Answers to Bar Examination
Questions in
Civil Law
( 1975- 2007 )
Eduardo A. Labitag
Editor
U.P. LAW COMPLEX
Bocobo Hall, Diliman, Quezon City
2008
CONTENTS
FOREWORD.......................................... ..................
iii
ANSWERS TO BAR EXAMINATION QUESTIONS
2007 ............................................................. 1
2006 ...............................................................
23
2005 ............... ’ .......................................... .
44.
2004 ............. ..................................................
70
2003 ................ ...............................................
90
2002 ..... ....................................... ..................
110
2001 ................................................ ............. V
132
2000 ........•.......................................................
149
1999 ................................................... 176
1998 ................................................................
198
1997 ................................... ;..........................
223
1996 ...............................................................
246
1995 .... :....................................................... 269
1994 .......................................................:.......
1993 ............................................... ................
.
:
293
318
1992 ................................... ...........................
336
1991 ................................ ...............................
353
1990 .................. ............ ................................
377
1989 ................................................................
393
1988 .................... ..........................................
415
1987 ...............................................................
446
XI
1986 ............................................................... .......... 462
1985 ........................................................... .............. 489
1984................................... ........... ............... .......... 524
1983 ......................................... ..................... .......... 544
1982 ................................. ....................................... 558
1981 ...... :....................................................... .......... 580
1980 ................................ ........................ ...... .......... 603
1979 ........ ........................ ................... .......... .......... 621
1978 .................. ,...................................................... 642
1977 ........................ ................................... 662
1976 ............. ......... ............... :......... :............ .......... 704
1975 ............................................................... .......... 716
2007 BAR EXAMINATION
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MecUt f Distinguish the following concepts:
Ootm*>'o/i; <5^*,//^^ n
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(a)
Occupation v. possession.
SUGGESTED ANSWER:
a
(a)
Occupation can take place only with respect to
property without an owney while possession can refer to
all kinds of property, whether with owner or without an
owner. Occupation itself, when proper, confers ownership
but possession does not by itself give rise to ownership
(Tolentino, Commentaries and Jurisprudence on the Civil
Code o f the Philippines [1999 ed .], vol. II, p. 489).
FIRST ALTERNATIVE ANSWER:
Occupation is an original mode of acquiring ownership
(Art. 712, NCC). Things appropriable by nature which are
without an owner, such as atiimals that are the object of
hunting and fishing, hidden treasure and abandoned
movables, are acquired by occupation (Art. 713, NCC).
However, ownership of a piece of land cannot be acquired
by occupation (Art. 714, NCC).
On the other hand, possession is the holding of a
thing or the enjoyment, of a right, as provided in Article
523 of t ie New CiVil Code. Possession can be in the
conceptofan owner-orin the concept of a holder (Art. 525,
NCC).
SECOND ALTERNATIVE ANSWER:
Occupation is a mode of acquiring dominion by the
seizure of corporeal things which have no owner, with the
intention o f acquiring the ownership thereof. It is an
original mode of acquiring ownership upon seizure of a
1
res nullius by the occupant who has the intention to
become the owner thereof.
Possession, on' the other hand, is the holding of a
thing or the enjoyment of a right. Possession maybe the
real right of possession or ju s possessionis or it can be
•merely'the right to possess o tju s possidendi, which are
among the basic rights of ownership. If the real right of
possession is possession in the concept of owner, but
subject to certain limitations, it may ripen into full
ownership of the thing or property right through
acquisitive prescription depending on whether it is a case
of ordinary or extraordinary prescription and whether the
property is movable or immovable.
(b)f
<■
Illegal and impossible conditions in a simple
donation v. illegal and impossible conditions in an
onerous donation. (5%)
SUGGESTED ANSWER:
(b)
Illegal and impossible conditions in a simple
donation are considered as not written. Such conditions
shall, therefore, be disregarded but the donation remains
valid (Article 727, NCC).
’
On the other hand, illegal and impossible conditions
imposed in an onerous donation shall annul the donation
(Article 1183, NCC). This is so, because onerous.donations
are governed by the law on contracts (Article 733, NCC).
faptsif;
( 10 %)
Manila Petroleum Co. owned and operated a petroleum
operation facility off the coast of Manila. The facility was
located on a floating platform made of wood and metal, upon
which was permanently attached the heavy equipment for
the petroleum operations and living quarters of the crew.
The floating platform likewise contained a garden area,
where trees, plants and flowers were planted. The platform
2
w aslethered to a ship, the MV 101, which was anchored to
the seabed.
(a)
Is the platform movable or immovable property?
SUGGESTED ANSWER:
(a)’fThe platform is an immovable property under
Article 415 (9) NCC., which provides that “docks and
structures which, though floating, are intem|gd by their
nature and object to remain at a fixed place on a river,
lake or coast. ” Since the floating platform is a petroleum
operation facility, it is intended to remain permanently
where it is situated, even if it is tethered to a ship which
is anchbred to the seabed.
ALTERNATIVE ANSWER:
The platform is a movable property because it is
attached to a movable property, i.e. the vessel which was
merely anchored to the seabed. The fact that the vessel
is merely anchored to the seabed only shows that it is not
intended to remain at a fixed place; hence, it remains a
movable property. If the intention was to make the
platform stay permanently where it was moored, it would
not have been simply tethered to a vessel but itself
anchored to the seabed.
(b)
Are the equipment and living quarters movable or
immovable property?
SUGGESTED ANSWER:
(bjH'he equipment and living quarters of the crew are
immovable property under Article 415 (3) NCC, classifies
as an immovable “everything attached to an immovable
in a fixed manner, in such a way that it cannot be
separated therefrom without breaking the material or
* deterioration of the object”. Both the equipment and the
living quarters are permanently attached to the platform
which is also an immovable.
3
The equipment can also be classified as an immovable
property under Article 415 (5) NCC because such
equipment are “machinery, receptacles, instruments or
implements intended by the owner of the tenement for an
industry or works which may be carried on in a building
or on a piece of land and which tend directly to meet the
needs of the said industry or works”. It is logically,
assumed that the petroleum industry may be carried on
in a building or on a piece of land and the platform is
analogous to a building.
ALTERNATIVE ANSWER:
The equipment and living quarters of the crew are
movable properties since they are attached to a platform
which is also movable property, because it is simply
attached to a vessel is likewise a movable property since
it was merely anchored to the seabed. The fact that the
vessel is merely anchored on the sea- bed only shows that
it is not intended to remain at a fixed place; hence, it
remains a movable property.
(c)
Are the trees, plants and flowers immovable or
movable property?
Please briefly give the reason for your answers:
S UGGESTED ANSWER:
^ The trees, plants and flowers planted in the garden
area of the platform are immovable property under Article
415 (2) NCC which classifies as an immovable property
“trees, plants and growing fruits, while they are attached
to the land or form an integral part of an immovable.” The'
garden forms an integral part of an immovable, the
petroleum operation facility.
ALTERNATIVE ANSWER:
The trees, plants and flowers planted in the garden
area of the platform are movable property because they
are not permanently attached to the land and do not form
4
an integral part of an immovable. The platform is not an
immovable property for the same reason already given in
the Alternative Answer to Item (a) above.
J
Explkin the following concepts and doctrines and give
an example of each:
(a)
concept of trust de son tort (Constructive trust)
(5%)
. ,
'
SUGGESTED ANSWER:'
(a)
A constructive trust is a trust not created by any
word or phrase, either expressly or impliedly, evincing a
direct intention to create a trust, but is one that arises in
order to satisfy the demands of justice. It does not come
about by agreement or intention but mainlyjfperation of
law and construed as a trust against one who; by fraud,
duress or abuse of confidence, obtains or holds the legal
right to property which he ought not, in equity and good
conscience, to hold (Heirs o f Lorenzo Yap v. Court o f
Appeals, 371 Phil. 523 [1999]).
The following are examples of constructive trust:
1. Article 1456 NCC which provides:
“If property is acquired through
mistake^ or fraud, the person obtaining it
is, by force of law considered a trustee o f an
implied trust for the benefit of the person
from whom the property comes.”
2. Article 1451 NCC which provides:
“When land passes by succession to
any person and he causes the legal title to
be put in the name o f annthe;-. a trust is
5
established by implication of law for the
benefit of the true owner.”
3. Article 1454-NCC which provides:
“If an absolute conveyance of property
is made in order to secure the performance
of an obligation of the grantor toward the
grantee, a trust by virtue o f law is
established. If the fulfillm ent o f the
obligation is offered by the grantor when it
beco m es due,, he m ay dem and the
reconveyance of the property to him.”
4. Article 1455 (NCC which provides:
“When any trustee, guardian or other
person holding a fiduciary relationship
uses trust funds for the purchase of property
and causes the conveyance to be made to
him or to a third person, a trust is
established by operation of law in favor of
the person to whom the funds belong.”
(b)
doctrine of discovered peril (last clear chance)
(5%)
SUGGESTED ANSWER:
V
(b)^ The doctrine of last clear chance states that
where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the ultimate
opportunity to avoid the impending harm failed to do so,
it is the defendant who is liable for all the consequences
of the accident notwithstanding the prior negligence of
the plaintiff.
An example is where a person was riding a pony on
a bridge and improperly pulled the pony to the wrong side
when he saw a car coming. The driver of the car did nqt
stop or change direction, and nearly hit the horse, and,
6
the frightened animal jumped to its death. The driver of
the car is guilty of negligence because he had a fair
opportunity to avoid the accident and failed to avail
himself of that opportunity. He is liable under the doctrine
of last clear chance (Picartv. Smith, 37 Phil. 809 [1918]).
4 . M lref T itU d I.
IV
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Bedrock Land & Property Development Corp. is a
development company engaged in developing and selling
subdivisions, condominium units and industrial estates.
In order to replenish its inventories, it embarked on an
aggressiye land banking program. It employed “scouts” who
roam all over the Philippines to look for and conduct
investigations on prospective sites for acquisition and
development, whether developed, semi-developed or raw
land. The management of Bedrock asks you as the company
counsel to prepare a manual containing a summary of the
pertinent laws and regulations relating to land registration
and acquisition of title to land. The manual should include
the following items:
(a)
What is the governing law?
SUGGESTED ANSWER:
MCT No.
(a)
The governing law is the Land Registration Act
as amended by the Property Registration Decree (Act No.
496 as amended by P.D. No. 1529).
[Note:
It is respectfully recommended that full
credit be given to examinees who did not give the exact
title or number of the law but merely stated a description
o f the law.]
ALTERNATIVE ANSWER:
In general, the governing law relating to registration
and acquisition of title to land is Act 496 o f 1902 as
amended by P.D. No. 1529, otherwise known as the
Property Registration Decree of June 11, 1978.
7
Pec*-*
1.
Chapter III-I governs original registration of
land title under the Torrens System by voluntary
or ordinary judicial proceedings.
2.
Chapter II-II governs compulsory registration
of lands through cadastral proceedings.
3.
Section 103 governs registration of homestead,
sales or free patent under C.A. No. 141, as
amended, otherwise known as the Public Land
Act.
4.
Section 104 governs registration of certificates
of land transfer, emancipation patents and
Certificates of Land Ownership Award (CLOA)
under the Comprehensive Land Reform Law.
5.
Chapter V governs the registration of voluntary
dealings on registered land like conveyances,
transfers, mortgages, leases, powers of attorney,
trusts and similar contracts inter vivos.
6.
Chapter V-II governs the registration o f
involuntary dealings on registered land like
attachments, adverse claims, enforcement of
liens on registered land, notices of lispendens.
Chapter VI governs the registratio n o f
judgments, orders and partitions, condemnation
in eminent domain proceedings, judicial and
extra-judicial settlement of estates.
7.
8.
Sections 107, 108 and 109, governs petitions
and actions after original registration like:
a)
Compulsory surrender of withheld owner’s
duplicate certificate of title;
b)
Amendment and alteration of certificate of
title;
c)
Replacement of lost or destroyed owner’s
duplicate certificate of title.
8
9.
R.A. No. 26 governs judicial reconstitution of
lost or destroyed originals of the certificate of
title.
10. R.A. No. 6732 go vern s a d m in is tra tiv e
reconstitution of lost or destroyed original
certificates of title.
11. Section 113 governs the registration o f
instruments affecting unregistered private
lands.
12.
.
Section 117 governs “ consultas”, where the
Register of Deeds refuses to register a deed or
when he is in doubt as to what action to take on
an instrument presented for registration.
(b)
What properties are not registrable?
Supply this information.
SUGGESTEDANSWER:
(b)^The following properties are not registrable:
1.
2.
3.
4.
5.
Properties of the public dominion}
Properties for public use or public service;
Inalienable lands of the public domain;
Military installations, civil and quasi-public
lands; and
All lands not classified as alienable and
disposable.
ALTERNATIVE ANSWER:
1.^Properties of public dominium intended for public
use, like roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and
the like, are incapable of private appropriation, much
less registration (Article 420, New Civil Code).
This
includes public markets, public plazas, municipal streets
and public buildings (Municipality o f Antipolo v. Zapanta,
133 SCRA 820 [1986]); Martinez vs. CA, 56 SCRA 647
[1974]; Navera v. Quicho, 5 SCRA 454 [1962]).
2. Lands proclaimed or classified as forest or
timberland, mineral lands and national parks. Under
Section 2, Article XII, Constitution of the Philippines,
these lands are inalienable.
3. Lands that have been reserved by law or
Presidential proclamation for military, civil or for public
or quasi-public purpose. Under Section 88, Chapter XII
of the Public Land Act, such lands shall be inalienable
and shall not be subject to occupation, entry, sale, lease
or other disposition.
4. In general, all lands of the public domain that
have not been classified as alienable and disposable
under the Public Land Act.
5. Lands that form part of the seabed, riverbed or
lakebed. These lands are not susceptible to private
appropriation.
6. Foreshore lands or that strip of land that lies
between the high and low water marks and alternately
wet and dry according to the flow of the tide belong to the
public domain, and can only be acquired by lease if not
needed by the government for public or quasi-public
purposes.
7. Lands reclaimed by the government from the sea,
lakes or other bodies of water are disposable or acquisible.
only by lease and not otherwise, under the Public Land
Act.
10
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’ What are obligations without an agreement”? Give five
examples of situations giving rise to this type of obligation.
SUGGESTEDANSWER:
t “Obligations without an agreement” are obligations
that do not arise from contract such as those arising from:
1.
2.
3.
4.
5.
delicts;
quasi-delicts;
solution indebiti',
negotiorum gestio’, and
all other obligations arising from law.
-
ALTERNATIVE ANSWER:
“Obligations without an agreement” refer to the
juridical relation of^au asi-c o n tra ct which arise from
certain lawful, voluntary and unilateral acts to the end
that no one shall be unjustly enriched or benefited at
the expense of another. (Art. 2142, NCC)
Fiifst example of ah obligation without an agreement
is* a 'c a s e 'b f negotiorum aestio, whereby one who
voluntarily takes charge of the agency or management of
the business or property of another, without any power
from the latter, is obliged to continue the same until the
termination of the affair and its incidents, or to require
the person concerned to substitute him, if the owner is in
a position to do so (Art. 2144, NCC).
Second example, a case of solution indebiti may also
give rise to an obligation without an agreement. This
refers to the obligation to return which arises when
something is received when there is no right to demand
it, and it was unduly delivered through mistake (Art.
2154, NCC).
11
*x*+**h)
Third example, is when without the knowledge of the
person obliged to give support, it is given by a stranger,
the latter shall halve a right to claim the same from the
former, unless it appears that he gave it out of piety and
without intention of being repaid (Art. 2164, NCC).
Fourth example, is when through an accident or
other cause a person is injured or becomes seriously ill,
and he is treated or helped while he is not in a condition
to give consent to a contract, he shall be liable to pay for
.the services of the physician or other person aiding him,
unless the service has been rendered out o ^ pure
generosity (Art. 2167, NCC).
Fifth instance o f an obligation without an
agreement is when the person obliged to support an
orphan or an insane or other indigent person unjustly
refuses to give support to the latter, any third person may
furnish support to the needy individual, with right of
reimbursement from the person obliged to give support.
The provisions of this article apply when the father or
mother of a child under eighteen years of age unjustly
refuses to support him (Art. 2166, NCC).
/.
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"* -* 7
Clara, thinking of her mortality, drafted a will and
asked Roberta, Hannah, Luisa and Benjamin to be witnesses.
During the day of the signing of her will, Clara fell down the
stairs and broke both her arms. Coming from the hospital,
Clara insisted on signing her; will by thumb mark and said
that she can sign her full name later. While the will was
being signed, Roberta experienced a stomach ache and kept
going to the restroom for long periods of time. Hannah, while
waiting for her turn to sign the will, was reading the 7th
Harry Potter book on the couch, beside the table on which
everyone was signing.. Benjamin, aside from witnessing
the will, also offered to notarize it. A week after, Clara was
run over by a drunk driver while crossing the street in
Greenbelt. May the will of Clara be admitted to probate?
Give your reasons briefly.
12
(emo'f«■**
n
SUGGESTED ANSWER:
^Probate should be denied. The requitement that
the testator and at least three (3) witnesses must all sign
in the “presence” of one another was not complied with.
Benjamin who notarized the will is disqualified as a
witness, hence, he cannot be counted as one of the three
witnesses (CruZ v. Villasor, 54 SCRA 31 [1973]). The
testatrix and the other witnesses signed the will not in
the presence o f Roberta because she was in the restroom
for extended periods of time. Inside the restroom, Roberta
could not have possibly seen the testatrix and the other
witnesses sign the will by merely casting her eves in the
proper direction (Jaboneta v. Gustilo, 5 Phil. 541 [1906];
Nera v. Rimando, 18 Phil. 451 [1914]). Therefore, the
testatrix signed her will in the presence of only two
witnesses, and only two witnesses signed the will in the
presence of the testatrix and of one another.
It is to be noted, however, that a^thumbmark
intended by the testator to be his signature in executing
his last will and testament is valid (Payadv. Tolentino, 62
Phil. 848 [1936]; Matias v. Salud, L-104 Phils. 1046, 23
June [1958]). The problem, however, states that Clara
“said that she can sign her full name later”; Hence, she
did not consider her thumb-mark as her “complete”
signature, and intended further action on her part. The
testatrix and the other witness signed the will in the
presence of Hannah, because she was aware of her function
and role as witness and was in a position to see the
testatrix and the other witness sign by merely casting
her eyes in the proper direction.
*.
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Write “TRUE” if the statement is true or “FALSE” if
the statement is false. If the statement is FALSE, state
the reason. (2%)
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1.
Roberta, a Filipino, 17 years of age, without the
knowledge of his parents, can acquire a house in
• Australia because Australian Laws allow aliens to
acquire property from the age of 16.
13
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SUGGESTEDANSWER:
4
TRUE. Since Australian Law allows aliens to acquire
property from the age of 16* Roberta may validly own a
house in Australia, following the principle of lex rei sitae
enshrined in Article 16, NCC which states: “Real property
as well as personal property is subject to the law of the
country where it is situated.” Moreover, even assuming
that legal capacity of Roberta in entering the contract in
Australia is governed by Philippine law under Article 15,
NCC, the contract of sale is not void but merely voidable
under the NCC. Hence, even under Philippine law, she
will acquire ownership over the property she bought until
the contract is annulled.
ALTERNATIVE ANSWER:
FALSE^Laws relating to family rights and duties, or
to the status, condition and legal capacity of persons are
binding upon the citizens of the Philippines, even though
living abroad (Art. 15, NCC). The age of majority under
Philippine law is 18 years (Rep. Act No. 6809); hence,
Roberta, being only 17 years old, has no legal capacity to
acquire and own land.
2.
If a man commits several acts of sexual infidelity,
particularly in 2002, 2003, 2004, 2005, the
prescriptive period to file for legal separation runs
from 2002.
SUGGESTEDANSWER:
FALSE. fThe five-year prescriptive period for filing
legal separation runs'from the occurrence of each act of
sexual infidelity. Hence, the prescriptive period for the
sexual infidelity committed in 2002 runs from 2002; for
the sexual infidelity cpmmitted in 2003, the prescriptive
period runs from 2003 and so on. The action for legal
separation for the last act of sexual infidelity in 2005 will
prescribe in 2010.
14
3.
An individual, while single, purchases a house
and lot in 1990, and borrows money in 1992 to
repair it. In 1995, such individual gets married
while the debt is. still being paid. , After the
marriage, the debt is still the responsibility of
such individual.
SUGGESTEDANSWER:
FALSE.^The absolute community of property is liable
for the ante-nuptial debts of either spouse in so far as the
same redounded to the benefit o f the family (Art. 94[7],
Family Code).
,v.
ALTERNATIVE ANSWER:
FALSE. The deb t is already the responsibility of the
community property,, because the property already
constitutes absolute community o f property under Art.
91 ofthe Family Code which took effectin 1988 while the
house and lot here''involved was purchased in 1990.
There is n o ’indication that the spouse who bought the
property had legitimate descendants by a former marriage,
which would exclude the house and lot from the
community property, (Art. 92[3], Family Code). If the
spouses established a conjugal partnership, the property
belongs to the individual spouse if full ownership was
vested before the marriage. (Art. 118, Family Code).
4.
The day after John and Marsha got married, John
told her that he was impotent. Marsha continued
to live with John for 2 years. Marsha is now
estopped from filing an annulment case against
John.
SUGGESTEDANSWER:
FALSE.^Marsha is not estopped from filing an
annulment case against John on the ground of his
impotence, because she learned o f his impotence after
the celebration of the marriage and not before. Physical
incapability to consummate the marriage is a valid ground
15
for the annulment of marriage if such incapacity was
existing at the time of the marriage, continues and
appears to be incurable. The marriage may be annulled
on this ground within five years from its celebration (Art.
45 [5], Family Code).
5.
Amor gave birth to Thelma when she was 15 years
old. Thereafter, Amor met David and they got
married when she was 20 years oldv David had a
son, Julian, with his ex-girlfriend Sandra. Julian
and Thelma can get married.
JZ
SUGGESTEDANSWER:
True. Julian and
a can get married. Marriages
between stepbrothers ana stepsisters are not among the
marriages prohibited under the Family Code.
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In 1986, Jennifer and Brad were madly in love. In 1989,
because a certain Picasso painting reminded Brad of her,
Jennifer acquired it and placed it in his bedroom. In 1990,
Brad and Jennifer broke up. While Brad was mending his
broken heart, he met Angie and fell in love. Because the
Picasso painting reminded Angie of him, Brad in his will
bequeathed the painting to Angie. Brad died in 1995.
Saddened by Brad’s death, Jennifer asked for the Picasso
painting as a remembrance of him. Angie refused and
claimed that Brad, in his will, bequeathed the painting to
her. Is Angie correct? Why or why not?
SUGGESTEDANSWER:
NO.^Angie is not correct. The Picasso painting was
not given or donated by Jennifer to Brad. She merely
“placed it in his bedroom”. Hence, she is still the owner
of the painting. Not being the owner of the Picasso
painting, Brad cannot validly bequeathed the same to
Angie (Art. 930, NCC). Even assuming that the painting
was impliedly given or donated by Jennifer to Brad, the
16
donation is nevertheless void for not being in writing.
The Picasso painting must be worth more than 5,000
pesos. Under Article 748, NCC the donation and
acceptance of a movable worth more than 5,000 pesos
must be in writing, otherwise the donation is void. The
donation being void, Jennifer remained the owner of the
Picasso painting and Brad could not have validly disposed
of said painting in favor of Angie in his will.
ALTERNATIVE ANSWER:
Yes, Angie is correct. Even assuming that there was
a void donation because the donation was not in writing,
Brad, who was in uninterrupted possession of the Picasso
painting from 1989 to 1995, lasting for six (6) years prior
to his death, Brad has already acquired ownership of the
1 painting through acquisitive prescription. Under Article
1132 of the New Civil Code, Ownership of movables
prescribes through continous possession for four (4) years
in good faith and for eight (8) years without need of any
other conditions. A void donation may be th£ basis of
possession in the concept of owner and of just title for
purposes of acquisitive prescription.
IX
Multiple, choice: Choose the right answer? (2% each)
1.
j
The parties to a bailment are the:
a)
b)
c)
d)
e)
bailor;
bailee;
comodatario;
all of the above;
letters a and b
SUGGESTED ANSWERS:
1.
e (letters a & b)
17
..■
ALTERNATIVE ANSWER:
1.
d (all of the above)
• 2. f A deposit made in compliance with a legal
obligation is:
a) an extrajudicial deposit;
b)
a voluntary deposit;
c)
a necessary deposit;
d)
a deposit with a warehouseman;
e)
letters a and b
SUGGESTEDANSWER:
2.
3.
c (necessary deposit)
^ A contract of antichresis is always:
a)
a written contract;
b)
a contract with a stipulation that the debt
will be paid through receipt of the fruits of
an immovable;
c)
involves the payment of interests, if owing;
d)
all of the above;
e)
letters a and b.
SUGGESTEDANSWER:
3.
d (all of the above)
4.
An assignee in a proceeding under the
insolvency Law does not have the duty of:
18
a)
,.i..
' 1
suing to recover the properties of the estate of
the insolvent debtor;
'
b)
selling property of the insolvent debtor;
c)
ensuring that a debtor corporation operate
the business efficiently and effectively while
the proceedings are pending;
d)
collecting and discharging debts owned to
the insolvent debtor.
;"
SUGGESTEDANSWER:
4. ' (c)
5.
In order to obtain approval of the proposed
settlement of the debtor in an insolvency
proceeding:
a)
the court must initiate the proposal;
b)
2/3 of the number of creditors should agree
to the'settlement;
c)
3/5 of the number of creditors should agree
to the settlement;
d)
1/3 of the total debts must be represented
by the approving creditors;
e)
letters a and b.
a
r
SUGGESTEDANSWER:
5.
None of the choices is the correct answer. In
order to obtain approval of the proposed
settlement, 2/3 of the number of creditors
representing 3/5 of the total liabilities must
approve the same.
19
[Note: Items 4 & 5 on Insolvency Law are not included
within the coverage of Civil Law but
in
Commercial Law. It is therefore suggested that
the examinees be given full credit for the two
items regardless of their answers.]
*
ttto't; U+'h*-—it,
( 10%)
For purposes of this question, assume all formalities
and procedural requirements have been complied with.
In 1970, Ramon and Dessa got married. Prior to their
marriage, Ramon had a child, Anna. In 1971 and 1972,
Ramon and Dessa legally adopted Cherry 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 Gretel, with his girlfriend, Fiona. In 2005, Anna, Larry,
and Cheriy died in a car accident. In 2007, Ramon died.
Who may inherit from Ramon and who may not? Give your
reasons briefly.
fR<>f»6»7
* oe*f*
SUGGESTEDANSWER:
U*
*MtUt 7tiny'.- Rin
J
/Wi«\
^T h e following may inherit from Ramon:
Michelle, as an adopted child Ramon, will inherit
as a legitimate child of Ramon. As an adopted
child, Michelle has all the rights of a legitimate
child (Section 18, Domestic Adoption Law).
Lia_will inherit in representation o f Anna.
Although Lia is an illegitimate child, she is not
barred by Article 992, because her mother Anna
is herself illegitimate. She will represent Anna
as riegards Anna’s legitime under Art. 902, NCC
and as regards Anna’s intestate share under
Article 990, NNC.
The following may not inherit from Ramon:
20
1.
Shelly, being an adopted child, cannot represent
Cherry. This is because adoption creates a
personal legal relation only between the adopter
and the adopted. The law on representation
requires the representative to be a legal heir of
the person he is representing and also of the
person from whom the person being represented
was supposed to inherit. While Shelly is a legal
heir of Cherry, Shelly is not a legal heir of
Ramon. Adoption created a purely personal legal
relation only between Cherry and Shelly.
2.
Hans and Gretel are barred from inheriting from
Ramon under Article 992 of the New Civil Code.
Being illegitimate children, they cannot inherit
ab intestato from the legitimate relatives of
their father or mother. Since Ramon is a
legitimate relative of Larry, the illegitimate
twin children of Larry are barred from inheriting
ab intestato from Ramon.
ALTERNATIVE ANSWER:
The problem expressly mentioned the dates of the
adoption of Cherry and Michelle as 1971 and 1972.
During that time, adoption was governed by the New Civil
Code. Under the New Civil Code, husband and wife were
allowed to adopt separately or not jointly with the other
spouse. And since the problem does not specifically and
categorically state, it is possible to construe the use of
the word “respectively” in the problem as indicative of
the situation that Cherry was adopted by Ramon alone
and Michelle was adopted by Dessa alone. In such a case
of separate adoption the alternative answer to the problem
will be as follows:
Only Lia will inherit from Ramon in representation
of Ramon’s illegitimate daughter Anna. Although Lia is
an illegitimate child, she is not barred from inheriting
from Ramon because her mother Anna is herself
illegitimate.
21
Shelly cannot inherit in representation of Cherry
. because Shelly is just an adopted child of Cherry. In
representation, the representative must not only be a
legal heir of the person he is representing but also of the
decedent from from whom the represented person is
supposed to inherit. In the case of Shelly, while she is a
legal heir of Cherry by virtue of her adoption, she is not
a legal heir o f Ramon. Adoption creates a personal legal
relation only between the adopting parent and the adopted
child ( Teotico v. Del Val, 13 SCRA 406 [1965]).
Michelle cannot inherit from Ramon, because she
was adopted not by Ramon but by Dessa. In the eyes of
the law she is not related to Ramon at all. Hence, she
is not a legal heir of Ramon.
Hans and Gretel are not entitled to inherit from
Ramon, because they are barred by Article 992 NCC.
Being illegitimate children of Larry, they cannot inherit
from the legitimate relatives of their father Larry. Ramon
is a legitimate relative, of Larry the legitimate father.
22
2006 BAR EXAMINATION
j
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Under Article 213 of the Family Code, no child under 7
years of age shall be separated from the mother unless the
court finds compelling reasons to order otherwise.
(1)
Explain the rationale o f this provision. 2.5%
SUGGESTED ANSWER:
The rationale of the provision is that a child below
7 years old needs the love and care which only its mother
can give. The welfare of the child is given the highest
priority and the interest of the child prevails over
procedural rules.
(2) Give at least 3 examples of “compelling reasons”
which justify the taking away from the mother’s custody of
her child under 7 years of age. 2.5%
SUGGESTED ANSWER:
The following have been considered as “compelling
reasons” to deprive a mother of custody: (1) neglect, (2)
abandonment, (31 unemployment. (4) immorality [Espiritu
v. CA, 242 SCRA 362 [1995]), (5) alcoholism, (6) drug
addiction, (7) maltreatment, (8) insanity, (9) highly
communicable serious disease, (10) grave physical
handicap, (11) serious and credible threat by the child to
harm himself if separated from his mother [Luna v. CA,
13 7 SCRA 7 [1985])'
/.
^
Saul, a married man, had an adulterous relation with
Tessie. In one o f the tiysts, Saul’s wife, Cecile, caught them
in flagrante. Armed with a gun, Cecile shot Saul in a fit of
extreme jealousy, nearly killing him. Four (4) years after the
23
incident, Saul filed an action for legal separation against
Cecille on the ground that she attempted to kill him.
(1) If you were Saul’s counsel, how will you argue his
case? 2.5%
SUGGESTED ANSWER:
* I f I were the counsel for Saul, I would argue that
attempt by one spouse against the life of the other is a
valid ground for legal separation and that there is no need
for conviction in a criminal case.
(2) If you were the lawyer of Cecile, what will be your
defense? 2.5%
SUGGESTEDANSWER;
If I were the lawyer of Cecile, I will interpose the
defense that the attempt on his life was without criminal
intent but was impelled solely by passion and obfuscation.
This is the reason why under the Revised Penal Code,
even killing him when caught in the act would be
justified. To be a ground for legal separation, the attempt
must be intentional and wrongful.
(3)
Ifyou were the judge, howwillyou decide the case?
5%
SUGGESTED ANSWER:
t As judge, I will deny the petition. A petition for legal
separation may be filed only by the aggrieved spouse.
Since Saul was unfaithful and was in fact caught in
flagrante by his wife, he is not an “aggrieved” spouse
* entitled to the relief. Hevwho comes to court must come
with clean hands. And even assuming that the attempt on
his life by the wife is a ground for legal separation, he is
. still not entitled to the relief because of his infidelity.
The law does not allow legal separation if both parties
have given ground for legal separation.
24
P iV ^ e n j L c y fiiH + t C 0 t* b * u '{ A v ti+ iU *J L
111
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*/ *-<-
Ed and Beth have been married for 20 years without
children. Desirous to have a baby, they consulted Dr. Jun
Canlas, a prominent medical specialist on human fertility.
He advised Beth to undergo artificial insemination. It was
found that Ed’s sperm count was inadequate to induce
pregnancy. Hence, the couple looked for a willing donor.
Andy,-the brother of Ed, readily consented to donate his
sperm. After a series of tests, Andy’s sperm was medically
introduced into Beth’s ovary. She became pregnant and 9
months later, gave birth to a baby boy named Alvin.
(1)
Who is the father of Alvin? Explain. 2.5%
SUGGESTEDANSWER:
^Ed is the father of Alvin because Alvin was conceived
and bom during the marriage o f his mother to Ed. Under
... the law, the child born during the marriage of the mother
to.her husband fe presumed to be the legitimate child of
the husband [Concepcion v. Almonte, 468 SCRA 438
t,
[2005D- While it is true that there was no written consent 0/Uif q__tm
by the husband to the artificial insemination, absence o f'
such consent may only give the husband a ground to
impugn the legitimacy of the child but will not prevent
the child from acquiring the status of legitimate child of
the husband at the time of its birth.
ANOTHER SUGGESTED ANSWER:
Ed is the father of Alvin if he gave his written
consent to the artificial insemination o f his wife.
Otherwise, the child is the illegitimate child o f Andy.
Under the Family Code, children conceived as a result of
artificial insemination of the wife with the sperm of the
husband or that of a donor or both are legitimate children
of the husband and the wife, provided that both of them
authorized or ratified such insemination in a written
^ instrument executed and signed by both of them befpre
the birth of the child.
25
(2)
-What are the requirements, if any, in order for Ed
to establish his paternity over Alvin? 2.5%
SUGGESTED ANSWER:
To establish Ed’s paternity over Alvin, only two
requirements must concur: (1) the fact that Ed and the
mother of Alvin are validly married, and (2) the fact that
Alvin was conceived or born during the subsistence of
such marriage.
ANOTHER SUGGESTED ANSWER:
To establish E d ’s paternity over Alvin, two
requirements must obtain: (1) both spouses authorized
or ratified the insemination in a written document
executed and signed by them before the birth o f the chilcT;
and (2) the instrument is recorded in the civil registry
together with the birth certificate of the child.
IV
of
Gigi and.Ric, Catholics, got married when they were 18
years old. Their marriage was solemnized on August 2, 1989
by Ric’s uncle, a Baptist Minister, in Calamba, Laguna. He
overlooked the fact that his license to solemnize marriage
expired the month before and that the parties do not belong
to his congregation. After 5 years of married life and blessed
with 2 children, the spouses developed irreconcilable
differences, so they parted ways.
While separated, Ric fell in love with Juliet, a 16 year-old
sophomore in a local college and a Seventh-Day Adventist.
They decided to get married with the consent of Juliet’s
parents. She presented to him a birth certificate showing.she
is 18 years old. Ric never doubted her age much less the
authenticity of her birth certificate. They got married in a
Catholic church in Manila a year after, Juliet gave birth to
twins, Aissa and Aretha.
(1)
What is the status of marhage between Gigi and
Ric - valid, voidable or void? Explain. 2.5%-;
26
VwV(
SUGGESTED ANSWER:
*
The marriage between Gigi and Ric is void because
a minister has no authority to solemnize a marriage
between contracting parties who were both not members
of the minister’s religious sect. Under the Family Code,
a minister or a priest has authority to solemnize a
marriage but only if one or both contracting parties are
members of the religious sect of the priest or minister.
Since neither Ric or Gigi was a member of the Baptist
Church because both of them were Catholic, the Baptist
Minister did not have authority to solemnize their
marriage.
Ric and Gigi cannot claim that they believed in good
faith and that the Baptist Minister had the authority to
solemnize the marriage and invoke Article 35 (2) o f the
Family Code to make the marriage valid. The provision of
the Family Code applies only to a mistake of fact, and not
to a mistake of law. Hence, the fact that the Minister’s
license was expired will not affect the validity o f the
marriage if Ric or Gigi believed in good faith that the
Minister had a valid license. That would be a mistake of
fact. However, believing that the Minister had authority
to solemnize the marriage even if none of the contracting
parties was a member of the Minister’s religious sect is a
mistake of law. This is because the law expressly provides
that the Minister has authority only if one or both
contracting parties are members of the Minister’s religious
sect. A mistake of law does not excuse from noncompliance therewith.
ANOTHER SUGGESTED ANSWER:
The marriage between Ric and Gigi is valid. Assuming
that the parents of Ric and Gigi did not give their consent
to the marriage, the marriage would have been voidable.
However, it was ratified when Ric and Gigi continued
cohabiting for 2 years after they attained the age of 21.
It must be noted that they had 5 years of married life or
until they were 23 years old.
27
I
The fact that neither Ric nor Gigi was a Baptist
would be just a mere irregularity in the authority of the
Baptist Minister to solemnize the marriage. Hence;, it
would have no adverse effect on the validity thereof.
Also, the fact that the license of the Baptist Minister was
expired will not have any effect on the validity of the
marriage because Ric and Gigi can be presumed to have
believed in good faith that the Minister had a valid
license.
(2) What is the status of the marriage between Ric and
Juliet - valid, voidable or void? Explain. 2.5%
SUGGESTED ANSWER:
The marriage between Ric and Juliet is void because
Juliet was below 18 years of affe. Under the Family Code,
the requisite age for legal capacity to contract marriage
is 18 years old and a marriage by a party who is below 18
years old is void under all circumstances. Hence, even
though Juliet’s parents have given their consent to the
marriage and even though Ric believed in good faith that
she was 18 years old, the marriage is void.
(3) Suppose Ric himself procured the falsified birth
certificate to persuade Juliet to m any him despite her
minority and assured her that everything is in order. He did
not divulge to her his prior marriage with Gigi. What action,
if any, can Juliet take against him? Explain. 2.5%
SUGGESTED ANSWER:
(a) Juliet mav file an action to declare her marria^te
to Ric null and void on the ground that she was not of
marrying age. (b) She may also file a criminal case against
Ric for bigamy because he contracted the marriage with
her without a judicial declaration of nullity of his first
marriage to Gigi. (c) She may also file a criminal case for
falsification, perjury, or illegal marriage as the case may
De. iaj in case the facts and the evidence will warrant, she
may also file a criminal case for seduction. In all these
cases, Juliet may recover d am a g es.
28
(4) Ifyou were the counsel for Gigi, what action/s will
you take to enforce and protect her interests? Explain. 2.5%
SUGGESTED ANSWER:
As counsel for Gigi, I will Hie an action for the
declaration of nullity of Gigi’s marriage to Ric on the
ground of absence of authority of the Baptist Minister to
solemnize the marriage between Ric and Gigi who were
both non-members of the Baptist Church.
v
ANOTHER SUGGESTED ANSWER:
As counsel for Gigi, and on the basis of the legal
presumption that her marriage to Ric is valid, 1 will file
the following actions: (1) Legal separation on the grounds
of subsequent bigamous marriage and sexual infidelity,
(2) Receivership of the conjugal or community property,
(3) Judicial separation of property, (4) Petition for sole
administration of the conjugal or community property,
(5) Action for damages for abuse of right, and (6) Action
to declare the marriage of Ric and Juliet as null and void
and to recover her share in her community of property
with Ric, consisting of the portion shared by Ric in
whatever property was commonly or jointly acquired by
Ric and Juliet.
*■
; nW#«v ttwW cf
Spouses Biong and Linda wanted to sell their house.
They found a prospective buyer, Ray. Linda negotiated with
Ray for the sale of the property. They agreed on a fair price of
P2 Million. Ray sent Linda a letter confirming his intention to
buy the property. Later, another couple, Bemie and Elena,
offered a similar house at a lower price of P I . 5 Million. But
Ray insisted on buying the house of Biong and Linda for
sentimental reason. Ray prepared a deed of sale to be signed
by the couple and a manager’s check of P2 Million. After
receiving 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 document
saying she changed her mind. Linda filed suit for nullification
of the deed of sale and for moral and exemplary damages
against Ray.
29
co„rh»,;l
(1)
Will the suit prosper? Explain. 2.5%
SUGGESTED ANSWER:
*
■eutmerrf-
"’f The suit will prosper. The sale was void because
Linda did not give her written consent to the sale. In
Jad.er-Mana.lo v. Camaisa, 374 SCRA 498 (2002), the
Supreme Court has ruled that the sale of conjugal property
is void if both spouses have not given their written
consent to it and even if the spouse who did not sign the
Deed of Sale participated in the negotiation of the
contract. In Abalos v. Macatanaau. 439 SCRA649(20041.
the Supreme Court even held that for the sale to be valid,
the signatures of the spouses to signify their written
consent must be on the same document. In this case,
Linda, although she was the one who negotiated the sale,
did not give her written consent to the sale. Hence, the
sale is void. However, Linda will not be entitled to
damages because Ray is not in anyway in bad faith.
ANOTHER SUGGESTED ANSWER:
The suit will not prosper because the contract o f sale
has already been perfected and partly consummated. The
contract of sale is perfected upon the meeting of the
^ . minds, of. the buyey and seller on to the thing to be sold
,/ aj^d pn,u.the. price , thereof. In this case, Linda had a
meeting of minds with Ray when they agreed that the
property will be sold for 2 million pesos at the conclusion
of her negotiations with him, while Biong had a meeting
of minds with Ray when he signed the Deed of Sale and
accepted the 2 million-peso payment by Ray. Linda is
estopped from questioning the validity o f the contract
she herself negotiated with Ray.
(2)
Does Ray have any cause of action against Biong
and Linda? Can he also recover damages from the spouses?
Explain. 2.5%
SUGGESTED ANSWER:
^ Yes, Ray has a cause of action against Linda and
30
Biong for the return of the 2 million pesos he paid for the
property. He may recover damages from the spouses, if
it can be proven that they were in bad faith in backing out
from the contract, as this is an act contrary to morals and
good customs under Articles 19 and 21 of the Civil Code.
ANOTHER SUGGESTEDANSWER:
Assuming that the contract of sale has been perfected,
' Ray may file a counterclaim against Linda and Biong for
specific performance or rescission, with damages in
, either .case. Linda has breached the obligation created by
the contract when she filed an action for nullification of
sale. On account of Linda's bad faith or fraud, Ray may
ask for damages under Article 1170 of the Civil Code.
VI
Gemma filed a petition for the declaration of nullity of
her marriage with Am ell on the ground of psychological
incapacity. She alleged that after 2 months o f their marriage,
Am ell showed signs of disinterest in her, neglected her and
went abroad. He returned to the Philippines after 3 years but
did not even get in touch with her. Worse, they met several
times in social functions but he snubbed her. When she got
sick, he did not visit her even if he knew of her confinement
in the hospital. Meanwhile, Am ell met an accident which
disabled him from reporting for work and earning a living to
support himself.
Will Gemma’s suit prosper? Explain. 5%
SUGGESTEDANSWER:
Gemma’s suit will not prosper. The acts o f Am ell
complained about''do not by themselves constitute
psychological incapacity. It is not enough to prove the
commission of those acts or the existence of his abnormal
behavior. It must be shown that those acts or that
behavior was manifestation of a serious mental disorder ■»■••*****&*
and that it is the root cause why he was not able
31
perform the essential duties of married life. It must also
be shown that such psychological incapacity, as
manifested in those acts or that behavior, was existing at
the time of the celebration of the marriage. In this case,
there was no showing that Am ell was suffering from a
serious mental disorder, that his behavior was a
manifestation of that disorder, and that such disorder
prevented him from complying with his duties as a
married person.
r* l*i ■V
Marvin, a Filipino, and Shelley, an American, both
residents of California, decided to get married in their local
parish. Two years after their marriage, Shelley obtained a
divorce in California. While in Boracay, Marvin met Manel, a
Filipina, who was vacationing there. Marvin fell in love with
her. After a brief courtship and complying with all the
requirements, they got married in Hongkong to avoid publicity,
it being Marvin’s second marriage. Is his marriage to Manel
valid? Explain. 5%
SUGGESTEDANSWER:
^ Yes, the marriage of Marvin and Manel is valid. While
Marvin was previously married to Shelley, the divorce
from Marvin obtained by Shelley in California capacitated
Marvin to contract the subsequent marriage to Manel
under the 2ndparagraph of Article 26 of the Family Code
which provides that where a marriage between a Filipino
citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse
shall likewise have capacity to remarry under Philippine
law.
e‘*
a*.
v -
It
/M'~n fry
Alberto and Janine migrated to the United States of
America, leaving behind their 4 children, one of whom is
Manny. They own a duplex apartment and 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
32
Settlement of Alberto’s estate wherein the 2-door apartment
was assigned by all the children to their mother, Janine.
Subsequently, she sold the property to George. The latter
required Manny to sign a prepared Lease Contract so that he
and his family could continue occupying the unit. Manny
refused to sign the contract alleging that his parents allowed
him and his family to continue occupying the premises.
If you were George’s counsel, what legal steps will you
take? Explain. 5%
SUGGESTED ANSWER:
^As George’s counsel, I will give Manny a written
demand to vacate within a definite period, say 15 days.
After the lapse of 15-day period, I will file an action for
unlawful detainer to recover the possession o f the
apartment from Manny. Manny’s occupation of the
premises was by mere tolerance of his parents. When all
the co-heirs/co-owners assigned the 2-door apartment to
Janine in the extrajudicial partition, Janine became the
sole owner of the same. He continued to occupy it under
the same familial arrangement. Upon the sale of the
property to George, Manny’s lawful occupation of the
property was terminated and Manny’s refusal to sign the
lease contract and to vacate the premises after the period
to vacate.lapsed made his occupation unlawful, hence,
entitling;George to the remedy of unlawful detainer.
'•
ft*"**;
IX
A drug lord and his family reside in a small bungalow
where they sell shabu and other prohibited drugs. When the
police found the illegal trade, they immediately demolished
the house because according to them, it was a nuisance per
se that should be abated. Can this demolition be sustained?
Explain. 5%
SUGGESTED ANSWER:
No, the demolition cannot be sustained/The house
cannot be considered as nuisance perse. To be considered
per se, the act, occupation, or structure must be a
33
nuisance at all times and under anv circumstances,
regardless o f location or surrounding. Since the
demolished house was not a nuisance during the times
that it was not being used for selling drugs, it cannot be
considered as nuisance perse. Moreover, in the abatement
of a nuisance, whether judicially or extra-judicially, the
abatement should not inflict unnecessary damage or
injury. In this case, what may be considered as nuisance
p e rse is not the structure of the house but the use of the
house for the selling of shabu. However, the demolition
of the house is not necessary to abate the sale o f shabu
in that community. To demolish the house is an
unnecessary damage and injury.
