Hazel B.

Pantig, Christopher Flake, Van Oliver Mempin October 5, 2011 REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION BRANCH 25, MANILA

SPS. RAUL AND ANNA GERONIMO , Plaintiff, - versus PETER PASCUAL Defendant. x-----------------------------------x Civil Case No.: 11-1478011 For: Annulment of Contract and Damages PLAINTIFFS MEMORANDUM The Case This is a civil case where the plaintiff is suing for the annulment of a deed of absolute sale involving a condominium unit. The plaintiff claims that the property involved is a community property. In the absence of her consent to a contract of sale entered into by the husband alone is voidable. As owner of the property the plaintiff is entitled to seek for the annulment of the contract. The Facts The Spouses Geronimo married in year 2006. The property in question, comprising of a condominium unit, was acquired by the husband, Mr. Raul Geronimo in 2001 and registered under his name. Sometime in January of 2009, the Spouses Geronimo brought up the idea of selling their condominium unit to the defendant, Mr. Pascual. In April of the same year, the spouses Geronimo offered to sell their condominium unit to Mr. Pascual for 2 MILLION. The offer was accepted. However, by the time the deed of sale was finally drawn up, Mrs. Anna

Hazel B.Pantig, Christopher Flake, Van Oliver Mempin October 5, 2011 Geronimo has left for the United States. While in thereat, Mrs. Anna Geronimo decided not to sell the property which she intimated to her husband. Upon her return to the Philippines in September 2009, the deed of sale was already signed by her husband and has accepted the payment for the same. Mrs. Anna Geronimo, communicated her refusal to sell to Mr. Pascual and offered to return his money. Mr. Pascual on the other hand refused to accept the money, insisting that the sale had been consummated. The Issues I. Whether or not the consent of the wife is necessary for the sale of the property in issue? III. Whether or not a contract of sale was perfected? III. Whether or not the contract of sale may be annulled? The Arguments I. Whether or not the consent of the wife is necessary for the sale of the property in issue? THE WRITTEN CONSENT OF THE WIFE IS NECESSARY FOR THE SALE OF THE CONDONIUM UNIT. First. The Spouses Geronimo got married in 2006. At that time, the Family Code was already effective as it took effect in August of 1988. Article 75 of the Family Code states that in the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. Absent any marriage settlement between the spouses, there property regime is that of absolute community of property. Second. The condominium unit in question was acquired by the husband in 2001 while he was still single. Since the spouses as aforesaid are governed by the regime of absolute community of property the condominium unit formed part of the community property at the time of marriage.

Hazel B.Pantig, Christopher Flake, Van Oliver Mempin October 5, 2011 Supported by Art. 91 of the Family Code, unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. Third. The condominium unit being part of the community property and now under the ownership of the husband and wife cannot be sold, alienated or encumbered without the consent of both parties. The Family Code is clear on this matter, to wit:
Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

Fourth. In a case decided by the Supreme Court, it has been held that the consent required by the law must be written. Neither the active participation by one of the spouses in the negotiations nor the fact of being aware thereof constitutes a sufficient consent in law.
Jader-Manalo vs Camaisa, G.R. No. 147978, January 23,2002 The law requires that the disposition of a conjugal property by the husband as administrator in appropriate cases requires the written consent of the wife, otherwise, the disposition is void. Thus, Article 124 of the Family Code provides: Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

Hazel B.Pantig, Christopher Flake, Van Oliver Mempin October 5, 2011

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Underscoring ours.) The properties subject of the contracts in this case were conjugal; hence, for the contracts to sell to be effective, the consent of both husband and wife must concur. Respondent Norma Camaisa admittedly did not give her written consent to the sale. Even granting that respondent Norma actively participated in negotiating for the sale of the subject properties, which she denied, her written consent to the sale is required by law for its validity. Significantly, petitioner herself admits that Norma refused to sign the contracts to sell. Respondent Norma may have been aware of the negotiations for the sale of their conjugal properties. However, being merely aware of a transaction is not consent.

