pay the proper
the disinherited heir shall not have the usufruct of the property rent,
constituting the legitime. (Art. 923). o FORCED LEASE - If value of land is considerably higher,
- Art. 923 on right of representation in disinheritance is granted only to builder shall pay reasonable rent in case the owner of the
descendants of disinherited descendants. The representative takes the land does not choose to appropriate the building after
place of the disinherited heir not only with respect to the legitime, but proper indemnity.
also to any intestate portion that the disinherited heir would have o The parties shall agree upon the terms of the lease and in
inherited. case of disagreement, the court shall fix the terms thereof.
Note: In case land owner opted to sell the land, if the value is not
COLLATION – ART 908 - To determine the legitime, the value of the considerably more than the building, and the Builder refused to buy or
property left at the death of the testator shall be considered, deducting upon agreeing to buy refused to pay, the landowner may now ask for the
all debts and charges, which shall not include those imposed in the will. REMOVAL of the building.
To the net value of the hereditary estate, shall be added the value of
all donations by the testator that are subject to collation, at the time
he made them.

CIVIL LAW - KOKOBAR 2018 4

BUILDER IN BAD FAITH – Arts 449 & 450 – he loses what is built without d) Demand would be useless (i.e., debtor voluntarily destroy the
right of indemnity. He cannot insist on purchasing the land or pay the thing)
rent.
 If both land owner and builder are in bad faith, their rights shall be PURE OBLIGATION -The effectivity or extinguishment does not depend
the same as though they acted in good faith. Art 453 on the fulfillment or non-fulfillment of a condition or on the expiration
of a term or period, and is immediately demandable. (1179, par. 1)
EASEMENT OF RIGHT OF WAY – cannot be acquired by prescription since Seone vs. Franco, 24 Phil 309 – debtor promise to pay debt “little by
it is a discontinuous easement. Only apparent and at the same time little” is an obligation with period subject to Art. 1197.
continuous easement can be acquired by prescription.
CONDITIONAL OBLIGATION - Suspensive Condition -The effectivity is
REQUISITES TO CLAIM ROW: subordinated to the fulfillment or non-fulfillment of a future AND
1. the dominant estate is surrounded by other immovables and has no uncertain fact or event. (1181); Resolutory Condition Extinguishment of
adequate outlet to a public highway (Art. 649, par. 1); obligation is dependent upon fulfillment of condition.
2. there is payment of proper indemnity (Art. 649, par. 1);
3. the isolation is not due to the acts of the proprietor of the dominant Rescission of Reciprocal Obligations in General (Art. 1191)
estate (Art. 649, last par.); and Reciprocal Obligation – Those which are created or established at the
4. the right of way claimed is at the point least prejudicial to the servient same time, out of the same cause and which result in mutual
estate; and insofar as consistent with this rule, where the distance from relationships of creditor and debtor between the parties.
the dominant estate to a public highway may be the shortest (Art. 650). General Rule: If one of the parties fails to comply with what is incumbent
Note: The way which will cause the least damage should be used even if upon him, there is a right on the part of the other to rescind (or resolve)
it will not be the shortest. the obligation (tacit resolutory condition)
 Permitted only for such breaches as are substantial and fundamental
EASEMENT OF LIGHT AND VIEW – may be acquired by prescription since as to defeat the object of the parties in making the agreement
it is an apparent and continuous easement; if negative easement, (Universal Food Corp. vs. CA, G.R. No. L-29155, May 13, 1970)
counting of period starts from date of service of notarial prohibition  Can be demanded only if the plaintiff is ready, willing, and able to
upon owner of servient estate comply with his own obligation and the other is not (Seva vs. Berwin,
G.R. No. L-24321, Jan. 11, 1926) and the party who has not
CO-OWNERSHIP - There is co-ownership whenever the ownership of an performed his part of the agreement is not entitled to sue/rescind;
undivided thing or right belongs to different persons the right belongs to the injured party
 Sale by co-owner – valid as to the seller’s share but not as to shares  Prescriptive period for action of Resolution is 10 years from the time
of the other co-owners who did not give their consent. Right of the right of action accrues according to Art. 1144 – NOT 4 YEARS
buyer to a definite part of the property is subject to the outcome of (applicable to rescission)
partition
 No prescription shall run in favor of a co-owner so long as he OBLIGATION WITH A PERIOD -Those whose demandability or
recognizes the co-ownership. extinguishment is subject to the expiration of a term or period.
 Acts of dominion requires unanimous consent of all co-owners
 Acts of administration may be carried out upon resolution of When Court May Fix Period (Art. 1197) - General Rule: Courts are
majority WITHOUT power to fix period. Except:
 Acts of preservation – any one 1) If the obligation does not fix a period, but from its nature and
circumstances it can be inferred that a period was intended;
OBLICON 2) If the duration of the period depends upon the will of the debtor;
Kinds of Breach of Obligations and
1) Involuntary – debtor is unable to comply with his obligation 3) If the debtor binds himself when his means permit him to do so (Art.
because of fortuitous event 1180)
 Event must be independent of the will of the obligor; Action to ask court to fix period must be brought within 10 years from
 It must be either unforeseeable or inevitable; execution or perfection of notes/contracts. (Gonzales vs. Jose)
 Must be of such a character as to render it impossible for the JOINT OBLIGATION (Obligacion Mancomunada) - The whole obligation
obligor to fulfill his obligation in a normal manner; and is to be paid or fulfilled proportionately by different debtors or
 Obligor must be free from any participation in the demanded proportionately by different creditors.
aggravation of the injury resulting to the obligee.
Note: Debtor is NOT liable for damages. Except: SOLIDARY OBLIGATION(Obligacion Solidaria) - Each one of the debtors