ANOTHER SUGGESTED ANSWER:
The selling of shabu is not only a public nuisance but
a grave threat to the welfare of the community . As such
it can be enjoined and all instruments thereof destroyed
by the law enforcers. The sale of the shabu in that
community is facilitated by the house which hides the
pernicious activity from the law enforcers. This being the
case, the house may be considered as an instrument of
the crime and the law enforcers are justified in demolishing
the house in the exercise of the police powers of the
State.
/•
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Don died after executing a Last Will and Testament,
'
leaving his. estate valued at P12 Million to his common-law
wife Roshelle. He is survived by his brother Ronie and his
half-sister Michelle.
(1)
Was Don’s testamentaiy disposition of his estate in
accordance with the law on succession? Whether you agree
or not, explain your answer. 2.5%
SUGGESTED ANSWER:
Yes, the testamentary disposition is in accordance
with the law on succession. Don was not survived bv anv
compulsory heir. Hence, he could will his entire estate to
34
anybody of his choice including a total stranger. His
institution of his common-law wife to his entire estate is
valid. The disposition is not in consideration of an
adulterous relationship because both of them were not
married to anyone at the time of his making of the will
and at the time of his death. Relationship between two
unmarried persons is not adulterous. The law does not
prohibit testamentary dispositions in favor of a common
law spouse. What the law prohibits are donations in favor ^
of common law spouses under the Family Code. Such
provision does not include a disposition mortis causa
such as a testamentary institution.
ANOTHER SUGGESTED ANSWER:
Article 1028 of the New Civil Code provides that
prohibitions concerning donations inter vivos shall apply
to testamentary dispositions. Article 87 of-fhe Family ^
Code provides that the prohibition against donations
between spouses during the marriage “shall also apply to
persons living together as husband and wife without a
valid marriage.”
Accordingly, Don’s testamentary disposition in
favor of his. common law wife Roshelle is void because it
is prohibited by law. .
(2) If Don failed to execute a will during his lifetime, as
his lawyer, how will you distribute his estate? Explain. 2.5%
SUGGESTED ANSWER:
If Don failed to execute a will, he died intestate and
his estate was inherited by his intestate heirs. H isg
intestate heirs are Ronie and Michelle. However. Ronie
will receive double the share of Michelle because Michelle
was a half-blood sister while Ronnie was a full-blood
brother. Ronie will receive 8 million pesos, while Michelle
will receive 4 million pesos.
(3) Assuming he died intestate survived by his brother
Ronie, his half-sister Michelle, and his legitimate son Jayson,
35
how will you distribute his estate? Explain. 2.5%
SUGGESTED ANSWER:
Only Javson will inherit from Don as his compulsory
heir in the direct descending line. Jayson will exclude the
collateral relatives Ronie and Michelle.
In intestate
succession, the direct line excludes the collateral line.
(4)
Assuming further he died intestate, survived by his
father Juan, his brother Ronie, his half-sister Michelle, and
his legitimate son Jayson, how will you distribute his estate?
Explain. 1.5%
SUGGESTEDANSWER:
Only Jayson will inherit from his father Don. In
intestate succession, the direct line excludes the collateral
line/But among those in the direct line, the descending
excludes the ascending. Hence, the father Juan ancT
Jayson, who are in the direct line, exclude the brother
Ronie and the sister Michelle who are both in the
collateral line. However the son Jayson, who is in the
descending line, excludes the father Juan who is in the
ascending line.
* rr*r~hi
p
XI
A
.1
-fr^
“ -I*-” 0-;
Spouses Alfredo and Racquel were active members of a
religious congregation. They donated a parcel of land in favor
to that congregation in a duly notarized Deed of Donation,
subject to the condition that the Minister shall construct
thereon a place of worship within 1 year from the acceptance
of the donation. In an affidavit he executed in behalf of the
congregation, the Minister accepted the donation. The Deed
of Donation was not registered with the Registry o f Deeds.
However, instead of constructing a place of worship, the
Minister constructed a bungalow on the property he used as
his residence. Disappointed with the Minister, the spouses
revoked the donation and demanded that he vacate the
premises immediately. But the Minister refused to leave,
claiming that aside from using the bungalow as his residence,
36
^1»
he is also using it as a place of worship on special occasions.
Under the circumstances, can Alfredo and Racquel evict the
Minister and recover possession o f the property?
If you were the couple’s counsel, what action will you
take to protect the interests of your clients? 5%
SUGGESTED ANSWER:
As counsel for the couple, I may file an action for ^
reconveyance of the property on the ground that the
donation was not perfected. It was not perfected because
although it was made in a public document and was
accepted by the donee in a separate public document, the
donee failed to notify the donor of such acceptance in an
authentic form before the donation was revoked under
Article 749 of the Civil Code. Such notification was
necessary for the donation to become valid and binding.
ANOTHER SUGGESTED ANSWER:
S-M*K.
•f
4a .Vs
Assuming that the dop^tion is valid on the ground ^
that it was an onerous donation, and therefore, the law
on contracts applied even as to its form, I may file an
action for the revocation of the donation under Article
764of the Civil Code for noncompliance with the condition
imposed on the donation. In donating the land, the
intension o f the couple was for the land to become the
site of a church, or place of worship, for their congregation.
This is why the couple have imposed, as a condition of the
donation, the construction thereon of a church, or a
place of worship, within 1 year from the acceptance of
the donation. The construction of a residential bungalow
which is used as a place of worship but only on special
occasions is not a substantial compliance with such
condition. Hehce, the donation may be revoked for
failure to comply with the condition.
Upon the filing of the case, I will file a notice nf lift
pendens with the Register of Deeds for annotation on the
TCT to ensure against the transfer of the land to an
innocent purchaser for value.
37
i. TSrJt J. PHi™,;
' * ‘ '
X II
Tony bought a Ford Expedition from a car dealer in
Muntinlupa City. As payment, Tony issued a check drawn
against his current account with Premium Bank. Since he
has a good reputation, the car dealer allowed him to
immediately drive home the vehicle merely on his assurance .
that his check is sufficiently funded. When the car dealer
deposited the check, it was dishonored on the ground of
“Account Closed”. After an investigation, it was found that an
employee of the bank misplaced Tony’s account ledger. Thus,
the bank erroneously assumed that his account no longer
exists. Later, it turned out thatTony’s account has more than
sufficient funds to cover the check. The dealer however,
immediately filed an action for recovery of possession of the
vehicle against Tony for which he was tem bly humiliated and
embarrassed. Does Tony have a cause of action against
Premium Bank? Explain. 5%
SUGGESTED ANSWER:
' Yfes; Tony has a cause of action against Premium
Bank. According to Art. 2176, whoever by act or omission
causes damages to another, there being fault or negligence,
is obliged to pay for the damage done. The proximate
cause of the injury which is the dishonor of Tony’s check,
was the bank’s negligence in misplacing his account
ledger. The fiduciary nature of banking requires high
standards of integrity and performance necessitating
banks to treat the accounts of its depositors with
meticulous care.
, ^
x iii
'
Arturo sold his Pajero to Benjamin for P I Million.
Benjamin took the vehicle but did not register the sale with
the Land Transportation Office. He allowed his son Carlos, a
minor who did not have a driver’s license, to drive the car to
buy pan de sal in a bakery. On the way, Carlos, driving in a
reckless manner, sideswiped Dennis, then riding a bicycle.
As a result, he suffered serious physical injuries. Dennis filed
a criminal complaint against Carlos for reckless imprudence
resulting in serious physical injuries.
38
1.
Can Dennis file an independent civil action against
Carlos and his father Benjamin for damages based on quasi­
delict? Explain. 2.5%
SUGGESTED ANSWER:
Yes," Dennis can file an independent civil action
against Carlos and his father, Benjamin. The independent
' civil action against Carlos can be based on Article 2176
of the Civil Code, which states that, “whoever by act or
omission causes damage to another, there, being fault or
negligence, is obliged to pay for the damage done.” The
proximate cause of the injury suffered by Dennis, was the
negligent driving of Carlo. He can thus be held personally
liable by the former for said injuries.
2.
Assuming Dennis’ action is tenable, can Benjamin
raise the defense that he is not liable because the vehicle is
not registered in his name? Explain. 2.5%
SUGGESTED ANSWER:
No, Benjamin cannot raise the defense that he is not
liable because the vehicle is not registered in his name.
Had Dennis sued Benjamin based on the latter’s liability
as the owner of the vehicle, the non-registration o f the
vehicle in his name would have been a valid defense. As
held in the case of BA Finance Corporation v. CA (215
SCRA 715 [1992]), it is the registered owner of any
vehicle, who should be primarily responsible to the
public or third persons for injuries caused the latter while
the vehicle is being driven. In this case, Arturo was not
sued. If sued, Arturo should be held liable for the injury
incurred by Dennis.
. . ,, ,
However, Benjamin is^rfot being sued based on his
ownership of the registered, vehicle, but rather for his
responsibility as the-^pajent o f a minor child whose
negligent act resulted to damage or injury to another. As
provided in Article 2180 of the Civil Code, as amended by
Article 221 of the Family Code, the father and mother are
responsible for the damages caused by the fault and
negligence of the minor children who live in their
39
company. This liability is imposed upon the parents on
the presumption that they have failed in their duty of
supervision over their children. Regardless o f the
ownership of the vehicle, Dennis, therefore, has a cause
of action against Benjamin.
'• (*«•*«'* t f*-ib
tirttCt-Of OOVUt- Jf
-■
| (rW
Zirxthoussous delos Santos filed a petition for change of
name with the Office o f the Civil Registrar of Mandaluyong
City under the administrative proceeding provided in Republic
ActNo. 9048. He alleged that his first name sounds ridiculous
and is extremely difficult to spell and pronounce. After
complying with the requirements of the law, the Civil Registrar
granted his petition and changed his first name Zirxthoussous
to “Jesus.” His full name now reads “Jesus delos Santos.”
Jesus delos Santos moved to General Santos City to
work in a multi-national company. There, he fell in love and
married Mary Grace delos Santos. She requested him to have
his first name changed because his new name “Jesus delos
Santos” is the same as that of her father who abandoned her
family and became a notorious drug lord. She wanted to
forget him. Hence, Jesus filed another petition with the Office
of the Local Civil Registrar to change his first name to
“Roberto.” He claimed that the change is warranted because
it will eradicate all vestiges of the infamy of Mary Grace’s
father.
Will the petition for change of name of Jesus delos
Santos to Roberto delos Santos under Republic Act No. 9048
prosper? Explain. 10%
SUGGESTED ANSWER:
No, the petition will not prosper. Under R A 9048, the
extrajudicial correction of entry or change of first name
may be availed o f only once.
1.
What entries in the Civil Registry may be changed
or corrected without a judicial order? 2.5%
40
SUGGESTED ANSWER:
Only clerical or typographical errors may be
corrected, and only the first name or nickname may be
changed, without judicial order under RA 9048.
2.
May an illegitimate child, upon adoption by her
natural father, use the surname of her natural mother as her
middle name? 2.5%
SUGGESTEDANSWER:
^ Yes, an illegitimate child who is adopted by his
natural father may carry the surname of his biological
mother as his middle name. The Supreme Court has ruled
that there is no law allowing or prohibiting such child
from doing so. What is not prohibited is allowed. Likewise,
the use of the surname of the mother, even of legitimate
children is in accord with Filipino customs and traditions
and will serve the best interest of the child who will not
be confused by wondering why he has no middle name. (In
Re: Adoption o f Stephanie Nathy Astorga Garcia, 454
SCRA 541 [2005]).
XVI i.
to h
.- h ,,)
l.
Under Article 2219 of the Civil Code, moral damages
may be recovered in the cases specified therein, several of
which are enumerated below.
Choose the case wherein you cannot recover moral
damages. Explain. 1.5%
a)
b)
c)
d)
e)
A criminal offense resulting in physical inj uries
Quasi-delicts causing physical injuries
Immorality or dishonesty
Illegal search
Malicious prosecution
41
SUGGESTED ANSWER:
or dishonesty because it is not included in the enumeration
in Article 2219 of the Civil Code.
ANOTHER SUGGESTED ANSWER:
Moral damages may be recovered in all of the five
instances enumerated above. While “immorality” and
“dishonesty” are not included in the ten instances
enumerated in Article 2219 of the Civil Code, the same
article provides that rart>ral cfibnages may be recovered
“in the following and (analogous eases”. Article 2219(10)
provides and includes^*Act§^and actions referred to in
Article 21...". Article 21 in turn provides: “Any person
who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy
shall compensate the latter for damages. Immorality or
dishonesty is analogous to acts contrary to morals, and
therefore covered by Article 2219.
2.
Article 36 of the Family Code provides that a
marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply
with the essential marital obligations of marriage, shall
be void.
Choose the spouse listed below who is psychologically
incapacitated. Explain. 2.5%
a)
b)
c)
d)
e)
Nagger
Gay or lesbian
Congenital sexual pervert
Gambler
Alcoholic
SUGGESTED ANSWER:
The gay or lesbian is psychologically incapacitated.
Being gay or lesbian is a mental disorder which prevents
the afflicted person from performing the essential duties
of married life. He or she will not be able to perform his
42
or her duty of sexual .consortium with his or her spouse
' due to his or her sexual preference for a person of the
same sex. However, the law requires that the disorder or
‘ state of being gay or lesbian incapacitating such person
must be existing at the time of the celebration of the
marriage.
43
2005 BAR EXAMINATION
I
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^
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V^M«^
A.
Gabby and Mila got married at Lourdes Church in
Quezon City on July 10, 1990. Prior thereto, they executed
a marriage settlement whereby they agreed on the regime of
conjugal partnership of gains. The marriage settlement was
registered in the Register of Deeds of Manila, where Mila is a
resident. In 1992, they jointly acquired a residential house
and lot, as well as a condominium unit in Makati. In 1995,
they decided to change their property relations to the regime
of complete separation of property. Mila consented, as she
w as then engaged in a lucrative business. The spouses then
signed a private document dissolving their conjugal
partnership and agreeing on a complete separation of property.
Thereafter, Gabby acquired a mansion in Baguio City,
and a 5-hectare agricultural land in Oriental Mindoro, which
he registered exclusively in his name.
In the year 2000, Mila’s business Venture failed, and her
creditors sued her for PIO.OOO.OOO.OO. After obtaining a
favorable judgment, the creditors sought to execute on the
spouses' house and lot and condominium unit, as well as
G abby’s mansion and agricultural land.
a)
Discuss the status of the first and the amended
marriage settlements. (2%)
, , „. ^
_
SUGGESTED ANSWER:
A. 1)
The first m arriage settlement w as valid
becau se it w a s1in writing, S ign e d by the parties and
-^executed before the celebration o f the m arriage.
2)
The subsequent agreem ent of the parties
w as void as a m odification o f their m arriage settlement;
To be valid, the m odification m ust be executedbefore the
celebration of the m arriage. T he subsequent agreem ent
o f the parties did not effect a dissolution o f their conjugal
partnership and a separation o f their properties because
44
fWf -
jt mncnnt approved bv the court. To be valid, an agreement
by the parties to dissolve their conjugal partnership and ’ v
to separate their properties during the marriage has to be
approved by the court.
b)
Discuss the effect/s of the said settlements on the
properties acquired by the spouses. (2%)
SUGGESTED ANSWER:
1 b) Since the marriage settlement was binding
between the piarties, conjugal partnership of gains was
the regime of their property relations. Under the regime
of conjugal partnership of gains, all properties acquired
by the spouses during the marriage, jointly or by either
one of them, through their work or industry are conjugal.
Therefore, the residential house and lot, and the
condominium unit are conjugal having been jointly
acquired by the couple during the marriage. Inasmuch as
the subsequent agreement on dissolution o f the conjugal
partnership and separation o f property was invalid,
conjugal partnership subsisted between the parties.
Therefore, the mansion and the agricultural land are also
conjugal having been acquired by one o f the spouses
during the marriage.
c) What properties may be held answerable for
Mila's obligations? Explain. (2%)
SUGGESTED ANSWER:
c)
The marriage settlement cannot prejudice third
parties, such as the creditors, because it was not registered
with the local civil registrar where the marriage was
recorded. To bind third parties, the Family Code requires
registration of the marriage settlement not only with the
proper registers of deeds but also with the local civil
registrar where the marriage was recorded. Hence, if the
rules on conjugal partnership will prejudice the creditors,
the rules on absolute community will be applied instead.
However, insofar as debts contracted by one spouse
without the consent of the other are concerned, the rule
45
/
is the same for both conjugal partnership and absolute
community. The partnership or community is liable for
debts contracted by one spouse but only to the extent
that it benefited the family. Therefore, if the debts
contracted by Mila redounded to the benefit of the
family, all the conjugal partnership properties are liable
to pay them but only to the extent the family was
benefited. The separate properties of Mila may be held
answerable for Mila’s debts and obligations that did not
redound to the benefit of the family.
JJ
e*<tortci A'klVff*-*
In 1985, Sonny and Lulu, both. Filipino citizens, were
married in the Philippines. In 1987, they separated, and
Sonny went to Canada, where he obtained a divorce in the
same year. He then married another Filipina, Auring, in
Cai^adaon January 1, 1988. They had two sons, James and
John. In 1990, after failing to hear from Sonny, Lulu married
Tirso, by whom she had a daughter, Verna. In 1991, Sonny
visited the Philippines where he succumbed to heart attack.
a)
Discuss the effect of the divorce obtained by Sonny
and Lulu in Canada. (2%)
SUG GESTED ANSW ER:
a) The divorce obtained by Sonny in Canada was
not valid because he and his wife were both Filipino
citizens. Divorce between a Filipino couple is not valid
under Philippine law even though they are living abroad.
(Art. IS, Civil Code)
b)
Explain the status of the marriage between Sonny
and Auring. (2%)
SUG GESTED ANSW ER:
b)
Since the divorce obtained by Sonny was void,
his marriage to Auring is necessarily void ab initio
because of his subsisting marriage to Lulu. (Art. 41,
Family Code)
46
c)
Explain the status of the mairiage between Lulu
and Tirso. (2%)
SUGGESTED ANSWER:
c) The marriage between Lulu and Tirso is also void
ab initio because Lulu is still validly married to Sonny.
d) Explain the respective filiation of James, John
and Verna. (2%)
SUGGESTEDANSWER:
d) James and John are the illegitimate children of
Sonny and Auring because they were conceived and boro
outside a valid marriage. Verna is an illegitimate child of .
Lulu and Tirso having been conceived and born to the 'I ' '
invalid marriage of Lulu and Tirso. Verna cannot be
presumed as the legitimate child of Sonny because of th e.
supervening marriage that was celebrated between Liilu
- !?.
and Tirso even though such marriage is void ab initio.
The case o f Liyao v. L iy a o ________ :__ is not applicable
because in that case the wife begot a child by another
man during her marriage to her estranged husband but no
marriage was celebrated between the wife and the father
of the child. The child in that case was presumed to be the
legitimate child of the estranged husband.
e) u. Who are. the heirs of Sonny? Explain. (2%)
,•
• i- -
SUGGESTED ANSWER:
e)
The heirs of Sonny are his wife Lulu, and his 2
illegitimate children James and John. The void remarriage
of Lulu to Tirso did not incapacitate her to succeed
Sonny.
JUrcMfion;
i&y •txceeA^n>j
III
Emil, the testator, has three legitimate children. Tom,
Heniy and Warlito; a wife named Adette; parents named Pepe
and Pilar; an illegitimate child, Ramon; brother, Mark; and a
Wf*;
sister, Nanette. Since his wife Adette is w ell-off, he wants to
leave to his illegitimate child as much of his estate as he can
legally do. His estate has an aggregate net amount of
P I , 200,000.00, and all the above-named relatives are still
living. Emil now comes to you for advice in making a will.
How will you distribute his estate according to his
wishes without violating the law on testamentary succession?
(5%)
SUGGESTED ANSWER:
^ In his will, Emil shptfld give his compulsory heirs
just their respective legitimes and give all of the free ^ ^
portion to liis illegitimate child in addition to the saI3.[
' >/»<**rhf!1
*'*9 Child's legitime. He should divide his estate in his will as
follows:
[effMi. T o m ............
H enry...,.... .
'k<$
W arlito ........
</z ✓ A d e tte .........
R a m o n ........
P200.000.00 (legitime)
200,000.0,0 (legitime)
200,000.00 (legitime)
200,000.00 (legitime)
400,000.00 (P 100,000 as legitime,
and P 300,000 as free
portion)
............P I, 200,000.00
; n*.
1.
?>«»*; Ac* f. ft j
faft'vA tv
— J
2>
Steve was married to Linda, with whom he had a
daughter, Tlntin. Steve fathered a son with Dina, his
secretary of 20 years, whom Dina named Joey, bom on
September 20, 1981. Joey’s birth certificate did not indicate
the father’s name. Steve died on August 13, 1993, while
Linda died on December 3, 1993, leaving their legitimate
daughter, Tin tin, as sole heir. On May 16, 1994, Dina filed
a case on behalf of Joey, praying that the latter be declared
an acknowledged illegitimate son of Steve and that Joey be
given his share in Steve’s estate, which is now being solely
held by Tintin. Tintin put up the defense that an action for
48
ar
recognition shall only be filed during the lifetime of the
presumed parents and that the exceptions under Article 285
of the Civil Code do not apply to him since the said article has
been repealed by the Family Code. In any case, according to
Tintin, Joey's birth certificate does not show that Steve is his
father.
a)
Does Joey have a cause of action against Tintin for
recognition and partition? Explain. (2%)
SUGGESTED ANSWER:
a)
Yes, Joey has such a cause of action against
Tintin. While the Family Code has repealed the provisions
of the New Civil Code on proof o f filiation, said repeal did
not impair vested rights. Joey was bora an illegitimate
child in 1981. As an illegitimate child, he had acquired,
at birth, the right to prove his filiation in accordance with
the provisions of the New Civil Code in force at that time.
Under the New Civil Code, an illegitimate child mav file
an action to compel his recognition even after the death
fa
of the putative father when the father died during the
minori ty o f the child. While the Family Code has repealed
this provision, it will not operate to prejudice Joey who
has already acquired a vested right thereto.
ALTERNATIVE SUGGESTED ANSWER:
a) The Family Code governs the capacity of his
heirs to inherit, since Steve died in 1993. The Family
Code requires that because the illegitimate child has no
documentary proof of his filiation, the action to establish
his filiation must be brought during the lifetime o f his
alleged father, whose death occurred in 1993.
Hence, the illegitimate child Joey has no cause of
action.
b)
Are the defenses set up by Tintin tenable? Explain.
(2%)
49
#
SUGGESTED ANSWER:
b)
The defenses of Tintin are not tenable. The fact
that Joey's birth certificate does not show that Steve was
his father is of no moment. The law does not require such
mention. Besides, the New Civil Code provides that when
the father did not sign the birth certificate, his name
should not be disclosed therein. While it is true that
capacity to inherit is determined at the time of the death
of the decedent and that filiation is an element of
capacity to inherit, filiation is determined not at the
time of the death of the decedent but at the time of the
birth of the child who is born with a status. Such status
may subsequently change such as in legitimation, but
legitimation is deemed to retroact to the time of birth. In
the same manner, recognition when given voluntarily by
the father, or decreed by the court, retroacts to the time
o f the child's birth.
c)
Supposing that Joey died during the pendency of
the action, should the action be dismissed? Explain. (2%)
SUGGESTED ANSWER:
c)
If Joey filed the action and died when the New'
Civil Code was still in force, his action would be dismissed
because the action was not transmissible to the heirs of
the illegitimate child (Conde v. Abaya, 13 Phil. 249
[1909])). But if the action was filed after effectivity of the
Family Code, and Joey died during the pendency o f the
action for recognition, it should not be dismissed. Under
the present Family Code, an action commenced by a
legitimate child to claim his legitimate filiation is not C*U
extinguished by his death. The Family Code makes this •
provision applicable to the action for recognition filed by
an illegitimate child. Joey has the right to invoke this
provision because it does not impair any vested rights.
(Art. 175, Family Code)
50
1. AcUfhoit; ft**He.jtfUftiar, L^r:
V
In 1984, Eva, a Filipina, went to work as a nurse in the
USA. There she met and fell in love with Paui, an American
citizen, and they got married in 1985. Eva acquired American
citizenship in 1987. During their sojourn in the Philippines
iri 1990, they filed a joint petition for the adoption of Vicky,
a 7-year-old daughter of Eva’s sister. The government,
through the Office of the Solicitor General, opposed the
petition on the ground that the petitioners, being both
foreigners, are disqualified to adopt Vicky.
’
a)
Is the government’s opposition tenable? Explain.
(2 %)
SUGGESTED ANSWER:
a) Yes, the position of the government is tenable.
Foreigners are disqualified to adopt unless they fall in
any of the exceptions provided for in the law. Eva and
Paul are both foreigners. Eva, falls in one of the exceptions.
She is qualified to adopt because she is a former Filipino^
citizen who wishes to adopt a relative by consanguinity.
Unfortunately, Paul is not qualified to adopt because he
does not fall in any of the exceptions. Hence, they cannot
adopt jokrffy. When husband and wife are adopting
jointly, (both p f them must be qualified to adopt in their
own rigntLiSva cannot, alone by herself, adopt her niece
because husband and wife must adopt jointly unless they
fall in any of the exceptions provided for in the law. They
cannot adopt separately because they do not fall in any
of the exceptions. Hence, whether separately or jointly,
Eva and Paul cannot adopt Vicky in the Philippines.'
(Domestic Adoption Law [RA 8552]
b)
Would your answer be the same if they sought to
adopt Eva's illegitimate daughter? Explain. (2%)
SUGGESTED ANSWER:
b)
No, m y answer would be different. Eva is qualified
51
to adopt her illegitimate daughter, because she falls in
one of the exceptions that allow foreigners to adopt. She
is a former Filipino citizen adopting her relative byconsanguinity. Eva can adopt separately her illegitimate
child because her case is also an exception to the rule
that husband and wife should adopt jointly.
c)
Supposing that they filed the petition to adopt
Vicky in the year 2000, will your answer be the same?
Explain. (2%)
SUGGESTED ANSWER:
c) Yes, my answer will be the same. The new Law
on Domestic Adoption allows a foreigner to adopt in the
L Philippines if he has been residing in the Philippines for
' at least 3 years prior to the filiug of the petition unless
the law waives that residency requirement. Paul and Eva
have not resided in the Philippines for the last 3 years.
However, Eva will qualify for waiver because she was a
former Filipino citizen who wishes to adopt a relative by
consanguinity within the 4th degree. Unfortunately Paid
will not qualify to adopt because he does not fall in any
of the instances for waiver to apply. They cannot adopt
jointly because one o f them is not qualified. Neither may
Eva adopt alone because she does not fall in any of the
exceptions that allow husband and wife to adopt
separately.
,. Option;
VI
Hans.Herber, a German national, and his Filipino wife,
Rhoda, are permanent residents of Canada. They desire so
much to adopt Magno, an 8-year old orphaned boy and a
baptismal godson of Rhoda. Since the accidental death of
Magno’s parents in 2004, he has been staying with his aunt
who, however, could hardly afford to feed her own family.
Unfortunately, Hans and Rhoda cannot com e to the
Philippines to adopt Magno although they possess all the
qualifications as adoptive parents.
52
<h*u&n<
" :' Is there st ppssibility for them to adopt Magno? How
should they go about it? (5%)
SUGGESTEDANSWER:
Under R,A. 8043 establishing the rules for inter-countrv
adoption of Filipino children, the spouses may1file an
application to adopt a Filipino child with the Inter-country
Adoption Board (ICAB) after they have been ^determined
eligible and fit to adopt by the State Welfare Agency or a
licensed adoption agency in Canada. The Canadian agency
will forward the required supporting documents to the ICAB
for*matching with a Filipino child. The spouses, after filing
a petition with the ICAB, shall be issued the ^Placement
Authority and when all the travel documents of the child who
is declared legally eligible for adoption as determined by the
ICAB, are ready the adoptive parents or any one of them shall
^personally fetch the child in the Philippines for adoption in
the court of the foreigner’s country.
.
p
VTI
*
i
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fn, fnrn+v
Don was the owner of an agricultural land with no
access to a public road. He had been passing through the
land of Ernie with the latter’s acquiescence for over 20 years.
Subsequently, Don subdivided his property into 20 residential
lots and sold them to different persons. Ernie blocked the
pathway and refused to let the buyers pass through his land.
a)
Did Don acquire an easement of right of way?
Explain. (2%)
i.
I
SUGGESTED ANSWER:
j,
i)
a) Don did not acquire an easement of right of way.
His passage through Ernie's land was by mere acquiescence
or tolerance. He cannot claim to have acquired the
easement of right of; way by prescription, because this -M
easement is jdiscontinuous although apparent. Only
continuous and apparent easements can be acquired by
prescription o f 10 years o f uninterrupted use and
enjoyment.
53
& nfyta-ut
• foysr
^/*Wie
|WlVnAy
p</ 4co«6^ *1/
VIII
State with reason whether each of the following is a
nuisance, and if so, give its classification, whether public or
private.
a)
A squatter’s hut (1 %)
SUGGESTED ANSWER:
#
According to Article 694of the Civil Code, a nuisance
is any: act, omission, establishment, business condition
of property, or anything else which:
(1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies, or disregards decency or morality;
or , , „
(4) Obstructs or interferes with the free passage of
any public highway or street, or any body of water; or
(5) Hinders or impairs the use of property,
A nuisance may be either public or private. Under
Article 685, a jwMin nnknnrp affects a community or
neighborhood or any considerable number or persons,
although the extent of the annoyance, danger o f damage
upon individuals may be unequal; A private nuisance, on
the other hand, is one that violates only private rights
and produces damage to but one or a few persons.
•r'
a ft A squatter’s hut, being an illegal construction,
constitutes a,public nuisance per se, if it poses problems r
of health and sanitation. (City of Manila v. Garcia,
i f u,t
SCRA41[1967]). If the squatter's hut is built on a privatei
land and hinders or impairs the Owner’s use of his or her r
own property, then it would constitute a private nuisance, j
b)
Could Ernie close th.e pathway and refuse to let the
buyers pass? Give reasons. (2%)
SUGGESTEDANSWER:
;
b) As there is no right of way existing in favor of
Don’s land, Ernie could close the pathway. The lot buyers .
may request Don to establish a right of way as voluntary ^
easement by entering into a contract with Ernie, or file
action to constitute a^legal easement by proving
compliance with the iour requisites ior creating a legal
easement of right of way under Articles 649 and 650 of
the new Civil code.
c) - What are the rights of the lot buyers, 'i f any?
Explain. (2%)
SUGGESTED ANSWER:
c)
The lot buyers have the right to:
1)
ask for a constitution of legal easement
of right of way;
(2) require Don to provide for a right of wav.
Under Sec. 29 of PD 957, the owner or developer
of a subdivision without access to any existing
road must secure a right o f way;
(3) formally r.nmplflin tr> tbf> Hrvucing anri
land Use o f Regulatory Board regarding Don’s
failure to comply with PD 957 specifically.(a)
(b)
.
•
(c)
failure to provide for a right of way
failure to convert the land from
agricultural to residential
under
agrarian law
failure to secure a license to sell
(4) commence criminal prosecution for
violation of the penal provisions of PD 957, Sec.
39.
55
b)
A swimming pool (1 %)
SUGGESTED ANSWER:
bj^ A swimming pool is not a nuisance and is an
exception to the attractive nuisance doctrine (Hidalgo v. I
.
Guillermo, 91 Phil. 488 [1952]). It generally does n o tl^frCTJ*
cause an injury, harm or prejudice to an individual or the
public (Article 694, par. 1).
***"*
c)
A house of prostitution (1 %)
SUGGESTEDANSWER:
c )* A house of prostitution is a public nuisance
because it shocks or disregards the decency or morality
of the community. (Article 694 par; 3, Civil Code)
d)
A noisy or dangerous factory in a private land (1 %)
SUGGESTED ANSWER:
d) * A noisy or dangerous factory even if built in a
private land may be considered a nuisance if it offends
the senses of the owners of the adjacent property or poses
a danger to their safety (Article 694, par; 1, Civil*Code).
This kind o f nuisance may be classified as a public
nuisance if it affects and annoys those who come within
its sphere.
e)
Uncollected garbage (1 %)
SUGGESTEDANSWER:
e) 'f Uncollected garbage can be injurious to health
and even the environment. It is thus, considered a public
nuisance.
*
t Carty»,iJr;
IX
V-
c
Marvin offered to construct the house of Carlos for a veiy
reasonable price of P900,000.00, giving the latter 10 days'
56
within which to accept or reject the offer. On the fifth day,
before Carlos could make up his mind, Marvin withdrew his
offer.
...
,, .
a)
offer? (2%)
' What is the effect of the withdrawal of Marvin’s
SUGGESTED ANSWER:
a) ^ The withdrawal o f Maryra’s offer is valid because
there was no consideration paid for the option. An option,
is a separate contract from the contract which is the/
subject o f the offer, and if not supported by apyv,
consideration, the option contract is not deemed
perfected. Thus, Marvin may withdraw the offer at any
time before acceptance o f the offer.
b)
Will your answer be the same if Carlos paid Marvin
P10,000.00 as consideration for that option? Explain. (2%)
SUGGESTEDANSWER:
b) ^ If Carlos paid P10.000.00 as consideration for
that option, Marvin cannot withdraw the offer prior to
expiration of the option period. The option is a separate
contract and if founded on consideration is a perfected
option contract and must, be respected by Marvin.
teer Kc)
Supposing that Carlos accepted the offer before
Marvin could,communicate his withdrawal thereof? Discuss
the legal consequences. (2%)
SUGGESTEDANSWER:
c)
If Carlos has already accepted the offer and such
acceptance has been communicated to Marvin before
Marvin communicates the withdrawal, the acceptance
creates a perfected construction contract. e_ven if no f
consideration was as yet paid for the option. If Marvin
nut perform his obligations under the perfected
contract of construction, he shall be liable for all
consequences arising from the breach thereof based on
57
any o f the available remedies which may be instituted by
Carlos, such as specific performance, or rescission with
damages in both cases.
/.
PP fr? (Jrnln/tn'ftfn I Untfr,
/ctfKff /. c.„
of fevvyV »
Bemie bought on installment a residential subdivision
lot from DEVLAND. A fter having faithfully paid the
installments for 48 months, Bemie discovered that
DEVLAND had failed to develop the subdivision in
accordance with the approved plans and specifications within
the time frame in the plan. He thus wrote a letter to DEVLAND
informing it that he was stopping payment. Consequently,
DEVLAND cancelled the sale and wrote Bemie, informing
him that his payments are forfeited in its favor.
a)
Was the action of DEVLAND proper? Explain (2%) •
I
SUGGESTED ANSWER:
a) A ssum ing that the land is a residen tial
subdivision project under P.D. No. 957 (The Subdivision
and Condominium Buyers Protective Decree), DEVLAND’s
action is not proper because under Section 23 of said
Decree, no installment payment shall be forfeited to the
owner or developer when the buyer, after due notice, ^
desists from further payment due to the failure of the
owner-developer to develop tn'e subdivision according to
the approved plans and within the time limit for complying
with the same.
b) D iscuss the righ ts o f B ernie u n d er the
circumstances. (2%)
SUGGESTED ANSWER:
b)
Under the same Section of the’Decree, Bem ie may,
at his option, be reimbursed the total amount paid including
amortization interests but excluding delinquency interests
at the legal rate. He may also ask the Housing and Land Use ,
58
Regulatory Board to apply penal sanctions against DEVLAND
consisting of payment of administrative fine of not more than
P20,000.00 and/or imprisonment for not more than 20
years.
c)
Supposing DEVLAND had fully developed the
subdivision but Bemie failed to pay further installments after
4 years due to business reverses. Discuss the rights and
obligations of the parties. (2%)
SUGGESTED ANSWER
c)
Under R.A. No. 6552 (Maceda Law), DEVLAND
has the right to cancel the contract but it has to refund
Bemie the cash surrender value of the payments on the
property equivalent to 50% of the total payments made.
ADDITIONAL SUGGESTED ANSV/ER:
c)
TB eraie has the right to pay, without additional
interest, the unpaid installments within the grace period .
_ ^Y/,
granted him by R.A. 6552 equivalent to one-month for
every year of installment payments, or four months in * ^
this case. After the lapse of four months DEVLAND may
cancel the contract after thirty days from and after
Bemie receives a notice of cancellation hr demand for
rescission of the contract by notarial act. (Sec. 4, R.A.
6552) Bemie also has the right to sell or assign his rights
before the cancellation of the contract (Sec. 5)
1•CrtetH
X I
1 o t f b jH . S 'n
9
■r
Before he left for Riyadh to work as a mechanic, Pedro
left his Adventure van with Tito, with the understanding that
the latter could use it for one year for his personal or family
use while Pedro works in Riyadh. He did not tell Tito that the
brakes of the van were faulty. Tito had the van tuned up and
the brakes repaired. He spent a total amount of P15.000.00.
After using the vehicle for two weeks, Tito discovered that it
consumed too much fuel. To make up for the expenses, he
leased it to Annabelle. Two months later, Pedro returned
to the Philippines and asked Tito to return the van.
59
£■ A a V
Unfortunately, while being driven by Tito, the van was
accidentally dahiaged by a cargo truck without his fault:
a)
Who shall bear the P I 5,000.00 spent for the repair
o f the van? Explain. (2%)
SUGGESTED ANSWER:
a) The contract between Pedro and Tito is one of
commodatum. Of the PA5,000.00 spent, Pedro, the bailor,
shall bear the expends for the repair of the faulty brakes,
they being extraordinary expenses incurred due to the
non-disclosure by the bailor of the defect or fault; Tito,
on the other hand, shall shoulder that part of the
P15,000.00 spent for the tune-up, said expense being
ordinary for the use and preservation of the van.
b)
Who shall .bear the costs for the van’s fuel, oil and
other materials while it was with Tito? Explain. (2%)
SUGGESTEDANSWER:
b) ^ The costs for the fuel and other materials are
: considered ordinary expenses, and consequently Tito,
the bailee, shall shoulder them. (Art. 1941, Civil Code)
c)
Does Pedro have the right to retrieve the van even
before the lapse of one year? Explain. (2%)
" SUGGESTEDANSWER
c) ^No, Pedro cannot demand the return of the van
until after the expiration of the one-year period stipulated.
However, if in the meantime he should have urgent need
of the van, he may demand its return or temporary use.
d)
Who shall bear the expenses for the accidental
damage caused by the cargo truck, granting that the truck
driver and truck owner are insolvent? Explain,. (2%)
60
SUGGESTEDANSWER:
KW.
d)
^ Both Tito and Pedro shall bear equally the costs
o f the extraordinary expenses, having been incurred on
the occasion of actual use of the van by Tito, the bailee, *
even though he acted without fault. (Art. 1949(2), Civil
Code)
*• Crc&t -ir°vli+cHofU; /t-*W
XII
On July 14, 2004; Pedro executed in favor o f Juan a
De.ed o f Absolute. Sale over a parcel of land covered by TCTNo.
6245. It appears in the Deed of Sale that Pedro received from
JuanP120,000.00aspurchaseprice. However, Pedro retained
the owner’s duplicate of said title. Thereafter, Juan, as lessor,
and Pedro, as lessee, executed a contract of lease over the
property for a period of one (1) year with a monthly rental of
P I, 000.00. Pedro, as lessee, was also obligated to pay the
realty taxes on the property during the period of lease.
Subsequently, Pedro filed a complaint aqainst Juan for the
reformation of the Deed o f Absolute Sale, alleging that the
... transaction covered by the deed was an equitable mortgage.
-■In his verified answer to the complaint, Juan alleged that the
• prb’p:eiJy.;Was, Sbfd |o,.htm under the Deed of Absolute Sale,
and interposed counterclaims to recover possession of the
property and to compel Pedro to turn over to him the owner’s
duplicate of title.
Resolve the case with reasons. (6%)
SUGGESTED ANSWER:
An/Equitable mortgage arises from a transaction,
regardls&s of its form, wtiietfresults into a security, or an offer
or attempt to pledge land as security for a debt or liability. Its
essence is the intent of the parties to create a mortgage, lien
or charge on the property sufficiently described or identified
to secure an obligation, which intent must be clearly
established in order that such a mortgage may exist.
61
^
;
Defendant’s defense that heacquired the land through
an Absolute Deed of Sale and not through pacto de retro is
untenable. The presumption o f equitable mortgage under
Article 1602 .of the Civil Code, equally applies to a contract
purporting to be an absolute sale (Article 1604, NCC). The
* facts and circumstances that Pedro 'retained possession of
the Owner’s Duplicate Copy of the Certificate ofTitle; that he
. ‘ remained in.possessioh of the land as lessee; that he bound
- himself to pay the fealty taxes during the period of lease, are
matters collectively and strongly indicating that the Deed of
Absolute Sale is an equitable mortgage. In case of doubt, the .
Deed o f Sale should be considered as a loan with mortgage,
because this juridical relation involves a lesser transmission
of rights and interests.
£/« c~y, mf
If the transaction is proven to be an equitable mortgage ,
Pedro’s prayer for reformation of the instrument should be
granted in accordance with Article 1605 of the Civil Code.
Thus, in caseof non-payment, he may foreclose the mortgage
and consolidate his ownership of the land. In that event,
Juan’s counterclaim to recover possession of the land and to
compel Pedro to surrender the Owner’s Duplicate Copy of the
title becomes a consequential right.
».
*■
X III
rcrtFi 2
/■7V £
‘tetter
Rod, the owner of an FX taxi, found in his vehicle an
envelope containing TCT No. 65432 over a lot registered in
Cesar’s name.. Posing as Cesar, Rod forged Cesar’s signature
on a Deed of Sale in Rod’s favor. Rod registered the said
document with the Register of Deeds, and obtained a new title
in his name. After a year, he sold the lot to Don, a buyer in
good faith and for value, who also registered th e lot in his
name.
a)
Did Rod acquire title to the land? Explain. (2%)
SUGGESTED ANSWER:
a) Rod did not acquire title to the land covered by T .C.
T. No. 65432of Cesar. A forged deed is an absolute nullity and
conveys no title.
62
b)
Discuss the rights of Don, if any, over the property.
(2%)
SUGGESTED ANSWER:
b) Don acquired a goodtitle to the land. Under the
T o rren s System, a fo rg ed d eed can be th e ro o t o f a g o o d
title. Since the certificate of title was already transferred
to Rod, upon the subsequent transfer thereof to Don, an
innocent purchaser in good faith, Don acquired a g o o d
title to the land. The registration of the land in the name
of Rod was conclusive notice to the whole world. Persons
dealing with registered land have the legal right to rely on
the face of the Torrens title and to dispense with the need
to look beyond the certificate and investigate the title of
the vendor appearing in the certificate in the absence of
facts and circumstances what would impel a reasonably
cautious man to make such inquiry. This is the “Mirror i>
Principle" of the Torrens system.
c)
In an ejectment case filed by Don against Cesar,
can the latter ask for the cancellation of Don’s title considering
that he (Cesar) is the rightful owner of the lot? Explain. (2%)
SUGGESTED ANSWER:
c)
Cesar cannot ask for cancellation of Don’s title
in the ejectment case filed by Don against him. Under
Section 48 of PD 152^£hePreperty Registration Decree, J?
a Torrens title shall/not pe subject to collateral attack. It
cannot be altered, modified or cancelled except in a
direct proceeding in accordance with law. The ejectment
proceeding does not provide the proper forum for the
cancellation of Don’s title. While Cesar’s counterclaim
for cancellation of Don’s title m aybe considered a direct
attack, the same should nevertheless be denied on
procedural grounds because a Municipal or Metropolitan
Trial Court is without jurisdiction to cancel a Torrens
title.
63
* I c ( I q h b loblt’qa-h'jn of. it^of L
****•*•# vt sfPZ,jn„<f
Under a written contract dated December 1, 1989,
Victor leased his land to Joel for a period of five (5) years at
a monthly rental of P I,000.00, to be increased to P I, 200.00
and P I , 500.00 on the third and fifth year, respectively. On
January 1, 1991, Joel subleased the land to Conrad for a
period o f two (2) years at a monthly rental of P I ,500.00.
On December 31, 1992, Joel assigned the lease to his
compadre, Ernie, who acted on the belief that Joel was the
rightful owner and possessor of the said lot. Joel has been
faithfully paying the stipulated rentals to Victor. When Victor
learned on May 15,1992 about the sublease and assignment,
he sued Joel, Conrad and Emie for rescission of the contract
o f lease and for damages.
a)
Explain. (2%)
Will the action prosper? If so, against whom?
SUGGESTED ANSWER:
a) Yes, the action
of the lease will
prosper because Joel cannot assign the lease to Ernie
without the consent ofVictor. (Art. 1649, Civil Code). But
Joel may sublet to Conrad because there is no express
prohibition (Art. 1650, Civil Code; Alipio v. Court of
Appeals, 341 SCRA 441 [2000]).
Victor can rescind the contract of lease with Joel,
and the assignment of the lease to Emie, on the ground
of violation of law and of contract. The sub-lease to
Conrad remained valid for two (2) years from January 1,
1991, and had not yet lapsed when the action was filed
on May 15, 1992.
b)
In case of rescission, discuss the rights and
obligations of the parties. (2%)
SUGGESTED ANSWER:
b)
In case of rescission, the rights and obligations
64
r“*v*r cf
<* brt+u
qf the p a r t ie s should be as follow# At the time that Victor
filed suit on May 15,1992, tfafe assignment had not yet
lapsed. It would lapse on December 1, 1994, the very
same date that the 5-year basic lease would expire. Since
the assignment is void, Vi<ftor.can get the property back
because o f the violation of the lease. Both Joel and E m iehave to surrender possession and are liable for damages.
^-JHTfConrad has not yet incurred any liability on the subCy lease which still subsisted at the time of the filing of the
action on May 15, 1992*
Cf«-ce*iV
yt :toc(
Ernie can file a cross-claim against Joel for damages
o n account o f the rescission of the contract of assignment.
P.nnrad can file a counter-claim against Victor for damages
for la&k of causes of action at the time of the filing of the
S uit.
\
cruritt'clM* fn*
i
**
'S'tJtv'
f
■f i<; # « * '. JLU'tfs}
Under the law on quasi-delict, aside from the persons
who caused injury to persons, who else are liable under
the following circumstances:
a)
When a 7-year-old injures his playmate while
playing with his father’s rifle. Explain. (2%)
SUGGESTEDANSWER:
OiabtUlp
a) Under Article 221 of the Family Code, parents
and other F rfinns pyprriaing parental authority shall be
civilly liable for the injuries and damages caused by the
acts or omissions of their unemancipated children or
wards living in their company and under their parental
authority subject to the appropriate defenses provided
by law.
b)
When a domestic helper, while haggling for a lower
price with a fish vendor in the course of buying foodstuffs for
her employer’s family, slaps the fish vendor, causing her to
fall and sustain injuries. Explain. (2%)
65
SUGGESTEDANSWER:
, .