In the aforecited case the property involved is conjugal property. But this does not make the rule any different if the property involved is community property. A comparison of Art. 124 on conjugal property and Art. 96 on community property of the Family Code both require the consent of the spouses. The ruling then by the Supreme Court that such consent must be written is applicable whether the property is conjugal or community. Fifth. Therefore as required by law and as ruled by the Supreme Court, it is clear that a written consent must be given by Mrs. Anna Geronimo. II. Whether or not a contract of sale was perfected? THE CONTRACT OF SALE OF SALE WAS PERFECTED HOWEVER IT IS VOIDABLE. First. An offer of sale was made by the Spouses Geronimo. This offer was accepted by Mr. Pascual. Under Art. 1318 of the Civil Code:

Hazel B.Pantig, Christopher Flake, Van Oliver Mempin October 5, 2011 There is no contract unless the following requisites concur: (1) Consent of the contracting parties; (2) Object certain which is the subject matter of the contract; (3) Cause of the obligation which is established. Further, Art. 1319 of the Civil Code states that: Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counter offer Second. The elements of a contract are present in this case. And sale being a consensual contract is perfected by the meeting of the minds of the parties. However, the property involved herein is community property. As explained in the first part a written consent of the husband and wife is necessary according to the Supreme Court. Third. With respect to consent which must be in writing, it can be said that the consent of the husband alone does not suffice. There is a vice in the consent, since the husband on his own, is incapable of giving consent. This being said, the contract though perfected is in the nature of a voidable contract. In a similar case, Ainza v. Padua (G.R. No. 165420, June 30,2005) the Supreme Court held: The consent of both Eugenia and Antonio is necessary for the sale of the conjugal property to be valid. Antonios consent cannot be presumed. Except for the self-serving testimony of petitioner Natividad, there is no evidence that Antonio participated or consented to the sale of the conjugal property. Eugenia alone is incapable of giving consent to the contract. Therefore, in the absence of Antonios consent, the disposition made by Eugenia is voidable III. Whether or not the contract of sale may be annulled? THE CONTRACT OF SALE MAY BE ANNULLED. First. Since, the contract is voidable it may be annulled by Anna Geronimo by a proper action in court. This right is granted by law in Art. 1390 of the Civil Code:

Hazel B.Pantig, Christopher Flake, Van Oliver Mempin October 5, 2011 The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties: Those where one of the parties is incapable of giving consent to a contract; -XXXThese contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. Second. Apart from the annulment of the contract, Anna Geronimo is likewise entitled to a claim for damages. Mr. Pascual being a long time friend since college new all the while that the condominium unit is a community property. Mr. Pascual cannot even claim good faith nor capitalize on the title being registered in the name of Raul Geronimo. To establish his status as a buyer for value in good faith, a person dealing with land registered in the name of and occupied by the seller need only show that he relied on the face of the seller's certificate of title. But for a person dealing with land registered in the name of and occupied by the seller whose capacity to sell is restricted, such as by Articles 166 and 173 of the Civil Code or Article 124 of the Family Code, he must show that he inquired into the latter's capacity to sell in order to establish himself as a buyer for value in good faith. (Bautista v. Silva, G.R. No. 157434, September 19, 2006) His adamant insistence on the sale despite communication of refusal by Anna, has caused the latter moral anxiety and a strained relation with her husband since then. Moral damages amounting to P100,000.00 and attorneys fees of P70,000 are also deemed proper for having been forced to litigate. Prayer WHEREFORE, plaintiff Anna Geronimo respectfully prays the Court to render judgment: 1. Annulling the deed of sale; and (1)

Hazel B.Pantig, Christopher Flake, Van Oliver Mempin October 5, 2011 2. Ordering defendant Mr. Pascual to pay the plaintiff moral damages of P100,000.00 as well as attorneys fees of P70,000.00 and costs of the suit.

Manila, October 5, 2011.

Hazel Pantig, Attorney for Plaintiff PANTIG, FLAKE & MEMPIN LAW OFFICE 15th Floor, RCBC Plaza, Ayala Avenue, Makati City Roll No. 198756 P.T.R. No. 1234888 / Manila / January 10, 2011 IBP No. 123456/ Manila / January 20, 2009 MCLE Compliance No. 125689