a. When expressly declared by law (e.g. Arts. 552 (2), 1165 is bound to render and/or each one of the creditors has a right to
(3), 1268, 1942, 2147, 2148 and 2159 NCC) demand entire compliance with the prestation. There is MUTUAL
b. When expressly declared by stipulation or contract GUARANTY among solidary obligors; There is MUTUAL AGENCY among
c. When the NATURE of the obligation requires the solidary creditors.
assumption of risk
d. When the object of the prestation is generic Presumption is JOINT: Obligation is presumed joint if there is
concurrence of several creditors OR of several debtors OR of several
2) Voluntary – debtor, in the performance of the obligation, is creditors and debtors in one and the same obligation.
guilty of: Exceptions:
(a) Default (mora) 1) The obligation expressly states that there is solidarity:
(b) Fraud (dolo) 2) The law requires solidarity.
(c) Negligence (culpa) tort, quasi-contracts, liability of principals, accomplices and
(d) Breach through contravention of tenor of the accessories of a felony, obligations of devisees and legatees, bailees
obligation in commodatum
Note: Debtor is liable for damages. 3) Nature of the obligation requires solidarity.
4) When a charge or condition is imposed upon heirs of legatees, and
DEFAULT – breach in relation to time; the testament expressly makes the charge or condition in solidum.
Requisites in order to consider the obligor in default 5) When a solidary responsibility is imputed by a final judgment upon
1) Obligation is demandable and already liquidated several defendants.
2) The obligor/debtor delays performance
3) The creditor requires performance judicially or extra-judicially OBLIGATION WITH A PENAL CLAUSE -An obligation to which an
(demand) accessory undertaking (penal clause/penalty) is attached to insure its
 Demand is necessary. No demand-no delay. Mere expiration of performance by virtue of which the obligor is bound to pay a stipulated
the period fixed by the parties will not cause delay. (SSS vs. indemnity or perform a stipulated prestation in case of breach.
Moonwalk Devt. and Housing Corp) Effect of Penalty (Art. 1226, par. 1)
Except: General Rule: The penalty shall substitute the indemnity for damages
a) Express stipulation that demand is not necessary and payment of interest in case of non-compliance.
b) The law EXPRESSLY so declares (i.e., taxes) Except: When there is a stipulation to the contrary; When the obligor
c) Time is of the essence of the contract (Barzaga vs. CA) refuses to pay the penalty – entitled to interest in the amount of penalty
CIVIL LAW - KOKOBAR 2018 5
(Art. 2209); When the obligor is guilty of fraud (Art. 1170) – creditor to Article 1357 presupposes the existence of a valid contract
prove fraud and amount of damages. He is not entitled only to the and cannot possibly refer to the form to make it valid.
penalty plus the difference between the proven damage and penalty
Contracts which must appear in writing, otherwise VOID:
CONTRACTS - A Contract is a meeting of minds between two persons 1. Donation of personal property whose value exceeds five thousand
whereby one binds himself, with respect to the other, to give something pesos, as well as acceptance (Art. 748)
or to render some service. 2. Sale of a piece of land or any interest therein through an agent (Art.
1874)
Characteristics of Contracts 3. Agreements regarding payment of interest in contracts of loan
1) Obligatory force of contracts - It is a rule that once the contract is (Art. 1956);
perfected, it shall be of obligatory force upon both of the 4. Antichresis (Art. 2134); and
contracting parties. 5. Stipulation limiting common carrier’s duty of extraordinary
2) Mutuality - The contract must bind both parties. Note: The validity diligence to ordinary diligence (Art. 1744)
or fulfillment of a contract cannot be left to the will of one of the
contracting partieValidity or fulfillment may be left to (1) the will Contracts which must appear in public instrument, otherwise VOID:
of a third person, whose decision shall not be binding until made 1.Donation of immovable properties, as well as acceptance (Art.
known to both the contracting parties (Art. 1309) or (2) chance. 749);
3) Autonomy - The contracting parties may establish such 2.Partnership where immovable property or real rights are
stipulations, clauses, terms and conditions as they deem contributed (Arts. 1171 and 1773);
convenient.
 Limitation to the principle of autonomy: Stipulations should CONTRACT OF SALE – a consensual contract; perfected at the moment
not be contrary to law, morals, good customs, public order, or there is meeting of minds upon the thing which is the object of the
public policy. contract and upon the price
4) Relativity - General Rule: Contracts take effect only between
parties, their assigns and heirs. Limitations: HOWEVER with DELIVERY – transfers ownership; ownership of the thing sold is acquired
respect to assignees or heirs, the general rule under Art. 1311 is by the vendee from the moment it is delivered to him. Thing is placed in
not applicable if the rights and obligations arising from the contract the control and possession of the buyer.
are not transmissible or purely personal.
Exceptions: RES PERIT DOMINO – risk of loss is borne by the buyer once ownership
1) Beneficial stipulation/stipulation pour autrui – A stipulation in is transferred. Article 1496 of the Civil Code which provides that "in the
favour of a third person. absence of an express assumption of risk by the buyer, the things sold
2) When the third person comes into possession of the object of remain at seller's risk until the ownership thereof is transferred to the
a contract creating real rights; (Art. 1312) buyer," is applicable to this case, for there was neither an actual nor
3) Where the contract is entered into in order to defraud a constructive delivery of the thing sold, hence, the risk of loss should be
creditor; (Art. 1313)Here, the creditor may ask for its borne by the seller, Norkis, which was still the owner and possessor of
rescission. the motorcycle when it was wrecked. This is in accordance with the well-
4) Where the third person induces a contracting party to violate known doctrine of res perit domino.
his contract (Art. 1314). Such third person can be held liable for
damages. -------------------------------- END --------------------------------