%40*r>UfJ
b)
Under Article 2180, employers shall be liable for
the damages caused by their employees and household^
helpers acting within the scope of their assigned tasks,
eyen though the former are not engaged in any business
or industry. As the domestic helper was then in the
exercise of her duties and acting within the scope o f her
assigned tasks, her employer is also liable for the damage
she has caused to the fish vendor;
ALTERNATIVE ANSWER
b) The act of “slapping the fish vendor" is not
“within the scope of the assigned tasks” of the domestic
helper. Hence, under Article 2180, the employer is not
liable for the damages caused by the domestic helper to
the fish vendor.
c)
A carpenter in a construction company accidentally
hits the right foot of his co-worker with a hammer. Explain.
(2 %)
SUGGESTEDANSWER:
-
c) His employer, the construction company, is also
liable for the damages that the carpenter caused to the
latter’s co-worker. Under Article, 2176 and 2180 of the
Civil Code, liability is based on culpa aquiliana which
holds the employer primarily liable for tortious acts of its
employees subject, however, to the defense that the j
former exercised all the diligence of a good father of a
family in the selection arictsupervision of his employees.
(Franco v. IAC, 178 SCRA 331 [1989]).
d)
A 15-year-old high school student stabs his
classmates who is his rival for a girl while they were going out
of the classroom after their last class. Explain. (2%)
SUGGESTED ANSWER:
d)
Under Section 218 of the Family Code, the
66
school, its administrators and teachers, or the individual,
entity or institution engaged in child care shall have
s p e c ia l parental authority and responsibility over the
minor child while under their supervision, instruction or
custody. Authority and responsibility shaU apply to all
authorized activities whether inside or outside the
premises o f the school, entity or institution.
e)
What defense, if any, is available to them? (2%)
SUGGESTEDANSWER:
e)
These persons identified by law to be liable may
raise the defense that they exercised proper diligence
require/! under the circumstances. Their responsibility
will cease when they prove that, they observed all the
diligence of a good father Of « family tn prpypnt rtamnap..
As regards the employer, if he shows to the satisfaction
of the court that in the selection and in the supervision
o f his employees he has exercised the care and diligence
of a good father of a family, the presumption is overcome
and he is relieved from liability. (Layugan v. 1AC, 167
SCRA 363 [1988]).
/. tbrfi t,
fi?i\*ttitortdvtAXVI
Dr. and Mrs. Almeda sire prominent citizens o f the
country and are frequent travelers abroad. In 1996, they
booked round-trip business class tickets for the ManilaHongkong-Manila route of the Pinoy Airlines, where they are
holders of Gold Mabalos Class Frequent Flier cards. On their
return flight, Pinoy Airlines upgraded their tickets to first
class without their consent and, inspite of their protestations
to be allowed to remain in the business class so that they
could be with their friends, they were told that the business
class was already fully booked, and that they were given
priority in upgrading because they are elite members/holders
of Gold Mabalos Class cards .Since they were embarrassed at
the discussions with the flight attendants, they were forced
to take the flight at the first class section apart from their
friends who were in the business class. Upon their return to
Manila, they demanded a written apology from Pinoy Airlines.
67
When it went unheeded,, the couple sued Pinoy Airlines for
breach of contract claiming moral and exemplary damages,
as well as attorney’s fees.
Will the action prosper? Give reasons. (5%)
SUGGESTED ANSWER:
Yes, Pinoy Airlines breached its contract o f carriage
by upgrading the seat accommodation of the Almedas
without their consent. The object of their contract was
the transportation of the Almedas from M anila to
Hongkong and back to Manila, with seats in the business
class section of the aircraft. They should have been
consulted first whether they wanted to avail themselves
of the privilege and would consent to a change o f seat
accommodation^ It should not have been imposed on
them over their vehement objection. By insisting on the
upgrade, Pinoy Airlines breached its contract o f carriage
with the Almedas.
However, the upgrading or the breach o f contract
was not attended by fraud or bad faith. They were not
induced tb agree to th e upgrading through insidious
words or deceitful machination or through willful
concealment of material facts. Bad faith does not simply
connote bad judgment or negligence; it imports a
dishonest purpose or some moral obliquity and conscious
doing o f a wrong*, a breach o f a known duty through sonie
motive or interest or ill will that partakes of the nature
of fraud.
Neither is Pinoy Airlines in bad faith since Section 3
of the Economic Regulation No.7 of the Civil Aeronautics
Board provides that an overbooking that does not exceed
•ten percent is not considered deliberate and therefore
does not amount to bad faith.
As a result, the Almedas are not entitled to recover
moral damages. Moral damages predicated upon a breach
of contract of carriage may only be recoverable in instances
Where the carrier is guilty of fraud or bad faith or when
the mishap resulted in the death of a passenger. Where in
, breaching the ^contract of carriage the airline is not
shown to have acted fraudulently or in bad faith, liability
for damages is limited to the natural and probable
c o n s e q u e n c e s of the breach of the obligation which the
parties had foreseen or could have reasonably foreseen.
?in such a case the liability does not include moral and
exemplary damages.
It is a requisite in the grant of exemplary damages
that the act of the offender be accompanied by bad faith
or done in wanton, fraudulent or malevolent manner.
Such requisite is absent in this case. Moreover, to be
entitled thereto the claimant must first establish his
right to moral, temperate, or compensatory damages.
Since the Almedas are not entitled to any of these
damages, the award for exemplary damages has no legal
basis. And where the awards for moral and exemplary
damages are eliminated, so must the award for attorney's
fees.
The most that can be awarded for the breach of
contract is an award for nominal damages. Pinoy Airlines
may be said to have disturbed the spouses' wish to be
with their companions at the Business Class on their
flight to Manila.
(Cathay Pacific v. Spouses Vazquez, 399 SCRA 207
[2003]).
69
2004 B A R 'E X A M IN A T IO N
fricr«+0ftvu<4
- ■***:
f*ri*nyhn; tj-ubn^r
„
I
ye'~t4y if ^ > / _ /VCr '
A.
Mr. ZY lost P 100,000 In a card game called-Russian w »i-vy'
poker, but he had no more cash to pay in full the winner at
the time session ended. He promised to pay PX, the winner,
I
two weeks thereafter. But he failed to do so despite the lapse
t
of two months, so PXfiled in court a suit to collect the amount
j
of P50.000 that he won but remained unpaid. Will the
1
collection suit against ZY prosper? Could Mrs. ZY file in turn
.•
a suit against PX to recover the P 100,000 that her husband
;
lost? Reason. (5%)
] QUESTION No. I
;
SUGGESTEDANSWER:
^
A. 1. The suit by PX to collect the balance of what
he won from ZY will hot prosper. Under Article 2014 of
the Civil Code, no action can be maintained by the
winner for the collection of what he has won in a game
of chance. Although poker may depend in part on ability,
it is fundamentally a game of chance.
2) If the money paid by ZY to PX was conjugal or
community property, the wife of ZY could sue to recover
it because Article 117(7) of the Family Code provides
that losses in gambling or betting are borne exclusively
by the loser-spouse. Hence, conjugal or community
funds may not be used to pay for such losses. If the
money were exclusive property of ZY, his wife may also
sue to recover it under Article 2016 of the Civil Code if
she and the family needed the money for support.
ALTERNATIVE ANSWER to I-A (2):
A.
(2). Mrs. ZY cannot file a suit to recover what her
husband lost. Art 2014 o f the Civil Code provides that
any loser in a game of chance may recover his loss from
the winner, with legal interest from the time he paid the
amount lost. This means that only he ran fllfi t.h«« suit.
Mrs. ZY cannot recover as a spouse who has interest in
70
the absolute community property or conjugal partnership
of gains, because under Art. 117(7) of the Family Code,
losses are borne exclusively by the loser-spouse.
T h e r e fo r e , these cannot be charged, against absolute
community property or conjugal partnership o f gains.
This being so, Mrs. ZY has no interest in law to prosecute
and recover as she has no legal standing in court to do so.
B. TX filed a suit for ejectment against BD for non­
payment of condominium rentals amount to P I 50,000.
During the pendency of the case, BD offered and TX accepted
the full amount due as rentals from BD, who then filed a
motion to dismiss the ejectment suit on the ground that the
action is already extinguished.
'
'Is BD’s contention correct? Why or why not? Reason.
(5%)
SUGGESTEDANSWER:
B. BD's contention is not correct. TX can still
maintain the suit for ejectment. The acceptance by the
lessor of the payment by the lessee o f the rentals in
arrearpj^ven during the pendency of the ejectment case
does<niot/constitute a waiver or abandonment of the
ejectmc£t case. (Spouses Clutario v. CA, 216 SCKa 34 x~
[1992]).
QUESTION No. H
,
•'*r.' !
< ** 1. AtoUhjk
A. Distinguish briefly but clearly between:
.
4.V
1.
Mutuum and commodatum.
2.
Substitute parental authority and special
parental authority.
3.
Civil obligation and natural obligation.
4.
Inexistent contracts andannuUable contracts.
5.
Domiciliary theory and nationality theory of
personal law. (5%)
if,
Ccn-Lru'lr;
71
^
3
s.
%
t- 7Srfy*
Onc+*C. ^ <o« rffe*/
SUGGESTED ANSWER:
A.
The distinctions are as follows:
S
boPJUnwMe -Hn'fl
■f
1. In mutuum, the object borrowed must be a
consumable thing the ownership of which is transferred
to the borrower who incurs the. obligation to return the
same consumable to the lender in an equal amojmtraini**<^<
OwUUmi#^
of the same kind and quality. Jin commndntifrrTth e-. object
borrowed is usually a non-consumable thing the ownership
of which is not transferred to the borrower who incurs the
obligation to return the very thing to the lender.
*
2, In substitute parental authority, the parents l
lose their parental authority in favor o f the substitute !
who acquires it to the exclusion of the parents.
ooncx#*
In special parental authority, the parents or anyone
exercising parental authority does not lose parental
authority. Those who are charged with special parental
authority exercise such authority only during the time
that the child is in their custody or supervision.
Substitute parental authority displaces parental
authority while special parental authority concurs with
parental authority.
'
3.
Civil obligation is ialiiridical necessity to give,
to do and not to do. It gives the creditor the legal right
to compel by an action in court the performance o f such
obligation.
if nm>tmbnU.
A natural obligation is based on equity and natural
law. There is nO legal right to -compel performance
thereof but if the debtor voluntarily pays it, he cannot
recover what was paid.
cMuftfe*it
in 4>; VOID
4.
Inexistent contracts are considered as not
having been entered into and, therefore, void ab initio.
They do not create any obligation and cannot be ratified
or validated, as there is no agreement to ratify or
validate. On the other hand, annullable or voidable
.
v
:
LyfaUt'el vmM
72
contracts are valid until invalidated by the court but may
be ratified.
In inexistent contracts, one or more requisites of a
valid contract are absent. In anullable contracts, all the
elements o f a contract are present except that the
consent of one of the contracting parties was vitiated or
one of them has no capacity to give consent.
*
5.
Domiciliary Theory posits that the personal
status and rights of a person are governed by the law of
his domicile or the place of his habitual residence. The
Nationality Theory, on the other hand, postulates that it
is the law of the person's nationality that governs such
status and rights.
*
B.
DT and MT were prominent members of the frequent
travelers’ club of FX Airlines. In Hong Kong, the couple were
assigned seats in Business Class for which they had bought
tickets. On checking in, however, they were told they were
upgraded by computer to First Class for the flight to Manila
because the Business Section was overbooked.
Both refused to transfer despite better seats, food,
.beverage and other services in First Class. They said they
had guests in Business Class they should attend to. They felt
humiliated, embarrassed and vexed, however, when the
stewardess allegedly threatened to offload them if they did
not avail of the upgrade. Thus they gave in, but during the
transfer of luggage DT suffered pain in his arm and wrist.
After arrival in Manila, they demanded an apology from FX's
management as well as indemnity payment. When none was
forthcoming, they sued the airline for a million pesos in
damages.
Is the airline liable for actual and moral damages? Why
or why not? Explain briefly. (5%)
SUGGESTEDANSWER:
FX Airlines committed breach o f contract when it
upgraded DT and MT, over their objections, to First Class
73
because they had contracted for Business Class passage.
However, although there is a breach of contract, DT and
MT are entitled to actual damages only for such pecuniary
losses suffered by them as a result of 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 resulted directly from the carrier’s acts complained
of. Hence, they are not entitled to actual damages.
Moreover, DT could have avoided the alleged injury by
requesting the airline staff to do the luggage transfer as
a matter of duty on their part. There is also no basis to
award moral damages for such breach of contract because
the facts o f the problem do not show bad faith or fraud on
the part o f the airline. ( Cathay Pacific v. Vazquez, 399
SCRA 207 [20031). However, they may recover moral
damages if the cause of action is based on Article 21 of
the Civil
Code for the humiliation and embarrassment they
felt when the stewardess threatened to offload them if
they did not avail of the upgrade.
ALTERNATIVE ANSWER:
^ flrfiii* «(«
If <t run he proved that DT’s pain in his arm and wrist
occasioned by the transfer of luggage was caused by fault
or negligence on the part of the airline’s stewardess,
actual damages may be recovered.
The airline may be liable for moral damages pursuant
to Art. 2219 (10) if the cause of action is based on Article n-KLl
21 or an act contrary: to morals in view of the humiliation <**<*»}*>
suffered by DT and MT when they were separated from
their guests and were threatened to be offloaded.
QUESTION No. Ill
*■
f
a
A
cju* * }
+
*
.
v- /W>
A.
RN and DM, without any impediment to marry each
other had been living together without benefit of church
blessings. Their common-law union resulted in the birth of
ZMN. Two years later, they got married in a civil ceremony.
Could ZM N be legitimated? Reason. (5%)
74
SUGGESTED ANSWER:
A.
ZMN was legitimated by the subsequent
marriage of RN and DM because at the time he was
conceived, RN and DM could have validly married each
other. Under the Family Code children conceived and
bom outside of wedlock of parents who, atthe time of the
former’s conception, were not disqualified by any ^
impediment to marry each other are legitimated by the
subsequent marriage of the parents.
B.
Dr. ALX is a scientist honored for work related to
the human genome project. Among his pioneering efforts
concern stem cell research for the cure of Alzheimer’s disease.
Under ^corporate sponsorship, he helped develop a microbe
that ate and digested oil spills in the sea.
Now he leads a college team for cancer research in
MSS State. The team has experimented on a mouse whose
body cells replicate and bear cancerous tumor, .. Called
“oncomouse”, it is a life-form useful for medical research and
it is a novel creation. Its body cells do not naturally occur in
nature but are the product of man’s intellect, industry' and
ingenuity. However, there is a doubt whether local property
laws and ethics would allow rights of exclusive ownership on
any life-foim. Dr. ALX needs.your advice: (1) whether the
reciprocity principle in private international law could be
applied in our jurisdiction; and (2) whether there are legal
and ethical reasons that could frustrate his claim of exclusive
ownership over the life-form called “oncomouse” in Manila?
What wlll be your advice to him? (5%)
SUGGESTED ANSWER:
B.
(1)
The reciprocity principle in private
international law may be applied in our jurisdiction.
Sectiojn 3 of R.A. 8293, the Intellectual Property Code,
provides for reciprocity, as follows: “Any person who is
a nationaJ, or who is domiciled, or has a real and
effective industrial establishment in a country which is
a party to any conventionr treaty or agreement relating
to intellectual property rights or the repression o f
75
unfair competition, to which the Philippines is also a
party, or extends reciprocal rights to nationals o f the
Philippines by law, shall be entitled to benefits to the
extent necessary to give effect to any provision o f such
convention, treaty or reciprocal law, in addition to the
rights to which any owner o f an intellectual property
right is otherwise entitled by this Act. (n )” To illustrate:
the Philippines may refrain from imposing a requirement
of local incorporation or establishment Of a local domicile
for the protection of industrial property rights o f foreign
nationals (citizens of Canada, Switzerland, U.S.) if the
countries of said foreign nationals refrain from imposing
said requirement on Filipino citizens.
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
o f non-discrimination.
The protection afforded to
intellectual property protection in the Philippines also
applies to other members o f 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 f o r the
production o f 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
tod industry.
The breeding o f oncomouse has novelty, inventive
step and industrial application. These are the three
requisites of patentability. (Sec. 29, IPCJ
76
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
m ouse, u sefu l for can cer re se arch , outw eigh s
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
ate 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”.
N e ith e r m a y it fa ll w ith in th e a m b it o f th e teTm
“manufacture" w h ic h u s u a lly im p lie s a n o n -liv in g
m ech an istic product.
The oncomouse is better regarded as a "discovery"
which is the common patrimony of man.
ALTERNATIVE ANSWER:
The “oncomouse” is a non-patentable invention.
Hence, cannot be owned exclusively by its inventor. It is
a method for the treatment of the human or animal body
by surgery or therapy and diagnostic methods practiced
on said bodies are not patentable under Sec. 22 of the
JPC.
i,
V fU i &
h g ta fy s iA 'tn ; P o u b U
f r i r fh*Y* -h A fd jty Z f r r * ■fW/'C •
QUESTION No. TV
j,
fryervy j (.ViWk'/y;
iUv£t:
• JTactfSb'oA;
6ie.ufth<
0*'
A.
JV, owner of a parcel of land, sold it to PP. But the
deed of sale was not registered. One year later, JV sold the
parcel again to RR, who succeeded to register the deed and
to obtain a transfer certificate of title over the property in his
own name.
77
Who has a better right over the parcel of land, RR or PP?
Why? Explain the legal basis for your answer. (5%)
SUGGESTED ANSWER:
A.
It depends on whether or not RR is an innocent
purchaser for value.
Under the Torrens System, a deed or instrument
operated only as a contract between the parties and as
evidence o f authority to the Register of Deeds to make
the registration. It is the registration of the deed or the
instrument that is the operative act that conveys or
affects the land. (Sec. 51, P.D. No. 1529). L
In cases of double sale of titled land, it is a wellsettled rule that the buyer who first registers the sale in
good faith acquires n hp-tter right to the land. (Art. 1544,
Civil Code).
Persons dealing with property covered by Torrens
title are not required to go beyond what appears on its
face. (Orquiola v. CA 386, SCRA 301, [2002]; Domingo v.
Races 401 SCRA 197, [2003]). Thus, absent any showing
that RR knew about, or ought to have known the prior
sale of the land to PP or that he acted in bad faith, and
being first to register the sale, RR acquired a good and a
clean title to the property as against PP.
B.
CX executed a special power of attorney authorizing
DY to secure a loan from any bank and to mprtgage his
property covered by the owner’s certificate of title. In
securing a loan from Mbank, DY did not specify that he was
acting for CX in the transaction with said bank.
■
Is CX liable for the bank loan? Why or why not? Justify
your answer.
(5%)
SUGGESTED ANSWER:
B.
CX is liable for the bank loan because he
authorized the mortgage on his property to secure the
78
|P?'
P
r
loan contracted by DY. If DY later defaults and fails to
pay the loan, CX is liable to pay. However, his liability is
limited to the extent of the value of the said property.
r
ALTERNATIVE ANSWER:
[i.:
CX is not personally liable to the bank loan because
[y
.‘‘itwas contracted by DY in' his pejsoiial capacity. Only the
[
prpperty of pX is liabI<&. Hence, while CX has authorized
I ■ •„
the’niOTtgag6 On his property to secure the loan of DY, the
f .J: kr* •<“ bank cannot Sue CX to collect the loan in case DY defaults
t
I- thereon. The bank can only foreclose the property of CX.
C- And if the proceeds of the foreclosure are not sufficient
^ i*.-,'.,
to pay the loan in full, the bank cannot run after CX for
VaV v'- ’ the deficiency.
•H.•**
ALTERNATIVE ANSWER:
While as a general rule the principal is not liable for the contract entered into by his agent in case the agent
acted in his own name without disclosing his principal,
such rule does not apply if the contract involves a thinff CrUIO*U
W tt ,
^ belonging to the principal. In such case, the: principal is
C A v i. it f c i
liable under Article 1883 of the Civil Code. The contract^
is deemed made on his behalf (Sy-juco y. Sy-juco 40 Phil.
63411920]).
ALTERNATIVE ANSWER:
CX would not be liable for the bank loan. CX's
property would also not be liable on the mortgage. Since
DY did not specify that he was acting for CX in the
transaction with the bank, DY in effect acted in his own
name. In the case of Rural Bank ofBombon v. CA, 212
SCRA, (1992), the Supreme Court, under the same facts,
ruled that “in order to bind the principal by a mortgage
on real property executed.by an agent, it must upon its
face purport to be made, signed and sealed in the name
o f the principal, otherwise, it will bind the agent only.
It is not enough merely that the agent was in fa ct
authorized to make the mortgage, if he, has not acted in
the Tiame o f the principal. Neither is it ordinarily
79
sufficient that in the mortgage the agent describes
him self as acting by virtue o f a power o f attorney, i f in
fa c t the agent has acted in his own name and has set his
own hand and seal to the mortgage. There is no principle
o f law by which a person can become liable on a real
estate mortgage which she never executed in person or
by attorney in fa c t”.
t. Withini tCcMrtuj-',
QUESTION No. V
«. • <#(cy c<vr*«-»fr/
a- Tor* t : e u * * . ' - * a A v t : *'/*•**>»"-
. A.
DPO went to a store to buy a pack of cigarettes
worth P225.00 only. He gave the vendor, RRA, a P500-peso
bill. The vendor gave him the pack plus P375.00 change.
Was there a discount, an oversight, or an error in the amount „
given? What would be DPO’s duty, if any, in case of an excess
in the amount of change given by the vendor? How is this
situational relationship between DPO and RRA denominated?
Explain. (5%)
SUGGESTED ANSWER:
A. There was error in the amount of change given
by RRA. This is a case o f SOlutio indebiti in that DPO->f
received something that is not due him. He has the
obligation to return the P100.Q0; otherwise, he will
unjustly enrich himself at the expense of RRA. (Art.
2154. Civil Code)
ALTERNATIVE ANSWER:
DPO has the duty to return to RRA the excess P100
as trustee under Article 1456 of the Civil Code which
i provides: . I f property is acquired through mistake or
fraud, the person obtaining it is, by force o f law,
considered a trustee o f an implied trust f o r the benefit
o f the person from whom the property comes. There is,
in this case, an implied or constructive trust in favor of
RRA.
'
“
B.
OJ was employed as professional driver of MM
Transit bus owned by Mr. BT. In the course of his work, OJ
hit a pedestrian who was seriously injured and later died in
80
;
*1
the hospital as a result of the accident. The victim’s heirs
sued the driver and the owner of the bus for damages.
Is there a presumption in this case that Mr. BT, the
owner, had been negligent? If so, is the presumption
absolute or not? Explain. (5%)
SUGGESTED ANSWER:
B.
Yes, there is a presumption of negligence on the
part of the employer. However, such presumption is
rebuttable. The liability of the employer shall cease when
they prove that they observed the diligence o f a good
father of a family to prevent damage (Article 2180, Civil
Code).
When the employee causes damage due to his own
negligence while performing his own duties, there arises
the juris tantum presumption that the employer is
negligent, rebuttable only by proof of observance of the
diligence of a good father of a family (Metro Manila
Transit v. CA, 223 SCRA 521 [1993]; Delsan Transport
Lines v. CSlA Construction, 412 SCRA 524 [2G03BLikewise, if the driver is charged and convicted in a
criminal case for criminal negligence, BT is subsidiarily
: liable for the damages arising from the criminal act.
QUESTION No. V I
t . A q c n f j A w M w y C m iW W w v i; A & O U trC
i. , :;-:A*, ABQ.loaried to„MN0 :P4O.,OOO for which the latter
pledged 400 shares of stock in XYZ Inc. It was agreed that if
the pledgor failed to pay the loan with 10% yearly interest
within four years, the pledgee js authorized to foreclose on
the shares of stock. As required, MNO delivered possession
of the shares to ABC with the understanding that the shares
would be returned to MNO upon the payment of the loan.
However, the loan was not paid on time.
A month after 4 years, may the shares of stock pledged
be deemed owned by ABC or npt? Reason. (5%)
81
SUGGESTED ANSWER:
A. The shares of stock cannot be deemed owned by
ABC upon default of MNO. They have to be foreclosed.
Under Article 2088 of the Civil ‘joc&e, the creditor cannot
appropriate the things given by way of pledge. And even
if the parties have stipulated that ABC becomes the
owner o f the shares in case MNO defaults on the loam,
such stipulation is void for beinfi a pactum commissorium. %
B. As an agent, AL was given a guarantee commission,
in addition to his regular commission, after he sold 20 units
of refrigerators to a customer, HT Hotel. The customer,
however, failed to pay for the units sold. AL’s principal, DRBI,
demanded from AL payment for the customer’s accountability.
AL objected, on the ground that his job was only to sell and
not to collect payment for units bought by the customer.
i
)
Is AL’s objection valid? Can DRBI collect from him or
not? Reason. (5%)
j
SUGGESTEDANSWER:
\
B.
No, AL’s objection is not valid and DRBI can
collect from AL.
Since AL accepted a guarantee
commission, in addition to his regular commission, he
4 agreed to bear the risk of collection and ^to pay the *
principal the proceeds of the stde on the same terms
agreed upon with the purchaser (Article 1907, Civil Code)
QUESTION No. v n
a. IQ/P;
9*C*f/>on'fp
A.
PH and LV are HK Chinese. Their parents are now
Filipino citizens who live in Manila. While still students in
MNS State, they got married although they are first cousins.
It appears that both in HK and in MNS State first cousins
could marry legally.
They plan to reside and set up business in the Philippines.
But they have been informed, however, that the marriage of
first cousins here is considered void from the beginning by
reason of public policy. They are in a dilemma. They don’t
82
fsrUfiml,
Want to break Philippine law, much less their marriage vow.
They seek your advice, on whether their civil status will be
adversely affected by Philippine domestic law? What is your
advice? (5%)
SUGGESTED ANSWER:
A.
My advise is as follows:
The civil status of PH and LV will not be adversely
affected by Philippine law because they are nationals o f
Hnntf Kong and not Filipino citizens.
Being foreigners, their status, conditions and legal
capacity in the Philippines are governed bv the lav/ of
Hong Kong, the country of which they are citizens. Since
their marriage is valid under Hong Kong law, it shall be
valid and respected in the Philippines.
B/. In a class .suit for d j^ a g e s , plaintiffs claimed they
suffered injuries from torture during martial law. The suit
was filed upon President,EM's,arrival on exile in HI, a U.S.
state. The court in HI awarded plaintiffs the equivalent of
P1Q0 billion under the U.S. law on alien tort claims. On
appeal, EM’s Estate raised the issue of prescription. It
argued that since said U.S. law is silent on the matter, the
court should apply: (1) Hi's law setting a two-year limitation
on tort claims; or (2) the Philippine law which appears to
require that claims for personal injury arising from martial
law be brought within one year.
Plaintiffs countered that provisions of the most analogous
federal statute, the Torture Victims Protection Act, should be
applied. It sets ten years as the period of prescription.
Moreover, they argued that equity could toll the statute of
limitations.
For it appeared that EM had procured
Constitutional amendments granting himself and those acting
under his direction immunity from suit during his tenure.
In this case, has prescription set in or not? Considering
the differences in the cited laws, which prescriptive period
83
should be applied: one year under Philippine law, two years
under Hi’s law, ten years under U.S. federal law, or none of
the above? Explain. (5%)
SUGGESTED ANSWER:
B.
The US Court will apply US law, the law o f the
forum, in determining the applicable prescriptive period.
While US law is silent on. this matter, the US Court will not
apply Philippine law in determining the prescriptive
period. It is generally affirmed as a principle in private
international law that procedural law is one o f the
exceptions to the application of foreign law by the
forum. Since prescription is a matter of procedural law
even in Philippine jurisprudence, (Cadalin v< POEA/
NLRC/Brown and Root International, 238 SCRA 721
[1994]), the US Court will apply either HE or Federal law
in determining the applicable prescriptive period and not
Philippine law. The Restatement o f American law affirms
this principle.
QUESTION No. VZZT
«. itioti&o;
A.
A Filipino couple, Mr. And Mrs. BM, Jr., decided to
adopt YV, an orphan from St. Claire’s orphanage in New York
City. They loved and treated her like a legitimate child for
they have none of their very own. However, BM, Jr., died In
an accident at sea, followed to the grave a year later by his
sick father, BM, Sr. Each left a sizable estate consisting of
bank deposits, lands and buildings in Manila. May the
adopted child, YV, Inherit from BM, Jr.? May she also inherit
from BM, Sr.? Is there a difference? Why? Explain. (5%)
SUGGESTEDANSWER: A.
YV can inherit from BM, Jr.
The succession to the estate o f BM, Jr. is governed
by Philippine law because he was a Filipino when he died
(Article 16, Civil Code). Under Article 1039 of the Civil
Code, the capacity of the heir to succeed is governed by %
the national law of the decedent and not by the national
84
Jaw of the heir. Hence, whether or not YV can inherit
ftom BM, Jr. is determined by Philippine law* Under
Philippine law, the adopted inherits from the adopter as
a legitimate child Of the adopter.
YV, however, cannot inherit, in his own right, from
the father of the adopter, BM, Sr., because he is not a legal
heir of BM; Sr. The legal fiction of adoption esists only
between the adopted and the adopter. ITeatico v. Del Val
13 SCRA 406 [1965]). Neither may he inherit from BM,
Sr. by representing BM, Jr. because in representation,
the representative must be a legal heir not only of the
person he is representing but also of the decedent from
whom the represented was supposed to inherit (Article
973, Civil Code).
B.
Mr; XT and Mrs. YT have been married for 20 years.
Suppose the wife, YT, died childless, survived only by her
husband, XT. What would be the share of XT from her estate
as inheritance? Why? Explain. (5%)
SUGGESTEDANSWER:
B.
■ 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, there being no legitimate
ascendants, descendants, brothers and sisters, nephews
and nieces, she gets the entire estate.
*
* «•*««** ,•cow*.**/
t
QUESTION No. IX
iqid; \&
ip\frinlfk. •/
A.
The parties in a contract of loan of money agreed
that, the yearly interest rate is 12% and it can be increased if
there is a law that would, authorize the increase of interest
rates. Suppose OB, the lender, would increase by 5% the rate
of Interest to be paid by TY, the borrower, without a law
authorizing such increase, would OB’s action be just and
valid? Why? Has TY a remedy against the imposition of the
rate increase? Explain. (5%)
85
SUGGESTED ANSWER:
A.
OB's action is not just and valid.
The debtor cannot be required to pay the increase in
interest there being no law authorizing it, as stipulated
in the contract. Increasing the rate in the absence of „
such law violates the principle o f mutuality of contracts.
ALTERNATIVE ANSWER:
Even if there was a law authorizing the increase in
interest rate, the stipulation is still void because there is
no corresponding stipulation to decrease the interest
due when the law reduces the rate of interest.
B.
DON, an American businessman, secured parental
consent for the employment of five minors to play certain
roles in two movies he was producing at home in Makati.
They worked at odd hours of the day and night, but always
accompanied by parents or other adults. The producer paid
the children talent fees at rates better than adult wages.
But the social worker, DEB, reported to OSWD that
these children often missed going to school. They sometimes
drank wine, aside from being exposed to drugs, In some
scenes, they were filmed naked or in revealing costumes. In
his-defense,. DON .contended all these were part o f artistic
freedom and qultural creativity.
None o f the parents
complained, said DON. He also said they signed a contract
containing a waiver of their right to file any complaint in any
office or tribunal concerning the working conditions o f their
children acting in the movies.
Is the waiver valid and binding?
Explain. (5%)
Why or why not?
SUGGESTEDANSWER:
B.
The waiver is not valid. Although the contracting
parties may establish such stipulations, clauses, terms
86
and conditions as they may deem convenient, they may .
not do so if such are contrary to law, morals, good
customs, public order, or public policy (Article 1306,
Civil Code). The parents’ waiver to file a complaint
concerning the working conditions detrimental to the
moral well-being of their children acting in the movies is
in violation of the Family Code and Labor laws. Thus, the
waiver is invalid and not binding.
The Child Labor Law is a mandatory and prohibitory
law and the rights of the child cannot be waived as it is
contrary to law and public policy.
QUESTION No. X
* / '- W *
,
. „. _
A.' BONI and ANNE met while working overseas. They
became sweethearts and got engaged to be married on New
Year’s Eve aboard a cruise ship in the Caribbean. They took
the proper license to m any in New York City, where there
is a Filipino consulate. But as planned the wedding ceremony
was officiated by the captain o f the Norwegian-registered
vessel in a private suite among selected friends.
Back in Manila, Anne discovered that Boni had been
married in Bacolod City 5 years earlier but divorced in Oslo
only last year: His first wife was also a Filipina but now based
in Sweden. Boni himself is a resident of Norway where he and
Anne plan to live permanently.
Anne retains your services to advise her on whether her
marriage to : Borii is valid under Philippine law? Is there
anything else she should do under the circumstances? (5%)
SUGGESTED ANSWER:
A.
If Boni is still a Filipino citizen, his legal
capacity is governed by Philippine Law (Art. 15 Civil
Code). Under Philippine Law, his marriage to Anne is void 0%
because o f a prior existing marriage which was not
.dissolved by the divorce decreed in Oslo. Divorce obtained
abroad by a Filipino is not recognized.
87
a
a* Lory?
If Boni was no longer a Filipino citizen, the divorce
is valid Hence, his marriage to Anne is valid if celebrated
in accordance with the law of the place where it was
celebrated. Since the marriage was celebrated aboard a
vessel o f Norwegian registry, Norwegian law applies. If
the Ship Captain has authority to solemnize the
marriage aboard his ship, the marriage is valid and shall
■>be recognized in the Philippines.
As to the second question, if Boni is still a Filipino,
Anne can file an action for declaration of tmlHtv o f her
marriage to him.
B.
In his lifetime, a Pakistani citizen, ADIL, married
three times under Pakistani law. When he died an old
widower, he left behind six children, two sisters, three
homes, and an estate worth at least 30 million pesos in the
Philippines. He was bom in Lahore but last resided in Cebu
City, where he had a mansion and where two of his youngest
children now live and work. Two o f his oldest children are
farmers in Sulu, while the two middle-aged children are
employees in Zamboanga City. Finding that the deceased left
no will, the youngest son wanted to file intestate proceedings
before the Regional Trial Court o f Cebu City. Two other
siblings objected, arguing that it should be in Jolo before a
Shari’a court since his lands are in Sulu. But Adil’s sisters
in Pakistan want the proceedings held in Lahore before a
Pakistani court.
Which court has jurisdiction and is the proper venue for
the intestate proceedings? The law of which country shall
govern succession to his estate? (5%)
SUGGESTED ANSWER:
B.
In so far as the properties of the deceden
1 located in the Philippines are concerned, they are governed
by Philippine law (Article 16, Civil Code). Under Philippine
law, the proper venue for the settlement of the estate is
the domicile of the decedent at the time of his deat^,
Since the decedent last resided in Cebu City, that is the
proper venue for the intestate settlement of his estate.
88
However, the successional rights to the estate of
ADEL are governed by Pakistani law, his national law
under Article 16 .of the Civil Code.
’
89
2003 BAR EXAMINATION
5%
It is said that “equity follows the law” What do you understand
by this phrase, and what are its basic implications?
su eq esT E D Q w sw eR
“ Equity follows the law” means that courts exercising
equity jurisdiction are bound by rules of law and have no
arbitrary discretion to disregard them. (Arsenal v. IAC, 143
SCRA 40[1986]. Equity is applied only in the absence of but
never against statutory law. (Toyota Motor Phil. v. CA 216
SCRA 236 [1992]).
5%
Gene and Jane, Filipinos, met and got married in England while
both were taking up post-graduate courses there. A few years
after their graduation, they decided to annul their marriage. Jane
filed an action to annul her marriage to Gene in England on the
ground of the latter’s sterility, a ground for annulment of marriage
in England. The English court decreed the marriage annulled.
Returning to the Philippines, Gene asked you Whether or not he
would now be free to marry his former girlfriend. What would your
legal advice be?
suG G €san ex>cw svoeR i
No, Gene is not free to marry his former girlfriend. His
m arriage to Jane if valid according to the form s and
solemnities of British law, is valid here (Article 17, 1st par.,
NCC). However, since Gene and Jane are still Filipinos,
although living in England, the dissolution of their marriage
is still governed by Philippine law (Article 15., NCC). Since,
ctprilitv is not one of the grounds for the annulment of a
marriane under Article 45 of the F a m ily Cnrip, the annulment
'of Gene’s marriage to Jane on that ground is not valid in the
Philippines (Article 17, par., NCC).
n r -T F r e T ^ g -J lV e c m S W e R ;
Y e s , Gene is free to marry his girlfriend because his
marriage was validly annulled in England. The issue of
whether or not a marriage is voidable, including the grounds
therefor, is governed by the law of the place where the
marriage was solemnized (lexloci celebrationis). Hence, even
if sterility is not a ground to annul the marriage under
Philippine law, the marriage is nevertheless voidable because
sterility makes the marriage voidable under English law.
Therefore, annulment of the marriage in England is valid in
the Philippines.
FR'IVl
III
T v tfc i/P *
V itiir w p 0
5%
Miss Universe, from Finland, came to the Philippines on a tourist
viSa.: While in this;country, she fell in love with and married a
‘Filipino doctor. Her'tourist visa having expired and after the
maximum extension allowed therefor, the Bureau of Immigration
and Deportation (BID) is presently demanding that she immediately
leave the country but she refuses to do so, claiming that she is
already a Filipino citizen by her marriage to a Filipino citizen. Can
the BID still order the deportation of Miss Universe? Explain.
s u Q a e s n e r > c m s u T g ie .
Yes, the BID can order the deportation of Miss Universe.
The marriage of an alien woman to a Filipino does not
automatically make her a Filipino citizen. She must first prove
in an appropriate proceeding that she does not have any
disqualification for Philippine citizenship. (Yung Uan Chu v.
91
NOT
Republic o f the Philippines, 159 SCRA 593 [1988J). Since Miss
Universe is still a foreigner, despite her marriage to a Filipino
doctor, she can be deported upon expiry of her allowable stay
in the Philippines.
C W O T H gR SUG G eST£D Q T<SW eR :
No, the Bureau of Immigration cannot order her deportation.
An a lie n w om an m arrying a F ilip in o , n a tive -b o rn or
naturalized, becomes ipso facto a Filipino if she is not %
disqualified to be a citizen of the Philippines. (Mo Ya Li m y.
Commissioner o f Immigration, 41 SCRA 292 [1971]), (Sec. 4 /
Naturalization Law). All that she has to do is prove in the
deportation proceeding the fact of her marriage and that she
is not disqualified to become a Filipino citizen.
c w Q -jn e r e s u G o e s je p g T ^ s w e R .
It depends. If she is disqualified to be a Filipino citizen,
she may be deported. If she is not disqualified to be a Filipino
citizen, she may not' be deported. An alien woman who
marries a Filipino citizen becomes a Filipino citizen only when
she proves that she is not disqualified to become one. The
marriage of Miss Universe to the Filipino doctor did not
automatically make her a! Filipino citizen. She still has to prove
that she is npt disqualified to become a citizen.
■JHn'ci'oJ
-fas
5%
If a pregnant woman passenger of a bus were to suffer an
abortion following a vehicular accident due to the gross negligence
of the bus driver, may she and her husband claim damages from
the. bus company for the death of their unborn child? Explain.
S U Q Q e S lE P Q N S V P g R .
No, the spouses cannot recover actual damages in the form
of indemnity for the loss of life of the unborn child. This is
because the unborn child is not yet considered a person and M
92
the law allows Indemnity only for loss of life of persons. Thie
mother, however, may recover damages for the bodily injury
she suffered from the loss of the fetus which is considered
part of her internal organs. The parents may also recover
damages for injuries that are inflicted directly upon them, e.g.,
moral damages for mental anguish that attended the loss of
the unborn child. Since there is gross negligence, exemplary
damages can also be recovered. (Geluz v. CA, 2 SCRA 801
[•1961]).
!• OUttjt^A'oru e CtxlfracSr} Ct+tfacuft}
'w
C v r k & id j
^
Of
Cf
5%
Jo-Ano asked her close friend, Aissa, to buy some groceries
for her in the supermarket. Was there a nominate contract entered
into between Jo-Ann and Aissa? In. the affirmative, what was it?
Explain.
s u G o e s je p a w s w e R
Yes, there was a nominate contract. On the assumption
that A|ssa accepted the request of her.close friend Jo-Ann to
buy some groceries for her in the supermarket, what they
entered into was the nominate contract of Agency. Article
1868 of the New Civil code provides that by the contract of
agency a person binds himself to render some service or to
do something in representation or on behalf of another, with
the consent or authority of the latter.
cuLTCRrernve awsvueit
Yes, they entered into a nominate contract of lease of
_service in the absence of a relation of principal and agent
between them (Article 1644, New Civil Code).
....
VI
5%
c*A-; V**/
1'
rt* n h h o f-
J'.imp/ lBIO) 'ioi&'bb
*4.
5. 1310; iBip; U&U
-fi*
Which of the following remedies, i.e., (a) declaration of nullity
of marriage, (b) annulment of'marriage, (c) legal separation, and/
93
j
aw.
or (d) separation of property, can an aggrieved spouse avail
himself/herself of (i)
If the wife discovers after the marriage that her husband
has “AIDS”
(ii)
If the wife goes (to) abroad to work as a nurse and refuses
to come home after the expiration of her three-year
contract there.
(iii) If the husband discovers after the marriage that his wife
has been a prostitute before they got married.
(iv) If the husband has a serious affair with his secretary and
refuses to stop notwithstanding advice from relatives and
friends.
(v)
If the husband beats up his wife every time he comes
home drunk.
S U G G C S JE D C W S W gR :
.
,
Inniwiii
(f) Since AIDS is a serious and incurable s ex u a lly - ^
tra n s m is s ib le disease, the wife may file an action for
annulm ent of the marriage on this ground whether such fact
was concealed or not from the wife, provided that the disease
was present at the time of the marriage, th e marriage is
voidable even though the husband was not aware that he had
the disease at the time of marriage.
(ii)
If the wife refuses to come home for three (3) months
from the expiration of her contract, she is presumed to have
abandoned the husband and he may file an action for judicial
separation of property. If the refusal continues for more than
0*,/
one yearfrom the expiration of her contract, the husband-may
•partrii'9/1 file the action for legal separation under Art. 55 (10) of the
Family Code on the ground o f a b a n d o n m e n t o f p e titio n e r hy*f
respondent without justifiable cause for more than one year.
: '
th e wife is deemed to have abandoned the husband when
she leave.s the. conjugal dwelling without any intention of
returning (Articie 101, FC). The intention not to return cannot
be presumed during the 3-year period of her contract.
94
(iii) If the husband discovers after the marriage that his
yyife was a prostitute before they got marrjed, he has no ■ r< - ^
remedy. No misrepresentation nr rtereit as to character.
haait^, rank, fortune or chastity shall constitute fraud as legal
ground for an action for the annulment of marriage (Article
46 FC). '
(iv) The wife (pay file an action for legal separation. The
husband’s sexuaLinfidelity is a ground for legal separation
■ ' ,; (Article 55,. FG). She may also file an action for judicial
separation of property for failure of her husband to comply
with his marital duty of fidelity (Article 135(4), 101, FC).
(v) The wife may file an action for legal separation on the
ground of repeated physical violence on her person (Article
55(1), FC). She may also file an action for judicial separation
of property for failure of the husband to comply with his
marital duty of mutual respect (Article 135(4), Article 101, FC).
She may also file an action for declaration of nullity of the
marriage if the husband’s behavior constitutes psychological
,r incapacity existing at the time of the celebration of marriage.
1-
VII
f^esrz;
cL*Lcyb't>~ -J.
OontHc
«*«***•; h V
r i* * f
4 tf+ .
A^VM,.
5%
Lina, a former Filipina who became an American citizen shortly
after her marriage to an American husband, would like to adopt in
the Philippines, jointly with her husband, one of her minor brothers.
Assuming that all the required consents have been obtained, could
the contemplated joint adoption in the Philippines prosper? Explain.
SU C K 5eST rgX >0->aS1A ?0£:
Yes. Lina and her American husband can jointly adopt a
minor brother o f Lina because she and her husband are both~^
qualified to adopt. Lina, as a former Filipino citizen, can adopt
her minor brother under Sec. 7(b)(i) of RA 8552 (Domestic
Adoption Act of 1998), or under Art. 184(3)(a) of the Family
Code. The alien husband can now adopt under Sec. 7[b] of
RA 8552. The Supreme Court has held in several cases that
95
when husband and wife are required to adopt jointly, each
one of them must be qualified to adopt in his or her own right
(Republic v. Toledaoo, 233 SCRA 9 [1994]). However, the
American husband must compjy with the requirements of the
law including the residency requirement of three (3) years.
Otherwise, the adoption will not be allowed^
**
<• PFK\
fa-C+Jx/
VIII
S’
If during class hours, while the teacher was chatting with other
teachers in the school corridor, a 7-year old male pupil stabs the
eye of another boy with a ballpen during a fight, causing permanent
blindness to the victim, who could be liable for damages for the.
; boy’s injury: the teacher, the school authorities, or the guilty boy’s
parents? Explain.
SU G qeST E pgN SW gR :
^
fruTMntf * 'StMarily WntaU.
The school, its administrators, and teachers have special ^
parental authprity;and responsibility overthe minor child while
. under their supervision, instruction or custody (Article 218,
FC). They are principally and solidarity liable forthe damages
caused by the acts br omissions of the unemancipated minor
unipss they exercised the proper diligence required urtder
the circumstances (Article 219, FC). In the problem, the
teacher and the school authorities are liable for the blindness
of the victim, because the student who caused it was under
their special parental authority and they were negligent. They
were negligent because they were chatting in the corridor
during the class period when the stabbing incident occurred.
The incident could have been prevented had the teacher been
inside the classroom at that time. The.guilty boy’s parents"
are subsidiarily liable under Article 219 of the Family Code.
5%
Andres is a riparian owner of a parcel of registered land. His
land, however, has gradually diminished in area due to the current
96
J
!
of the river, while the registered land of Mario on the opposite
b a n k has gradually increased in area by 200-square meters.
(a) Who has the better right over the 200-square meter area
that has been added to Mario’s registered land, Mario or Andres?
(b) May a third person acquire said 200-square meter land
by prescription?
< 5 iJ G G € s ry e x » c w s i o e a t
Man'o
a. Mario has a better right ovpr the 200 square meters
increase in area by reason of accretion, applying Article 457
of the New Civil Code, which provides that “to the owners of
lands adjoining the banks of rivers belong the accretion which
they gradually receive from the effects of the current of the
waters”.
Andres cannot claim that the increase in Mario’s land is
his own, because such is an accretion and not a result of the
sudden detachment of a known portion of his land and its
attachment to Mario’s land, a process called ’’avulsion”. He
can no longer claim ownership of the portion of his registered
land which was gradually and naturally eroded due to the
current of the river, because he had lost it by operation of
law. That portion of the land has become part of the public
domain.
b. Yes, a third party may acquire by prescription the 200
square maters, increase in area, because it is not included in *
the Torrens Title of the riparian owner. Hence, this does not
involve the imprescriptibility conferred by Section 47, P.D. No.
1529. The fact that the riparian land is registered does not
automatically make the accretion thereto a registered land.
(Grande v, CA, 115 Phil. 521 [1962]; Jagualing v. CA, 194 SCRA
607 [1991]).
Y
PonovtiSn*)
(?) t in i r&owHon • (%) toym
5%
In 1950, Dr. Alba donated a parcel of land to Central University
on condition that the latter must establish a medical college on
97
,'
,
the land to be named after him. In the year 2000, the heirs of Dr.
Alba filed an action to annul the donation and for the reconveyance
of the property donated to them for the failure, after 50 years, of
the University to establish on the property a medical school named
after their father. The University opposed the action on the ground
of prescription and also because it had not used the property for
some purpose other than that stated in the donation. Should the
opposition of the University to the action of Dr. Alba's heirs be
sustained? Explain.
s u G o e s T e p c w s w e R
The donation may be revoked. The non-establishment of
the medical college on the donated property was a resolutory
condition imposed on the donation by the donor. Although
the Deed of Dpnation.did not fix the time forthe establishment
of the medical college, the failure of the donee to establish
the medical college after fifty (50) years from the making of
the donation should be considered as occurrence of the
resolutory condition, and the donation may now be revoked.
While the general rule is that in case the period is not fixed in
the agreement of the parties, the period must be fixed first by
the court before the obligation may be demanded, the period
of fifty (50) years was more than enough time for the donee
to comply with the condition. Hence, in this case, there is no
more need for the court to fix the period because such
procedure w ould serve no other purpose but to delay
compliance with the condition. (Central Philippine University
v.CA, 246 SCRA 511).
c tN c y jH g re s u G o e s j n e p o w s w e R
The donation may not as yet be revoked. The establishment
of a m edical college is not a resolutory or suspensive
condition but a “charge”, “obligation”, ora “mode”. The non, compliance with the charge or mode will give the donoj^Jbj&-^T+*
right to revoke the donation within four (4) yearsTrom the H
time the charge was supposed to have been complied with, "*<
98
obligation until the period is fixed by order of the court under
Article 1197 of the New Civil Code. Since the period has not
been fixed as yet, the donee is not yet in default, and therefore
the donor has no cause of action to revoke the donation.
(D issenting opinion of Davide, CJ, Central P h ilip p in e
University v. Court of Appeals, 246 SCRA 511 [1995])
4 . J U c c M 4* * !
X|
5%
If; R a J o c A tim rt;
i ‘ W i<
•
Mr. Reyes executed a will completely valid as to form. A week
later, however, he executed another will .which expressly revoked
his first will, following which he tore his first will to pieces. Upon
the death of Mr. Reyes, his second will was presented for probate
by his heirs, but it was denied probate due to formal defects.
Assuming that a copy of the first will is available, may it now be .
admitted to probate and given effect? Why?
s u c s G e s r jE D c m s w e R ;
Yes, the first will may be admitted to probate and given
effect. When the testator tore the first will, he was under the
mistaken belief that the second will was perfectly valid and
he would not have destroyed the first will had he known that
the second will is not valid. The revocation by destruction
therefore is dependent on the validity of the second wi|l. Since
it turned out that the second will was invalid; the tearing of
the first will did not produce the effect of revocation. This is
known as the doctrine of dependent relative revocation (Molo **
v. Molo, 90 Phil 37).
C tC 3 g R > K X J lV g Q M S W £ R :
No, the first will cannot be admitted to probate. While it is
true that the first will was not successfully revoked by the
second will because the second will was later denied probate,
the first will was, nevertheless, revoked when the testator
destroyed it after executing the second invalid w ill. (Diaz v.
De Leon, 43 Phil. 413 [1922]).
99
*1
'
cy * f^i*>'Y
u*''-bVn*k.e
>rt-fpK~~U cht£**~, l*irS,X'
5%
(a) Luis was survived by two legitimate children, two
illegitimate children, his parents, and two brothers. He left an estate
; of P1 million. Who are the compulsory heirs of Luis, how much is
the legitime of each, and how much is the free portion of his estate,
if any?
(b) Suppose Luis, in the preceding question (a), died intestate.
Who are his intestate heirs, and how much is the share of each in
his estate?
S t iG O e S T fiE P C W S W e K ;
(a) The compulsory heirs are the two legitimate children
S .V \
ajid the two illegitimate children. The parents are excluded
.
. . - ... by the legitim ate children, w hile the brothers are not
compulsory heirs at all.
Their respective legitimes are:
(1) The legitime of the two (2) legitimate children is onehalf (Vij of the estate (P500,000.00) to be divided betweenthem
equally, or P250,000.00 each.
(2) The legitime of each illegitimate child is one-half (1/
2) the legitime of each legitimate child or P125,000.00.
Since the total legitim es of the compulsory heirs is
P750t000.00, the balance of P250,000.00 is the free portion.
(b) The intestate heirs are the two (2) legitimate children
and the two (2) illegitimate children. In intestacy the estate of
the decedent is divided among the legitimate and illegitimate
children such that the share of each illegitimate child is onehalf the share of each legitimate child.
Their shares are:
For each legitimate child
-P333.333.33
100
p 0 r each
illegitimate child - P166,666.66
.V..(Article 983, New Civil Code; Article 176, Family Code)
1- O&uo^jte/u t ccMrtUH-V} O0U*>Mlc*V-
\
;f
xiii
*****
5 %
Are the following obligations valid, why, and if they are valid,
when is the obligation demandable in each case?
(a)
to pay;
(b)
(c)
(d)
cancer,
If the debtor promises to pay as soon as he has the means
]f the debtor promises to pay when he likes;
If the debtor promises to pay when he becomes a lawyer;
If the debtor promises to pay if his son, who is sick with
does not die within one year.
S U G G e S T g D Q T fe W e fe
’ •v
"fya) The obligation is valid, It is an obligation subject to y* t a p
an indefinite period because the debtor binds himself to pay
when his means permit him to do so (Article 1180, NCC). When
the creditor knows that the debtor already has the means to
pay, he must file an action in court to fix the period, and when
the definite period as set by the court arrives, the obligation
to pay becomes demandable (Article 1197, NCC).
f(b ) The obligation “to pay when he ljkesn is a suspensive
condition the fulfillment of which is subject to the sole will of^
the debtor and, therefore, the conditional obligation is' void.
(Article 1182, NCC).
2.
* (c) The obligation is valid, it is subject to a suspensive v^uo
condition, i.e. the future and uncertain event of his becoming
a lawyer. The performance of this obligation does not depend
solely on the will of the debtor but also on other factors outside
the debtor's control.
101
jf(d ) T h e obligation is valid. The death of the son of cancer
within one year is made a negative suspensive condition to
his making the payment. The obligation is demandable if the
son does not die within one year (Article 1185, NCC).
- _ ..
.'.I-
Vl\/
XIV
^
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A,
B, C, D, and E made themselves solidarity indebted to X for
the amount of P50.000.00. When X demanded payment from A,
the latter refused to pay on the follovying grounds:
(a) B is only 16 years old.
(b) C has already been condoned by X.
(c) D is insolvent.
(d) E was given by X an extension of 6 months without the
consent of the other four co-debtors.
State the effect of each of the above defenses put up by A on
his obligation to pay X, if such defenses are found to be true.
SUGGeS3£PQHSWeR:
V (a) A may avail the minority of B as a defense, but only
for B’s share of P10,000,00. A solidary debtor may avail himself
of any defense which personally belongs to a solidary codebtor, but only as to the share of that co-debtor.
o^i
(b)
A may avail of the condonation by X of C’s share of
P10,000.00. A solidary debtor may, in actions filed by the
creditor, avail himself of all defenses which are derived from
the nature of the obligation and of those which are personal
to him or pertain to his own share. With respect to those which
personally belong to others, he may avail himself thereof only
as regards that part of the debt for which the latter are
responsible. (Article 1222, NCC).
(cj A may not interpose the defense of insolvency of D
as a defense. Applying the principle of mutual guaranty
among solidary debtors, A guaranteed the payment or U's’
share and of all the other co-debtors. Hence, A cannot avail
of the defense of D’s insolvency.
102
"Ttf'(d) The extension of six (.6) mp*tf hs given by X to E may be
availed of by A as a partial defense but only for the share of
E. There is ho novation of the obligation but only an act of
liberality granted to E alone.
XV
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5%
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(
(a) May a person sell something that does not belong to him?
Explain.
j
(b) May a person donate something that does not belong to
him? Explain.
;
(a) Yes, a person may sell something which does not
belong to him. Forthe sale to be valid, the law does not require
the seller to be the owner of the property at the time of the
s ale . (Article 1434, NCC). If the seller cannot tra n s fe r
ownership over the thing sold at the time of delivery because
he was not the owner thereof, he shall be liable for breach of
contract.
•.
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*ul
(b) As a general rule, a person cannot donate something
which he cannot dispose of at the time of the donation (Article
751, New Civil Code).
XVI
5% .
...
■ v:-
X sold a parcel of land to Y on 01 January 2002, payment and
^delivery to be madeon 01 February 2002. It was stipulated that if
payment were not to be made by Y on 01 February 2002, the sale
between the parties would automatically be rescinded. Y failed to
pay on 01 February 2002, but offered to pay three days later,
which payment X refused to accept, claiming that their contract of
sale had already been rescinded. IsX's contention correct? Why?
^
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SUGGESTED ANSWER:
No, X is riot correct. In the sale of immovable property,
even though it may have been stipulated, as in this case, that
upon failure to pay the price at the time agreed upon the
rescission of the contract shall of right take place, the vendee
may pay, even after the expiration of the period, as Iona as noy
demand for rescission of the contract has been made upon'5'
him either*judicially or by a ^ o ta ria l act (Article 1592, New
Civil Code). Since no demand for rescission was made on Y,
either judicially or by a notarial act, X cannot refuse to accept
the payment offered by Y three (3) days after the expiration of
the period.
a j^ T H g R S U G e e S T E D Q T g W e R :
This is a contract to sell and not a contract of absolute
sale, since as there has been no delivery of the land. Article
1592 of the New Civil Code is not applicable. Instead, Article
1595 of the New Civil Code applies. The seller has two
a lte rn a tiv e rem edies: ( 1) specific perform ance* or ( 2) '
rescission or resolution under Article 1191 of the New Civil
Code. In both remedies, damages are due because of default.
Q lT g R N a T IV e Q N S W e R
I
Yes, the contract was automatically rescinded upon Y's
failure to pay on 01 February 2002. By the express terms of
the contract, there is no need for X to make a demand in order
for rescission to take place. (Article 1191, New Civil Code.
Suria v. IAC 151 SCRA 661 [1987]; U.P. v. de los Angeles 35
SCRA 102 [1970]).
reGtrVrt*
XVII
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5%
As a result of a collision between a taxicab owned by A and
another taxicab owned by B, X, a passenger of the first taxicab,
was seriously injured. X later filed a criminal action against both
drivers.
104
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' '(aj Is, it necessary for X to reserve his right to institute a civil
action for damages against both taxicab owners before he can
file a civil action for damages against them? Why?
1
(b)
May both taxicab owners raise the defense of due
diligence in the selection and supervision of their drivers to be
absolved from liability for damages to X? Reason.
su G o es^reD aw su T gR .
i
(a) It depends. If the separate civil action is to recover
dam ages arisin g from the crim inal act, reservation is
necessary. If the civil action against the taxicab owners is
based on culpa contractual, or on quasi-delict, there is no
need for reservation.
!
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(a) No, such reservation is not necessary. Under Section
1 of Rule 111 of the 2000 Rules on Criminal Procedure, vyhat
is “deemed instituted” with the criminal action is only the
action to recover civil liability arising from the crime or ex
delicto. All the other civil actions under Articles 32, 33, 34, .. . .
and 2176 of the New Civil Code are no longer .“deemed
instituted”, and may be filed separately and prosecuted
independently even without any reservation in the criminal
action (Section 3* Rule 111, fb/d^.The failure to make a
reservation in the criminal action is not a Waiver of the right
to file a separate and independent civil action based on these
articles of the New Civil Code (Casupananv. Laroya GR No.
145391, August 26, 2002).
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(b) It depends. If the ci vil action is based on a quasi-delict *
the taxicab owners may raise the defense of diligence of a
good father of a family in the selection and supervision of the
driver; if the action against them is based on culpa contractual r
or civil liability arising frnm a crime, they cannot raise the
defense.
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in 1970, the spouses Juan and Juana de la Cruz, then Filipinos,
bought a parcel of unregistered land in the Philippines on which
they built a house which became their residence. In 1986, they
migrated to Canada and became Canadian citizens.
Thereafter, in 1990, they applied, opposed by the Republic, for
the registration of the aforesaid land in their names. Should the
application of the spouses de la Cruz be granted over the
Republic's opposition? Why?
\
S U G <3€S JE D aN S U ?gR ;
Yes, the application should be granted. As a rule, the
Constitution prohibits aliens from owning private lands in the
Philippines. This rule, however, does not apply to the spouses
Juan and Juana de la Cruz because at the time they acquired
ownership over the land, albeit imperfect, they were still ^
Filipino citizens. The application for registration is a mere
' confirmation of the imperfect title which the spouses have
i*
, already acquired before they became Canadian citizens.
nerfcMt«JWk^k'
(Republic v. CA, 235 SCRA 567[1994]).
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XIX
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X constructed a house on a lot which he was leasing from Y.
Later, X executed a chattel mortgage over said house in favor of Z
as security for a loan obtained from the latter. Still later, X acquired
ownershipof the land where his house was constructed, afterwhich
he mortgaged both house and land in favor of a bankr which
mortgage was annotated on the Torrens Certificate of Title. When
X failed to pay his loan to the bank, the latter, being the highest
bidder at the foreclosure sale, foreclosed the mortgage and
acquired X’s house and lot. Learning of the proceedings conducted
by the bank, Z is now demanding that the bank reconvey to him
X’s house or pay X’s loan to him plus interests. Is Z’s demand
against the bank valid,and sustainable? Why?
106
g fK K 3 € S 3 E g > Q W S W e R .
No, Z ’s demand is not valid. A building is immovable or
real property whether it.is erected by the owner of the land,
by a usufructuary, or by a lessee. It may be treated as a
movable by the parties to a chattel mortgage but such is
b in d in g on ly betw een them and not on th ird parties
(Evangelista v. Alto Surety Co., Inc. 103 Phil. 401 [1958]). In
this case, since the bank is not a party to the chattel mortgage,
it is not bound by it. As far as the Bank is concerned, the
chattel m ortgage does not exist. Moreover, the chattel
mortgage- is void because it was hot registered. Assuming
that it is valid, it does not bind the Bank because it was not
annotated on the title of the land mortgaged to the barik. Z
cannot demand that the Bank pay him the loan Z extended to
X, because the Bank was not privy to such loan transaction.
O J O T H e R S U G G eS 3E P C tiN S U 3eR ;
No, Z’s demand against the bank:is not valid. His demand
that the bank reconvey to him X’s house presupposes that he
has a real right over the house. All that Z has is a personal
rightagainst X for damages for breach of the contract of loan.
The treatment of a house, even if built on rented land, as
movable property is void insofar as third persons, such as
the bank, are concerned. On the other hand, the Bank already
had a real right over the house and lot when the mortgage
was annotated at the back of the Torrens title. The bank later
became the owner in the foreclosure sale.
Z cannot ask the bank to pay for X’s loan plus interest.
There is no privity of contract between Z and the bank.
c u L ig m c tT iv e o m w e g ;
The answer hinges on whether or not the bank is an
innocent mortgagee in good faith or a mortgagee in bad faith.
In the former case, Z’s demand is not valid. In the latter case,
Z ’s demand against the bank is valid and sustainable.
Under the Torrens system of land registration, every person
dealing with registered land may rely on the correctness of
the certificate of title and the law will not in any way oblige
him to look behind or beyond the certificate in order to
107
determ ine the condition of the title. He is not bound by
anything not annotated or reflected in the certificate. If he
proceeds to buy the land or accept it as a collateral relying
on the certificate, he is considered a buyer or a mortgagee in
good faith. Oh this ground, the Bank acquires a clean title to
the land and the house.
However, a bank is not an ordinary mortgagee. Unlike
private individuals, a bank is expected to exercise greater
care and prudence in its dealings. The ascertainment of the
condition of a property offered as collateral for a loan must
be a standard and indispensable part of its operation. The
bank should have conducted further inquiry regarding the
house standing on the land considering that it was already
standing there before X acquired title to the land. The bank
cannot be considered as a mortgagee in good faith. On this
ground, Z ’s demand against the Bank is valid and sustainable.,
XX
X.cysrk'^.b'j*"
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5%
Louie, before leaving the country to train as a chef in a five-star
hotel in New York, U.S.A., entrusted to his firsc-degree cousin
Dewey an application for registration, under the Land Registration
Act, of a parcel of land located in Bacolod Gity. A year later, Louie
returned to the Philippines and discovered that Dewey registered
the land and obtained an Original Certificate of Title over the
property in his Dewey’s name. Compounding the matter, Dewey
sold the land to Huey, an innocent purchaser for value. Louie
promptly filed an action for reconveyance of the parcel of land
against Huey.
(a)
Is the action pursued by Louie the proper remedy?
(b) Assuming that reconveyance is the proper remedy, will
the action prosper if the case was filed beyond one year, but within
ten years, from the entry of the decree of registration?
SU Q O eSJEPaN SW eR :
(a)
An action for reconveyance against Huey is not the
proper remedy, because Huey is an innocent purchaser for
108
value. Tb^proper recourse is for Louie to go after Dewey for
dam ades by reason of the fraudulent registration and jx.
subsequent sale of the land. If Dewey is insolvent, Louie may
file a claim against the Assurance Fund IHeirs ofPedro Lopez
v. De Castro 324 SCRA 591 [2000] citing Sps. Eduarte v. CA,
323 Phil. 462, 467 [1996]).
(b)
Yes, the remedy w ill prosper because the action
prescribes in ten (10) years, not within one (1) year when a
petition for the reopening of the registration decree may be ^
filed. The action for reconveyance is distinct from the petition
to re o p e n th P r i e r r e - p n f r e g is tra tio n (Grey Alba v. De la Cruz.
17 Phih 49 [1910]). There is no need to reopen the registration
proceedings, but the property should just be reconveyed to
the real owner.
The action fo r reconveyance is based on im plied or
constructive trust, which prescribes in ten (10) years/from
the date of issuance of the original certificate of title. This
rule assumes that the defendant is in possession of the land.
Where it is the plaintiff who is in possession of the land, the
action for reconveyance would be in the nature of a suit for _ y
Quieting of title which action is imprescriptible (David v. Malay, *
318 SCRA 711 [1999]).
„ .
.
2002 BAR EXAMINATION
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On May 1,1875, Facundo married Petra, by whom he had a
son Sotero. Petra died on July 1,1996, while Facundo died on
January 1, 2002. Before his demise, Facundo had married, on
July 1, 2000, Querica. Having lived together as husband and
wife since July 1,1990, Facundo and Querica did not secure a
marriage license but executed the requisite affidavit for the
purpose.
To ensure that his inheritance rights are not adversely affected
by his father’s second marriage, Sotero now brings a suit to seek
a declaration of the nullity of the marriage of Facundo and
Querica, grounded on the absence of a valid marriage license.
Querica contends that there was no need for a marriage license
in view of her having lived continuously with Facundo for five
years before their marriage and that Sotero has no legal
personality to seek a declaration of nullity of the marriage since
Facundo is now deceased.
A.
Is the marriage of Facundo and Querica valid, despite
the absence of a marriage license? Explain. (2% )
B.
Does Sotero have the personality to seek a declaration
of nullity of the marriage, especially now that Facundo is already
deceased?
Explain. (3 % )
SUQQCSIEPCWSWgR:
A. The marriage with Querica is void. The exemption from
the requirement of a marriage license under A rt 34, Family
Code, requires that the man and woman must have lived
together as husband and wife for at least five years and
without any legal impediment to marry each other during those
five years. The cohabitation of Facundo and Querica for six
?
years from 1990 to July 1,1996 w henPefraaied was one with
a legal im pedim ent hence, not in com pliance with the
requirement of law. On the other hand, the cohabitation
thereafter until the marriage on July 1, 2G00, although free
from legal impediment, did not meet the 5-year cohabitation
requirement.
n fT g R W a T W e O W S W e R :
A.
The marriage of Facundo and Querica is VALID. The
second marriage was solemnized on July^t-fZOOO w fteathe
Family Code was already effective. The. Family CocJjk took
effect on August 3,1988. Under the Family^Sedermfmarriage
license is required if the parties have been cohabiting for the
period of five years and there is no legal impediment. There
must be no legal impediment ONLY AT THE TIME OF T H E ^ g ^
SOLEMNIZATION OF THE MARRIAGE, and not the whole fiveyear period. This is clearly the intent of the code framers
mu *
(see Minutes of the ISO"1 joint Civil Code and Family Law
Committees held on August 9, 1986). Also, in Manzano v. Jc
Sanchez, AM No. MT-OQ-129, March 8,2001, the Supreme Court 4 ^
said that, as one of the requisites for the exception to apply, e
x>i
there must be no legal impediment at the time of the marriage.
The Supreme Court did not say that the legal impediment must ,
exist all throughout the five-year period.
This is different from the case of Nifial v. Bayadog, (328
SCRA 122 [2000]). In the said^caserttre>«ituation occurred 1
• ■ .v; during the regime of the New Civil Code Where Article 76 J
.v
thereof clearly provides that during theJBvg^year cohabitation. 1
the parties must be unmarried. This is not so. anymore in the J
Family Code. The change in Family Code is significant If the
, second marriage occurred before the effectivity of the Family
, Code, the answer would be that the marriage is void.
4
B. A-VQjd marriage may be questioned by anv interested
party infany proceeding w here the resolution of the issue is
m a te ria lis in g i compulsory heir, Sotero has the personality
to question the validity of the marriage of Facundo and
Querica. Otherwise, his participation in the estate of Facundo
would be affected. (Nina! v. Bayadog, 328 SCRA 122 [2000}).
Ill
II
A.
G ive a brief definition or explanation of the term
“psychological incapacity” as a ground for the declaration of nullity
of a marriage. (2%)
B.
If existing at the inception of marriage, would the state of
being of unsound mind or the concealment of drug addiction,
habitual alcoholism, homosexuality or lesbianism be considered
indicia of psychological incapacity? Explain. (2%)
C.
If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage, would these
constitute grounds for a declaration of nullity or for legal separation,
or would they render the marriage voidable? (1 %)
8U qaeS3EPQ H SU302:
A.
“Psychological incapacity” is a mental disorder o f the
m ost serious type showing the incapability of one or both
spouses to comply with the essential marital obligations of
love, respect, cohabitation, mutual help and support, trust
and commitment. It must be characterized by *0uridicalf
4 antecedence?gravity and incurability and its root causes must
be clinically identified or examined. (Santos v. CA, 240 SCRA
20[1995])
B.
In the case of Santos v. Court o f Appeals, 240 SCRA
j
20 (1995), the Supreme Court held that being of unsound mind,
'r*\
d ru g a d d ic tio p rJ ia b itu a i a lc o h o lis m , le s b ia n is m o r tfuU
homosexuallty m a y fte indicia of psychological incapacity, I*'*"
depending on tW d£gree of severity of the disorder. However, -j
the concealm ent of drug addiction, habitual alcoholism, U
lesbianism or homosexuality is a ground for annulment of
marriage.
C.
In accordance with law, if drug addiction* habitual
alcoholism, lesbianism or homosexuality should occur only
during the marriage, they:
112
(1 )
n u llity
w ill n o t c o n s titu te a s
g ro u n d s
fo r
d e c la ra tio n
of
(A rt. 36, F a m ily Code);
(2) will constitute as grounds for legal separation (A rt r
55, FC); and
(3)
w ill n o t c o n s titu te a s g r o u n d s to re n d e r th e m a rria g e
v o id a b le (A rt. 4 5 a n d 46, F C ).
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III
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Felipe and Felisa, Doth Filipino citizens, were married in
Malolos, Bulacan on June 1, 195G. In 1960, Felipe went to the
United States, becoming a U.S. citizen in 1975. In 1980, he
obtained a divorce from Felisa, who was duly notified of the
proceedings. The divorce decree became final under California
law. Coming back to the Philippines in 1982, Felipe married
Segundina, a Filipino citizen. In 2001, Felipe, then domiciled in
Los Angeles, California, died, leaving one child by Felisa, and
another one by Segundina. He left a will which was executed in
Manila, under which he left his estate to Segundina and his two
chHdren and nothing to Felisa.
Segundina files a petition for the probate of Felipe’s will-. Felisa
questions the intrinsic validity of the will, arguing that her marriage
to Felipe subsisted despite the divorce obtained by Felipe because
said divorce is not recogniz:ed in the Philippines: For this reason,
she claims that the properties left by Felipe are their conjugal
properties and that Segundina has no succession?! rights.
A.
Is the divorce secured by Felipe in California recognizable
and valid in the Philippines? How does it affect Felipe’s marriage
to Felisa? Explain. (2%)
B.
What law governs the formalities of the will? Explain. (1 %)
C. - Will Philippine law govern the intrinsic validity of the will?
Explain. (2 %)
113
;
*
. V w‘..'"j.'
s u Q o e g jg p c m s w e ^
A.
(1)
The divorce secured by Fe/zpe in California is
recognjzable and valid in the Philippines because he was no
longer a Filipino at the time he secured it. Aliens may obtain
divorces abroad which may be recognized in the Philippines
provided that they are valid according to their national law
(Van Dorn V. Romilio, Jr., 139 SCRA 139 [1985]); Quita y. Court
of Appeals, 300 SCRA 406 [1998]; Llorente v. Court of
Appeals, 3.45 SCRA 592 [2000]).
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(2)
With respect to Felipe the divorce is Valid, but
with respect to Felisa it is not. The divorce will not capacitate
Felisa to te marry because she and Felipe were both Filipinos
at the tim e of their marriage. However, in DOJ Opinion No.
134 series of 1993, Felisa is allowed to remarry because the
injustice sought to be corrected by Article 26 also obtains in
her case.
B.
The foreigner who executes his will in the Philippines
may observe the formalities prescribed in:
1)
the law or the country 6 f which he is a citizen
under Article 817 of the New Civil code, or
2)
’ the law of the Philippines being the law o f the
plaice of execution under Article 17 of the New Civil Code.
Art. Mr,
Mtc
C.
Ph ilippine law will not govern the instrinsic validity of
the will. Article 16 of the New Civil Code provides that intrinsic
validity of testamentary provisions shall be governed by the
national law off the person w hose succession is under
consideration. California law will govern the intrinsic validity
of the w ill.
,
)•
co-oum^Aya-
N.
Antonio, Bart, and Carlos are brothers. They purchased from
their parents specific portions of a parcel of land as evidenced by
three separate deeds of sale, each deed referring to a particular
114
lot in metes and bounds. When the deeds were presented for
r e g i s t r a t i o n , the Register of Deeds could not issue separate
c e r t i f i c a t e s of t i t l e due to the absence of a subdivision plan. The
new title had to be issued, therefore, in the names of the brothers
as co-owners of the entire property. The situation has not changed
up to now, but each of the brothers has been receiving rentals
exclusively from the lot actually purchased by him. Antonio sells
his lot to a third person, with notice to his brothers. To enable the
buyer to secure a new title in his name, the deed of sale was
made to refer to an undivided interest in the property of the seller
(Antonio), with the metes and bounds of the lot sold being stated.
Bart and Carlos reacted by signifying their exercise of their right
of redemption as co-owners. Antoniot in his behalf and in behalf
of his buyer, contends that they are no longer co-owners, although
the title covering the property has remained in their names as
such.
May Barf iand Carlos still redeem the lot sold by Antonio?
Explain. (5%)
s u q o e s jg D c m s u jg R :
No, they may not redeem because there was no coownership among Antonio, Bart and Carlos to start with. Their
'parents already partitioned the ia nd in selling separate
portions to them. The situation is the same as in the case 57
v. Court o f Appeals, (342 SCRA 653 [2000]).
IY
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Senen and Peter are brothers. Secien migrated to Canada early
while still a teenager. Peter stayed\on in Bulacan to take care of
their widowed mother and continued to work on the family farm
even after her death. Returning to the country some thirty years
after he had left, Senen seeks a partition of the farm to get his
share as the only co-heir of Peter. Peter interposes his opposition,
contending that acquisitive prescription h a s already set in and
that estoppel lies to bar the action for partition, citing his continuous
possession of the property for at least 10 years, for almost 30
years in fact. It is undisputed that P®t®r has never openly claimed
115
Trus-fj /UO
r
'
sole ownership of the property. If he ever had the intention to do
so, Senen was completely ignorant of it. Will Senen’s action
prosper? Explain. (5%)
suoeesjepcfrisweig:
Senen’s action will prosper. Article 494 of the New Civil
Code provides that “no prescription shall run in favor of a
co-owner or co-heir against h is co-owners or co-heirs so long
as he expressly or impliedly recognizes the co-ownership.
Peter has never renounced the co-ownership nor notified
Senen of his having repudiated the same.
^
Q Q g R m T iv e c m s w e R :
Senen’s action will prosper. This is a case of implied trust.
(Art. 1441, NCC). For purposes of prescription, one has to
have possession under the concept of an owner (A rt 540,
NCC). There is no such concept here. Peter was a co-owner,
he never claimed sole ownership of the property. He is
therefore estopped under Art. 1431, NCC.
kfropeJi:
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t jtrriliff- t&mji
V I
ro d e n t
fa u lty t
Lauro owns an agricultural land planted mostly with fruit trees.
Hernando owns an adjacent land devoted to his piggery business,
which is two (2) meters higher in elevation. Although Hernando
has constructed a waste disposal lagoon for his piggery , it is
inadequate to contain the waste water containing pig manure, and
it often overflows and inundates Lauro’s plantation. This has
increased the acidity of the soil in the plantation, causing the trees
to wither and die. Lauro sues for damages caused to his plantation.
Hernando invokes his right to the benefit of a natural easement in
favor of his higher estate, which imposes upon the lower estate of
Lauro the obligation to receive the waters descending from the
higher estate. Is Hernando correct? (5%)
116
Hernando is wrong, if is true th a t Lauro’s land is burdened
vvith the natural easement to accept or receive the water which
n a tu r a lly and without interruption of man descends from a
higher estate to a lower estate. However, Hernando has
co n s tru c ted a waste disposal lagoon for his piggery and it is
this waste water that flow s downward to Lauro’s land.
Hernando has, thus, interrupted the flow of water and has
created and is maintaining a nuisance. Under A rt 697 NCC,
abatement of a nuisance does not preclude recovery of
damages by la a r o even fo rth e past existence of a nuisance,
th e claim for damages may also be premised on Art. 2191 (4]
NCC.
Q W O J M g R q jiS W g R :
J Hernando is not correct Article 637 of the New Civil Code
provides that the owner o f the higher estate cannot make
works which will Increase the burden on the servient e state .
(Remman Enterprises, Inc. v. CA, 330 SCRA 145 [2000]) The
owner of the higher estate may be compelled to pay damages
to the owner of the lower estate.
* * * * * * ** * * » !
Way back in 1948, Winda’s husband sold in favor of Verde
Sports Center Corp. (Verde) a 10-hectare property belonging to
their conjugal partnership. The sale was made without Winda’s
knowledge, much less consent. In 1950, Winda learned of the
sale, when she discovered the deed of sale among the documents
in her husband's vault after his demise. Soon after, she noticed
that the construction of the sports complex had started. Upon
completion of the construction in 1952, she tried but failed to gel
free membership privileges in Verde.
Wlnda now files a suit against Verde for the annulment of the
sale on the ground that she did not consent to the sale. In answer,
Verde contends that, in accordance with the Spanish Civil Code
117
******* J
which was then in force, the sale In 1948 of the property did not
need her concurrence. Verde contends that in any case the action
has prescribed, or is barred by laches. Winda rejoins that her
Torrens title covering the property is indefeasible, and
imprescriptible.
A.
Define or explain the term “laches." (2% )
B.
Decide the case, stating your reasons for your decision.
(3% )
s u o q g s ^ jg p c m s w e s fc
A. Laches means failure or neglect, for an unreasonable
and unexplained length of time, to do what, by exercising due
d ilig e n c e .c o u ld o r should have been done earlier. It is
negligence or omission to assert a right within a reasonable
time. (De Vera v. CA, 305 SCRA 624 [1999])
-------- *
B. While Article 1413 of the Spanish Civil Code did not
require the consent o f the wife for the validity of the sale, an
alienation by the husband in fraud o f the wife is void as heid
in Uy Coque v. Navas,45 Phil. 430 (1923). Assuming that the
alienation in 194$ Was in fraud of Winda and, therefore, makes
the sale to Verde void, the action to set aside the sale,
nonetheless, Is already barred by prescription and laches.
More than 52 years have already elapsed from her discovery
of the sale in 1950.
Q iig R w g J w e a w m g R :
B.
Wihda’s clajm that her Torrens Title covering the
property fsjndefeasible end imprescriptible [does not hold
water] is not tenable. The rule of indefeasibility of a Torrens
Title means that after one year from the date of Issue o f the
decree of registration or if the land has fallen Into the hands
o f an innocent purchaser for value, the title becomes
incontestibie and incontrovertible. ImprescriptibiSity, on the
other hand, means that no title to the land in derogation of
that of the registered owner may be acquired by adverse
118
acquisitive prescription or that the registered
extinctive prescription h i s right to
ownership and possession of the land.
p o s s e s s io n o r
ow ner d oes
reco ver
L
n o t lo s e b y
T h e action in thiscase is forannulm entof the sale executed
by the husband over a conjugal partnership property covered
by a Torrens Title. Actions on contracts are subject to
prescription.
i.
TMkneMh/
MacUl imtfitot'e* v. (SmKAX’A'iM
;
By virtue of a Codicil appended to his will, Theodore devised
to Divino a tract of sugar land, with the obligation on the part of
Divino or his heirs to deliver to Betina a specified volume of sugar
per harvest during Betina’s lifetime. It is also stated in the Codicil
that in the event the obligation is not fulfilled, Betina should
immediately seize the property from Divino or the latter’s heirs
and turn it over to Theodore’s compulsory heirs. Divino failed to
fulfill the obligation under the Codicil. Betina brings suit against
Divino for the reversion of the tract of land.
A.
Distinguish between modal nstitution and substitution of
heirs. (3%)
|
B.
Distinguish between simple and fideicom m lsssry
substitution of heirs. (2%)
C.
Does Betina have a cause of action against Divino?
Explain. (5%)
A.
A modal institution is the institution of an heir made i n w ^ .
for a certain purpose or cause (Arts. 871 and 882, NCC). J
Substitution is the appointment of another heir so that he
mav enter into this inheritance in default of the heir originally J
instituted. (Art. 857, NCC).
|n a s im p le s u b s titu tio n o f heirs, th e te s ta to r - \ siwxelc
designates one or more persons to substitute the heirs J
119
instituted in case such heir or heirs should die before him, or
should not wish or should be incapacitated to accept the
inheritance. In a fideicommissary substitution, the testator -i
institutes a first heir and charges him to preserve and transmit \
the whole or part~of the inheritance to a second heir. In ^ J
s im p le s u b s titu tio n , o n ly o n e h e ir in h e rits .
In a
fideicommissary substitution, both the first and second heirs
inherit. (Art- 859 and 863, NCC)
C.
Betina has a cause of action against Divino. This is a
case of a testamentary disposition subject to a mode and the
will itself provides for the consequence if the mode is not
complied with. To enforce the mode, the will itself gives
Betina the right to compel the return of the property to the
heirs o f Theodore. (Rabadiiia v. Coscoiuella, 334 SCRA 522
[2000] G R 113725, 29 June 2000).
IX.
Stockton is a stockholder of Core Corp. He desires to sell his
shares in Core Corp. in view of a Court suit that Core Corp. has
filed against him for damages in the amount of P10 million, plus
attorney’s fees of PI million, as a result of statements published
by Stockton which are allegedly defamatory because it was
calculated to injure and damage the corporation’s reputation and
goodwill.
The articles of incorporation of Core Corp. provide for a right
of first refusal in favor of the corporation. Accordingly, Stockton
gave written notice to the corporation of his offer to sell his shares
of P10 million. The response of Core Corp. was an acceptance
pf the offer in the exercise of its rights of first refusal, offering for
the purpose payment in form of compensation or set-off against
the amount of damages it is claiming against him, exclusive of the
claim for attorney’s fees. Stockton rejected the off;er of the
corporation, arguing that compensation between the value of the
shares and the amount of damages demanded by the corporation
cannot legally take effect. Is Stockton correct? Give reasons for
your answer. (5%)
120
guG O gsnnR p o i^ w e R :
Stockton is correct. There is no right of compensation
between his price of P10 million and Core Corp.’s unliquidated
claim for damages. In order that compensation may be proper,
the two debts must be liquidated and demandable. The case
for the PTOmTITFon damages being still pending in court, the
corporation has as yet no claim which is due and demandable
against Stockton.
The right of first refusal was not pei
d as a right for
the reason that there was a conditional acceptance equivalent
to a counter-offer consisting in the amount of damages as
b eing c re d ite d on th e p u rc h as e p rice . T h e re fo re ,
compensation did not result since there was ho valid right of
first refusal (A rt 1475 & 1319, NCC)
a w c m ^ R
m q iw
a ^ s w e e
Even fifl assuming that there was a perfected right of first
refusal, compensation did not take place because the claim
is unliquidated.
1
j.aUi'imfioM • c.4/rw4*t} Om4*x+f,;
«• t*IO; WPsfAtupl* rnf
■ Printado is engaged in the printing business. Suplico supplies
printing paper to Printado pursuant to an order agreement under
which Suplico binds himself to deliver the same volume of paper
, every month for a period of 18 months, with Printado in turn
agreeing to pay within 60 days after each delivery. Suplico has
been faithfully delivering under the order agreement for 10 months
but thereafter stopped doing so, because Printado has not made
any payment at all. Printado has also a standing contract with
publisher Publico for the printing of 10,000 volumes of school
textbooks. Suplico was aware of said printing contract. After
printing 1,000 volumes, Printado also fails to perform under its
printing contract with Publico. Suplico sues Printado forthe value
121
a
of the unpaid deliveries under their order agreement. At the same
time Publico sues Printado for damages for breach of contract
with respect to their own printing agreement. In the suit filed by
Suplico, Printado counters that: (a) Suplico cannot demand
payment for deliveries made under their order agreement until
Suplico has completed performance under said contract; (b)
Suplico should pay damages for breach of contract; and ( c )
Suplico should be liable for Printado’s breach of his contract
with Publico because the order agreement between Suplico and
Printado was for the benefit of Publico. Are. the contentions of
Printado tenable? Explain your answer as to each contention.
(5%)
SUQQeSJg3?QNSM?eE:
No, the contentions o f Printado are untenable.
Printado having failed to pay for the printing paper covered
by the delivery Invoices on time, Suplico has the right to cease
making further
delivery. And the latter did not violate the order agreement
(Integrated Packaging Corporation v. Court o f Appeals, (333
SCRA 170, G.R. No. 115117. June 8. [2000]).
Suplico cannot be held liable for damages, for breach of
contract, as it was not he w ho violated the order agreem ent
but Printado.
Suplico cannot be held liable for Prihtado’s breach of
contract with Publico. He is not a party to the agreement
entered into by and between Printado and Publico. Theirs is
not a stipulation oourautrui. [Aforesaid! Such contracts do ]
could not affect third persons like Suplico because of the
basic civil law principle o f relativity of contracts which ^
provides that contracts can only bind the parties who entered
into it, and it cannot favor or prejudice a third person, even if
he is aware of such contract and has acted with knowledge
thereof, (integrated Packaging Corporation v. CA, supra.)
122
'
X I.
i•'/"'if ii**<v V*b<t/
TfT*
h*
Sancho and Pa cifico are co-owners of a parcel of lartd. Sanc/JO
sold the property to Bart. Pacifico sued Sancho and Bart for
annulment of the sale and reconveyance of the property based
on thefact that the sale included his one-half pro-indiviso share
P a cifico had a notice of lis pen d en s annotated on the title
covering the property. After trial, the court declared Bart the owner
of the property and ordered the cancellation of the notice of lis
pendens. The notice of lis p en d en s could hot be cancelled
immediately because the title over the property was with a bank
to which the property had been mortgaged by B a rt Pacifico
appealed the case. While the appeal was pending and with the
notice of lis pen den s still uncancelled, Bari sold the property to
Carlos, who immediately caused the cancellation of the notice of
lis pendens, as well as the issuance of a r/ew title in his name.
Is Carlos (a) a purchaser in good faith, or (b) a transferee
pendente life? If your answer is (a), how can the right of Pacifico
as co-owner be protected? Explain. (5%)
SUQ Q CSJED O m w eR :
A. Carlos is a buyer in bad faith. The notice of lis pendens
was still annotated at the back of the title at the time he bought
the land from Bart. The uncancelled notice of lis pendens
operates as constructive notice of its contents as well as
interests, legal or equitable, included therein. All persons
are charged with the knowledge of what it contains.
In an earlier case,-it was held that a notice of an adverse
claim remains effective and binding notwithstanding the lapse
of the 30 days from its inscription in the registry. This ruling
is even more applicable in a lis pendens.
Carlos is a transferee pendente life insofar as Sancho’s
share in the co-ownership in the land is concerned because
the land was transferred to him during the pendency of the
appeal.
123
A.
Pacifico can protect his right as a co-owner by
pursuing hisappeal; asking the Court of Appeals to order the
re-annotation of the lis pendenson the title of Carlos’, and by
invoking his right of redemption of Bart’s share under Article
1620 o f the New Civil Code.
a jL T g R T c r n v e c w s w e R :
A.
Carlos is a purchaser in good faith.
A possessor in good faith has been defined as “one who
is unaware that there exists a flaw which invalidates his
acquisition of the thing” (A rt 526, NCC). Good faith consists
in the possessor’s belief that the person from whom he
received the thing was the owner of the same and could
convey his title. In the case [at bar], in question, while Carlos
bought the subject property from Bart whiie a notice of lis
pendens was still annotated thereon, there was also an
existing court order cancelling the same. Hence, Carlos
cannot be considered as being “aware o f a flaw which
invalidates [their] the acquisition of the thing” since the
alleged flaw, the notice of lis pendens, was already being
ordered cancelled at the time of the purchase. On this ground
alone, Carlos can already be considered a buyer in good faith.
(Po Lam V. Court o f appeals, 347 SCRA 86, [2000]).
B.
To protect his right over the subject property, Pacifico
should have timely filed an action for reconveyance and
reinstated the notice of lis pendens.
t.
C*
A&J-ytbnj
A lii
Adela and Beth are co-owners of a parcel of land. Beth sold
her undivided share of the property to Xandro, who promptly
notified Adela of the sale and furnished the latter a copy of the
deed of absolute sale. When Xandro presented the deed for
registration, the register of deeds also notified Adela of the sale,
enclosing a, copy of the deed with the notice. However, Adela
ignored the notices. A year later, Xandro filed a petition for the
partition of the property. Upon receipt of summons, Adela
124
immediately tendered the requisite amount for the redemption.
Xandro contends that Adela lost her right of redemption after the
expiration of 30 days from her receipt of the notice of the sale
given by him. May Adela still exercise her right of redemption?
Explain. (5%)
Yes, J^dela may still exercise her right of redemption
notwithstanding the lapse of more than 30 days from notice
of the sale given to her because Article 1623 of the New Civil
Code requires that the notice in writing of the sale must come
from the prospective vendor or vendoiras the case may be.
|n this case, the notice of the sale was given by the vendee
and the Register of Deeds. The period of 30 days never tolled.
She can still avail of that right.
[m s ^ o a e R m r 7 i^ M a w a T < s u 7 e it '
Adela can no longer exercise her right of redemption. As
co-owner, she had only 30 days from the time she received
Written notice of the sale which in this case took the form of
a copy of the deed of sale being given to her (Conejero v. CA,
16 SCRA 775 [1966]). The law does not prescribe any
particular form of written notice, nor any distinctive method
for notifying the redemptioner (Etcuban v. CA, 148 SCRA 507
[1987]). So long as the redemptioner was informed in writing,
he has no cause to complain (Distrito v. CA, 197 SCRA 606,
609 [1991]). In fa c t in Distrito, a written notice was held
unnecessary where the co-owner had actual knowledge of
the sale, having acted as middleman and being present when
the vendor signed the deed of sale.
4. In fill, J C Q fib rf-o il J
XIII
hx*
*’
Felipe is a Filipino citizen. When he went to Sydney for vacation,
he met a former business associate, who proposed to him a
transaction which took him to Moscow. Felipe brokered a contract
between Sydney Coals Corp. (Coals), an Australian firm, and
125
Moscow Energy Corp. (Energy), a Russian firm, for Coals to
supply coal to Energy on a monthly basis for three years. Both
these firms were not doing, and still do not do, business in the
Philippines. Felipe shuttled between Sydney and Moscow to close
the contract. He also executed in Sydney a commission contract
with Cos/sand in Moscow with Energy, tinder which contracts he
was guaranteed commissions by both firms based "on a percentage
of deliveries for the three-year period, payable in Sydney and in
Moscow, respectively, through deposits in accounts that he opened
in the two cities. Both firms paid Felipe his commission for four
months, after which they stopped paying him. Felipe learned from
his contacts, who are residents of Sydney and Moscow, that the
two firms talked to each other and decided to cut him off. He now
files suit in Manila against both Coals and Energy for specific
performance.
A.
Define or explain the principle of “lex loci contractus.”
(2%)
B.
(3%)
Define or explain the rule of “forum non conveniens."
C.
Should the Philippine court assume jurisdiction over the
case? Explain. (5%)
A.
Lex loci contractus may be understood in two senses,
as follows:
(1)
It is the law of the place where contracts, wilts,
and.other public instruments are executed and governs their
“forms and solemnities”, pursuant to the first paragraph,
Article 17 of the New .Civil Cod©; or
( 2 ) : ., . S t j s i h e , p r o p e r l a w o f t h e c o n t r a c t ; i . e . , t h e s y s t e m
o f S a w i n t e n d e d t o g o v e r n t h e e n t i r e c o n t r a s t , ( i n c l u d i n g .its
s s s e r s t l a l r e q u i s i t e s , I n d i c a t i n g the l a w o f the p l a c e w i t h w h i c h
th e © o rs tra c i h a s its c lo s e s t c o n n e c t io n o r w ta© r@ th e m a in
© l e m e s i t s © f f f i e c o n t r a c t c o n v e r g e . A s i l l u s t r a t e d f e y Zatemea
y. C®urt o f Appeals (228 SCRA 23 {1993]), i t i s t h e S a w o f th@
126
place w here th e airline tic k e t was issued, where the
passengers are nationals and residents of, and where the
d e f e n d a n t airline company maintained its office.
O J L T e fe M c rc n w e o
h s w
&&
A.