Essential Requisites of Contracts

I. CONSENT: conformity of the parties to the terms of the contract;
the acceptance by the offeree of the offer made by the other
Requisites: must be freely given consent, not vitiated by vice of
consent, otherwise voidable.
II. OBJECT: The thing, right or service which is the subject matter of
the obligation arising from the contract.
Requisites: Must be within the commerce of man; Should be real or
possible; Should be licit; and Should be determine, or at least possible of
determination as to its kind.
III. CAUSE: It is the immediate, direct or most proximate reason
which explains and justifies the creation of an obligation through
the will of the contracting parties.
Essential requisites of cause: Existing at the time of the celebration of
the contract; Licit or lawful; and True
Note: Absence of any of the requisites, the contract is void.

Fraud (Art. 1338) - When, through insidious words or machinations of

one party, the other is induced to enter into a contract which without
them, he would not have agreed to.
Kinds of fraud:
1) Fraud in the PERFECTION of the contracts – contract is voidable
2) Fraud in the PERFORMANCE of an obligation (Art. 1170) – liable for
damages

FORMS OF CONTRACTS
General Rule: Contracts shall be obligatory, in whatever form they may
have been entered into, provided all the essential requisites for their
validity are present (Art. 1356).
Exceptions:
1. When the law requires that the contract be in a certain form to be
valid (Art. 1356)
2. When law requires that the contract be in a certain form to be
enforceable (Statute of Frauds)
3. When required to make the contract effective as against third
parties (Art. 1357-1358)
 Where the validity of a contract is made to depend upon a
particular formality, an action under Art. 1357 cannot be
brought to compel the other party to execute such formality.

CIVIL LAW - KOKOBAR 2018 6