U n d e r the doctrine of Sex loci contractus, as a general
rule, the law of the place where a contract is made or entered
into governs with respect to its nature and*validity, obligation
and*interpretation. This has been said to be the rule eyen
though the pi ape where tlie contract was made is different
from the place where it is to be perfofmed, and particularly
so, if the place of the making and the place of performance
are the same {United Airline v. CA, G.R. No. 124110, April 20,
2001).
s iio q e s je a > Q w s u 3 g iz s 5
B.
Forum non conveniens means th at a court has
discretionary authority to decline jurisdiction over a cause of
action when it is of the view that the action mav be iustlv and
effectively adjudicated elsewhere.
C.
No, the Philippine courts cannot acquire Jurisdiction
over the case of Felipe. Firstly, under the rule offo ru m non
conveniens. the Philippine court is not a convenient forum
as all the incidents o f the case occurred outside the
Philippines. Neither are both Coals and Energy doing
business inside the Philippines. Secondly, the contracts were
^ Viot perfected in the Philippines. Under the principle of lex
loci contractus, t h e law of the place where the contract is
made shall apply. Lastly, t h e Philippine court has no power
to determine the f a c t s surrounding t h e execution of said
contracts. And e v e n if a proper d e c i s i o n c o u l d b e reached,
such w o u l d h a v e n o b i n d i n g e f f e c t o n C o a l s a n d E n e r g y as
the-court w a s n o t a i b S e t o a c q u i r e j u r i s d i c t i o n o v e r t h e -said
. c o r p o r a t i o n s . (Manila Hotel Corp. v. NLRC, 3 4 3 S C R A 1 ,1 3 14[2000|)
127
xs v .
Bert offers to buy Sim eon’s property under the following terms
r and conditionsf'PI million purchase price, ^0% option money, the
\ balance payable in cash upon the clearance of the property of all
illegal occupants. The option money is promptly paid and Simeon
clears the property of all illegal occupants in no time at all. However,
when Bert tenders payment of the balance and asks Simeon for
the deed of absolute sale, Simeon suddenly has a change of heart,
claiming that the deal is disadvantageous to him as he has found
out that the property can fetch three times the agreed purchase
price. Bert seeks specific performance but Sim&on contends that
he has merely given Bert an option to buy and nothing more, and
offers to return the option mpney which Bert refuses to accept.
A.
Explain the nature of an option contract. (2%)
B.
Will B ert’s action for specific performance prosper?
Explain. (4%)
C.
May Simeon justify his refusal to proceed with the sale
by the fact that the deal is financially disadvantageous to him?
Explain. (4%)
8UQqeSJgDaWSH?i!3£g
^ A.
An option contract is one granting a privilege to buy
or sell within an agreed fim«* anri at 3 determined price. It
must be supported bv a consideration distinct from the price.
(Art. 1479 and 1482, NCC)
4B .
Bert’s action for specific performance will prosper
because there was a binding agreement of sal®, not jyst an
£
^ to <y
option contract. The sale was perfected upon acceptance by
Simeon of 10% of the agreed price. This amount is in reality
^ [ 7*
earnest money which, under Art. 1 4 8 2 , “shall be considered
as part of the price and as proof of the perfection of the
contract.” (Topacio v. CA, 2 1 1 SCRA 2 3 1 [ 1 9 9 2 ] ; Villongco
bu»> Realty v. Bormaheco, 6 5 SCRA 3 . 5 2 [ 1 9 7 5 ] ) .
128
, HOTl-cjy**
C.
Simeon cannot justify hterefusal to proceed with the
sale by the fact that the deal is financially disadvantageous
to him. Having made a bad bargain is not a legal ground for
pulling out of a binding contract of sale, in the absence of
som e actionable wrong by the other party (Vales v. Villa, 35
Phil. 769 [1916]), and no such wrong has been committed by
Bert.
XV.
Carlos sues Dino for (a) collection on a promissory note for a
loan, with no agreement on interest, on which Dino defaulted,
and (b) damages caused by Dino on his (Carlos’) priceless
Michaelangelo painting on which Dino accidentally spilled acid
while transporting it. The court finds Dino liable on the promissory
note and awards damages to Carlos for the damaged painting*
with interests for both awards. What rates of interest may the court
impose with respect to both awards? Explain. (5% )
SUQ O eSJgBCTO UTgR :
-
With respect to the collectiorvof money or promissory note,
it being a forbearance of mofiev, the legal rate of interest for
Jiayinq defaulted on the payment of 12% will apply. With
^ re s p e c t to th e ciamages to the painting, it is 6% from the time
the final demand up to the time of finality of the decision
and 12% of the total amount from finality of judgment until
judgment credit isfuliy paid. The.court considers the latter
as a forbearance of money. (Eastern Shipping Lines, Inc. v.
CA, 234 SCRA 78 [1994]; Art 2210 and 2211, CC)
XVI.
Ortillo contracts Fabricato, Inc. to supply and install tile
materials in a building he is donating to his province. Ortillo pays
50% of the contract price as per agreement. It is also agreed that
the balance would be payable periodically after every 10%
performance until completed. After performing about 93% of the
contract, for which it has been paid an additional 40% as per
agreement, Fabricato, Inc. did not complete the project due to its
129
1
sudden cessation of operations. Instead, Fabricato, inc. demands
payment of the last 10% of the contract despite its non-completion
of the project. Ortillo refuses to pay, invoking the stipulation that
payment of the last amount of 10% shall be upon completion.
Fabricato, Inc. brings suit for the entire 10%, plus damages,
Ortillo counters with claims for (a) moral damages for Fabricato,
Inc. ’s unfounded suit which has damaged his reputation as a
philanthropist and respected businessman in his community, and
(b) attorney’s fees.
A.
Does Ortillo have a legal basis for his claim for moral
damages? (2%)
B.
How about his claim for attorney’s fees, having hired a
lawyer to defend him? (3%)
A.
There is no legal basis to Ortillo’s claim for moral
damages. It does not fall under the coverage of Article 2219
of the New Civil Code*,.,
,
^ B.
O rtillo is e n title d to a tto
s fe e s because
Fabricato’s complaint is a case of rna
s prosecutionfor a
clearly unfounded civil action. (A rt 2208 [4] and [11], NCC).
i. TwH*
Jrn
XY|| «, /0 tP;fcHV
L'minlty
A van owned by Oriando and driven by Diego, while negotiating
a downhill slope of a city road, suddenly gained speed, obviously
beyond the authorized limit in the area, and bumped a car in front
of it, causing severed damage to the car and serious injuries to its
passengers. Oriando was not in the car at the time of the incident.
The car owner and the injured passengers sued Oriando and Diego
for damages caused by Diego’s negligence, in their defense,
Diego claims that the downhill slope caused the van to gain speed
and that, as he stepped on the brakes to check the acceleration,
the brakes locked, causing the van to go even faster and eventually
to hit the car in front of it. Oriando and Diego contend that the
130
sudden malfunction of the van’s brake system is a fortuitous event
that, therefore,, they are exempt from any liability.
a n d .
A.
Is this contention tenable? Explain. (2%)
B.
Explain the concept of vicarious liability in quasi-delicts.
(1%)
C.
Does the presence of the owner inside the vehicle causing
damage to a third party affect his liability for his driver’s negligence?
Explain. (2%)
S U G G e S ie D C m S W g R S :
^ nor
% A.
No. Mechanical defects of a motor vehicle do not
constitute fortuitous event, since the presence of such defects
would have been readily detected by diligent maintenance
check. The failure to maintain the vehicle in safe running
condition constitutes negligence.
‘
B. The doctrine of vicarious liability is that which renders
a person liable for the negligence of others for whose acts or
omission the lawm akes him responsible on the theory that
they are under his control and supervision.
G.
In motor vehicle mishaps, the owner is madesolidarily
liable with his driver if he (the owner) was in the vehicle and
could have, by the use of due diligence, prevented the mishap.
(Caecto v. Yu Khe Thai, 26 SCRA 410 [1968]). However, this
question has no factual basis in the problem given, in view of
the express given fact that “Orlando was not in the car at the
time of the in cid en t”
— End —
131
2001 BAR EXAMINATION
Alex was bom a Filipino but was a naturalized Canadian
citizen at the time of his death on December 25, 1998. He left
behind a last will and testament in which he bequeathed all
his properties, real and personal, in the Philippines to his
acknowledged illegitimate Filipina daughter and nothing to
his two legitimate Filipino sons. The sons sought the
annulment of the last will and testament on the ground that
it deprived them of their legitimes but the daughter was able
to prove that there were no compulsory heirs or legitimes
under Canadian law. Who should prevail? Why? (5%)
SUGGESTEDANSWER
The daughter should prevail because Article 16 of
the N ew Civil Code provides that intestate andtestamentary succession shall be governed by the national 11
law of the person whose succession is under consideration.
__
n
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A German couple filed a petition for adoption of a minor
Filipino child with the Regional Trial Court of Makati under
the provisions of the Child and Youth Welfare Code which
allowed aliens to adopt. Before the petition could be heard,
the Family Code, which repealed the Child and Youth Welfare
Code, came into effect. Consequently, the Solicitor General
filed a motion to dismiss the petition, on the ground that the
Family Code prohibits aliens from adopting. If you were the
judge, how will you rule on the motion? (5%)
SUGGESTED ANSWER
The motion to dismiss the petition for adoption
should be denied. The law that should govern the action
132
-
is the law in force at the time of filing of the petition. At
that time, it was the Child and Youth Welfare Code that
was in effect, not the Family Code. Petitioners have
already acquired a vested right oh their qualification to
adopt which cannot be taken away by the Family Code.
(Republic v. Miller G.R. No. 125932, April 21, 1999,
citing Republic v. Court o f Appeals, 205 SCRA 356)
4- ALTERNATIVE ANSWER
The motion has to be granted. The new law shall
govern their Qualification to adopt and under the new
law, the German couple is disqualified from adopting.
T h e y cannot claim that they have already acquired a
vested right because adoption is not a right but a mere
privilege. No one acquires a vested right on a privilege.
[Note: If the examinee based his answer on the
current law, RA 8552, his answer should be considered
correct. This question is based on the repealed provision
of the Family Code on Adoption.]
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Mike built a house on his lot in Pasay City. Two years
later, a survey disclosed that a portion of the building
actually stood on the neighboring land of Jose, to the extent
of 40 square meters. Jose claims that Mike is a builder in bad
faith because he should know the boundaries of his lot, and
demands that the portion of the house which encroached on
his land should be destroyed or removed.. Mike replies that
he is a builder in good faith and offers to buy the land
occupied by the building instead.
1)
Is Mike a builder in good faith or bad faith? Why?
2)
Whose preference should be followed? Why? (2%)
(3«/o)
• OevJL
SUGGESTED ANSWER
1) Yes, Mike is a builder in good faith. There is no
showing that when he built his house, he knew that a
portion thereof encroached on Jose's lot. Unless one is
versed in the science o f surveying, he cannot d e t e r m i n e
the precise boundaries or location of his property by
merely examining his title. In the absence of contrary
proof, the law presumes that the encroachment was done
in good faith [Technogas Phils, v. CA, 268 SCRA 5, 15
(1997)],
2)
None of the preferences shall be followed. The
preference of Mike cannot prevail because under Article
448 o f the Civil Code, it is the owner of the land who has
the option or choice, not the builder. On the other hand,
the option belongs to Jose, he cannot demand that the
portion' of the house encroaching on his land be destroyed
or removed because this is not one of the options given
by law to the owner of the land. The owner may choose
between the'appropriation of what was built afterpayment
of indemnity, or to compel the builder tofpay for the land
if the value of the land is not considerably more than that
of the building. Otherwise, the builder shall pay rent for
the portion of the land encroached.
ALTERNATIVE ANSWER
1)
Mike cannot be considered a builder in good
faith because he built his house without first determining
the com ers and boundaries o f his lot to make sure that
his construction was within the perimeter of his property.
He could have done this with the help of a geodetic
engineer as an ordinary prudent and reasonable man
would do under the circumstances.
2)
Jose's preference should be followed. He may
lhave the building removed at the expense o f Mike,
appropriate the building as his own, oblige Mike to buy
the land and ask for damages in addition to any o f the
three options. (Articles 449, 450, 451, CC)
134
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IV
For many years, the Rio Grande river deposited soil
along its bank, beside the titled land of Jose. In time, such
deposit reaehed an area o f one thousand square meters. With
the permission of Jose, Vicente cultivated the said area. Ten
years later, a big flood occurred in the river and transferred
the 1000 square meters to the opposite bank, beside the land
of Agustin. The land transferred is now contested by Jose
and Agustin as riparian owners and by Vicente who claims
ownership by prescription. Who should prevail,? Why? (5%)
SUGGESTED ANSWER
Jose should prevail. The disputed area, which is an
alluvion, belongs by right of accretion to Jose, the
reparian owner (Art. 457 CC). When, as given in the
problem, the very same area was “transferred” by flood
waters to the opposite bank, it became an avulsion and .
ownership thereof is retained by Jose who has two veatre g
to remove it (Art. 459, CC). Vicente's claim based on
prescription is baseless since his possession was by mere
tolerance of Jose and, therefore, did not adversely affect
Jose’s possession and ownership (Art. 537, CC). Inasmuch
as his possession is merely that of a holder, he cannot
acquire the disputed area by prescription.
Y
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Emma bought a parcel of land from Equitable-PCI
Bank, which acquired the same from Felisa, the original
owner. Thereafter, Ernma discovered that Felisa had granted
a right of way over tf>e land in favor of the land of Georgina,
which had no outlet to a public highway, but the easement
was not annotated when the servient estate was registered
under the Torrens system. Emma then filed a complaint for
cancellation of the right of way, on the ground that it had been
extinguished by such failure to annotate. How would you
decide the controversy? (5%)
135
I
SUGGESTED ANSWER
The complaint for cancellation of easement of right
of w ay must fall. The failure to annotate the easement
upon the title of the servient estate is not among the
grounds for extinguishing an easement under Art. 631 o f
the Civil Code.
Under Article 617, easements are
inseparable from the estate to which they actively or
passively belong.
Once it attaches, it can only be
extinguished under Art. 631, and they exist even if they
are not stated or annotated as an encumbrance on the
Torrens title of the servient estate, (n Tolentino 326,
1987 ed.)
ALTERNATIVE ANSWER
Under Section 44, PD No. 1529, every registered
owner receiving a certificate of title pursuant to a decree
of registration, and every subsequent innocent purchaser
for value, shall hold the same free from all encumbrances' *?****
except those noted on said certificate. This rule, however,
admits o f exceptions.
Under Act 496, as amended by Act No. 2011, and
Section 4, Act 3621, an easement if not registered shall
remain and shall be held to pass with the land until cut­
off or extinguished by the registration of the servient
, .estate. However /this provision has been suppressed in
Section 44* PD No.1529. In other words, the registration
of the servient estate did not operate to cut-off or
extinguish the right o f way. Therefore, the complaint for
the cancellation o f the right of way should be dismissed.
Because her eldest son Juan had been pestering her for
capital to start a business, Josefa gave him P100.000.00.
Five years later, Josefa died, leaving a last will and testament
in which she instituted only her four younger children as her
sole heirs. At the time of her death, her only property left was
136
P900.00Q.00 in a bank. Juan opposed the w ill on the ground
o f preterition. How should Josefa’s estate be divided among
her heirs? State briefly the reason(s) for your answer. (5%)
SUGGESTED ANSWER
was no preterition o f the oldest son because
the testatrix donated 100,000pesos to him* This donation
1is considered an advance on the sonfs inheritance. There
being no preteritioni the institutions in the will shall be
respected but the legitime o f the oldest son has to be
completed if he received less.
After collating the donation of P100.000 to the
remaining property of P900.000, the estate o f the testatrix
is PljDO.OOO. O f this amount, one-half or P P500.000, is
the legitime of the legitimate children and it follows that
the legitime o f onie legitimate child is P100,000, The
legitime, tnerefore, of the oldest son is i'lUU.UOLS. However,
since the donation given him was P100.000, he has
already received in full his legitime and he will not
receive anything anymore from the decedent. The
remaining P900.000, therefore, shall go to the four
younger children by institution in the will, to be divided
equally among them. Bach will receive P 225,000.
ALTERNATIVE ANSWER
Assuming that the donation is valid as to form and
substance, Juan cannot invoke preterition because he
actually had received a donation inter vivos from the
testatrix (m Tolentino 183,1992 ed.). He would only have
a right to a completion of his legitime under Art. 906 of
the Civil Code. The estate should be divided equally
among the five children who will each receive P225,000.00
because the total hereditary estate, after collating the
donation to Juan (Art. 1061, CC), would be P I million. In
the actual distribution o f the net estate, Juan gets
nothing while his siblings will get P225,000.00 each.
vn
Jo*?/ If,Iot&b*p »66lp*vft»r~
Four foreign medical students rented the apartment of
Thelm a for a period of one year. After one semester, three of
them returned to their home country and the fourth transferred
to a boarding house. Thelma discovered that they left unpaid
telephone bills in the total amount o f P80.000.00. The lease
contract provided that the lessees shall pay for the telephone
services in the leased premises. Thelma demanded that the
fourth student pay the entire amount of the unpaid.telephone
bills, but the latter is willing to pay only one fourth o f it. Who
is correct? Why? (5%)
SUGGESTED ANSWER:
------ sThe fourth student is correct. His liability is only
H ointyhence, pro rata. There is solidary liability only
wb€n the^obligation expressly so states/jr when th ela w
or nature o f the obligation requires solidarity (Art. 1207,
CC). The contract of lease in the problem does not, in any
way, stipulate solidarity.
r3*Crfi t/ n4cc*t, ' u*y,
v ra
To secure a loan obtained from a rural bank, Purita
assigned her leasehold rights over a stall in the public market
in favor o f the bank. The deed of assignment provides that
in case o f default in the payment o f the loan, the bank shall
have the right to sell Purita’s rights over the market stall as
her attomey-in-fact, and to apply the proceeds to the payment
of the loan.
1)
Was the assignment of leasehold rights a mortgage
or a cession? Why? (3%)
2)
Assuming the assignment to be a mortgage, does
the provision giving the bank the power to sell Purita’s rights
constitute pactum commissorium or not? Why? (2%)
138
SUGGESTEDANSWER
1)
The assignment was a mortgage, not a cession,
of the leasehold rights. A cession would have transferred
ownership to the bank. However, the grant of authority » ^
to the bank to sell the leasehold rights in case o f default / ---------is proof that no such ownership was transferred and that
a mere encumbrance was constituted. There would have
been no need for such authority had there been a cession.
j
j
2)
No, the .clause in question fa nnt n pnntum
cammissorium. It is pactum commissorium when default
in the payment o f the loan automatically vests ownership
of the encumbered property in the bank. In the problem
given, the bank does not automatically become owner of
the property upon default of the mortgagor. The bank
has to sell the property and apply the proceeds to the
indebtedness.
—
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Samuel borrowed P300,000.00 housing loan from the
bank at 18% per annum interest. However, the promissory
note contained a proviso that the bank “reserves the right to
increase interest within the limits allowed by law." By virtue
of such proviso, over the objections of Samuel, the bank
increased the interest rate periodically until it reached 48%
per annum. Finally, Samuel filed an action questioning the
right of the bank to increase the interest rate up to 48%. The
bank raised the defense that the Central Bank of the
Philippines had already suspended the Usury Law. Will the
action prosper or not? Why? (5%)
i
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i.'
i;
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SUGGESTED ANSWER;
,
j
I
The action will prosper. While it is true that the
interest ceilings set by the Usury Law are no longer in
force, it has been held that PD No. 1684 and CB Circular
No. 905 merely allow contracting parties to stipulate
freely on any adjustment in the interest rate on a loan or
139
forbearance of money but do not authorize a unilateral
in c r e a s e of the interest rate by one party without the
Z t^ F s^ on sevIJm B v7 C A ^ 2 3 8 SC R A 20 [1994]]}. To say
o t h e r w is e will violate the principle o f mutuality of
contracts under Article 1308 of she Civil Code. To be
valid, therefore, any change of interest must be mutually
agreed upon by the'parties (Dizon v. Magsaysay, 57 SCRA
250 [1974]). In the present problem, the debtor not
having given his consent to the increase in interest, the
increase is void.
f.
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x
O n July 1, 1998, Brian leased an office space in a
building for a period of five years at a rental rate of P 1,000.00
a month. The contract of lease contained the proviso that “in
case of inflation or devaluation of the Philippine peso, the
monthly rental will automatically be increased or decreased
depending, on the devaluation or inflation of the peso to the
dollar:"* Starting March 1, 2001, the lessor, increased the
rental to P2.000.00 a month, on the ground of inflation
proven by the fact that the exchange rate of the Philippine
peso to the dollar had increased from P25.00=$1.00 to
P50.00=$1.00. Brian refused to pay the increased rate and
an action for unlawful detainer was filed against him. Will the
action prosper? Why? (5%)
SUGGESTED ANSWER
The unlawful detainer action will not prosper.
Extraordinary inflation or deflation is defined as the
sharp decrease in the purchasing power of the peso. It
does not necessarily refer to the exchange rate o f the
peso to the
dollar. Whether or not there exists an
extraordinary inflation or deflation is for the courts to
decide. There being no showing that the purchasing
power o f the peso hat! been reduced tremendously, there
could be no inflation that would justify the increase in
the amount of rental to be paid. Hence, Brian could
refuse to pay the increased rate.
140
ALTERNATIVE ANSWER.
I
The action will not prosper. The existence of
inflation or deflation regnirp.a an official declaration by
the Bangko Sentrai Jiff Pilipinas'.
ALTERNATIVE ANSWER:
The unlawful detainer action will prosper. It is a
given fact in the problem, that there was inflation, which
caused the exchange rate to double. Since the contract
itself authorizes the increase in rental in the event of an
inflation or devaluation of the Philippine peso, the
doubling of the monthly rent is reasonable and is therefore
a valid act under the very terms of the contract. Brian’s
retusal to pay is thus a ground for ejectment.
XI
The sugar cane planters of Batangas entered into a long­
term milling contract.-with the Central Azucarera de Don
Pedro Inc. Ten years later, the Central assigned its .rights to
... the,said.milling contract to a Taiwanese group which would
take over the-operations of the sugar mill. The planters filed
an action to annul the said assignment on the ground that
the Taiwanese group was not registered with the Board of
Investments. Will the action prosper or not? Explain briefly.
(5%)
(Note: The question presupposes knowledge and
requires the application o f the provisions o f the Omnibus
investment Code, which properly belongs to Commercial
law)
SUGGESTED ANSWER
The action will prosper not on the ground invoked
but on the ground that the farmers have not given their
consent to the assignment. The milling contract imposes
141
reciprocal obligations on the parties. The sugar central
has the obligation to mill the sugar cane of the farmers
while the latter have the obligation to. deliver their sugar
cane to the sugar central. As to the obligation to mill the
sugar cane, the sugar central is-a debtor of the farmers.
In assigning its rights under the contract, the sugar
central will also transfer to the Taiwanese its obligation
to mill the sugar cane of the farmers. This will amount
to a novation of the contract by substituting the debtor
with a third party. Under Article 1293 o f the Civil Code,
such substitution cannot take effect without the consent
o f the creditor. The farmers, who are creditors as far as
the obligation to mill their sugar cane is concerned, may
annul such assignment for not having given their consent
thereto.
ALTERNATIVE ANSWER
The assignment is valid because there is absolute
freedom to transfer the credit and the creditor need not
get the consent o f the debtor. He only needs to notify
him.
”
4 . 'S e tfe t
fe*/
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O n June 15,1995, Jesus sold a parcel of registered land
to Jaime. On June 30, 1995, he sold the same land to Jose.
Who has a better right if:
a)
the first sale is registered ahead of the second sale,
with knowledge of the latter. Why? (3%)
b)
the second sale is registered ahead of the first sale,
with knowledge of the latter? Why? (5%)
SUGGESTEDANSWER:
(a) The first buyer has the better right if his sale
was first to be registered, even though the first buyer
142
knew o f the second sale. The fact that he knew o f the
second sale at the time o f his registration does not m ake
as acting in bad faith because the sale to him was
ahead in tim e, hence, has a priority in right. W hat
creates bad faith in the case o f double sale o f land is
knowledge o f a previous sale.
b)
The first buyer is still to be preferred, where the
second sale is registered ahead o f the first sale but w ith
knowledge o f the latter. This is because the second ~
buyer, who at the time he registered his sale knew that L
the property had already been sold to someone else, J
acted in bad faith. (Article 1544, C.C.)
4.
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Joe and Rudy formed a partnership to operate a car
repair shop in Quezon City. Joe provided the capital while
’ Rudy contributed his Tabor and industry. On one side of their
shop, Joe opened and operated a coffee shop, while on the
other side, Rudy put up a car accessories store. May they
engage in such separate businesses? Why? (5%)
SUGGESTED ANSWER
Joe, the capitalist partner, m ay engage in the-i
restaurant business because it is not the same kind o f r
business the partnership is engaged in. On the other
hand, Rudy m ay not engage in any other business unless *i
their partnership expressly perm its him to do so because r
as an industrial partner he has to devote his full time to
the business o f the partnership (Art. 1789, CC).
J
1.
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* O’jrhm'h; Cv'tfrrvcdr;
‘
On January l, 1980, Nestor leased the fishpond...of ^
Mario for a period of three years at a monthly rental of
P i, 000.00, with an option to purchase the same during the
period of the lease for the price of P500.000.00. After the
143
,rj4. ''. !
•
expiration of the three-year period, Mario allowed Nestor to
remain in! the leased premises at the same rental rate. On
June 15, 1983, Nestor tendered,the amount of P500.000.00
to Mario and demanded that the latter execute a deed of
absolute sale of the fishpond in his favor. Mario refused, on
the ground that Nestor no longer had an option to buy the
fishpond. Nestor filed an action for specific performance.
W ill the action prosper or not? Why? (5%)
SUGGESTED ANSWER:
No, the action will not prosper. The implied renewal
of the lease on a month-to-month basis did not have the
effect o f extending the life of the option to purchase
which expired at the end Of the original lease period. The
lessor is correct in refusing to sell on the ground that the
option had expired.
I.Ayer*?;
OxyflU
Richard sold a large parcel of land In Cebu to Leo for
P I 00 million payable in annual installments over a period of
ten years, but title will remain with Richard until the purchase
price is fully paid. To enable Leo to pay the price, Richard
gave him a power-of-attomey authorizing him to subdivide
the land, sell the individual lots, and deliver the proceeds to
Richard , to be applied to the purchase price. Five years later,
Richard revoked the power of attorney and took over the sale
of the subdivision lots himself. Is the revocation valid or not?
Why? (5%)
SUGGESTED ANSWER
The revocation is not valid. The power of attorney
given to the buyer is irrevocable because it is coupled
] with an interest: the agency is the means of fulfilling the
jtmetfocAtjL*
obligation of the buyer to pay the price of the land (Article
1927, CC). In other words, a bilateral contract (contract
to buy and sell the land) is dependent on the agency.
,
r
I
144
A < 3 »A » ;
XVI
of
^<Vvj^W ^ .cent^fA^, £
<Se* f * t f < X f J O , t c
Arturo gave Richard a receipt which states:
“Receipt
Received from Richard as down payment
For my 1995 Toyota Corolla with
plate No. XYZ-1 2 3 ...................
P50.000.00
Balance payable: 12/30/01 . . . ........
P50 000.00
September 15, 2001.
(Sgd.) Arturo
Does this receipt evidence a contract to sell?
Why?
(5%)
SUGGESTED ANSWER
,'.,.It is a contract of sale because the seller did not
rvc ownership until he was fully paid.
I- ^4fenj /Ut
X V II
Cesar bought a residential condominium unit from High
Rise Co. and paid the price in full. He moved into the unit,
but somehow he was not given the Condominium Certificate
ofTitle covering the property. Unknown to him, High Rise Co.
subsequently mortgaged the entire condominium building to
Metrobank as security for a loan of P500 million. High Rise
Co. failed to pay the loan and the bank foreclosed the
mortgage. At the foreclosure sale, the bank acquired the
building, being the highest bidder. When Cesar learned
about this, he filed an action to annul the foreclosure sale
insofar as his unit was concerned. The bank put up the
defense that it relied on the condominium certificates of title
presented by High Rise Co., which were clean. Hence, it was
145
-
, a mortgagee and buyer In good faith. Is this defense tenable
or not? Why? (5%.) •'
SUGGESTED ANSWER:
r aa
<ec*rt
r*J
Metrobank’s defense is untenable. As a rule, an
innocent purchaser for value acquires a good and a clean
title to the property. However, It is settled that one who
r closes his eves to facts that should put a reasonable man
"[ on guard is not an innocent purchaser for value. In the
present problem the bank is expected, as a matter of
standard operating procedure, to have conducted an
ocular inspection- o f the prAmlaea. before granting any
loan. Apparently, Metrobank did not follow this procedure,
o th e rw is e , it sh o u ld have d isc o v e re d th at the
condominium unit in question was occupied by Cesar
and that fact should have led it to make further inquiry.
U nder the circum stances, M etrobank can not be
considered a mortgagee and buyer in good faith.
■'■'j
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„____
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After working overtime up to midnight, Alberto an
executive of an insurance company drove a company vehicle
to a favorite Videoke bar where he had some drinks and sang
some songs with friends to "unwind". At 2:00 a.m., he drove
home, but In doing so, he bumped a tricycle, resulting in the
death of its driver. May the insurance company be held liable
for the negligent act of Alberto? Why.? (5%)
SUGGESTED ANSWER
The insurance company is not liable because when
the accident occurred, Alberto was not acting within the
assigned tasks o f his employment.
It is true that under Art. 2180 (par. 5), employers are
liable for damages caused by their employees who were
acting within the scope of their assigned tasks. However,
146
the mere fact that Alberto was using a service vehicle of
the employer at the time of the injurious accident does
not necessarily mean that he was operating the vehicle
within the scope of his employment. In Castilex Industrial
Corp. v. Vasquez, Jr. (321 SCRA393 [1999]), the Supreme
Court held that notwithstanding the fact that the
employee did some overtime work for the Company, the
former was, nevertheless, engaged in his own affairs or
carrying out a personal purpose when he went to a
restaurant at 2:00 a.m. after coming out from work. The
time o f the accident (also 2:00 a. m.) was outside normal
working hours.
ALTERNATIVE ANSWER:
The insurance company is liable if Alberto was
negligent in the operation of the car and the car was
assigned to him for thebenefit of the insurance company,
and even though he was not within the scope of his ,
assigned tasks when the accident happened. In one case
decided by the Supreme Court, where an executive o f a
pharmaceutical company was given the use of a company
car, and after office hours, the executive made personal
use of the car and met an accident, the employer was also
made liable under Art. 2180 of the Civil Code for the
injury caused by the negligent operation of the car by the
executive, on the ground that the car which caused t h e i ^ though
W;
injury was assigned to the executive by the employer for f
5c*wr*i the prestige o f the company. The insurance company'**^
l y * ”’
cmrhp**
was held liable even though the employee was not
*•*«*
ft ham/J performing within the scope of his assigned tasks when
the accident happened [Valenzuela v. CA, 253 SCRA 303
."frM , «t3 1**
(1996)].
/.
tif
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X IX
Betty and Lydia were co-owners of a parcel of land. Last
January 31, 2001, when she paid her real estate tax, Betty
discovered that Lydia had sold her share to Em m a. on
November 10, 2000. The following day, Betty offered to
147
redeem her share from Emma, but the latter replied that
Betty’s right to redeem has already prescribed. Is Emma
correct or not? Why? (5%)
SUGGESTEDANSWER:
Emma, the buyer, is not correct. Betty can still
enforce her right o f legal redemption as a co-owner.
Article 1623 of the Civil Code gives a^eo=owner 30 days
from written notice of the sale by thy vendor jto exercise
his right of legal redemption. In the pre&entjSroblein, the
30-day period for the exercise by Betty o f her right of
redemption had not even begun tn rim because no notice
in writing of the sale appears to have been given to her by
Lydia.
4 . P r v f4 ~ + f; f b jiv s v b r , -
XX
Mario sold his house and lot to Carmen for P I million
payable in five (5) equal annual installments. The sale was
registered and title was issued in Carmen’s name. Carmen
failed to pay the last three installments and Mario filed an.
action for collection, damages and attorneys fees against her.
Upon filing o f the complaint, he caused a notice of lis pendens
to be annotated on Carmen’s title. Is the notice of Us pendens
proper or not? Why? (5%)
w..
>•
SUGGESTEDANSWER..
The notice o f Iis pendens is not proper for the
reason that the case filed by Mario against Carmen is only
for collection, damages, and attomeyis fees.
, 'if. ,■« }- -V.. . *
Annotation^ o f a lis pendens can only be done in
cases involving recovery o f possession o f real property,
or/to ^quiet title or to remove cloud thereon, or for
"partition or *any other proceeding affecting title to the
laqd or tEe useor occupation thereof. The action filed by
Mario does not fall on anyone of these.
.
|
1
2000 BAR EXAMINATION
I
a)
As finance officer of K and Co., Victorino arranged
a loan of P5 Million from PNB for the corporation. However,
he was required by the bank to sign a Continuing Surety
Agreement to secure the repayment of the loan. The
corporation failed to pay the loan, and the bank obtained a
Judgment against it and Victorino, jointly and severally. To
enforce the judgment, the sheriff levied on a farm owned by
the conjugal partnership ofVictorino and his wife Elsa. Is the
levy proper or not? (3%)
SUGGESTED ANSWER:
The levy is not proper there being no showing that the
surety agreement executed by the husband redounded to the
benefit of the family. An obligation contracted by the husband
alone is chargeable against the conjugal partnership only
when it was contracted for the benefit of the family. When the
obligation was contracted on behalf of the family business
the law presumes that such obligation will redound to the
benefit of the family. However, when the obligation was to
guarantee the debt of a third party, as in the problem, the
obligation is presumed for the benefit of the third party, not
the family. Hence, for the obligation under-the surety
agreement to be chargeable against the partnership it must
be proven that the family was benefited and that the benefit
was a direct result of such agreement. [Ayala Investment v.
Ching, 286 SCRA 272)
b)
OnAprll 15,1980, Rene and Angelina were married
to each other without a marriage settlement. In 1985, they
acquired a parcel of land in Quezon City. On June 1, 1990,
when Angelina was away in Baguio, Rene sold the said ldt to
Marcelo. Is the sale void or voidable? (2%)
SUGGESTED ANSWER:
The sale is void. Since the sale was executed in 1990,
the Family Code is the law applicable. Under Article 124 of
149
the FC, the side o f a conjugal property by a spouse without
the consent o f the other is void.
Alternative Answer:
The sale Is voidable. The provisions o f the Family Code
may apply retroactively but only if such application will npt.
impair vested rights. When Rene and Angelina got married in
1980, the law that governed their properly relations was the
New Civil Code. Under the NCC, as interpreted by the
Supreme Court in Heirs o f Felipe v. Aldon, 100 SCRA 628 and
reiterated in Heirs o f Ayuste v. Malabonga, G.R. No. 118784,
2 September 1999, the sale executed by the husband without
the consent o f the wife is voidable. The husband has already
acquired a vested right on the voidable nature o f dispositions
made without the consent of the wife. Hence, Article 124 of
the Family Code which makes the siale void does not apply.,
n.
For five years since 1989, Tony,„a bank Vice-President,
and Susan, an entertainer, lived together as husband and
wife without the benefit of marriage although they were
capacitated to marry each other. Since Tony’s salary was
more than enough for their needs, Susan stopped working
and merely “kept house”. During that period, Tony was able
to buy a lot and house in a plush subdivision. However, after
five years, Tony and Susan decided to separate.
a)
Who will be entitled to the house and lot ? (3%)
SUGGESTED ANSWER:
Tony and Susan are entitled to the house and lot as co­
owners in equal shares. Under Article 147 of the Family Code,
when a man and a woman who are capacitated to m an y each
other lived exclusively with each other as husband and wife,
the property acquired during their cohabitation are presumed
to have been obtained by their joint efforts, work or industry
and shall be owned by them in equal shares. This is true even
though the efforts of one of them consisted merely in his or
her care and maintenance of the family and of the household.
150
b)
Would it make any difference if Tony could not
marry Susan because he was previously married to Alice
from whom he is legally separated ? (2%)
SUGGESTEDANSWER:
Yes, it would make a difference. Under Article 148 of the
Family Code, when the parties to the cohabitation could not
marry each other because of ah impediment, only those
properties acquired by both of them through their actual
joint contribution of money, property, or industry shall be
owned by them in common in proportion to their respective
contributions. The efforts of one of the parties in maintaining 1
the family and household are not considered adequate J
fTivi
contribution in the acquisition of the properties.
* cT??rf*t>
.*•*
Since Susan did not contribute to the acquisition of the
house and lot, She has no share therein. If Tony cohabited'
with Susan after his legal separation from Alice, the. house
i
and lot is his exclusive property. If he cohabited with Susan I
before his legal separation from Alice, the house and lot 'madtttsUyjLi
p ■ ,j
belongs to his community of partnership with Alice,
m.
a)
Manuel, a Filipino, and his American wife Eleanor,
executed a Joint Will in Boston, Massachusetts when they
were residing in said city. The law of Massachusetts allows
the execution of Joint wills. Shortly thereafter, Eleanor died.
Can the said Will be probated in the Philippines for the
settlement of her estate ? (3%)
SUGGESTED ANSWER:
Yes, the will may be probated in the Philippines insofar
as the estate of Eleanor is concerned. While the Civil Code
prohibits the execution of Joint wills here and abroad, such
prohibition applies only to Filipinos. Hence, the joint will
which is valid where executed is valid in the Philippines but
only with respect to Eleanor. Under Article 819, it is void with
respect to Manuel whose Joint will - remains void in the
Philippines despite being valid where executed.
151
ALTERNATIVE ANSWER:
The will cannot be probated In the Philippines, even
though valid where executed, because it is prohibited under
Article 818 o f the Civil Code and declared void under Article
819. The prohibition should apply even to the American wife
because the joint will is offensive to public policy. Moreover,
It is a single juridical act which cannot be valid as to one
testator and void as to the other.
rk»i
b)
Cristy and her late husband Luis had two children.
Rose and Patrick. One summer, her mother-in-law, aged 70,
took the two children, then aged 10 and 12, with her on a boat
trip to Cebu. Unfortunately, the vessel sank en route, and the
bodies o f the three were never found. None o f the survivors
ever saw them on the water. On the settlement of her motherin-law’s estate, Cristy files a claim for a share of her estate on
the ground that the same was inherited by her children from
their grandmother in representation o f their father, and she
inherited the same from them. Will her action prosper? (2%)
SUGGESTEDANSWER:
,
'
H O |r r r v p .
' ^
fa nrfc
No, her action will not prosper. Since there was no proof
as to who died first, all the three axe deemed to have died at
the same time and there was no transmission of rights from
one to another, applying Article 43 of the New Civil Code.
ALTERNATIVE ANSWER:
No, her action will not prosper. Under Article 43 o f the
New Civil Code, inasmuch as there is no proof as to who died
first, all the three are presumed to have died at the same time
and there could be no transmission o f rights among them.
Her children not having inherited from their grandmother,
Cristy has no right to share in her mother-in-law’s estate. She
cannot share in her own right as she Is not a legal heir of her
mother-in-law. The survivorship provision of Rule 131 o f the
Rules o f Court does not apply to the problem. I t ; ipplies only
to those cases where the issue involved is not s accession.
»vsiii
152
.
' '"""I
rv
In his last will and testament, Lamberto 1) disinherits
his daughter Wilma because “she is disrespectful towards me
and raises her voice talking to me", 2) omits entirely his
spouse Elvira, 3) leaves a legacy o f P100,000.00 to his
mistress Rosa and P50,000.00 to his driver Em ie and 4)
institutes his son Baldo as his sole heir. How will you
distribute his estate o f P I,000,000.00? (5%)
SUGGESTED ANSWER:
The disinheritance o f Wilma was ineffective because the
ground relied upon b y the testator does not constitute
maltreatment under Article 919(6) of the New Civil Code.
Hence, the testamentary provisions in the will shall be
annulled but only to the extent that her legitime was impaired.
The total omission of Elvira does not constitute preterition
because she is not a compulsory heir in the direct line. Only *
compulsory heirs In the direct line may be the subject of
preterition. Not having been preterited, she will be entitled
only to her legitime. The legacy in favor of Rosa is void under
Article 1028 for being in consideration o f her adulterous
relation with the testator. She is, therefore, disqualified to
receive the legacy o f 100,000 pesos. The legacy of 50,000
pesos In favor o f Em ie is not inofficious not having exceeded
the free portion. Hence, he shall be entitled to receive it. The
institution of Baldo, which applies only to the free portion,
shall be respected. In sum, the estate of Lamberto will be
distributed as follows:
3 Baldo----------------- w ilm a ----- ---------r-vnK) Elvira-----------------Em ie------------------
450,000
250,000
250,000 }J
’
50,000
1,000,000
ALTERNATIVE ANSWER:
i- 'U j
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. W
....
iT ’’ ^
il~< .; ■fts'tftm
i•
; tfzaO'm _
*■ iJifc: i UfCf- c&'M
*•
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if.
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/
•
sfajv.enj
The disinheritance o f Wilma was eflectlve because
r
disrespect of. and raising o f voice to, her father constitute
153
u*j,
N
fan
maltreatment under Article 919(6) of the New Civil Code. She
is, therefore, not entitled to inherit anything. Her inheritance
will go to the other legal heirs. The total omission of Elvira is
not preterition because she is not a compulsory heir in the
direct line. She will receive only her legitime. The legacy in
favor of Rosa is void under Article1028 for being in
consideration of her adulterous, relation with the testator.
She is, therefore, disqualified to receive the legacy. Emie will
receive the legacy in his favor because it is not inofficious. The
institution of Baldo, which applies only to the free portion,
will be respected. In sum, the estate of Lamberto shall be
distributed as follows:
Heir
Legitime
Baldo
Elvira
Ernie
500.000
250.000
50.000
50,000
TOTAL 750,000
50,000
Institution
Legacy
TOTAL
200,000
200,000
700.000
250.000
1.000.000
ANOTHER ALTERNATIVE ANSWER:
Same answer as the first Alternative Answer except as
to distribution. Justice.Jurado solved this problem differently.
In his opinion, the legitime of the heir who was disinherited
is distributed among the other compulsory heirs in proportion
to their respective legitimes, while his share in the intestate
portion, if any, is distributed among the other legal heirs by
accretion under Article 1018 of the NCC In proportion to their
'respective intestate shares. In sum the distribution shall be
: as follows:...,,
.•
«. Heir .' ;
-■■A’
Legitime
of Wilma’s
Baldo'- • ,250,0000
Wilma(250.000)
^' *
. 250.000
Emle
TOTAL
500.000
125,000
Distribution
Legacy Institution TOTAL
Legitime
200,000
575,000
125,000
375,000
50,000
50,000
250.000
50,000
154
200,000
L,000,000
V.
Sometime in 1990, Sarah,, bom a Filipino but by then a
naturalized American citizen, and her American husband
Tom, filed a petition in the Regional Trial Court of Makati, for
the adoption of the minor child of her sister, a Filipina. Can
the petition be granted? (5%)
SUGGESTED ANSWER:
It depends. If Tom and Sarah have been residing in the
Philippines for at least 3 years prior to the effectivity of RA
8552, the petition may be granted. Otherwise, the petition
cannot be granted because the American husband Is not
qualified to adopt.
While the petition for adoption was filed in 1990, it was
considered reflled upon the effectivity of RA8552, the Domestic
Adoption Act of 1998. This is the law applicable, the petition
being still pending with the lower court.
Under the Act, Sarah and Tom must adopt jointly
because they do not fall in any of the exceptions where one
of them may adopt alone. When husband and wife must
adopt jointly, the Supreme Court has held in a line of cases
that both of them must be qualified to adopt. While Sarah, an
alien, is qualified to adopt under Section 7(b)(1) of the Act for
being a former Filipino citizen who seeks to adopt a relative
within the 4th;idegrefe of consanguinity or affinity, Tom, an
alien, is not qualified because he is neither a former Filipino
citizen nor married to a Filipino. One of them not being
qualified to adopt, their petition has to be denied. However,
if they have been residents of the Philippines three years prior
to the effectivity of the Act and continues to reside here until
the decree of adoption is entered, they are qualified to adopt
the nephew of Sarah under Section 7(b) thereof, and the
petition may be granted.
155
.
ALTERNATIVE ANSWER:
Since the petition was filed before the effectivity of the
Domestic Adoption Act of 1998, the Family Code Is the law
applicable.
Under the FC, Sarah and Tom must adopt jointly
because they do not fall In any of the exceptions where one
of them may adopt alone. Under a long line of cases decided
by the Supreme Court, when husband and wife must adopt
jointly, both of them must be qualified to adopt. While Sarah
, is qualified to adopt under Article 184(3) (a) for being a former
Filipino citizen who seeks to adopt a relative by consanguinity,
TOm Is not. He is not a former Filipino citizen and neither is
he married to a Filipino. One of them not being qualified to
adopt, the petition must be denied.
VI
The coconut farm of Federico is surrounded by the lands
of Romulo. Federico seeks a right of way through a portion
of the land of Romulo to bring his coconut products to the
market. He has chosen a point where he will pass through
a housing project of Romulo. The latter wants him to pass
another way which is one kilometer longer. Who should
prevail? (5%)
SUGGESTED ANSWER:
YCtiAfc
Romulo will prevail. Under Article 650 of the New Civil
Code, the easement of right of way shall be established at the
point least prejudicial to the servient estate a^d where the
distance from the dominant estate to a public highway is the
shortest, In case of conflict, the criterion of least preludice~~~~~
prevails over the criterion of shortest distance. Since the
route chosen by Federico will prejudice the housing project
of Romulo, Romulo has the right to demand that Federico
pass another way even though it will be longer.
156
vn
a)
Arturo borrowed P500,OQdOO from his father.
After he had paid P300,000.00, his father died. When the
administrator of his father’s estate requested payment of the
balance of P200,000.00, Arturo replied that the same had
been condoned by his father as evidenced by a notation at the
back of his check payment for the P300.000.00 reading: “In
full payment of the loan". Will this be a valid defense in an
action for collection? (3%)
SUGGESTED ANSWER:
It depends. If the notation “in full payment of the loan”
was written by Arturo’s father, there was an i mpl i edcondonation of the balance that discharges the obligation. In
such case, the notation is an act of the father from which
condonation maybe inferred. The condonation being implied,
it need not comply with the formalities of a donation to be
effective. The defense of full payment will, therefore, be valid.
When, however, the notation was written by Arturo
himself, it merely proves his intention in making that payment
but in no way does it bind his father {Yam u. CA, G.R. No.
104726, 11 February 1999). In such case, the notation was
not the act of his father from which condonation may be
inferred. There being no condonation at all, the defense of full
payment will not be valid.
A T
' T P D W 4 T T I7 P
A
M O U 7P P .
l express condonat
with tEe formalities of a donation to be valid under the 2nd
paragraph of Article 1270 of the New Civil Code. Since the
amount of the balance is more than 5,000 pesos, the
acceptance by Arturo of the condonation must also be in
writing under Article 748. There being no acceptance in
writing by Arturo, the condonation is void and the obligation
to pay the balance subsists. The defense of full payment is,
therefore, not valid. In case the notation was not written by
Arturo’s father, the answer is the same as the answers above.
157
*
*
.vor
<^7
*
b)
Anastacia purchased a house and lot on installments
at a housing project in Quezon City. Subsequently, she was
employed in California and a year later, she executed a deed
of donation, duly authenticated by the Philippine Consulate
in Los Angeles, California, donating the house and lot to her
friend Amanda. The latter brought the deed of donation to
the owner of the project and discovered that Anastacia left
unpaid installments and real estate taxes. Amanda paid
these so that the donation in her favor can be registered in the
project owner's office. Two months later, Anastacia died,
leaving her mother Rosa as her sole heir. Rosa filed an action
to annul the donation on the ground that Amanda did not
give her consent in the deed of donation or in a separate
public instrument. Amanda replied that the donation was an
, onerous one because she had to pay unpaid installments and
taxes; hence her acceptance may be implied. Who is correct?
... ( 2 % )
SUGGESTED ANSWER:
Rosa is correct because the donation is void. The
property donated was an immovable. For such donafciaTvtp be
valid. Article 749 of the New Civil Code requlresfbothythe
d on ation and th^acceptance to be In a public instrument.
There being no showing that Amanda’s acceptance was made
in a public instrument, the donation is void. The contention
that the donation is onerous and, therefore, need not comply
with Article 749 for validity is without merit. The donation is
not onerous because it did not impose on Amanda the
obligation to pay the balance on the purchase price or the
arrears
Amanda took it upon herself to
pay those amounts voluntarily. For a donation to be onerous,
the burden must be imposed by the donor on the donee. In
the problem, there is no such burden imposed by the donor
on the donee. The donation not being onerous, it must
comply with the formalities of Article 749.
ALTERNATIVE ANSWER:
Neither Rosa nor Amanda is correct. The donation Is
onerous only as to the popttea-of the property corresponding
to the value of the installments and taxes paid by Amanda.
158
The portion in excess thereof is not onerous. The onerous
portion is governed by the rules on contracts which do not
require the acceptance by the donee to be in any form. The
onerous part, therefore, is valid. The portion which is not
onerous must comply with Article 749 of the New Civil Code
which requires the donation and the acceptance thereof to be
in a public instrument in order to be valid. The acceptance
not being in a public instrument, the part which is not
onerous is void and Rosa may recover it from Amanda.
vm
a)
Republic Act 1899 authorizes municipalities sutid
chartered cities to reclaim foreshore lands bordering them
and to construct thereon adequate docking ajid harbor
facilities. Pursuant thereto, the City of Cavite entered into an
agreement with the Fil-Estate Realty Company, authorizing
the latter to reclaim 300 hectares of land from the sea
bordering the city, with 30% of the land to be reclaimed to be
owned by Fil-Estate as compensation for its services. The
Solicitor General questioned the validity of the agreement on
the ground that it will mean reclaiming land under the sea
which is beyond the commerce of man. The City replies that
this is authorized by R A . 1899 because it authorizes the
construction of docks and harbors. Who is correct? (3%)
SUGGESTED ANSWER:
The Solicitor General is correct. The authority of the City
of Cavite under RA 1899 to reclaim land is limited to
foreshore lands. The Act did not authorize it to reclaim lancT
from tiie sea. U ie reclamation being unauthorized, the City
of Cavite did not acquire ownership over the reclaimed land.
Not being the owner, it could not have conveyed any portion
thereof to the contractor.
Alternative Anstver:
•v
It depends. If the reclamation of the land from the sea is
necegs^ry in the construction of the docks and the harbors,
the City of Cavite is correct. Otherwise, it is not. Since RA
1899 authorized the city to construct docks and harbors, all
159
works that are necessary for such construction are deemed
authorized, including the reclamation of land from the sea.
The reclamation being authorized, the city is the owner of the
reclaimed land and it may convey a portion thereof as
payment for the services o f the contractor.
ANOTHER ALTERNATIVE ANSWER:
On the assumption that the reclamation contract was
entered into before RA 1899 v/as repealed by PD 3-A, the City
of Cavite is correct. Lands under the sea are “beyond the
commerce of man" in the sense that they are not susceptible'
of private appropriation, ownership or alienation. The contract
in question merely calls for the reclamation of 300 hectares,
o f land within the coastal waters of the city. Per se, it does not
vest, alienate or transfer ownership of land under the sea.
H ie city merely engaged the services of Fil-E-state to reclaim
the land for the city.
b)
Regina has been leasing foreshore land from the
Bureau of Fisheries and Aquatic Resources for the past 15
years. Recently, she learned that Jorge was able to obtain a
free patent from the Bureau of Agriculture, covering the same
land, on the basis of a certification by the District Forester
thatthe same is already “alienable and disposable". Moreover,
Jorge had already registered the patent with the Register o f
Deeds o f the province, and he was issued an Original
Certificate o f Title for the same, Regina filed an action for
annulment o f Jorge’s title on the ground that it was obtained
fraudulently. Wiil the action prosper? (2%)
SUGGESTED ANSWER:
An action for the annulment of Jorge's Original Certificate
o f Title will prosper on the following grounds:
(1)
Under Chapter EXof C.A-No. 141, otherwise known
as the Public Land Act, foreshore lands are disposable for
residential, commercial, industrial, or similar productive
purposes, and only by lease when not needed by the
government for public service.
160
(2) If the land is suited or actually used for fishpond or
aquaculture purposes, it comes under the Jurisdiction o f the
Bureau o f Fisheries and Aquatic Resources (BFAR) and can
only be acquired by lease. (P.D. 705)’
(3) Free Patent is a mode of concession under Se etion
41, Chapter VII of the Public Land Act, which is applicable
only for agricultural lands.
(4) The certificate of the district forester that the land
is already “alienable and disposable" simply means that the
land is no longer needed for forest purposes, but the Bureau
•/'h
o f Lands could no longer dispose o f it by free patent because
!
It is already covered by a lease contract between BFAR and
<'
Regina./That contract must be respected.]
<**<-;
^
<do
i* a***':*(5) The free patent o f Jorge Is highly irregular and void
ab initio, not only because the Bureau has no statutory
authority to issue a free patent over a foreshore area, but also
because of the false statements made in his sworn application
that he has occupied and cultivated the land since July 4,
1945, as required by the free patent law. Under Section 91
of the Public Land Act, any patent, concession or title
obtained thru false representation is void ab initio. In cases
o f this nature, it is the government that shall Institute
annulment proceedings considering that the suit carries
with it a prayer for the reversion of the land to the state.
However, Regina Is a party In interest and the case will
prosper because she has a lease contract for the same land
with the government.
1
IX
a)
Demetrio knew that a piece of land bordering the
beach belonged to Ernesto. However, since the latter was
studying in Europe and no one was taking care o f the land,
Demetrio occupied the same and constructed thereon nipa
sheds with tables and benches which he rented out to people
who want to have a picnic by the beach. When Emesto
returned, he demanded the return of the land. Demetrio
agreed to do so after he has removed the nipa sheds. Emesto
refused to let Demetrio remove the nipa sheds on the ground
161
f V;
/'
' 4
" ,
that these already belonged to him by right of accession. Who
is correct? (3%)
SUGGESTED ANSWER:
i
Emesto is correct. Demetrio is a builder in bad faith
because he knew beforehand that the land belonged to
Emesto. Under Article 449 of the New Civil Code, one who
builds on the land o f another loses what is built without right
to indemnity. Emesto becomes the owner of the nipa sheds
b v right of accession. Hence* Ernesto is well within his right
^fTrefusing to allow the removal o f the nipa sheds.
S *
b)
In good faith, Pedro constructed a flve-doo
commercial building on the land o f Pablo who was also in
iju
good faith. When Pablo discovered the construction, he
j
opted to appropriate the building by paying Piedro the cost
It** thereof. However, Pedro insists that he should be paid the
current market value o f the building, which was much higher
because o f inflation. >
1) W ho is coirect, Pedro or Pablo ? (1%)
2) In the meantime that Pedro is not yet paid, who is
entitled to the rentals of the building, Pedro or
Pablo? (1%)
S U G G E S T E D
ANSWER:
Pablo is correct. Under Article 448 o f the New Civil Code
in relation to Article 546, the builder in good faith is entitled
to a refund o f the necessary and useful expenses incurred by
him, or the increase in value which the land may have
acquired by reason of the improvement, at the option o f the
landowner* The builder is entitled to a refund o f the expenses'
he incurred, and not to the market value o f the improvement.
4 -------------------- The case o f Pecson v. CA, 244SCRA 407, is not applicable
to the problem. In the Pecson case, the builder was the owner
o f the land who later lost the property at a public sale due to
non-payment o f taxes. The Court ruled that Article 448 does
not apply to the case where the owner of the land is the
builder but who later lost the land; not being applicable, the
indemnity that should be paid to the buyer must be the fair
162
market Value of the building and not just the cost of
construction thereof. The Court opined in that case that to do
otherwise would unjustly enrich the new owner of the land.
ALTERNATIVE ANSWER:
Pedro Is correct. In Pecson v. CA, it was held that
Article 546 of the New Civil Code does not .specifically state
how the value of useful improvements should be determined
in fixing the amount of indemnity that the owner of the land
should pay to the builder in good faith. Since the objective of
the law is to adjust the rights of the parties in such manner
as "toadministercom^letejttsiie^tobothoftheminsuchaway
as neither one nor the other may enrich himself of that which
does not belong to him”, the Court ruled that the basis of
reimbursement should be the fair market value of the building.
SUGGESTED ANSWER:
2)
Pablo is entitled to the rentals of the building. As the
owner of the land, Pablo is also the owner of the building
being an accession thereto. However. Pedro who is entitled to
retain the building is also entitled to retain the rentals. He,
however, shall apply the rentals to the Indemnity payable to
him after deducting reasonable cost of repair and
maintenance.
ALTERNATIVE ANSWER:
_
flfow, & Covtt
Pablo is entitled to the rentals. Pedro became a possessor
In bad faith from the time he learned that the land belongs to
Pablo. As such, he loses his right to the building, including
the fruits thereof, except the right of retention.
a)
Ambrosio died, leaving his three daughters, Belen,
Rosario and Sylvia a hacienda which was mortgaged to the
Philippine National Bank. Due to the failure of the daughters
to pay the bank, the latter foreclosed the mortgage and the
hacienda was sold to it as the highest bidder. Six months
later, Sylvia won the grand prize at the lotto and used part of
163
it to redeem the hacienda from the bank. Thereafter, she took
possession of the hacienda and refused to share its fruits
with her sisters, contending that it was owned exclusively by
her, having bought it from the bank with her own money. Is
she correct or not? (3%)
SUGGESTED ANSWER:
Sylvia is not correct. The 3 daughters are the co-owners
of the hacienda being the only heirs of Ambrosio. When the
property w is foreclosed, the right of redemption belongs also
to the 3 daughters. When Sylvia redeemed the entire property
before the lapse of the redemption period , she also exercised
the right of redemption of her co-owners on their behalf^ As
such she is holding the shares of her two sisters in the
property, and all the fruits corresponding thereto, in trust for
them. Redemption by one co-owner inures to the benefit of all
{Adille v. CA, 157SCJ?A 455). Sylvia, however, is entitled to be
reimbursed the shares of her two sisters in the redemption
price.
b)
Felix cultivated a parcel of land and planted it to
sugar cane, believing it to be his own. When the crop was
eight months old, and harvestaible after two more months* a
resurvey of the land showed that it really belonged to Fred.
What are the options available to Fred?' (2%)
SUGGESTED ANSWER:
As to the pending crops planted by Felix in good faith,
Fredhas the option of allowing Felisto continue the cultivation
and to harvest the crops, o a o continue the cultivation and
harvest the crops himself, in the latter option, however, Felix
shall have the right to a part of the expenses of cultivation
and to a part of the net harvest, both in proportion to the time
of possession. (Art. 545 NCC).
ALTERNATIVE ANSWER:
Since sugarcane is not a perennial crop, Felix is
considered a sojjfer in good faith. Being so. Art. 448 applies.
The options available to Fred are: (a) to appropriate the crop
164
after paying Felix the Indemnity under Art. 546, or (b) to
require Felix to pay regt.
XI
Eugenio died without issue, leaving several parcels of
land in Bataan. He was survived by Antonio, his legitimate
brother; Martina, the only daughter of his predeceased sister
Mercedes; and five legitimate children of Joaquin, another
predeceased brother. Shortly after Eugenio’s death, Antonio
also died, leaving three legitimate children. Subsequently,
Martina, the children OfJoaquin and the children of Antonio
executed an extrajudicial settlement of the estate of Eugenio,
dividing it among themselves. The succeeding year, a
petition to annul the extrajudicial settlement was filed by
Antero.' an illegitimate son of Antonio, who claims he is
entitled to snare in tne estate ot Eugenio. The defendants
filed a motion to dismiss on the ground that Antero is barred
by Article 992 of the Civil Code from inheriting from the
legitimate brother of his father. How will you resolve the
motion? (5%)
v
\
(
SUGGESTEDANSWER:
The motion to dismiss should be granted. Article 992
does not apply. Antero is not claiming any Inheritance from
Eugenio. He is claiming his share in the inheritance of his
father consisting of his father’s share in the Inheritance of Nor «’Eugenio (Dela Merced v. Dela Merced, G.R. No. 126707, 25
of
February 1999).
ALTERNATIVE ANSWER:
It depends. If Antero was not acknowledged by Antonio,
the motion to dismiss should be granted because Antero is
not a legal heir of Antonio. If Antero was acknowledged , the
motion should be denied because Article 992 is not applicable.
This is because Antero is claiming his inheritance from his
illegitimate father, not from Eugenio.
165
xn
In 1979 . Nestor applied for and was granted a Free
Patent over a parcel of agricultursd land with an area bf 30
Hectares, located in General Santos City: He presented the
Free Patent to the Register of Deeds, and he was Issued a
corresponding^briginal Certificate of Tide (OCT) No. 375.
Subsequently, Nestor sold the land to Eddie. The deed of sale
was submitted to the Register of Deeds and on the basis
thereof, OCT No. 375 was cancelled ancFfVansfer Certificate
of Title (TCT) No. 4576 was issued in the name of Eddie. In
1986, the Director of Lands filed a complaint for annulment
of OCT No. 375 and TCT No. 4576 on the ground that Nestor
obtained the Free Patent through fraud. Eddie filed a motion
to dismiss on the ground that he was an innocent purchaser
for value and in good faith and as such, he has acquired a title
to the property which is valid, unassailable and indefeasible.
Decide the motion. (5%)
SUGGESTED ANSWER:
The motion of Nestor tq dismiss the complaint for
- annulment of O.C.T. No. 375 and T.C.T. No. 4576 should be
’ denied for the following reasons:
1)
Eddie cannot claim protection as an innocent
purchaser for value nor can he interpose the defense of
indefeasibility of his title, because his TCT is rooted on a void
title. Under Section 91 ofCA No. 141, as amended, otherwise
known as the Public Land Act, statements of material facts
In the applications for public land must be under oath.
Section 91 of the same act provides that such statements
shall be considered as essential conditions and parts of the
concession, title, or permit issued, any false statement
therein, or omission of facts shall ipso facto produce the
cancellation of the concession. The patent Issued to Nestor in
this case is void ab initio not only because it was obtained by
fraud but also because it covers 30 hectares which is far
beyond the maximum of 24 hectares provided by the free
patent law.
?
Lfwc a.iu* Lav i
166
2)
The government can seek annulment or the original
and transfer certificates of title and the reversion of the land
to the state. Eddie’s defense is untenable. The protection
afforded by the Torrens System to an innocent purchaser for
value can be availed of only if the land has been titled thru
•»judicial proceedings where the issue of fraud becomes^
‘
academic aiter the lapse of one (1) year from the issuance of
i**
the decree of registration. In public land grants, the action 'r* ^
of the government to annul a title fraudulently obtained does
f*.__
not prescribe such action and will not be barred by the AcH ^ mic
transfer of the title to an innocent purchaser for value.
i
xrn
Prispilla purchased a rnndorninhirn linlt in Makati City
from the Citiland Corporation for a price of P10 Million,
payable P3 Millibn down and the balance with interest
thereon at 14% per annum payable in sixty (60) equal
monthly.instailmentsofP198,333.33. They executed a Deed
of Conditional Sale in which it is stipulated that should the
vendee fail to pay three (3) successive installments, the sale
shall be deemed automatically rescinded without the necessity
ofjudicial action and all payment's made by the vendee shall
be forfeited in favor of the vendor by way of rental for the use
and occupancy of the unit and as liquidated damages. For
46 months, Priscilla paid the monthly installments religiously,
but on the 47th and 48th months, she failed to pay. On the
49th month, she tried to pay the installments due but the
vendor refused to receive the payments tendered by her. The
following month, the vendor sent her a notice that it was
rescinding the Deed of Conditional Sale pursuant to the
stipulation for automatic rescission, and demanded that she
vacate the premises. She replied that the contract cannot be
rescinded without Judicial demand or notarial act pursuant
to Article 1592 of the Civil Code*
a)
b)
Is Article 1592 applicable? (3%)
Can the vendor rescind the contract? (2%)
167
‘ **< *
4+4
SUGGESTED ANSWER:
> eenefcmW>i«'
a)
Artlgl^l.592 of the Civil Code does not apply to a
^ conditional ^ale* *In valarao u. CA. 304 SCRA 155, the
(*•>-' Supreme Court held that Article 1592 applies only to a
contract of sale and not to a Deed of Conditional Sale where
the seller has reserved title to the property until full payment
of the purchase price. The law applicable is the Maceda Law.
SUGGESTED ANSWER:
•
b)
No, the vendor cannot rescind the contract under
the circumstances. Under the Maceda Law, which is the law
applicable, the seller on installment may not rescind the
contract till after the lapse of the mandatoiy grace period of
30 days for every one year of installment payments, and only
after 30 days from notice of cancellation or demand for
rescission by a notarial act. In this case, the refusal of the
seller to accept payment from the buyer on the 49th month
was not justified because the buyer was entitled to 60 days
grace period and the payment was tendered within thjat
period. Moreover, the notice of rescission served by the seller
on the buyer was not effective because the notice was not by
a notarial act. Besides, the seller may still pay within 30 days
from such notarial notice before rescission may be effected.
All these requirements for a valid rescission were not complied
with by the seller. Hence, the rescission is invalid.
XIV
Kristina brought her diamond ring to a jewelry shop for
cleaning. The Jeweliy shop undertook to return the ring by
Febmary 1, 1999. When the said date arrived, the jewelry
shop informed Kriistiria that the job was not yet finished.
They asked her to return five days after. On February 6.
1999, Kristina went to the shop to claim the ring, but she was
informed that the same was stolen by a thief who entered the
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 not? (5%)
SUGGESTEDANSWER:
.
tfifbk
Ovrt ; CvUS* £ «««*£. -h,'£**'<*. w*yi.UA*.
The^etion will prosper. Since the defendant was already
in default not having delivered the ring when delivery was
demanded by plaintiff at due date, the defendant is liable for
the loss of the thing and even when the loss was due to force
majeure.
XV
a)
Lolita was employed in a finance company. Because
she could not account for the funds entrusted to her, she was
charged with estafa and ordered arrested. In order to secure
her release frOmjail, her parents executed a promissory note
to pay the finance company the amount allegedly
misappropriated by their daughter. The finance company
then executed an affidavit of desistance which led to the
withdrawal of the information against Lolita and her release
from jalL The parents failed to comply with their promissory
note and the finance company sued them for specific
performance. Will the action prosper or not? (3%)
SUGGESTED ANSWER:
The action will prosper. The promissory note executed
by Lolita’s parents is valid and binding, the consideration ft ^ (
being the extinguishment of Lolita’s civil liability and not the^
stifling of the criminal prosecution.
ALTERNATIVE ANSWER:
The action will not prosper because the consideration
for the promissory note was the non-prosecution of the
criminal case for estafa. This cannot be done anymore
because the information has already been filed in court and
to do it is illegal. That the consideration for the promissory
note is the stifling of the criminal prosecution is evident from
the execution by the finance company Of the. affidavit of
desistance immediately after the execution by Lolita’s parents
of the promissory note. The consideration being illegal, the
promissory note is invalid and may not be enforced by court
action.
169
b)
Pedro promised to give his grandson a car if the latter
will pass the bar examinations. When his grandson passed
the said examinations, Pedro refused to give the car on the
ground that the condition was a purely potestative one. Is he
correct or not? (2%)
*
S U G G E S T E D A N S W E R :
?f j
No, he iS not correct. First of all, the condition is npt
purely potestative, because it does not depend on the sole will
of one of the parties. Secondly, even if it were, it would be
valid because It depends on the sole will of the creditor (the
donee) and not of the debtor (the donor).
XVI
In an action brought to collect a sum of money based on
a surety agreement, the defense ofiaches was raised as the
claim was filed more than seven years from the maturity of
the obligation. However, the action was brought within the
ten-year prescriptive period provided by law wherein actions
based on written contracts can be instituted.
a) Will the defense prosper? Reason. (3%)
b) What are the essential elements of laches? (2%)
S U G G E S T E D
ANSWER:
ut
No, the defense will not prosper. The problem dip not
give facts from which laches may be inferred. Mere delay in
filing an action, standing alone, does not constitute laches
(Agra v. PNB, 309 SCRA 509).
SUGGESTED ANSWER:
b)
The four basic elements of iaches are: (1) conduct on
the part of the defendant or of one under whom he claims,
giving rise to the situation of which complainant seeks a
remedy; (2) delay in asserting the complainant’s rights, the
complainant having had knowledge or notice of the defendant’s
conduct and having been afforded an opportunity to institute
suit; (3) lack of knowledge on the part o f the defendant that
170
the complainant would assert the right on which he bases his
suit; and (4) Injury or prejudice to the defendant In the event
relief Is accorded to the complainant, or the suit Is not heid
to be barred.
xvn.
,
I1**
i^£
[
itfo
In 1955, Ramon and his sister Rosario Inherited a parcel
o f land in Albay from their parents. Since Rosario was
gainfully employed in Manila, she left; Ramon alone to
possess and cultivate the land. However, Ramon never
shared the harvest with Rosario and was even able to sell onehalf o f the land In 1985 by claiming to be the sole heir o f his
parents. Having reached retirement age In 1990 Rosario .jjjo
returned,to the province and upon learning what had
transpired, demanded that the remaining half of the land be ^ __
given to her as her share. Ramon opposed, asserting that he ^ ^
has already acquired ownership o f the land by prescription,
and that Rosario is barred by laches from demanding partition
and reconveyance. Decide the conflicting claims. (5%)
SUGGESTED ANSWER:
RamOn is wrong on both counts: prescription and
laches. His possession as co-owner did not give rise to
acquisitive prescription. Possession by a co-owner is deemed
not adverse to the other co-owners but is, on the contrary,
deemed beneficial to them {Pangan v. CA, 166 SCRA 375).
‘ Ramon’s possession will become adverse only when he has
repudiated the co-ownership and such repudiation was
made known to Rosario. Assuming that the sale in 1985
"wEere Ramon claimed he Was the sole heir of his parents
am ounted to a repudiation o f the co-ownership, the
prescriptive period began to run only from that time. Not.
more than 30 years having lapsed since then, the claim of
Rosario has not as yet prescribed. The claim of laches is not
also meritorious. Until the repudiation of the co-ownership
was made known to the other co-owners, no right has been
violated for the said co-owners to vindicate. Mere delay In
vindicating the right, standing alone, does not constitute
laches.
171
wo"T
ALTERNATIVE ANSWER:
Ramon has acquired the land by acquisitive prescription,
and because of laches on the part of Rosario. Ramon!s
possession o f the land was adverse because he asserted sole
ownership thereof and never shared the harvest thprpfmpv
His . adverse possession having been continuous and
uninterrupted for more than 30 years, Ramon has acquired
the land by prescription. Rosario is also guilty o f iaches not
having asserted her right to the harvest for more than ^0
years.
xvm
A foreign munufacturer of Computers and a Philippine
distributor entered into a contract whereby the distributor
agreed to order 1,000 units of the manufacturer’s computers
every month and to resell them in the Philippines at the
manufacturer’s suggested prices plus 10%. All unsold units
at the end of the year shall be bought back by the manufacturer
at the same price they were ordered. The manufacturer shall
hold the distributor free and harmless from any claim for
defects in the units. Is the agreement one for sale or agency?
(5%)
SUGGESTED ANSWER:
The contract is one cff agency yiot sale. The notion of sale
is negated by the followingtndieisC; (1) the price Is fixed by the |
m anufacturer with the 10°/o mark-up constituting t h e y
commission;/(2) the manufacturer reacquires the unsold I
units at exactly the same price j/and (3) warranty for the units \ '
was borne by the manufacturer. The foregoing Indicia negate ' ^
sale because they indicate that ownership over the units was ^
never intended to transfer to the distributor.
XIX.
a)
A leased his house to B with a condition that the
leased premises shall be used for residential purposes only.
B subleased the house to C who used It as a warehouse for
fabrics. Upon learning this-, A demanded that C stop using
the house as a warehouse, but C ignored the demand. A then
filed an action for ejectment against C, who raised the defense
that there is no privity o f contract between him and A, and
that he has not been remiss in the payment o f rent. Will the
action prosper? (3%)
SUGGESTED ANSWER:
,
,
>(W /{CC mcM
AMw' ■* Xe.
<u< W
of 76, -)Ug
Yes, the action will prosppfT Under Article 1651 o f the
Civil Code, the sublessee: is ffound to the lessor for all acts
which refer to the use and preservation o f the thing leased in
the manner stipulated between the lessor and the lessee.
b)
In 1995, Mark leased the rice land of Narding in
Nueva Ecija for an annual rental of P I ,000.00 per hectare. In
1998, due to the El Nino phenomenon, the rice harvest fell to
only 40% o f the average harvest for the previous years. Mark
asked Nafding for a reduction o f the rental to P500.00 per
hectare for that year but the latter refused. Is Mark legally
entitled to such reduction? (2%)
SUGGESTED ANSWER:
No, Mark is not entitled to a reduction. Under Article
1680 of the Civil Code, the lessee of a rural land is entitled to
a reduction of the rent only in case of loss of more than 1 /9.
o f the fruits through extraordinary and unforeseen fortuitous
events. While the drought brought about by the “El Nino"
phenomenon may be classified as extraordinary, it is not
considered as unforeseen.
ALTERNATIVE ANSWER:
Yes, Mark is entitled to a reduction o f the rent. His loss
was more than 1/2 of the fruits and .the loss was due to an
extraordinary and unforeseen fortuitous event. The “El Nino"
phenomenpn is extraordinary because it is uncommon; it
does not occur with regularity. And neither could the parties
have foreseen its occurrence. The event should be foreseeable
by the parties so that the lessee can change the time for his
planting, or refrain from planting, or take steps to avoid the
loss.To be foreseeable, the time and the place of the occurrence.
173
c
as well as the magnitude of the adverse effects of the
fortuitous event must be capable of being predicted. Since
the exact place, the exact time, and the exact magnitude of
the adverse effects of the “El Nino'’ phenomenon are still
unpredictable despite the advances in science, the
phenomenon is considered unforeseen.
•
*.•
W-, .
Xa .
a)
Silvestre leased a car from Ayis-Rent-A-Car Co. at
the Mactan International Airport. No sooner had he driven
the car outside the airport when, due to his negligence, he
bumped an FX taxi owned and driven by Victor, causing
damage to the latter in the amount of P100.000.00. Victor
filed an action for damages against both Silvestre and Avis,
based on quasi-delict. Avis filed a motion to dismiss the
complaint against it on the ground of failure to state a cause
of action. Resolve the motion. (3%)
SUGGESTED ANSWER:
The motion to dismiss should be granted. AVIS is not the
employer of Silvestre; hence, there is no right of action
’'against AVIS under Article 2180 of the Civil Code. Not being
the employer, AVIS has no duty to supervise Silvestre.
Neither has AVIS the duty to observe due diligence In the
selection of its customers. Besides* It was given In the
problem that the cause of the accident was the negligence of
Silvestre.
!
ALTERNATIVE ANSWER:
t if e 'l
U. e~+
q o
:
The motion shouldjsfe denied. Under the Public Service
Law, the registered oftmer of a public utility Is liable for the
damages suffered by thircr persons through the use of such
public utility. Hence, the cause of action is based In law, the
Public Service Law.
■,
b)
Despite a warning from the police that an attempt
to hijack a PAL plane will be made in the following week, the
airline did not take extra precautions, such as frisking of
passengers, for fear of being accused of violating human
174
rights. Two days later, an armed hijacker uiu ai.i'L.uij/b-whijack a PAL flight to Cebu. Although he was subdued by the
other passengers, he managed to fire a shot which hit and
killed a female passenger. The victim’s parents sued the
airline for breach of contract, and the airline raised the
defense of force mqjeure. Is the airline liable or not? (2%)
SUGGESTED ANSWER:
The airline is liable. In case of death of a passenger,
common carriers are presumed to have been at fanH or to, V jN Jg S
eoP
have acted negligently, unless they prove that they observed 1
tW vW extraordinary diligence (Article 1756, Civil Cede). The failure
of the airline to take extra precautions despite a police
warning that an attempt to hijack the plane would be made,
was negligence on the part of the airline. Being negligent, it
is liable for the death of the passenger. The defense offorce
mqjeure is not tenable since the shooting Incident would not
have happened had the airline taken steps that could have
prevented the hijacker from boarding the plane.
ALTERNATIVE ANSWER:
hi*.
Under Article 1763 of the Civil Code, the common
carrier is not required to observe extraordinary diligence in
preventing Injury to Its passengers on account of the willful
acts or negligence of other passengers or of strangers. The
common carrier, in that case, is required to exercise only the
diligence of a good father of a family; hence, the failure of the
airline to take EXTRA precautions in frisking the passengers
and by leaving that matter to the security personnel of the
airport, does not constitute a breach of that duty so as to
make the airline liable. Besides, the use of irresistible force
by the hijackers was force mqjeure that could not have been
prevented even by the observance of extraordinary diligence,
□ □□
175
1999 BAR EXAMINATION
I.
Elated that her sister who had been married for five
years w as pregnant for the first time, Alm a donated
P100,000.00 to the unborn child. Unfortunately, the baby
died one hour after delivery. May Alm a recover the
P10Q,000.00 that she had donated to said baby before it
was bom considering that the baby died? Stated otherwise,
is the donation valid and binding? Explain. (5%)
ANSWER:
The donation is valid and binding, being an act fa­
vorable to the unborn child, but only if the baby had an
intra-uterine life of not less than seven months and pro­
vided there was due acceptance of the donation by the
proper person representing said child. If the child had
less than seven months of intra-uterine life, it is not
deemed born since it died less than 24 hours following
its delivery, in which case the donation never became
effective since the donee never became a person, birth
being determinative of personality.
ALTERNATIVE ANSWER:
Even if the baby had an intra-uterine life o f more
than seven months and the donation was properly ac­
cepted, it would be void for not having conformed with
the proper form. In order to be valid, the donation and
acceptance of personal property exceeding five thousand
pesos should be in writing. (Article 748, par. 3)
II.
Mr. and Mrs, Cruz, who are childless, met with a seri­
ous motor vehicle accident with Mr. Cruz at the wheel and
Mrs. Cruz seated beside him, resulting in the instant death
176
of Mr. Cruz. Mrs. Cruz was still alive when help came but
she also died on the way to the hospital. The couple ac­
quired properties worth One Million (P I,000,000.00) Pesos
during their marriage, which are being claimed by the par­
ents of both spouses in equal shares. Is the claim of both
sets of parents valid and why? (3%)
(b) Suppose in the preceding question, both Mr. and
Mrs. Cruz were already dead when help came, so that no­
body could say who died ahead of the other, would you an­
swer be the same to the question as to who are entitled to
the properties of the deceased couple? (2%)
ANSWER:
(a)
No, the claim of both parents is not valid.
When Mr. Cruz died, he was succeeded by his wife and
his parents as his intestate heirs who will share his es­
tate equally. His estate was 0.5 Million pesos which is
his half share in the absolute community amounting to
1 Million Pesos. His wife, will, therefore, inherit 0.25
Million Pesos aiid his parents will inherit 0.25 Million
Pesos.
When Mrs. Cruz died, she was succeeded by her par­
ents as her intestate heirs. They will inherit all o f her
estate consisting of her 0.5 Million half share in the ab­
solute community and her 0.25 Million inheritance from
her husband, or a total of 0.750 Million Pesos.
In sum, the parents of Mr. Cruz will inherit 250,000
Pesos while the parents of Mrs. Cruz will inherit 750,000
Pesos.
(b) This being a case of succession, in the absence
of proof as to the time of death of each of the spouses, it
is presumed they died at the same time and no transmis­
sion of rights from one to the other is deemed to have
taken place. Therefore, each of them is deemed to have
an estate valued at P500,000.00, or one-half of their
conjugal property of P I million. Their respective par­
177
ents will thus inherit the entire P I Million in equal shares,
or P500,000.00 per set of parents.
III.
What is the status of the following marriages and why?
(a) A marriage between two 19-year olds without pa­
rental consent. (2%)
(b) A marriage between two 21 -year olds without pa­
rental advice. (2%)
(c) A marriage between, two Filipino first cousins in
Spain where such marriage is valid. (2%)
(d) A marriage between two Filipinos in Hong kong
before a notary public. (2%)
(e) A marriage solemnized by a town mayor three
towns away from his jurisdiction. (2%)
ANSWER:
(a) The marriage is voidable. The consent o f the
parties to the marriage was defective. Being below 21
years old, the consent of the parties is not full without
the consent of their parents. The consent of the parents
o f the parties to the marriage is indispensable for its
validity.
(b) Between 21-year olds, the marriage is valid de­
spite the absence of parental advice, because such ab­
sence is merely an irregularity affecting a formal requi­
site— i.e., the marriage license-and does not affect the
validity o f the marriage itself. This is without prejudice
to the civil, criminal, or administrative liability of the
party responsible therefor.
(cj By reason of public policy, the marriage between
Filipino first cousins is void [Art. 38, par. (l)j Family
Code], and the fact that it is considered a valid marriage
in a foreign country in this case, Spain— does not vali­
date it, being an exception to the general rule in Art. 26
o f said Code which accords validity to all marriages sol­
emnized outside the Philippines x x x and valid there as
such<
ALTERNATIVE ANSWER:
The marriage is void. Under Article 26 of the Family
Code, a marriage valid where celebrated is valid in the
Philippines except those marriages enumerated in said
Article which marriages will remain void even though
valid where solemnized-. The marriage between first cous­
ins is one of those marriages enumerated therein, hence,
it is void even though valid in Spain where it was cel­
ebrated.
ANOTHER ALTERNATIVE ANSWER:
By reason of Art. 15 in relation to Article 38 of the
Civil Code, which applies to Filipinos wherever they are,
the marriage is void.
(d)
It depends. If the marriage before the notary
public is valid under Hong kong Law, the marriage is valid
In the Philippines. Otherwise, the marriage that is in­
valid in Hong kong will be invalid in the Philippines.
ALTERNATIVE ANSWER:
If the two Filipinos believed in good faith that the
Notary Public is authorized to solemnize marriage, then
the marriage is valid.
(e) Under the Local Government Code, a town mayor
may validly solemnize a marriage but said law is silent
as to the territorial limits for the exercise by a town mayor
of such authority. However, by analogy, with the au­
thority of members of the judiciary to solemnize a mar
riage, it would seem that the mayor did not have the
requisite authority to solemnize a marriage outside of
179
Eva now wants to know what action or actions she can
file against Ben. She also wants to know if she can likewise
marry again. What advice can you give her? (5%)
ANSWER:
Considering that Art. 26(2nd par.) contemplates a
divorce between a foreigner and a Filipino, who had such
respective nationalities at the time of their marriage,
the divorce in Europe will not capacitate the Filipino
wife to remarry. The advice we can give her is either to
file a petition for legal separation, on the ground of sexual
in fid elity and o f contracting a bigam ous marriage
abroad, or to file a petition to dissolve the conjugal part­
nership or absolute community o f property as the case
maybe.
ALTERNATIVE ANSWER:
Eva may file an action for legal separation on the
grounds o f sexual infidelity of her husband and the con­
tracting by her husband of a bigamous marriage abroad.
She may remarry. While a strict interpretation of
Article 26 of the Family Code would capacitate a Filipino
spouse to remarry only when the other spouse was a
foreigner at the time of the marriage, the DOJ has issued
an opinion (Opinion 134 s. of 1993) that the same injus­
tice sought to be cured by Article 26 is present in
the
case o f spouses who were both Filipino at the time of the
marriage but one became an alien subsequently. Said
injustice is the anomaly of Eva remaining married to her
husband who is no longer married to her. Hence, said
Opinion makes Article 26 applicable to her case and the
divorce obtained abroad by her former Filipino husband
would capacitate her to remarry. To contract a subse­
quent marriage, all she needs to do is present to the civil
registrar the decree of divorce when she applies for a
marriage license under Article 13 of the Family Code.
180
1
his territorial jurisdiction. Hence, the marriage is void,
unless it was contracted with either or both parties be­
lieving in good faith that the mayor had the legal author­
ity to solemnize this particular marriage [Art. 35, par.
(2), Family Code].
ALTERNATIVE ANSWER:
The marriage is valid. Under the Local Government
Code, the authority o f a mayor to solemnize marriages is
not restricted within his municipality implying that he
has the authority even outside the territory thereof.
Hence, the marriage he solemnized outside his munici­
pality is valid. And even assuming that his authority is
restricted within his municipality, Such marriage will,
nevertheless, be valid because solemnizing the marriage
outside said municipality is a mere irregularity applying
by analogy the case of Navarro v. Domagtoy, 259 SCRA
129. In this case, the Supreme Court held that the cel­
ebration by a judge of a marriage outside the jurisdiction
of his court is a mere irregularity that did not affect the
validity o f the marriage notwithstanding Article 7 of the
Family Code which provides that an incumbent member
of the judiciary is authorized to solemnize marriages only
within the court’s jurisdiction.
ANOTHER ALTERNATIVE ANSWER:
The marriage is void because the mayor has no au­
thority to solemnize marriage outside his jurisdiction.
IV.
Ben and Eva were both Filipino citizens at the time of
their marriage in 1987. When their marriage turned sour,
Ben went to a small countiy in Europe, got himself natural­
ized there, and then divorced Eva in accordance with the
law of that country. Later, he returned to the Philippines
with his new wife.
181
V.
What do you understand by “presumptive legitime”) in
what case or cases must the parent deliver such legitime to
the children, and what are the legal effects in each case if
the parent fails to do so? (5%)
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 delivery to the legiti­
mate. children of "the equivalent o f what would have
been due to them as their legal portion if said spouse
liad died intestate immediately after the dissolution of
the community of property.” As used in the Family Code,
presumptive legitime is understood as the equivalent of
the legitimate children’s legitimes assuming that the
spouses had died immediately after the dissolution of
the community o f property.
Presumptive legitime i3 required to be delivered to
the common children o f the spouses when the marriage
is annulled or declared void ab initio and possibly, when
the conjugal partnership or absolute community is dis­
solved as in the case o f legal separation. Failure o f the
parents to deliver the presumptive legitime will make
their subsequent marriage hull and void under Article 53
o f the Family Code.
VI.
(a)
Two (2) months after the death of her husband
who was shot by unknown criminal elements on his way
home from office, Rose married her childhood boyfriend, and
seven (7) months after said marriage, she delivered a baby.
In the absence of any evidence from Rose as to who is her
child’s father, what status does the law give to said child?
Explain. (2%)
182
(b)
Nestor is the illegitimate son of Dr. Perez. When
Dr. Perez died, Nestor intervened in the settlement of his
father’s estate, claiming that he is the illegitimate son of
said deceased, but the legitimate family of Dr. Perez is deny­
ing Nes,tor?s claim. What evidence or evidences should Nestor
present so that he may receive his rightful share in his father’s
estate? (3%)
ANSWER:
(a) The child is legitimate of the second marriage
under Article 168(2) of the Family Code which provides
that a “child bom after one hundred eighty days follow­
ing the celebration of the subsequent marriage isconsid­
ered to have been conceived during such marriage, even
though it be bora within three hundred days after the
termination o f the former marriage.”
(b) To be able to inherit, the illegitimate filiation
o f Nestor must have been admitted by his father in any
o f the following: (1) the record of birth appearing in the
civil register, (2) a final judgment, (3) a public document
signed by the father, or (4) a private handwritten docu­
ment signed by the father (Article 175 in relation to Ar­
ticle 172 of the Family Code).
vn.
(a) Mr. Cruz, widower, has three legitimate children,
A, B and C. He executed a Will instituting as his heirs to his
estate of One Million (I5!, 000,000.00) Pesos his two children
A and B, and his friend F. Upon his death, how should Mr.
Cruz’s estate be divided? Explain. (3%)
(b) In the preceding question, suppose Mr. Cruz in
stituted his two children A and B as his heirs in his Will,
but gave a legacy of P 100,000.00 to his friend P. How should
the estate of Mr. Cruz be divided upon his death? Explain.
(2 %)
183
A N S W ER :
(a) Assuming that the Institution of A, B and F were
to the entire estate, there was preterition of C since C is
a compulsory heir in the direct line. The preterition will
result in the total annulment of the institution o f heirs.
Therefore, the institution of A, B and F will be set aside
and Mr. Cruz’s estate will be divided, as in intestacy,
equally among A, B and C as follows: A - P333,333.33; B
- P333,333.33; and C - P333,333.33.
(b) On the same assumption as letter (a), there was
preterition of C. Therefore, the institution of A and B is
annulled but the legacy o f P100,000.00 to F shall be
respected for not being inofficious. Therefore, the remain­
der o f P900,000.00 will be divided equally among A, B
and C.
VIII.
(a.) Mr. Palma, widower, has three daughters D, D -l
and D-2. He executes a Will disinheriting D because she
married a man he did not like, and instituting daughters D1 and D-2 as his heirs to his entire estate of P 1,000,000.00.
Upon Mr. Palma’s death, how should hi« estate be divided?
Explain. (5%)
(b.) Mr. Luna died, leaving an estate of Ten Million
(PIO,000,000.00) Pesos. His widpw gave birth to a child
four months after Mr. Luna’s death, but the child died five
hours after birth. Two days after the child’s death, the widow
of Mr. Luna also died because she had suffered from diffi­
cult childbirth. The estate of Mr. Luna is now being claimed
by his parents, and the parents of his widow. Who is en­
titled to Mr. Luna’s estate and why? (5%)
ANSWER:
(a)
This is a case o f ineffective disinheritance be­
cause marrying a man that the father did not approve of
Is not a ground for disinheriting D. Therefore, the insti-
184
tution o f D -l and D-2 shall be annulled insofar as it prejud i c e s the legitime of D, and the institution of D - l and D 2 shall only apply on the free portion in the amount; of
P500,000.00. Therefore, D, D -l and D-2 will get their
legitimes o f P500,000.00 divided into three equal parts
and D -l and D*2 will get a reduced testamentary disposi­
tion o f P25Q,000.00 each.. Hence, the shares will be:
D
D -l
D-2
-
P166,666.66
P166,666.66 + P250,000.00
P166,666.66 + P250,000.00
(b.) Half o f the estate of Mr. Luna will go to the
parents of Mrs. Luna as their inheritance from Mrs. Luna,
while the other half will be inherited by the parents of
Mr. Luna as the reservatarios of the reserved property
inherited by Mrs. Luna from her child.
When Mr. Luna died, his heirs were his wife and the
unborn child. The unborn child inherited because the
inheritance was favorable to it and it was born alive later
though it lived only for five hours. Mrs. Luna inherited
half of the 10 Million estate while the unborn child in­
herited the other half. When the child died, it was sur­
vived by its mother, Mrs. Luna. As the only heir, Mrs.
Luna inherited, by operation of law, the estate o f the
child consisting of its 5 Million inheritance from Mr. Luna.
In the hands of Mrs. Luna, what she inherited froni her
child was subject to reserva troncal for the benefit o f the
relatives of the child within the'third degree of consan­
guinity and who belong to the family of Mr. Luna, the
line where the property came from.
When Mrs. Luna died, she was survived by her par­
ents as her only heirs. Her parents will inherit her es­
tate consisting of the 5 Million she inherited from Mr.
Luna. The other 5 Million she inherited from her child
will be delivered to the parents of Mr. Luna as beneficia­
ries of the reserved property.
185
lia sum, 5 Million Pesos of Mr. Luna’s estate will go
to the parents of Mrs. Luna, while the other 5 Million
Pesos will go to the parents of Mr. Luna as reservatarios.
ALTERNATIVE ANSWER:
If the child had an intra-uterine life of not less than
7 months, it inherited from the father. In which case,
the estate of 10M will be divided equally between the
child and the widow as legal heirs. Upon the death o f the
child, Its share of 5M shall go by operation of law to the
mother, which shall be subject to reserva troncal. Under
Art. 891, the reserva is in favor of relatives belonging to
the paternal line and who are within 3 degrees from the
child. The parents of Mr. Luna are entitled to the re­
served portion which is 5M as they are 2 degrees related
from child. The 5M inherited by Mrs. Luna from Mr. Luna
will be inherited from her by her parents.
However, if the child had intra-uterine life o f less
than 7 months, half of the estate of Mr. Luna, or 5M, will
be inherited by the widow (Mrs. Luna), while the other
half, or 5M, will be inherited by the parents of Mr. Luna.
Upon the death of Mrs. Luna, her estate of 5M will be
inherited by her own parents.
IX.
(a) Because of confusion as to the boundaries of the
adjoining lots that they bought from the same subdivision
company, X constructed a house on the adjoining lot of Y in
the honest belief that it is the land that he bought from the
subdivision company. What are the respective rights of X
and Y with respect to X’s house? (3%)
(b) Suppose X was in good faith but Y knew that X
was constructing on his (Y’s) land but simply kept quiet
about it, thinking perhaps that he could get X ’s house later.
What are the respective rights of the parties over X’s house
in this case? (2%)
186
ANSWER:
(a) The rights of Y, as owner of the lot, and of X, as
builder o f a house thereon, are governed by Art. 448 of
the Civil Code which grants to Y the right to choose be­
tween two remedies: (a) appropriate the house by in­
demnifying X for its value plus whatever necessary ex­
penses the latter may have incurred for the preservation
o f the land, or (b) compel X to buy the land if the price of
the land is not considerably more than the value of the
house. If it is, then X cannot be obliged to buy the land
but he shall pay reasonable rent, and in case of disagree*
ment, the court shall fix the terms of the lease.
(b). Since the lot owner Y is deemed to be in bad
faith (Art. 453), X as the party in good faith may (a) re­
move the house and demand indemnification for dam­
ages suffered by him, or (b) demand payment o f the value
of the house plus reparation for damages (Art. 447, in
relation to Art. 454). Y continues as owner of the lot and
becomes, under the second option, owner of the house
as well, after he pays the sums demanded.
X.
The spouses X and Y mortgaged a piece of registered
land to A, delivering as well the OCT to the latter, but they
continued to possess-and cultivate the land, giving 1/2 of
each harvest to A in partial payment of their loan to the
latter. A, however, without the knowledge of X and Y, forged
a deed of sale of the aforesaid land in favor of himself, got a
TGT in his name, and then sold the land to B, who bought
the land relying on A’s title, and who thereafter also got a
TCT in his name. It was only then that the spouses X and Y
learned that their land had been titled in B’s name. May
said spouses file an action for reconveyance of the land in
question against b? Reason. (5%)
187
ANSWER:
The action of X and Y against B for reconveyance of
the land will not prosper because B has acquired a clean
title to the property being an innocent purchaser for
value.
A forged deed is an absolute nullity and conveys
ho title. The fact that the forged deed was registered
and a certificate of title was issued in his name, did not
operate to vest upon A ownership over the property o f X
and Y. The registration o f the forged deed will not cure
the infirmity. However, once the title to the land is reg­
istered in the name of the forger and title to the land
thereafter falls into the hands of an innocent purchaser
for value, the latter acquires a clean title thereto. A buyer
o f a registered land is not required to explore beyond
what the record in the registry indicates on its face in
quest for any hidden defect or inchoate right which may
subsequently defeat his right thereto. This is the “mir­
ror principle” of the Torrens system which makes it pos^
sible for a forged deed to be the root of a good title.
Besides, it appears that spouses X and Y are guilty
of contributory negligence when they delivered this OCT
to the mortgagee without annotating the mortgage
thereon. Between them and the innocent purchaser for
value, they should bear the loss.
ALTERNATIVE ANSWER:
If the buyer B, who relied on the seller A ’s title, was
not aware of the adverse possession of the land by the
spouses X and Y, then the latter cannot recover the prop­
erty from B. B has in his favor the presumption of good
faith which tan only be overthrown by adequate proof of
bad faith. However, nobody buys land without seeing
the property, hence, B could not have been unaware of
such adverse possession. If after learning of such pos­
session, B simply closed his eyes and did nothing about
it, then the suit for reconveyance will prosper as the
buyer’s bad faith will have become evident.
188
XI.
In 1997, Manuel bound himself to sell Eva a house and
lot which is being rented by another person, if Eva passes
the 1998 bar examinations. Luckily for Eva, she passed
said examinations.
(a) Suppose Manuel had sold the same house and lot
to another before Eva passed the 1998 bar examinations, is
such sale valid? Why? (2%)
(b) Assuming that it is Eva who is entitled to buy said
house and lot, is she entitled to the rentals collected by
Manuel before she passed the 1998 bar examinations? Why?
(3%)
.
ANSWER:
(a)
Yes, the sale to the other person is valid as a
sale with a resolutory condition because! what operates
as a suspensive condition for Eva operates a resolutory
condition for the buyer.
FIRST ALTERNATIVE ANSWER:
Yes, the sale to the other person is valid. However,
the buyer acquired the property subject to a resolutory
condition of Eva passing the 1998 Bar Examinations.
Hence, upon Eva’s passing the Bar, the rights of the other
buyer terminated and Eva acquired ownership of the prop­
erty.
SECOND ALTERNATIVE ANSWER:
The sale to another person before Eva could buy it
from Manuel is valid, as the contract between Manuel
and Eva is a mere promise to sell and Eva has not ac­
quired a real right over the land assuming that there is a
price stipulated in the contract for the contract to be
considered a sale and there was delivery or tradition of
the thing sold.
189
(bj No, she is not entitled to the rentals collected
by Manuel because at the time they accrued and were
collected, Eva was not yet the owner of the property.
FIRST ALTERNATIVE ANSWER:
Assuming that Eva is th6 one entitled to buy the
house and lot, she is not entitled to the rentals collected
by Manuel before she passed the bar examinations.
Whether it is a contract of sale or a contract to sell, re­
ciprocal prestations are deemed imposed A for the seller
to deliver the object sold and for the buyer to pay the
price. Before the happening of the condition, the fruits
of the thing and the interests on the money are deemed
to have been mutually compensated under Article 1187.
SECOND ALTERNATIVE ANSWER:
Under Art. 1164, there is no obligation on the part
of Manuel to deliver the fruits (rentals) of the thing until
the obligation to deliver the thing arises. As the suspen­
sive condition has not been fulfilled; the obligation to
sell does notarise.
XII.
In 1950, the Bureau of Lands issued a Homestead patent
to A. Three years later, A sold the homestead to B. A died in
1990, and his heirs filed an action to recover the homestead
from B cn the ground that its sale by their father to the
latter is void under Section 118 of the Public Land Law. B
contends, however, that the heirs o f A cannot recover the
homestead from him anymore because their action has pre­
scribed and that furthermore, A was in pari delicto. Decide.
(5%)
ANSWER;
The sale of the land by A to B 3 years after issuance
of the homestead patent, being in violation of Section
118 of the Public Land Act, is void from its inception.
190
The action filed by the heirs of B to declare the nullity or
inexistence of the contract and to recover the land should
be given due course.
B’s defense of prescription is untenable because an
action which seeks to declare the nullity or inexistence
of a contract does not prescribe. (Article 1410; Banaga
vs. Soler, 2 SCRA 755)
On the other hand, B’s defense of pari delicto is
equally untenable. While as a rule, parties who are ih
pari delicto have no recourse against each other on the
principle that a transgressor cannot profit from his own
wrongdoing, such rule does not apply to violations of
Section 118 of the Public Land Act because of the under­
lying public policy in the said Act “to conserve the land
which a homesteader has acquired by gratuitous grant
from the government for himself and his family”. In keep­
ing with this policy, it has been held that one who pur­
chases a homestead within the five-year prohibitory pe­
riod can only recover the price which he has paid by fil­
ing a claim against the estate of the deceased seller (La­
brador vs. Delos Santos 66 Phil. 579) under the principle
that no one shall enrich himself at the expense of an­
other. Applying the pari delicto rule to violation of Sec­
tion 118 of the Public Land Act, the Court of Appeals has
ruled that “the homesteader suffers the loss of the fruits
realized by the vendee who in turn forfeits the improve­
ment that he has introduced into the land.” (Obot vs.
Sandadillas, 62 OG, April 25, 1966)
FIRST ALTERNATIVE ANSWER:
The action to declare the nullity of the sale did not
prescribe (Art. 1410), such sale being one expressly pro­
hibited and declared void by the Public Lands Act [Art.
1409, par. (7)]. The prohibition of the law is clearly for
the protection of the heirs of A such that their recover­
ing the property would enhance the public policy regard­
ing ownership of lands acquired by homestead patent (Art.
1416). The defense of pari delicto is not applicable ei­
191
ther^ since the law itself allows the homesteader to reac­
quire the iand even if it has been sold.
SECOND ALTERNATIVE ANSWER:
Prescription does not arise with respect to actions
to declare a void contract a nullity (Article 1410). Nei­
ther is the doctrine of pari delicto applicable because
of public policy. The law is designed for the protection of
the plaintiff so as to enhance the public policy of the
Public Land Act to give land to the landless.
If the heirs are not allowed to recover, it could be on
the ground of laches inasmuch as 40 years had elapsed
and the owner had not brought any action against B es­
pecially if the latter had improved the land. It would be
detrimental to B if the plaintiff is allowed to recover.
XIII.
What are the so-called “Maceda” and “Recto” laws in
connection with sales on installments? Give the most im­
portant features of each law. (5%)
ANSWER:
The Maceda Law (R.A. 655) is applicable to sales of
immovable property on installments. The most impor­
tant features are(Rillo v. CA, 247 SCRA 461):
(1)
After having paid installments for at least two
years, the buyer is entitled to a mandatory grace period
o f one month for every year of installment payments
made, to pay the unpaid installments without interest.
If the contract is cancelled, the seller shall refund
to the buyer the cash surrender value equivalent to fifty
percent (50%) of the total payments made, and after five
years o f installments, an additional five percent (5%)
every year but not to exceed ninety percent (90%) of the
total payments made.
192
(2) In case the installments paid were less than 2
years, the seller shall give the buyer a grace period of not
less than 60 days. If the buyer fails to pay the install­
ments due at the expiration of the grace period, the seller
may cancel the contract after 30 days from receipt by
the buyer of the notice of cancellation or demand for
rescission by notarial act.
The Recto Law (Art. 1484) refers to sale of movables
payable in installments and limiting the right of seller,
in case of default by the buyer, to one of three remedies:
(a) exact fulfillment;
(b) cancel the sale if two or more installments have
not been paid;
(c) foreclose the chattel mortgage on the things sold,
also in case of default of two or more installments, with
no further action against the purchaser.
XIV.
(a) May a lessee sublease the property leased without
the consent of the lessor, and what are the respective liabili­
ties of the lessee and sub-lessee to the lessor m case of such
sublease? (3%)
(b) Under what circumstances would an implied new
lease oi a tacita reconduccion arise? (2%)
ANSWER:
(a)
Yes, provided that there is no express prohibi­
tion against subleasing. Under the law, when in the con­
tract of'lease of things there is no express prohibition,
the lessee may sublet the thing leased without prejudice
to his responsibility for the performance of the contract
toward the lessor. (Art. 1650)
193
In case there is el sublease of the premises being
leased, the sublessee is bound to the lessor for all the
acts which refer to the use and preservation of the thing
leased in the manner stipulated between the lessor and
the.lessee. (Art. 1651)
The sublessee is subsidiarily liable to the lessor for
any rent due from the lessee. However, the sublessee
shall not be responsible beyond the amount of the rent
due from him. (Art. 1652)
As to the lessee, the latter shall still be responsible
to the lessor for the rents; bring to the knowledge of £he
lessor every usurpation or untoward act which any third
person may have committed or may be openly preparing
to carry out upon the thing leased; advise the owner the
need for all repairs; to return the thing leased upon the
termination of the lease just as he received it, save what
has been lost or impaired by the lapse of time or by ordi­
nary wear and tear or from an inevitable cause; respon­
sible for the deterioration or loss of the thing leased,
unless he proves that it took place without his fault.
(b)
An implied new lease or tacita reconduccion
arises if at the end of the contract the lessee should con­
tinue enjoying the thing leased for 15 days with the ac­
quiescence of the lessor, and unless a notice to the con­
trary by either parties has previously been given (Art.
1670). In short, in order that there may be tacita
reconduccion there must be expiration of the contract;
there must be continuation of possession for 15 days or
more; and there must be no prior demand to vacate.
XV.
(a) X appoints Y as his agent to sell his products in
Cebu City. Can Y appoint a sub-agent and if he does, what
are; the effects of such appointment? (5%)
(b) A granted B the exclusive right to sell his brand of
Maong pants in Isabela, the price for his merchandise pay­
194
able within 60 days from delivery, and promising B a com­
mission of 20% on all sales. After the delivery of the mer­
chandise to B but before he could sell any of them, BOs
store in Isabela was completely burned without his fault,
together with all of A’s pants. Must B pay A for his lost
pants? Why? (5%)
ANSWER:
a.
Yes, the agent may appoint a substitute or subagent if the principal has not prohibited him from doing
so, but he shall be responsible for the acts of the substi­
tute:
(1), when he was not given the power to appoint one;
(2) when he was given such power, but without des­
ignating the person, and the person appointed was noto­
riously incompetent or insolvent.
(b)
The contract between A and B is a sale not an
agency to sell because the price is payable by B upon 60
days from delivery even if B is unable to resell it. If B
were an agent, he is not bound to pay the price if he is
unable to resell it.
As a buyer, ownership passed to B upon delivery and,
under Art. 1504 of the Civil Code, the thing perishes for
the owner. Hence, B must still pay the price.
XVI.
(a) Distinguish a contract of chattel mortgage from a
contract of pledge. (2%)
(b) Are the right of redemption and the equity of re­
demption given by law to a mortgagor the same? Explain.
(2 %)
(c) X borrowed money from Y and gave- a piece of
land as security by way of mortgage. It was expressly agreed
195
between the parties in the mortgage contract that upon non­
payment o f the debt on time by X, the mortgaged land would
already belong to Y. If X defaulted in paying, would Y now
become the owner of the mortgaged land? Why? (3%)
(d)
Suppose in the preceding question, the agreement
between X and Y was that if X failed to pay the mortgage
debt on time, the debt shall be paid with the land mortgaged
by X to Y. Would your answer be the same as in the preced­
ing question? Explain. (3%)
ANSWER:
(a)
In a contract of chattel mortgage possession
belongs to the creditor, while j,n a contract of pledge pos­
session belongs to the debtor.
A chattel mortgage is a formal contract while a
pledge is a real contract.
A contract of chattel mortgage must be recorded in
a public instrument to bind third persons while a con­
tract o f pledge must be in a public instrument contain­
ing description of the thing pledged and the date thereof
to bind third persons.
(b) The equity of redemption is different from the
right o f redemption. Equity of redemption is the right o f
the mortgagor after judgment in a judicial foreclosure to
redeem the property by paying to the court the amount
o f the judgment debt before the sale or confirmation of
the sale. On the other hand, right of redemption is the
right o f the mortgagor to redeem the property sold at an
extra-judicial foreclosure by paying to the buyer in the
foreclosure sale the amount paid by the buyer within one
year from such sale.
(c) No, Y would not become the owner of the land.
The stipulation is in the nature of paettum commissorium
which is is prohibited by law. The property should be
sold at public auction and the proceeds thereof applied
196
to the indebtedness. Any excess shall be given to the
mortgagor.
\
(d)
No, the answer would not be the same. This is
a valid stipulation and does not constitute pactum
commissorium. In pactum commissortum, the acquisi­
tion is automatic without need of any further action. In
the instant problem another act is required to be per­
formed, namely, the conveyance of the property as pay­
ment ( dacion en pago\.
197
1998 BAR EXAMINATION
I.
Juan is a Filipino citizen residing in Tokyo, Japan.
State what laws govern:
1.
His capacity to contract marriage in Japan. [1%]
2. . His successional rights as regards his deceased
Filipino father’s property in Texas, U.S A [1%]
3.
The extrinsic validity of the last will and testament
which Juarr executed while sojourning in Switzerland. [2%)
4.
The intrinsic validity of said will. [1%]
Answer:
1.
Juan’s capacity to contract marriage is
governed by Philippine law - i.e., the Family Ccsdte pursuant to Art. 15, Civil Code, which provides that our
laws relating to, among others, legal capacity o f persons
are binding upon citizens o f the Philippines even though
living abroad.
dnswjen
2.
By way of exception to the general rule of lex fei
sitae prescribed by the first paragraph of Art. 16, Civil
Code, a person's successional rights are governed by the
national law o f the decedent (2nd par.. Art. 16). Since
Juan's deceased father was a Filipino citizen, Philippine
law governs Juan's successional rights,
Another Answer:
2.
Juan's successional rights are governed by Phil­
ippine law, pursuant to Article 1039 and the second
paragraph of Article 16, both of the Civil Code. Article,
1039, Civil Code, provides that capacity to succeed shall
be governed by the “law o f the nation" of the decedent,
i.e., his national law. Article 16 provides in paragraph
198
two that the amount of successional rights, order _of
succession, and intrinsic validity o f testamentary suc­
cession shall he governed by the “national law” o f the
decedent who is Identified as & Filipino in the present
problem.
Answer:
3.
The extrinsic validity of Juan's will is governed
by (a) Swiss law, it being the law where the will was made
(Art. 17, 1st par. Civil Code), or (b) Philippine law, by
implication from the provisions of Art. 816, Civil Code,
which allows even an alien who is abroad to make a will
in conformity with our Civil Code.
Answer;
4.
The intrinsic validity of his will is governed by
Philippine law, it being his national law. (Art. 16, Civil
Code)
n.
Francis Albert, a citizen and resident of New Jersey,
U.S.A., under whose law he was still a minor, being only 20
years of age, was hired by ABC Corporation of Manila to serve
for two years as its chief computer programmer. But after
serving for only four months, he resigned to Join XYZ Corpo­
ration, which enticed him by offering more advantageous
terms. His first employer sues him in Manila for damages
arising from the breach of his contract of employment. He
sets up his minority as a defense and asks for annulment of
the contract on that ground. The plaintiff disputes this by
alleging that since the contract was executed in the Philip­
pines under whose law the age of majority is 18 years, he was
no longer a minor at the time of perfection of the contract.
1.
Will the suit prosper? [3%1
2.
Suppose XYZ Corporation Is impleaded as a co­
defendant, what would be the basis of its liability, if any? [2%J
Answer:
1.
The suit will not prosper under Article 15, Civil
Code. New Jersey law governs Francis Albert’s capacity
199
to act, being his personal law from the standpoint of both
his nationality and his domicile. He was, therefore, a
minor at the time he entered into the contract.
Alternative Answer:
1.
The suit will not prosper. Being a U.S. national,
Albert's capacity to enter into a contract is determined
by the law o f the State of which he is a national, under
which he is still a minor. This is in connection with
Article' 15 o f the Civil Code which embodies the said
nationality principle of lex patriae. While this principle
intended to apply to Filipino citizens under that provi­
sion, the Supreme Court in Recto v. Harden is of the view
that the status or capacity of foreigners is to be determined
on the basis o f the same provision or principle, i.e., by
U.S. law in the present problem.
Plaintiffs argument does not hold true, because
status or capacity is not determined by lex loci contractus
but by lex patriae.
Another Answer:
1. Article 17 of the Civil Code provides that the
forms and solemnities of contracts, wills and other'public
instruments shall be governed by the laws of the country
In which they are executed.
Since the contract of employment was executed in
Manila, Philippine law should govern. Being over 18
years old and no longer a minor according to Philippine
Law, Francis Albert can be sued. Thus, the suit of ABC
Corporation against him for damages will prosper.
A nsw er:
2.
XYZ Corporation, having enticed Francis
Albert to break his contract with the plaintiff, may be
held liable for damages under Art. 1314, Civil Code.
Alternative Answer:
2.
The basis of liability of XYZ Corporation would
be Article 28 of the Civil Code which states that:
"Unfair competition in agricultural, commer200
cl&l, m Indus trial enterprises m: in labor through the
use o f force, intimidation, deceit, machination or
any other unjust, oppressive or highhanded method
shall give rise to a right o f action by the person who
thereby suffers damage."
. 2.
N o liability arises. The statement o f the prob­
lem does not in any way suggest intent, malice, or even
knowledge, on the part o f XYZ Corporation as to the
contractual relations between Albeit and ABC Corpora­
tion.
HI.
Jaime, who Is 65, and his soil, Willy, who is 25, died in
a plane crash. There is no proof as to who died first. Jaime’s
only surviving heir is his wife, Julia, who is also Willy’s
mother. Willy’s surviving heirs are his mother, Julia and his
wife, Wilma.
T.
In the settlement of Jaime’s estate, can Wilma
successfully claim that her late husband, Willy had a heredi­
tary share since he was much younger than his father and,
therefore, should be presumed to have survived longer? [3%]
2.
Suppose Jaime had a life Insurance policy with his
wife, Julia, and his son, Willy, as the beneficiaries. Can
Wilma successfully claim that one-half of the proceeds
should belong to Willy’s estate? [2%j
dxmter;
1.
No, Wilma cannot successfully claim that Willy
&ad a hereditary share in his father's estate. Under Art.
43, Civil Code, two person* “who are called to succeed
each other” are presumed to have died at the same time,
In the absence of proof as to which of them died first.
This presumption of simultaneous death applies In cases
involving the question of succession as between the two
who died, who in this case are mutual heirs, being father
and feoft'
201
Answer;
2.
Yes, Wilma cam invoke the presumption of
survivorship and claim that one-half o f the proceeds
s h o u ld belong to Willy's estate, under Sec. 3 (jj) par. 5
Rule 131, Rules o f Court, as the dispute does not Involve
succession. Under this presumption, the person between
the ages Of 15 and 60 years is deemed to have survived
one whose age was over 60 at the time o f their deaths.
The estate of Willy endowed with juridical personality
stands in place and stead of Willy, as beneficiary.
IV
Using a falsified manager’s check, Justine, as the buyer,
was able to take delivery of a second hand car which she had
just bought from United Car Sales, Inc. The sale was
registered with the Land Transportation Office. A week later,
the seller learned that the check had been dishonored, but by
that time, Justine was nowhere to be seen. It turned out that
Justine had sold the car to Jerico, the present possessor who
knew nothing about the falsified check. In a suit by United
Car Sales, Inc. against Jerico for recovery of the car, plaintiff
> alleges it had been unlawfully deprived of its property through
fraud and should, consequently, be allowed to recover it
without having to reimburse the defendant for the price the
latter had paid. Should the suit prosiper? [5%1
Answer:
The suit should prosper as to the recovery of the car.
However, since Jerico was not guilty o f any fraud and
appears to be an innocent purchaser for value, he should
be reimbursed for the price he paid. This Is without
prejudice to United Car Sales, Inc. right of action against
Justine. As between two innocent parties, the party
causing the injury should suffer the loss. Therefore,
United Car Sales, Inc. should suffer the loss.
Alternative Answer:
Yes, the suit will prosper because the criminal act Of
estafa should be deemed to come within the meaning of
unlawful deprivation under Art. 559, Civil Code, as
without it plaintiff would not have parted with the
possession of its car.
202
Another Answer;
No, the suit will not prosper. The sale is valid and
Jerico is a buyer in good faith.
A n o th e r A nsw er:
Under the law on Sales, when the thing sold is
delivered by the seller to the buyer without reservation
o f ownership, the ownership is transferred to the buyer.
Therefore In the suit of United Car Sales, InC; against
Jerico for the recovery of the car, the plaintiff should not
be allowed to recover the car without reimbursing the
defendant for the price that the latter paid. (EDCA
Publishing and Distributing Corp. vs. Santos, 184 SCRA
614, April 26, 1990)
V
In 1973, Mauricio, a Filipino pensioner of the U.S.
Government, contracted a bigamous marriage with Erlinda,
despite the fact that his first wife, Carol, was still living. In
1975, Mauricio and Erlindajointlybought a parcelof riceland,
with the title being placed jointly in their names. Shortly
thereafter, they purchased another property (a house and lot)
which was placed in her name alone as the buyer. In 1981,
Mauricio died, and Carol promptly filed an action against
Erlinda to recover both the riceland and the house and lot,
claiming them to be conjugal property of the first marriage.
Erlinda contends that she and the late Mauricio were co­
owners of the riceland; and with respect to the house and lot,
she claims she is the exclusive owner. Assuming she fails to
prove that she had actually used her own money in either
purchase, how do you decide the case? [5%]
A nswer;
Carol's action to recover both the riceland and the
house and lot is well-founded. Both are conjugal prop­
erty, in view of the failure of Erlinda, the wife in a
bigamous marriage, to prove that her own money was
used in the purchases made. The Supreme Court in a case
applied Art. 148, Family Code, despite the fact that the
husband's death took place prior to the effect!vity o f said
law. However, even under.Art, 144, Civil Code, the same
203
conclusion would have been reached in view of the
bigamous nature of the second marriage.
Another Answer:
Under Article 148 of the Family Code, which applies
to bigamous marriages, only the properties acquired by
both parties through their actual joint contribution of
money, property dr industry shall be owned by them in
common in proportion to their respective contributions.
Moreover, if one of the parties is validly married to
another, his share in the co-ownership shall accrue to the
absolute community/conjugal partnership existing in
such valid marriage.
Thus, in this case, since Erllnda failed to prove that
she used her own money to buy the riceland and house
and lot, she cannot claim to be the co-owner of the
riceland nor the: exclusive owner of the house and lot.
Such properties are Mauricio's. And since his share
accrues to the conjugal partnership with Carol, Carol can
validly claim such properties to the exclusion of Erllnda.
(Art. 144, Civil Code).
V I.
In 1970, Bob and Issa got tnarried without executing a
marriage settlement. In 1975, Bob inherited from his father
a residential lot upon which, in 1981, he constructed a tworoom bungalow with savings from his own earnings. At that
time, the lot was worth P800.000.00 while the house, when
finished cost P600.000.00. In 1989, Bob died, survived only
by his wife, Issa and his mother, Sofia. Assuming that the
relative values of both assets remained at the same propor­
tion:
1.
State whether Sofia can rightfully claim that the
house and lot are not conjugal but exclusive property of her
deceased son. [3%|
2.
Will your answer be the same if Bob died before
August 3, 1988? [2%)
“T h e original nam e printed In the question ap p ears as “Issa",
however, it w a s corrected to read as Sofia, which correction w as
an n o u n c e d in all the exam ination rooms.
204
Answer;
1.
Since Bob and Sofia got married in 1970, then
that governs is the New Civil Code (Persons), in
w h i c h case, the property relations that should be applied
as regards the property of the spouses is the system of
r e la tiv e
community or conjugal partnership of gains
CArticle 119, Civil Code). By conjugal partnership of
g a i n s , the husband and the wife place in a common fund
the fruits o f their separate property and the income from
their work or industry (Article 142, Civil Code). In this
instance, the lot lnhierited by Bob in 1975 is his own
separate property, he having acquired the same by
lucrative title (par. 2, Art. 148, CtvU Code). However, the
house constructed frou> his own savings in 1981 during
the subsistence of his marriage with Issa is conjugal
property and not exclusive property in accordance with
the principle o f “reverse accession” provided for in Art.
158, Civil Code.
th e
la w
Another Answer:
1.
Sofia, being her deceased son's legal heir con­
curring with his surviving spouse (Arts. 985, 986 and
997, Civil Code), may rightfully claim that the house and
lot are not conjugal but belong to the hereditary estate of
Bob, the value of the land being more than the cost of the
improvement (Art. 120, Family Code).
Answer:
2. Yes, the answer would still be the same. Since
Bob and Issa contracted their marriage way back in 1970,
then the property relations that will govern is still the
relative community or conjugal partnership of gains
(Article 119, Civil Code). It will not matter if Bob died
before or after August 3, 1988 (effectivity date of the
Family Code), what matters is the date when the marriage
was contracted. As Bob and Issa contracted their mar­
riage way back in 1970, the property relation that
governs them is still the conjugal partnership of gains.
(Art. 158, Civil Code)
Another Answer:
2.
If Bob died before August 3. 1988, which is the
205
date the Family Code took effect, the answer will not be
the same. Art. 158, Civil Code, would then apply. The
land would then be deemed conjugal, along with the
house, since conjugal funds were used in constructing ltr
The husband's estate would be entitled to a reimburse­
ment o f the value o f the land from conjugal partnership
funds.
vn.
J u an and his sister Juana inherited from their mother
two parcels of farmland with exactly the same areas. For
convenience, the Torrens certificates of title covering both
lots were placed in Ju an’s name alone. In 1996, Juan sold
to an Innocent purchaser one parcel In its entirety without
the knowledge and consent of Juana, and wrongfully kept for
him self the entire price paid.
1.
W hat rights of action, if any. does Juana have
against and/or the buyer? [3%1
2.
Since the two lots have the same area, suppose
Ju an a files a complaint to have herself declared sole-owner
of the entire remaining second lot, contending that her
brother had forfeited his share thereofby wrongfully dispos­
ing of her undivided share in the first lot, will the suit
prosper? [2%]
Answ er:
1.
When, for convenience, the Torrens title to the
two parcels of land were placed in Juan's name alone,
there was created an implied trust (a resulting trust) for
the benefit of Juana with Juan as trustee of one-half
undivided or ideal portion of each of the two lots.
Therefore, Juana can file an action for damages against
Juan for having fraudulently sold one o f the two parcels
which he partly held in trust for Juana's benefit. Juana
m ay claim actual or compensatory damage for the loss of
her share In the land; moral damages for the mental
anguish, anxiety, moral shock and wounded feelings she
had suffered; exemplary damage fey way ©f example for
the common good, and attorney's fees.
J m m hm a® cause ©f ®ctloa against the Ibtsyer who
acquired! the land for mliae sad to good faith, relying ©zs.
206
the transfer certificate of title showing that Juan is the
registered owner of the land.
A e t h e r Answer;
1.
Under Article 476 of the Civil Code, Juana can
file an action for quieting of title as there is a cloud in the
title to the subject real property. Second, Juana can also
file an action for damages against Juan, because the
settled rule is that the proper recourse o f the true owner
of the property who was prejudiced and fraudulently
dispossessed of the same is to bring an action for
damages against those who caused or employed the
same. Third, since Juana had the right to her share in the
property by way of inheritance, she can demand the
partition of the thing owned in common, under Article
494 of. the Civil Code, and ask that the title to the
remaining property be declared as exclusively hers.
However, since the farmland was sold to an innoccnt
purchaser for value, then Juana has no cause of action
against the buyer consistent with the established rule
that the rights of an innocent purchaser for value must
be respected and protected notwithstanding the fraud
employed by the seller in securing his title. (Educate vs.
CA, 253 SCRA 391}
Additional Answer;
1.
Juana has the right of action to recover (a) her
one-half share in the proceeds of the sale with legal
interest thereof, and (b) such damages as she may be able
to prove as having been suffered by her, which may
include actual or compensatory damages as well as moral
and exemplary damages due to the breach of trust and
bad faith (Imperial vs. CA, 259 SCRA 65). O f course, if the
buyer knew of the co-ownership over the lot he was
buying, Juana can seek (c) reconvenyance o f her one-half
share instead but she must implead the buyer as co­
defendant and allege his bad faith in purchasing the
entire lot. Finally, consistent with the ruling in Imperial
vs. CA, Juana m ay seek instead (d) a declaration that she
is now the sole owner o f the entire rem aining lot ©sa the
th eory that Juan haa forfeited his one-half sfo&r®, therein.
207
AMitiQnal Answer;
1.
Juana can file an action for damages against
Juan for having fraudulently sold one of the two parcels
which he partly held in trust for Juana's benefit. Juana
m ay claim actual or compensatory damage for the loss of
her share in the land; moral damages for the mental
anguish, anxiety; moral shock And wounded feelings she
had suffered; exemplary damage by way o f example for
the common good, and attorney's fees.
Juana has no cause of action against the buyer who
acquired the land for value and in good faith, relying on
the transfer certificate showing that Juan is the registered
owner o f the land.
A n s w e r;
2.
Juana's suit to have herself declared as sole
owner o f the entire remaining area will not prosper
because while Juan's act in selling the other lot was
wrongful, it did not have the legal effect of forfeiting his
share in the remaining lot. However, Juana can file an
action against Juan for partition or termination of the
co-ownership with a prayer that the lot sold be adjudicated
to Juan, and the remaining lot be adjudicated and
reconveyed to her.
Another Answer:
2.
The suit will prosper, applying the ruling in
Imperial vs. CA cited above. Both law and equity author­
ize such a result, said the Supreme Court.
Strictly speaking, Juana's contention that her brother
had forfeited his share in the second lot is incorrect.
Even if the two lots have the same area, it does not follow
that they have the same value. Since the sale o f the first
lot on the Torrens title in the name of Juan was valid, all
that Juana may recover is the value of her undivided
interest therein, plus damages. In addition, she can ask
for partition or reconveyance of her undivided interest in
the second lot, without prejudice to any agreement
between them that in lieu of the payment of the value of
Juana's share in the first lot and damages, the second lot
be reconveyed to her.
208
2.
The suit will not prosper, since Juan's wrongful
act o f pocketing the entire proceeds o f the sale of the first
lot is not a ground for divesting him of his rights as a coowner o f the second lot. Indeed, such wrongdoing by
Juan does not constitute, for the benefit o f Juana, any of
the modes ©f aeqaM ng ownership under Art. 712, Civil
Code.
V III.
On July 27, 1997, Pedro mailed in Manila a letter to his
brother, Jose, a resident of Iloilo City, offering to donate a
vintage sports car which the latter had long been •wanting to
buy from the former. On August 5, 1997, Jose called Pedro
by cellular phone to thank him for his generosity and to
inform him that he was sending by mail his letter of accept­
ance. Pedro never received that letter because it was never
mailed. On August 14.1997, Pedro received a telegram from
Hollo informing him that Jose had been killed in a road
accident the day before (August 13, 1997)
1.
Is there a perfected donation? [2%]
2
. Will your answer be the same if Jose did mail his
acceptance letter but it was received by Pedro in Manila days
after Jose’s death? [3%]
Answer:
1.
None. There is no perfected donation. Under
Article 748 of the Civil Code, the donation of a movable
may be made orally or in writing. If the value of the
personal property donated exceeds five thousand pesos,
the donation and the acceptance shall be made in writ­
ing. Assuming that the value o f the thing donated, a
vintage sports car, exceeds P5,000.00, then the donation
and the acceptance must be in writing. In this instance,
the acceptance of Jose was not in writing, therefore, the
donation is void. Upon the other hand, assuming that the
sports car costs less than P5,000.00, then the donation
m ay be oral, bat still, the simultaneous delivery of the car
is needed and there being none, the donation was never
perfected.
209
A w im n
2.
Yes, the answer is the same. If Jose's mail
containing his acceptance of the donation was received
by Pedro after the former's death, then the donation is
still void because under Article 734 of the Civil Code, the
donation is perfected the moment the donor knows of the
acceptance by the donee. The death of Jose before Pedro
could receive the acceptance indicates that the donation
was taever perfected. Under Article 746 acceptance must
be made dwdmg the lifetime of both the donor and the
donee.
IX.
Emesto donated in a public instrument a parcel of land
to Demetrio, who accepted it in the same document. It is there
declared that the donation shall take effect immediately, with
the donee having the right to take possession of the land and
receive its fruits but not to dispose of the land while Emesto
is alive as well as for ten years following his death. Moreover,
Emesto also reserved In the same deed his right to sell the
property should he decide to dispose of it at any time - a right
which he did not exercise at all. After his death, Ernesto’s
heirs seasonably brought an action to recover the property,
alleging that the donation was void as it did not comply with
the formalities of a will. Will the suit prosper? [5%]
6nsm sn
Yes, the suit will prosper as the donation did not
com ply with the formalities of a will. In this instance, the
fact that the donor did not Intend to transfer ownership
or possession of the donated property to the donee until
the dohor'sdeathc would result in a donation mortis causa
and in this kind of disposition, the formalities o f a will
should be compiled with, otherwise, the donation is void.
In this instance, donation mortis causa embodied only in
a public instrument without the formalities o f a will
could not have transferred ownership of disputed prop­
erty to another.
Alternative Answer:
One o f the essential distinctions between a donation
inter vivos and a donation mortis causa is that while the
210
former is irrevocable, the latter is revocable. In the
problem given , all the clauses or conditions mentioned in
the deed of donation, except one, are consistent with the
rule of irrevocability and would have sustained the view
that the donation is inter vivos and therefore valid. The
lone exception is the clause which reserves the donor's
right to sell the property at any time before his death.
Such a reservation has been held to render the donation
revocable and, therefore, becomes a donation mortis
causa (Puig vs. Penqflorida, 15 SCRA 276, at p. 286).
That the right was not exercised is immaterial; its
reservation was an implied recognition of the donor's
power to nullify the donation anytime he wished to do so.
Consequently, it should have been embodied in a last will
and testament. The suit for nullity will thus prosper.
X.
In a 20-year lease contract over a building, the lessee is
expressly granted a right of first, refusal should the lessor
decide to sell both the land and building. However, the lessor
sold the property to a third person who knew about the lease
and in fact agreed J:o respect it. Consequently, the lessee
brings an action against both the lessor-seller and the buyer
(a) to rescind the sale and (b) to compel specific performance
of his right of first refusal in the sense that the lessor should
be ordered to execute a deed of absolute sale in favor of the
lessee at the same price. The defendants contend that the
plaintiff can neither seek rescission of the sale nor compel
specific performance of a “mere" right of first refusal. Decide
the case. [5%]
Answer;
The action filed by the lessee, for both rescission of
the offending sale and specific performance of the right
of first refusal which was violated, should prosper. The
ruling fn Equatorial Realty Development, Inc. vs. Mayfair
Theater, Inc, (264 SCRA 483), a case with similar facts,
sustains both rights o f action because the buyer in the
subsequent sale knew the eslgfcaste© o f right o f first
refusal, hence in bad faith.
Another Answer:
The action to rescind the sale and to com pel the
211
r ig h t to
Vs. C A ,
fir s t re fu s a l w ill n o t p ro s p e r. (A n y
2 3 8
S C R A 6 0 2 ).
en banc
d e c is io n
fo u n d e d
u p o n
tio n s h ip
c o v e re d
a n d
u n ju s t
H e n c e th e
S u p re m e
fo ru m
T h e
th a t
th e
c o n tra c t
b y
C o u rt
fo r th e
is
r ig h t
b u t
th e
o n
o f
a
(A rt.
in
fir s t
Yu Asuncion
a u n a n im o u s
re fu s a l
is
q u a s i-d e lic tu a l
p r in c ip le s
e n r ic h m e n t
o n ly a c tio n
C o u r t r u le d
o f h u m a n
1 9 ,
e t
seq .
n o t
r e la ­
r e la tio n s
C iv il
C o d e ).
t h a t w ill p r o s p e r a c c o r d in g t o
a n
“ a c tio n
fo r
d a m ag e s
in
a
th e
p ro p e r
p u r p o s e .”
X I.
Tessie died survived by her husband Mario, and two
nieces, Michelle and Jorelle, who are the legitimate children
of an elder sister who had predeceased her. The only property
she left behind was a house and lot worth two million pesos,
which Tessie and her husband had acquired with the use of
Mario’s savings from his income as a doctor. How much of
the property or Its value, if any, may Michelle and Jorelle
claim as their hereditary shares? [5%]
Answer:
A rtic le
b ro th e rs
1 0 0 1
a n d
o f
th e
s is te r s
C iv il
o r th e ir
C o d e
p r o v id e s ,
c h ild r e n
s u r v iv e
“ S h o u ld
w ith
th e
w id o w
o r w id o w e r , t h e la t t e r s h a ll b e e n t it le d t o o n e - h a lf
• f
in h e r ita n c e
th e
c h ild r e n
to
th e
T e s s ie 's
a c q u ir e d
a n d
th e
b ro th e rs
a n d
c o n s is ts
o f a
s is te r s
o r th e ir
o th e r h a lf."
g ro s s
d u rin g
e s ta te
h e r
m a r r ia g e ,
m a k in g
h o u s e
it
a n d
p a rt
o f
lo t
th e
c o m m u n it y p r o p e r ty . T h u s , o n e - h a lf o f t h e s a id p r o p e r t y
w o u l d h a v e t o b e s e t a s i d e a s M a r i o ’s c o n j u g a l s h a r e f r o m
th e
c o m m u n ity p r o p e r ty .
o n e m illio n
T h e
o t h e r h a lf,, a m o u n t in g
to
p e s o s , is h e r c o n ju g a l s h a r e ( n e t e s t a t e ) , a n d
s h o u ld b e d is t r ib u t e d t o h e r in t e s t a t e h e ir s . A p p ly in g t h e
a b o v e
p r o v is io n
n ie c e s ,
w o rth
a re
o n e
o f la w ,
e n title d
m illio n
to
M ic h e lle
o n e -h a lf
pesos,
o th e r o n e -h a lf a m o u n tin g
T e s s ie 's
e n title d
s u r v iv in g
to
o r
to
a n d
o f
5 0 0 ,0 0 0
P 5 0 0 .0 0 0
s p o u s e . M ic h e lle
P 2 S O .O O O
p eso s
s h a re .
212
e a c h
J o r e lle ,
h e r
pesos,
w ill g o to
th e ir
s h a re
w h ile
a n d J o r e lle
as
T e s s ie 's
c o n ju g a l
th e
M a rio ,
a re
th e n
h e r e d ita r y
xn.
Enrique died, leaving a net hereditary estate of P I . 2
million. He is survived by his widow, three legitimate
children, two legitimate grandchildren sired by a legitimate
child who predeceased him, and two recognized illegitimate
children. Distribute the estate in intestacy. [5%]
Answer:
U n d e r th e
th e o ry o f C o n c u rre n c e , th e s h a re s a re as
fo llo w s :
A
(le g itim a te
c h ild ) = P 2 0 0 .0 Q 0
B
(le g itim a te
c h ild ) = P 2 0 0 .0 0 0
C
(le g itim a te
c h ild ) = P 2 0 0 .0 0 0
D
(le g it im a t e
c h ild ) = 0
E
(le g itim a te
c h ild
o f D )
=
P 1 0 0 ,0 0 0
-
b y
r ig h t
o f
c h ild
o f D )
=
P 1 0 0 .0 0 0
-
b y
r ig h t
o f
[p re d e c e a s e d ]
r e p r e s e n ta tio n
F
(le g itim a te
r e p r e s e n ta tio n
G
(ille g itim a te
le g it im a t e
H
(ille g itim a te
le g it im a t e
W
c h ild ) =
P 1 0 0 .0 0 0
-
1 /2
s h a re
o f a
c h ild )
P 1 0 0 .0 0 0
-
1 /2
s h a re
o f a
c h ild
■
c h ild
(W id o w ) s P 2 0 0 . 0 0 0
-
s a m e
s h a re
a s le g itim a te
c h ild
Another Answer:
U n d e r
th e
(P 3 0 0 .0 0 0 ),
c h ild r e n
le g it im e .
is
a n d
th e o ry
O f
d is tr ib u te d
is
g iv e n
A ll o th e r
to
E x c lu s io n
o n ly
th e m
in te s ta te
th e
a m o n g
in
h e ir s
fre e
th e
to
a d d itio n
a re
p o rtio n
le g itim a te
e n title d
th e ir
o n ly
to
t h e i r r e s p e c t iv e le g it im e s . T h e d is t r ib u t io n is a s fo llo w s :
Legitime
A (legitimate child)
B (legitimate child)
C (legitimate child)
D (legitimate child)
B (legitimate child of D)
F (legitimate child of D)
G (illegitimate child)
H (illegitimate child)
W (Widow)
Total
Free Portion
P i 5 0 ,0 0 0
P 1 5 0 .0 0 0
P 1 5 0 .0 C 0
0
P 7 5 ,0 0 0
P 75 ,0 0 0
P 75 ,0 0 0
P 7 5,000
P 1 5 0 ,0 0 0
213
♦
♦
*
P 7 5 ,0 0 0
P 1 5 0 .0 0 0
P 7 5 ,0 0 0
0
+ P 35 ,5 0 0
+ P 37 ,5 0 0
, 0
0
O
- P 225.000
« P 2 2 5 .0 0 0
a P 2 2 5 .0 0 0
0
P I 12,500
» P I 12,500
o p 7 5 ,5 0 0
7 5 ,5 0 0
o P I 50 , 0 0 0
b
XIII.
A G alan t driven by John and owned by Art, and a Corolla
driven by its owner, Gina, collided somewhere along Adriatico
Street. A s a result of the accident, Gina had a concussion.
Subsequently, Gina brought an action for damages against
John and Art. There is no doubt that the collision is due to
John’s negligence. Gan Art, who was in the vehicle al the time
of the accident, be held solidarily liable with his driver. John?
[5%)
Answer:
T e s .
w as
A r t m a y b e h e ld
p ro v e n
th a t
th e
s o lid a r y lia b le w it h
fo rm e r
c o u ld
h a v e
m is f o r t u n e w i t h t h e u s e o f d u e d ilig e n c e *
th e
C iv il C o d e
s o lid a r y
th e
s ta te s :
lia b le
v e h ic le ,
p re v e n te d
w ith
c o u ld
th e
h is
“In
J o h n , if it
p re v e n te d
th e
A r tic le 2 1 8 4 o f
m o t o r m i s h a p s , t h e o w n e r is
d r iv e r , i f t h e
h a v e ,
b y
th e
z
m is fo r tu n e , z
fo rm e r, w h o
u s e
o f d u e
w a s
in
d ilig e n c e ,
x ”
Alternative Answer:
1 .
Suprem e
It d e p e n d s . T h e
Underwood ( 2 7
a u to m o b ile ,
c o n tin u e
in
P h il 3 7 4 ) , h e ld :
o r o t h e r v e h ic le ,
a
v io la tio n
o f
C o u r t in
Chapman vs.
“A n o w n e r w h o s its in h is
a n d
la w
p e r m its
b y
th e
h is
d r iv e r to
p e rfo rm a n c e
o f
n e g lig e n t a c t s , a f t e r h e h a s h a d a r e a s o n a b le o p p o r t u n it y
to
o b s e rv e
th e m
a n d
to
d ir e c t
th a t
th e
d r iv e r
cease
t h e r e f r o m , b e c o m e s h im s e lf r e s p o n s ib le f o r s u c h a c t s , z
x
x
O n
th e
o th e r h a n d , if th e
n e g lig e n c e ^
a n d
w ith o u t th e
d r iv e r , b y
a
s u d d e n
o w n e r h a v in g
a
a c t o f
r e a s o n a b le
o p p o r t u n it y t o p r e v e n t th e a c t o r its c o n tin u a n c e , in ju r e s
a
p e rs o n
o r v io la te s
th e
c r im in a l la w , t h e
a u t o m o b ile , a lth o u g h p r e s e n t t h e r e in
w a s
c o m m itte d
c r im in a lly ,
c o n tin u e d
is
n o t
th e re fo r.
r e s p o n s ib le ,
T h e
a c t
th a t
th e
d r iv e r 's
a c t h ie
o w n e r, b y
h is
e ith e r
c o m p la in e d
in th e p re s e n c e o f th e
o f tim e
o w n e r o f th e
a t th e tim e th e a c t
c iv illy
o f
m u s t
o r
b e
o w n e r fo r s u c h a le n g th
a c q u ie s c e n c e , m a k e s
h is
o w n .”
X IV .
1.
Define compensation as a mode of extinguishing
an obligation, and distinguish it from payment. [2%1
214
2.
X, who has a savings deposit with Y Bank in the
sum o f P I ,000.000.00. incurs a loan obligation with the said
Bank in the sum of P800.000.00 which has become due.
When X tries to withdraw his deposit, Y Bank allows only
P200.000.00 to be withdrawn, less service charges, claiming
that compensation has extinguished its obligation under the
savings account to the concurrent amount of X’s debt. X
contends that compensation is improper when one of the
debts, as here, arises from a contract o f deposit. Assuming
that the promissory note signed by X to evidence the loan
does not provide for compensation between said loan and his
savings deposit, who is correct? [3%]
Answer;
1.
C o m p e n s a t io n is a m o d e o f e x t i n g u is h in g t o t h e
c o n c u r r e n t a m o u n t, t h e o b lig a tio n s o f th o s e p e r s o n s w h o
in
t h e ir o w n r ig h t a re r e c ip r o c a lly d e b to rs
a n d c re d ito r s
Tolentino, 1991 ed.,p. 365, citing2 Castan
S60 and Francia vs. IAC, 1 6 2 S C R A 7 5 3 ) . I t i n v o l v e s t h e
o fe a c h o th e r (
s im u lta n e o u s
b a la n c in g
e x tin g u is h t h e m
Is
c o v e re d
b y
o f
tw o
o b lig a tio n s
in
o rd e r
to
to th e e x t e n t in w h ic h th e a m o u n t o f o n e
th a t
o f th e
(De Leon, 1992 ed.,
o th e r.
p . 221, citing 8 Manresa 401).
P a y m e n t m e a n s n o t o n ly d e liv e r y
p e rfo rm a n c e
o f a n
In
c a p a c ity
p a y m e n t,
c a p a c ity to
o b lig a tio n
r e c e iv e
to
c r e d ito r , r e s p e c tiv e ly :
becau se
la w
a n d
th e
th e re
m a y
th e
th in g
p a id
a n d
fo r d e b to r a n d
c o m p e n s a tio n
a c t o f th e
m u s t be
be
o f th e
in c o m p e n s a t io n , s u c h c a p a c i t y is
n e c e s s a ry ,
p e rfo rm a n c e
d is p o s e
o f m o n e y b u t a ls o
1 2 3 2 , C iv il C o d e ).
p a y m e n t a re r e q u ir e d
n o t
n o t b y
(A r tic le
p a r tie s .
c o m p le te ; w h ile
p a r tia l
e x tin g u is h m e n t
In
in
o f
o p e ra te s
b y
p a y m e n t, th e
c o m p e n s a tio n
a n
o b lig a tio n
supra)
(T o le n tin o ,
Answer;
2.
Y
b a n k
n o t a p p ly .
p re s e n t.
is
A ll th e
In
th e
c o rre c t. A rt.
r e q u is ite s
case o f
S u p r e m e C o u r t h e ld :
r e g a r d in g
p o rtio n s
1 2 8 7 ,
o f A rt.
C iv il C o d e , d o e s
1 2 7 9 , C iv il C o d e a re
Gullas vs. PNB ( 6 2
P h il. 5 1 9 ) , t h e
“T h e C iv il C o d e c o n ta in s p r o v is io n s
c o m p e n s a tio n
o f P h ilip p in e
(s e t
la w
o ff)
p r o v id e
a n d
d e p o s it.
th a t
T h es e
c o m p e n s a tio n
s h a ll t a k e p la c e w h e n t w o p e r s o n s a r e r e c ip r o c a lly c r e d it o r
a n d d e b to r o f e a c h o th e r.
In
t h is c o n n e c tio n , i t h a s b e e n
215
h e ld t h a t t h e r e la tio n e x is tin g b e tw e e n a d e p o s ito r a n d a
b a n k is t h a t o f c r e d it o r a n d d e b to r , z x x
a b a n k
h a s
a r ig h t o f s e t o f f o f th e
fo r th e
p a y m e n t o f a n y In d e b te d n e s s
a d e p o s ito r .”
th e
H e n c e , c o m p e n s a tio n
m u t u a l o b lig a tio n s
o f X
a n d T
A s a g e n e r a l r u le ,
d e p o s its in
to
its
it o n th e
to o k
h a n d s
p a rt o f
p la c e b e tw e e n
b a n k .
XV.
Joey, Jovy arid Jojo are solidary debtors under a loan
obligation of P300,000.00 which has fallen due. The creditor
has, however, condoned Jojo’s entire share in the debt. Since
Jovy has become insolvent, the creditor makes a demiand on
Joey to pay the debt.
1.
|2%1
How much. If any, may Joey be compelled to pay?
2.
To what extent. If at all, can Jojo be compelled by
Joey to contribute to such payment? [3%J
Answer:
1 .
J o e y c a n b e c o m p e lle d t o p a y o n ly th e r e m a in in g
b a la n c e
s h a re
o f P 2 0 0 .0 0 0 ,
b y
th e
c r e d ito r .
in
v ie w
(A rt.
o f th e
r e m is s io n
o f J o jo 's
1 2 1 9 , C iv il C o d e )
Answer;
2 ,
J o jo
P 5 0 .0 0 0 . A r t.
o n e
o f th e
v e n c y ,
c a n
be
c o m p e lle d
1 2 1 7 , p a r.
s o lid a r y d e b to r s
r e im b u r s e
h is
b y
J o e y
3 . C iv il C o d e
to
c o n tr ib u te
p r o v id e s ,
“W h e n
c a n n o t( b e c a u s e o f h is in s o l­
s h a re
to
th e
d e b to r
p a y in g
th e
o b lig a tio n , s u c h s h a re s h a U b e b o r n e b y a ll h is c o -d e b to rs ,
in
p r o p o r tio n
S in c e t h e
to
th e d e b t o f e a c h .”
in s o lv e n t d e b t o r 's s h a r e w h ic h J o e y p a id
w a s P IO O .O O O , a n d t h e r e a r e o n ly t w o r e m a in in g d e b t o r s
- n a m e ly J o e y a n d J o jo - th e s e tw o s h a ll s h a re e q u a lly th e
b u rd e n
b y J o e y
o f r e im b u r s e m e n t.
to
c o n tr ib u te
J o jo
m a y
P 5 0 ,O O O .O O .
216
th u s b e
c o m p e lle d
XVI.
Distinguish between:
1.
Continuous and discontinuous easements: [2%J
2.
Apparent and non-apparent easements: and [2%]
3.
Positive and negative easements. [1%1
Answer;
1.
C o n tin u o u s
e a s e m e n ts
a re
th o s e
th e
use
o f
w h ic h is o r m a y b e in c e s s a n t , w it h o u t t h e in t e r v e n t io n o f
a n y a c t o f m a n . w h ile d is c o n tin u o u s e a s e m e n ts a r e th o s e
w h ic h a r e
m a n .
u s e d a t in te r v a ls a n d
d e p e n d u p o n th e
a c ts o f
(A rt* 6 1 5 , C iv il C o d e )
Answer:
2 .
k n o w n
A p p a r e n t e a s e m e n ts a re th o s e w h ic h
a re
m a d e
a n d a r e c o n t i n u a ll y k e p t i n v ie w b y e x t e r n a l s ig n s
t h a t r e v e a l th e u s e a n d e n jo y m e n t o f th e s a m e , w h ile n o n a p p a re n t
e a s e m e n ts
In d ic a tio n
a re
th o s e
w h ic h
o f t h e ir e x is te n c e .
s h o w
n o
e x te rn a l
(A rt. 6 1 5 , C iv il C o d e )
Answer;
3 .
u p o n
th e
a llo w in g
w h ile
P o s itiv e
e a s e m e n ts
o w n e r o f th e
s o m e th in g
n e g a tiv e
to
a re
b e
e a s e m e n ts
d o n e
a re
c o u ld
la w fu lly d o i f t h e
o r
th o s e
o w n e r o f t h e s e r v ie n t e s ta te fr o m
h e
th o s e
s e r v ie n t e s ta te
w h ic h
th e
o f d o in g
w h ic h
Im p o s e
o b lig a tio n
it
o f
h im s e lf,
p r o h ib it th e
d o in g s o m e t h in g w h ic h
e a s e m e n t d id
n o t e x is t. (A rt.
6 1 5 , C iv il C o d e )
XVH .
Dielle, Karlo and Una are general partners in a mer­
chandising firm. Having contributed equal amounts to the
capital, they also agree on equal distribution of whatever net
profit is realized per fiscal period. After two years of opera­
tion, however, Una conveys herwhole interest In the partner­
ship to Justine, without the knowledge and consent of Dielle
and Karlo.
217
1.
Is the partnership dissolved? [2%J
2.
What are the rights of Justine, if any, should she
desire to participate in the management of the partnership
and i n the distribution of a net profit of P360,000.00 which
was realized after heir purchase of Una's interest? [3%J
Answer:
1 .
N o ,
In t e r e s t In
a
a
p a r tn e rs h ip
c o n v e y a n c e
p a r tn e r s h ip
In
th e
b y
do es
a
p a rtn e r
o f
h is
w h o le
n o t o f It s e lf d is s o lv e
a b s e n c e o f a n a g re e m e n t.
th e
(A rt. 1 8 1 3 ,
C iv il C o d e )
A n sw er:
2.
J u s tin e
c a n n o t in te r fe r e
m a n a g e m e n t o r a d m in is tr a tio n
o r p a r tic ip a te
o f th e
in
p a r tn e r s h ip
th e
b u s i­
n e s s o r a ffa ir s . S h e m a y , h o w e v e r , r e c e iv e t h e n e t p r o fits
t o w h ic h U n a w o u ld h a v e o t h e r w is e b e e n e n t it le d .
c a s e , P 1 2 0 .0 0 0
(A rt.
In
th is
1 8 1 3 , C iv il C o d e )
X V III.
1.
Distinguish usufruct from commodatiirn and state
whether these may be constituted over consumable goods.
[2 %]
2.
Distinguish consensual from real contracts and
name at least four (4) kinds of real contracts under the
present law. [3%]
Answer:
1 .
U s u fr u c t
(u s u fru c tu a ry ) to
o b lig a tio n
o f
is
e n jo y t h e
p r e s e r v in g
a
r ig h t
g iv e n
to
a
p r o p e r ty o f a n o th e r w ith
its
fo rm
a n d
s u b s ta n c e .
p e rs o n
th e
(A rt.
5 6 2 , C iv il C o d e )
O n
w h ic h
th e
o n e
o th e r
o f
th e
h a n d ,
c o m m o d a tu m
p a r tie s
(b a ilo r )
is
a
d e liv e r s
c o n tra c t b y
to
a n o th e r
( b a ile e ) s o m e t h in g n o t c o n s u m a b le s o t h a t t h e l a t t e r m a y
use it
fo r a
c e r ta in
tim e
a n d
re tu rn
it.
In u s u fr u c t th e u s u fr u c tu a r y g e ts th e r ig h t to th e u s e
a n d t o t h e f r u it s o f t h e s a m e , w h ile
218
in
c o m m o d a tu m , th e
b a ile e
its
o n ly
a c q u ir e s
th e
u se
o f th e
th in g
lo a n e d
b u t n o t
fr u its .
U s u fr u c t m a y b e c o n s titu te d
o f th e
fr u its
o f th e
o n t h e w h o le
564,
th in g . (A rt,
O r a p a rt
C iv il C o d e ).
It
m a y
e v e n b e c o n s t it u t e d o v e r c o n s u m a b le s lik e m o n e y , ( A l
v. Vetoso, 52
545).
P h il.
O n
th e
o th e r
unan
h a n d ,
in
c o m m o d a t u m , c o n s u m a b le g o o d s m a y b e s u b je c t t h e r e o f
o n ly
w h e n
th e
s u m p tio n
tio n .
p u rp o s e
o f th e
1936,
(A rt.
o f th e
c o n tra c t
o b je c t, a s w h e n
i t is
is
n o t
m e r e ly
th e
c o n ­
fo r e x h ib i­
C iv il C o d e )
Another Answer;
1.
T h e r e a re s e v e r a l p o in ts o f d is t in c t io n b e tw e e n
u s u fru c t a n d
la w ,
c o m m o d a tu m .
b y ' c o n tra c t,
p r e s c r ip tio n
re a l
r ig h t
th e
o f
c o n s titu te d
s u c c e s s io n ,
C iv il C o d e ).
fr u its
b y
o r
b y
U s u fru c t c re a te s
a n o t h e r 's
p ro p e rty ,
a
w h ile
c re a te s o n ly a p u r e ly p e r s o n a l r ig h t t o u s e
p ro p e rty , a n d
t h e b a ile e t o
U s u f r u c t is
te s ta m e n ta ry
1933,
(A rt;
to
c o m m o d a tu m
a n o t h e r 's
b y
r e q u ir e s
a
s tip u la tio n
to
e n a b le
1939 & 1940,
“ m a k e u s e ” o f th e fr u its (A rts .
C iv il C o d e ). U s u fr u c t m a y b e o n e ro u s w h ile c o m m o d a tu m
is
a lw a y s
o r
e s s e n tia lly
C iv il C o d e ).
T h e
g r a tu ito u s
s e n s u a l, w h ile c o m m o d a t u m
1933 & 1935,
(A rts .
c o n tr a c t c o n s titu tin g
u s u f r u c t is
o n ly b y d e liv e r y o f th e s u b je c t m a t t e r th e r e o f).
b o th
In v o lv e
th e
e n jo y m e n t b y a p e rs o n
O f a n o th e r , d iffe r in g
s u c h e n jo y m e n t
o th e r);
b o th
o n ly
as to
(jusjruendi i n
m a y
h ave
as
c o n ­
is a r e a l c o n t r a c t ( p e r f e c t e d
th e
e x te n t a n d
m a tte r
p ro p e rty
sco p e
utendi i n
o n e an d J u s
s u b je c t
H o w e v e r,
o f th e
e ith e r
o f
th e
a n
im ­
m o v a b le o r a' m o v a b le ; a n d , b o t h m a y b e c o n s t i t u t e d o v e r
c o n s u m a b le
goods
(A rts .
574 Ac 1936,
C iv il C o d e )-
A c o n s u m a b le t h in g m a y b e t h e s u b je c t - m a tt e r o f a n
a b n o rm a l u s u fr u c t b u t in
a n o r m a l u s u fr u c t, th e s u b je c t-
m a t t e r m a y b e u s e d o n ly f o r e x h ib itio n .
o f a
c o n s u m a b le
th in g
m a y
e x h ib it in g , n o t c o n s u m in g
b e
o n ly
A c o m m o d a tu m
fo r
th e
p u rp o s e
o f
it.
Answer;
2.
fe c te d
C o n s e n s u a l c o n tra c ts
b y
c o n tra c ts
o f th e
m e re
a re
c o n s e n t
th o s e
o b je c t o f th e
(A rt,
w h ic h
a re
o b lig a tio n .
219
a re
th o s e
1315,
p e rfe c te d
(A rt.
w h ic h
C iv il
b y
1316,
a re
C o d e ).
th e
p e r­
R e a l
d e liv e r y
C iv il C o d e )
Examples of real contracts are deposit, pledge,
commodatum and simple loan (mutuum).
XIX.
Section 70 of Presidential Decree No. 1529, concerning
adverse claims on registered land, provides a 30-day period
o f effectivity of an adverse claim, counted from the date of its
registration. Suppose a notice of adverse claim based upon
a contract to sell was registered on March 1, 1997 at the
instance of the BUYER, but on June 1, 1997, or after the
lapse o f the 30-day period, a notice of lev)' on execution in
favor of a JUDGMENT CREDITOR was also registered to
enforce a final judgment for money against the registered
owner. Then, on June 15, 1997 there having been no formal
cancellation of his notice of adverse claim, the BUYER pays
to the seller-owner the agreed purchase price in full and
registers the corresponding deed of sale. Because the
annotation of the notice of levy is carried over to the new title
in his name, the BUYER brings an action against the
JUDGM ENT CREDITOR to cancel such annotation, but the
latter claims that his lien is superior because it was anno­
tated after the adverse claim of the BUYER had ipso facto
ceased to be effective. Will the suit prosper? [5%]
Answer;
The suit will prosper. While an adverse claim duly
annotated at the back of a title under Section 70 of P<D.
1529 is good only for 30 days, cancellation thereof is still
necessary to render it ineffective, otherwise, the in­
scription thereof will remain annotated as a lien On the
property, While the life of adverse claim is 30 days under
P.P. 1529, it continuous to be effective until it is
canceled by formal petition filed with the Register of
Deeds.
The cancellation of the notice of levy is justified
under Section 108 of P.D. 1529 considering that the levy
on execution can not be enforced against the buyer
whose adverse claim against the registered owner was
recorded ahead of the notice of levy on execution.
220
XX.
In 1965, Renren bought from Robyn a parcel of regis­
tered land evidenced by a duly executed deed of sale. The
owner presented the deed of sale and the owner's certificate
of title to the Register of Deeds. The entry was made in the
day book and corresponding fees were paid as evidenced by
official receipt. However, no transfer of certificate of title was
issued to Renren because the original certificate of title in
Robyn’s name w as temporarily misplaced after fire partly
gutted the Office of the Register of Deeds. Meanwhile, the
land had been possessed by Robyn’s distant cousin, Mikaelo,
openly, adversely and continuously in the concept of owner
since 1960. It was o n ly in April 1998 that Renren sued
Mikaelo to recover possession. Mikaelo invoked a) acquisitive
prescription and b) laches, asking that he be declared owner,
of the land. Decide the case by evaluating these defenses.
15%]
Answer;
a)
la n d
R e n r e n 'a
a c tio n
w ill p ro s p e r.
R o b y n , h e
In
to
1 9 6 5 ,
s u b m itte d th e
re c o v e r
p o s s e s s io n
a fte r b u y in g
D e e d o f S a le t o
th e
o f
la n d
th e
fro m
th e R e g is tr y o f
D e e d s f o r r e g is t r a t i o n t o g e t h e r w i t h t h e o w n e r 's d u p li c a t e
c o p y o f t h e t i t l e , a n d p a id t h e c o r r e s p o n d in g r e g is t r a t io n
fe e *.
U n d e r S e c t io n 5 6 o f P .D . N o . 1 5 2 9 , t h e D e e d o f S a le
t o R e n r e n la c o n s id e r e d r e g is t e r e d f r o m
w as
e n te re d
in
th e
D a y
B o o k
(n o w
th e t im e t h e s a le
c a lle d
th e
P r im a r y
E n t r y B o o k ).
F o r
a ll
c o n s id e r e d t h e
w as
n o t
is s u e
th e
h is
le g a l in t e n t s
fa u lt th a t
th e
c o r r e s p o n d in g
M ik a e lo 's
s u s ta in e d .
a n d
p u rp o s e s ,
r e g is te r e d o w n e r o f th e
R e g is tr y
d e fe n s e
o f
is
A fte r a ll, i t
o f D eed s
tr a n s fe r c e r tific a te
A T o rre n s title
R e n re n
la n d .
c o u ld
n o t
o f title .
p r e s c r ip tio n
c a n
is Im p r e s c r ip t ib l e .
n o t
b e
N o title
to
r e g is te r e d la n d in d e r o g a tio n o f th e t it l e o f th e r e g is te r e d
o w n e r s h a ll b e
a c q u ir e d b y
s e s s io n . ( S e c t io n
la n d
p r e s c r ip tio n
4 7 , P .D . N o .
T h e
r ig h t
to
lik e w is e
do es
n o t
re c o v e r
o r a d v e rs e
p o s­
1 5 2 9 )
p o s s e s s io n
p r e s c r ib e
b ecau se
o f r e g is te r e d
p o s s e s s io n
is
J u s t a n e c e s s a ry In c id e n t o f o w n e rs h ip ,
b )
M ik a e lo 's
d e fe n s e
t o b e m o r e s u s ta in a b le .
th e
o f la c h e s , h o w e v e r ,
a p p e a rs
R e n r e n b o u g h t t h e la n d a n d h a d
s a le r e g is t e r e d w a y b a c k
in
221
1 9 6 5 .
F ro m
th e
fa c ts , it
a p p e a r s t h a t I t w a s o n ly in
1 9 9 8
o r a f t e r a n in e x p lic a b le
d e la y o f 3 3 y e a r s t h a t h e t o o k t h e f ir s t s te p a s s e r tin g h is
r ig h t to
th e
la n d .
I t
w a s n o t e v e n
a n
o w n e n h i p b u t o n ly p o s s e s s io n o f t h e
a c tio n
la n d .
to
re c o v e r
B y o r d in a ry
s t a n d a r d s , 3 3 y e a r s o f n e g le c t o r I n a c t i o n is t o o lo n g a n d
m a y b e
c o n s id e r e d
S u p re m e
s o m e tim e s
C o u rt,
h a s
la c h e s w h ic h
c la im
in to
to
p r in c ip le
y ie ld
to
o fte n
h e ld
b y
th e
im p r e s c r ip tib ility
e q u ita b le
p r in c ip le
o f
d e m a n d .
c la im
o f la c h e s , h o w e v e r , Is w e a k in s o f a r
the e l e m e n t o f e q u i t y i s
s h o w i n g inth
ef a c t s h o w h e
as
a n d
th e
As
o f
c a n c o n v e r t e v e n a r e g is t e r e d la n d o w n e r 's
a S ta le
M lk a e lo 'S
u n r e a s o n a b le .
th e
p o s s e s s io n o f t h e
c o n c e rn e d ,
e n te re d
la n d .
-end-
222
in to
th e re
th e
b e in g
n o
o w n e rs h ip
1997 BAR EXAMINATION
Question No. 1:
How would you compare the Civil Law system in Its
governance and trend with that of the Common Law system?
Answer:
As regards "governance":
Governance in Civil Law is codal, statutory and written
law. It is additionally derived from case law. Common law is
basically derived from case law.
As regards "trend":
Civil law is now tending to rely more and more on
decisions of the courts explaining the laws. Common law is
now codifying laws more and more. So they are now merging
towards similar systems.
Additional Answers:
X
1. Common law refers to the traditional part of the law
as distinct from legislation: it refers to the universal part of
law as distinct from particular local customs {Encyclopedia
Americana, Vol. 7).
On the other hand, civil law is understood to be that
branch of law governing the relationship of persons in respect
of their personal and private interests as distinguished from
both public and international laws.
In common law countries, the traditional responsibility
has for the most part been with the judges; in civil law
countries, the task is primarily reposed on the lawmakers.
Contemporary practices, however, so indicate a trend towards
centralizing that function to professional groups that may.
indeed, see the gradual assimilation in time of both systems.
(Vltug, Civil Law and Jurisprudence, p. XX)
2. In Civil Law, the statutes theoretically take prec­
edence over court decisions interpreting them; while in
223,
Common Law, the court decisions resolving specific cases are
regarded as law rather than the statutes themselves which
are, at the start, merely embodiments of case law. Civil Law
Is code law or written law, whiie Common Law Is case law.
Civil Law adopts the deductive method - from the general to
the particular, while the Common Law uses the inductive
approach - from the particular to the general. Common Law
relies on equity. Civil Law anchors Itself on the letter of the.
iaw. The civllists are for the Judge-proof law even as the
Common Law is judge-made law. Civil Lawjudges are merely
supposed to apply laws and not interpret them.
Question No. 2:
In 1977, Mario and Clara, both Filipino citizens, were
married in the Philippines. Three years later, they went to the
United States of America and established their residence in
San Francisco, California. In 1987, the couple applied for,
and were granted, U.S. citizenship. In 1989, Mario, claiming
to have been abandoned by Clara, was able to secure a decree
of divorce in Reno, Nevada, U.S.A.
In 1990, Mario returned to the Philippines and married
Juana who knew well Mario’s past life.
(a) Is the marriage between Mario and Juana valid?
(b) Would the renvoi doctrine have any relevance to the
case?
Answer:
(a) Yes. In relation to Art. 15 of the Civil Code, Conflict
of Laws provides that the recognition of an absolute divorce
granted in another State rests on the citizenship of the
parties at the time the divorce was granted (Paras, PhiL
Conflict o f Laws, p. 259). Applied in this case, the divorce
decree issued to Clara and Mario will be recognized as valid
here considering that at the time the foreign decree was
granted, both Clara and Mario are citizens of the U.S_A., a
country which grants/allows absolute divorce. Since the
marriage between Mario and Clara has been validly termi­
nated, Mario and Juana can freely marry each other.
(b) No. The renvoi doctrine is relevant In cases where
one country applies the domiciliary theory and the other the
224
nationality theory, and the Issue Involved Is which of the laws
of the two countries should apply to determine the order of
succession, the amount of successional rights, or, the Intrinsic
validity of testamentary provisions. Such issue is not Involved
in this case.
Alternative Answer:
Yes. "Renvoi"-which means "referring back" is relevant
because here, we are applying U.S. law to Mario, being
already its citizen, although the formalities of the second
marriage will be governed by Philippine law under the
principle of lex loci celebrationis.
Question No. 3:
In the context that the term is used In Civil Law, state
the (a) concept, (b) requisites and (c) consequences of a
prejudicial question.
Answer:
(a)
Concept
A prejudicial question is one which must be decided first
before a criminal action may be Instituted or may proceed
because a decision therein is vital to the Judgement in the
criminal case. In thecase of People vs. Adelo Aragon (L-5930,
Feb. 17, 1954), the Supreme Court defined it as one which
arises In a case, the resolution of which question Is a logical
antecedent of the issues Involved in said case and the
cognizance of which pertains to another tribunal (Paras, Vol.
1, CivU. Code Annotation, 1989 ed. p. 194).
(b)
Requisites
1. The prejudicial question must be determinative of the
case before the court.
2. Jurisdiction to try said question must be lodged in
another tribunal.
Additional Answer:
1. The civil action involves an issue similar or
intimately related to the issue raised In the
criminal action, and
225
2. the resolution ofsuch issue determines whether
or not the criminal action may proceed.
(c)
C onsequences
The criminal case must be suspended. Thus, in a
criminal case for damages to one’s property, a civil action that
involves the ownership of said property should first be
resolved (De Leon vs. Mabanag, 38 Phil. 202)
Question No. 4.
Luis and Rizza, both 26 years of age and single, live
exclusively with each other as husband and wife without the
benefit of marriage. Luis is gainfully employed. Rizza is not
employed, stays at home, and takes charge of the household
chores.
After living together for a little over twenty years, Luis
was able to save from his salary earnings during that period
the amount of P200.000.00 presently deposited in a bank. A
house and lot worth P500.000.00 was recently purchased for
the same amount by the couple. Of the P500.000.00 used
by the common-law, spouses to purchase the property,
P200.000.00 had come from the sale of palay harvested from
the hacienda owned by Luis and P300,000.00 from the
rentals of a building belonging to Rizza. In fine, the sum of
P500.000.00 had been part of the fruits received during the
period of cohabitation from their separate property. A car
worth P 100,000.00, being used by the common-law spouses,
was donated Just months ago to Rizza by her parents.
Luis and Rizza now decide to terminate their cohabitation,
and they ask you to give them your legal advice on the
following:
(a) How, under the law, should the bank deposit of
P200.000.00, the house and lot valued at P500.000.00 and
the car worth p 100.000.00 be allocated to them?
(b) What would your answer be (to the above question)
had Luis and Rizza been living together all the time, Le.. since
twenty years ago, under a valid marriage?
226
Answer:
a) Art. 147 of the Family Code provides In part that
when a man and a woman who are capacitated to m any each
other, live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage,
their wages and salaries shall be owned by them In equal
shares and the property acquired by both of them through
their work or industry shall be governed by the rules of coownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to have
been obtained by their joint efforts, work or industiy, and
shall be owned by them in equal shares. A party who did not
participate in the acquisition by the other party of any
property shall be deemed to have contributed Jointly in the
acquisition thereof if the formeris efforts consisted in the care
and maintenance o f the family and of the household.
Thus:
1} the wages ana salaries of Luis in the amount of
P200,000.00 shall be divided equally between
Luis and Rizza.
2) the house and lot valued at P500.000.00
having been acquired by both of them through
work or Industry shall be divided between them
in proportion to their respective contribution,
in consonance with the rules on co-ownership.
Hence, Luis gets 2\5 while Rizza gels 3\5 of
P500.000.00.
3)
thecarworth P100,000.00 shall be exclusively
owned by Rizza, the same having been donated
to her by her parents.
(b)
The property relations between Luis and Rizza, their
marriage having been celebrated 20 years ago (under the
Civil Code) shall be governed by the conjugal partnership of
gains, under which the husband and wife place in a common
fund the proceeds, products, fruits and income from their
separate properties and those acquired by either or both
spouses through their efforts or by chance, and upon
dLssolution of the marriage or of the partnership, the net
227
gains or benefits obtained by either or both spouse shall be
divided equally between them (Art. 142, Civil Code).
Thus:
1) The salary of Luis deposited in the bank in the
amount of P200.000.00 and the house and lot
valued at P500,000.00 shaJl be divided equally
between Luis and Rizza.
2) However, the car worth P100.000.00 donated
to Rizza by her parents shall be considered to
her own paraphernal property, having been
acquired by lucrative title (par. 2, Art. 148, Civil
Code).
Question No. 5:
Under what conditions, respectively, may drug addic­
tion be a ground. If at all, (a) for a declaration of nullity of
marriage, (b) for an annulment of the marriage contract, and
(c) for legal separation between the spouses?
Answer;
(a) Declaration of nullity of marriage:
1. The drug addiction must amount to psycho­
logical incapacity to comply with the essential
obligations of marriage;
2. It must be antecedent (existing at the time of
marriage), grave and incurable:
3. The case must be filed before August 1, 1998.
Because if they got married before August 3,
1998, it must be filed before August 1, 1998.
(b) Annulment of the Marriage Contract:
1. The drug addiction must be concealed:
2. It must exist at the time of marriage;
3. There should be no cohabitation with full
knowledge of the drug addiction;
228
4. The case is filed within five (5) years from
discovery.
(c) Legal Separation:
1. There should be no condonation or consent to
the drug addiction:
2. The action must be filed within five (5) years
from the occurrence of the cause.
3. Drug addiction arises during the marriage and
not at the time of marriage.
Question No. 6:
Pedro is the registered owner of a parcel of land situated
in Malolos, Bulacan. In 1973, he mortgaged the land to the
Philippine National Bank (PNB) to secure a loan of
P 100.000.00. For Pedro's failure to pay the loan, the PNB
foreclosed on the mortgage in 1980, and the land was sold at
public auction to PNB for being the highest bidder. PNB
secured title thereto in 1987.
In the meanwhile. Pedro, who was still in possession of
the land, constructed a warehouse on the property. In 1988,
the PNB sold the land to Pablo. The Deed of Sale was
amended in 1989 to include the warehouse.
Pedro, claiming ownership of the warehouse, files a
Complaint to annul the amended Deed of Sale before the
Regional Trial Court of Quezon City, where he resides,
against both the PNB and Pablo. The PNB filed a motion to
dismiss the complaint lor improper venue contending that
the warehouse is real property under Article 415(1) of the
Civil Code and therefore the action should have instead been
filed in Malolos, Bulacan. Pedro claims otherwise. The
question arose as to whether the warehouse should be
considered as real or as personal property.
If consulted, what would your legal advice be?
Answer:
The warehouse which is a construction adhered to the
soil is an Immovable by nature under Art. 415 (I), and the
229
proper venue of any case to recover ownership of the same,
which is what the purpose of the complaint to annul the
amended Deed of Sale amounts to, should be the place where
the property is located, or the KTC of Bulacan.
Additional A nsv’ers:
1. Buildings are always immovable property, and even
in the Instances where the parties to a contract seem to have
dealt with it separate and apart from the land on which It
stood in no wise does it change Its character as Immovable
property. A building is an Immovable even if not erected by
the owner of the land, The only criterion Is union or
incorporation with the soil. [Ladera vs. Hodges (CA) 48 O.G.
4374) (Reyes and Puno, Outline ofPhilippine CivilLaw, Vol. 2,
P-7)
2. The warehouse built by Pedro on the mortgaged
property is real property within the context of Article 415 of
the New Civil Code. Although it was built by Pedro after the
foreclosure sale without the knowledge and consent of the
new owner which makes him a builder in bad faith, this does
not alter the character of the warehouse as a real property by
incorporation. It is a structure which cannot be removed
without causing injury to the land. So, my advice to Pedro is
to file the case with the RTC of Bulacan, the situs of the
property.
(Note:
If the examinee does not mention that the
structure was b uilt b y a builder In bad faith. It should be
given full credit).
Q u e s tio n
No, 7:
Marcelino, a treasure hunter aisjust a hobby, has found
a map which appears to Indicate the location of hidden
treasure. He has an Idea of the land where the treasure might
possibly be found. Upon inquiry, Marcelino learns that the
owner of the land, Leopoldo, Is a permanent resident" of
Canada. Nobody, however; could give him Leopoldo's exact
address. Ultimately, anyway, he enters the land and conducts
a search. He succeeds.
Leopoldo, learning of Marcellno's "find", seeks to recover
the treasure from Marcelino but the latter Is not willing to
230
part with it. Failing to reach an agreement. Leopoldo sues
Marcelino for the recovery of the property. Marcelino con­
tests the action.
How would you decide the case?
Answer:
I would decide in favor of Marcelino since he is considered
a finder by chance of the hidden treasure, hence, he is
entitled to one-half (1/2) of the hidden treasure. While
Marcelino may have had the intention to look for the hidden
treasure, still he is a finder by chance since it is enough that
he tried to look for it. By chance in the law does not mean
sheer luck such that the finder should have no intention at
all to look for the treasure. By chance means good luck,
implying that one who Intentionally looks for the treasure is
embraced in the provision. The reason is that it is extremely
difficult to find hidden treasure without looking for it delib­
erately.
Marcelino is not a trespasser since there is no prohibition
for him to enter the premises, hence, he is entitled to half of
the treasure.
Alternative Answers:
1. Marcelino did not find the treasure by chance because
he had a map. he knew the location of the hidden treasure
and he intentionally looked for the treasure, hence, he is not
entitled to any part of the treasure.
2. Marcelino appears to be a trespasser and althpugh
there may be a question of whether he found it by chance of
not, as he has found the hidden treasure by means of a
treasure map, he will not be entitled to a finder's share. The
hidden treasure shall belong to the owner.
3. The main rule is that hidden treasure belongs to the
owner of the land, building or other property on which it is
found. If it is found by chance by a third person and he is not
a trespasser, he is entitled to one-half (1/2). If he is a
trespasser, he loses everything.
231
Question No. 8 :
On 1 January 1980. Minerva, the owner of a building
granted Petronlla a usufruct over the property until 01 June
1998 when Manuel, a son of Petronlla, would have reached
his 30th birthday. Manuel, however, died on 1 June 1990
when he was only 26 years old.
Minerva notified Petronlla that the usufruct had been
extinguished by the death of Manuel and demanded that the
latter vacate the premises and deliver the same to the former.
Petronlla refused to vacate the place on the ground that the
usufruct In her favor would expire only on 1June 1998 when
Manuel would have reached his 30th birthday and that the
death of Manuel before his 30th birthday did not extinguish
the usufruct.
Whose contention should be accepted?
Answer:
Petronila's contention is correct. Under Article 606 of
the Civil Code, a usufruct granted for the time that may
elapse before a third person reaches a certain age shall
subsist for the number of years specified even If the third
person should die unless there is an express stipulation In
the contract that states otherwise. In the case at bar, there
is no express stipulation that the consideration for the
usufruct is the existence of Petronila's son. Thus, the general
rule and not the exception should apply In this case.
Alternative Answer:
This Is a usufruct which Is clearly Intended for the
benefit of MariueL until he reaches 30 yrs. of age, with
Petronlla serving only as a conduit, holding the property in
trust for his benefit. The death of Manuel at the age of 26,
therefore, terminated the usufruct.
Question No. 9:
(a)
Distinguish between "possession" and "occupation"
as these terms are commonly used in Book II and Book III of
the Civil Code.
232
(b)
Are the effects of illegal and Immoral conditions on
simple donations the same as those effects that would follow
when s u c h conditions are imposed on donations con causa
onerosa?
Answer:
(a) Possession is a real right, while occupation is one oi
the original modes of acquiring ownership and other real
rights. Possession, the holding of a thing or the exercise of
a right, does not in itself constitute ownership. Whereas,
occupation is a mode of acquiring ownership. There can be
possession without ownership.
Additional Answer:
Possession is the holding of a thing or the enjoyment of
a right (Art. 532, CC). It can refer to all kinds of property
whether with of without an owner while occupation can take
place only.withrespect to property without an owner (Articles
5$1 & 713). Occupation in itself, when proper, confers
ownership but possession does not by itself give rise to
ownership.
Answer:
,
(b) No, they don't have the same effect. Illegal or
impossible conditions in simple and remuneratory donations
shall be considered as not imposed. Hence the donation is
valid. The donation will be considered as simple or pure. The
condition or mode is merely art accessory disposition, and its
nullity does not affect the donation, unless it clearly appears
that the donor would not have made the donation without the
mode or condition.
j
Donations con causa onerosa is governed by law on
obligations and contracts, under which an impossible or
illicit condition annuls the obligation dependent upon the
condition where the condition is positive and suspensive. If
the impossible or illicit condition is negative, it is simply
considered as not written, and the obligation is converted
into a pure and simple one. However, in order that an illegal
condition may annul a contract, the Impossibility must exist
at the time of the creation of the obligation; a supervening
impossibility does not affect the existence of the obligation.
233
Additional Answer:
No. In simple or pure donation, only the illegal or
impossible condition is considered not written but the donation
remains valid and becomes free from conditions. The con­
dition or mode being a mere accessory disposition, its nullity
does not affect the donation unless it clearly appears that the
donor would not have made the donation without the mode
or condition. On the other hand, onerous donation is
governed by the rules on contracts. Under Article 1183,
Impossible or illegal conditions shall annul the obligation
which depends upon them. In these cases, both the obligation
and the condition are void.
Question No. l'O:
Johnny, with no known living relatives, executed a
notarial w ill giving all his estate to his sweetheart. One day,
he had a serious altercation with his sweetheart. A few days
later, he was introduced to a charming lady who later became
a dear friend. Soon after, he executed a holographic will
expressly revoking the notarial will and so designating his
new friend as sole heir. One day when he was clearing up his
desk. Johnny mistakenly burned, along with other papers,
the only copy o f his holographic, will. His business associate,
Eduardo, knew well the contents of the will which was shown
to him b y Johnny the day it was executed. A few days after
the burning incident, Johnny died. Both wills were sought
to be probated in two separate petitions.
W ill either or both petitions prosper?
Answer:
The probate o f the notarial will will prosper. The
holographic will cannot be admitted to probate because a
holographic will can only be probated upon evidence of the
will itself unless there is a photographic copy. But since the
holographic will was lost and there was no other copy, it
cannot be probated and therefore the notarial will will be
admitted to probate because there is no revoking will.
Additional Answers:
1.
In the case of Gan vs. Yap (104 Phi] 509), the ex­
ecution and the contents of a lost or destroyed holographic
234
will may not be proved by the bare testimony of witnesses who
have seen or read such will. The will itself must be presented
otherwise it shall produce no effect. The law regards the
document itself as material proof of authenticity. Moreover,
in order that a will may be revoked by a subsequent will, It is
necessary th at the Utter will be valid and executed with the
formalities required for the making of a will. The latter should
possess all the requisites of a valid will whether it be ordinary
or a holographic will, and should be probated in order that
the revocatory clause thereof may produce effect. In the case
at bar, since the holographic will itself cannot be presented,
it cannot therefore be probated. Since it cannot be probated,
it cannot revoke the notarial will previously written by the
decedent.
2.
On the basis of the Rules of Court, Rule 76, Sec. 6,
provides that no will shall be proved as a lost or destroyed will
*** unless its provisions are clearly and distinctly proved by
at least two (2) credible witnesses. Hence, if we abide strictly
by the two-witness rule to prove a lost or destroyed will, the
holographic will which Johnny allegedly mistakenly burned,
cannot be 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, which purportedly, revoked the earlier
notarial will cannot be proved because of the absence o f the
required witness, then the petition for the probate of the
notarial will should prosper.
Question No. 11:
'T ' died intestate on 1 September 1997. He was survived
by M (his mother), W (his widow), A and B (his legitimate
children), C (his grandson, being the legitimate son of B), D
(his other grandson, being the son of E who was a legitimate
son of, and who predeceased, 'T '), and F (his grandson, being
the son of G, a legitimate son who repudiated the inheritance
from 'T '). His distributable net estate is P I 20,000.00.
How should this amount be shared in intestacy among
the surviving heirs?
Answer:
The legal heirs are A, B, D, and W. C is excluded by B
who is still alive. D inherits in representation of E who
predeceased. F is excluded because of the repudiation of G,
235
the predecessor. M Is excluded by the-legitimate children of
T. The answer may be premised on two theories: the Theory
of Exclusion and the Theory of Concurrence.
Under the Theory of Exclusion the legitimes of the heirs
are accorded them and the free portion will be given exclu­
sively to the legitimate descendants. Hence under the
Exclusion Theory:
A will get P20.0Q0.00, and P 13.333.33 (1/3 of the free
portion)
B will get P 20,000.00, and P 13, 333.33 (1/3 of the free
portion)
D will get P20.000.00, and P13, 333.33 (1/3 of the free
portion)
W, the widow Is limited to the legitime of P20.000.00
Under the Theory of Concurrence, in addition to their
legitimes, the heirs of A, B. D and W will be given equal shares
in the free portions:
A:
B:
C:
W:
P20,000.00 plus P 10,000.00 (1/4 of the free portion)
P20.000.00 plus P I 0.000.00 (1 /4 of the free portion)
P20,000.00 plus P10,000.00 (1/4 of the free portion)
P20,000.00 plus P 10,000.00 (1/4 of the free portion)
Alternative Answer:
Shares in Intestacy
T - decedent
Estate: P 120,000.00
Survived by:
M - M other....................... .-.......... None
W - W id o w ........ — -.............-.........P 30,000.00
A
B
C
D
-
Son — -........ -......................— - p 30,000.00
S o n ......................- ....... — -...... p 30,000.00
Grandson (son of B ) ................ None
Grandson (son of E who
predeceased T ) .................... P 30,000.00
F - Grandson (son of G who
repudiated the inheritance
from "T ’) ............................. None
236
'
Explanation:
1) The mother (M) cannot Inherit from Tbecause under
Art. 985 the ascendants shall inherit in default of legitimate
children and descendants of the deceased.
2) The widow's share is P30.000.00 because under Art.
996 it states that if the widow or widower and legitimate
children or descendants are left, the surviving spouse has in
the succession the same share as that of each of the children.
\
3) C has no share because his father is still alive hence
succession by representation shall not apply (Art. 975).
4) D inherits P30.000 which is the share of his father
E who predeceased T by virtue of Art. 981 on the right of
representation.
5) F has no share because his father G repudiated the
inheritance. Under Article 977 heirs who repudiate their
share may not be represented.
Question No. 12:
"X", the decedent, was survived by W (his widow), A (his
son), B (a granddaughter, being the daughter of A) and C and
D (the two acknowledged illegitimate children of the decedent).
”X" died this year (1997) leaving a net estate ofP180,000.00.
All were willing to succeed, except A who repudiated the
inheritance from his father, and they seek your legal advice
on how much each can expect to receive as their respective
shares in the distribution of the estate.
Give your answer.
Answer:
The heirs are B, W. C and D. A inherits nothing because
of his renunciation. B inherits a legitime of P90.000.00 as the
nearest and only legitimate descendant, inheriting in his own
right not by representation because of A's renunciation. W
gets a legitime equivalent to one-half (1/2) that of B amounting
to P45.000. C and D each gets a legitime equivalent to onehalf (1 /2) that of B amounting to P45.000.00 each. But since
the total exceeds the entire estate, their legitimes would have
to be reduced correspondingly to P22.500.00 each (Art. 895,
CC). The total of all of these amounts to P180.000.00.
237
Alternative Answer:
INTESTATE SUCCESSION
ESTATE: P180.000.00 '
W - (widow gets 1/2 share)
A- (son who repudiated his
inheritance)
B - (Granddaughter)
C - (Acknowledged
illegitimate child)
D - (Acknowledged
illegitimate child)
PS0.000.00
(Art. 998;'
None
None
(Art. 97 7)
P45.000.00
(Art.998)
P45.000.00
(Art. 998)
The acknowledged illegitimate child gets 1/2 of the
share of each legitimate child.
Question No. 13:
On 01 January 1980, Redentor and Remedios entered
into an agreement by virtue of which the former was to
register a parcel of land in the name of Remedios under the
explicit covenant to reconvey the land to Remigio, son of
Redentor, upon the son’s graduation from college. In 1981,
the land w as registered In the name of Remedios.
Redentor died a year later or in 1982. In March 1983,
Remigio graduated from college. In February 1992, Remigio
accidentally found a copy of the document so constituting
Remedios as the trustee of the land. In May 1994, Remigio
filed a case against Remedios for the reconveyance of the land
to him. Remedios, in her answer, averred that the action
already prescribed.
How should the matter be decided?
Answ er:
The matter should be decided in favor of Remigio
(trustee) because the action has not prescribed. The case at
bar involves an express trust which does not prescribe as
long as they have not been repudiated by the trustee (Diaz vs.
Gorricho, 103 Phil. 261).
238
\
Question No. 14:
In two separate documents signed by him, Juan Valentino
"obligated" himself each to Maria and to Perla, thus 'To Maria, my true love, I obligate myself
to give you my one and only horse when I feel
like it."
- and T o Perla, my true sweetheart, I obligate
myself to pay you the P500.00 I owe you when
r feel like it."
Months passed but Juan never bothered to make good
his promises. Maria and Perla came to consult you on
whether or not they could recover on the basis of the
foregoing settings.
What would your legal advice be?
Answer:
I would advise Maria not to bother running after Juan
for the latter to make good his promise. [This is because a
promise is not an actionable wrong that allows a party to
recover especially when she has not suffered damages resulting
from such promise. A promise does not create an obligation
on the part of Juan because it is not something which arises
from a contract, law, quasi-contracts or quasi-delicts (Art.
1157)). Under Art. 1182, Juan's promise to Maria is void
because a conditional obligation depends upon the sole will
of the obligor.
As regards Perla, the document is an express acknowl­
edgment of a debt, and the promise to pay what he owes her
when he feels like it is equivalent to a promise to pay when
his means permits him to do so, and is deemed to be one with
an indefinite period under Art. 1180. Hence the amount is
recoverable after Perla asks the court to set the period as
provided by Art. 1197, par. 2.
239
Question NO. 15:
State the basic difference (only In their legal effects) (a) Between a contract to sell, on the one hand, and a
contract of sale, on the other;
(b) Between a conditional sale, on the one hand, and an
absolute sale, on the other hand.
Answer:
(a) In a contract of sale, ownership is transferred to the
buyer upon delivery of the object to him while in a contract
to sell, ownership Is retained by the seller until the purchase
price is fully paid. In a contract to sell, delivery of the object
does not confer ownership upon the buyer. In a contract of
sale, there is only one contract executed between the seller
and the buyer, while In a contract to sell, there are two
contracts, first the contract to sell (which is a conditional or
preparatory sale) and a second, the final deed of sale or the
principal contract which is executed after full payment of the
purchase price.
(b) A conditional sale is one where the vendor is granted
the right to unilaterally rescind the contract predicated on
the fulfillment or non-fulfillment, as the case may be, of the
prescribed condition. An absolute sale is one where the title
to the property is not reserved to the vendor or if the vendor
is not granted the right to rescind the contract based on the
fulfillment or non-fulfillment, as the case may be, of the
prescribed condition.
Question No. 16:
A B soldi to GD a motor vehicle for and in consideration
ofP 120,000.00, to be paid in twelve monthly equal Installments
of Pl0,000.00, each installment being due and payable on
the 15th day of each month starting January 1997.
To secure the promissory note, CD (a) executed a chattel
mortgage on the subject motor vehicle, and (b) furnished a
surety bond issued by Philamlife. CD failed to pay more than
two (21 installments
240
AB went after the surety but he was only able to obtain
three-fourths (3/4) of the total amount still due and owing
from CD. A B seeks your advice on how he might, if at all,
recover the deficiency.
How would you counsel AB?
Answer:
Yes, he can recover the deficiency. The action of A B to
go after the surety bond cannot be taken to mean a waiver of
his right to demand payment for the whole debt. The amount
received from the surety is only payment pro tanto, and an
action may be maintained for a deficiency debt.
Question No. 17:
Stating briefly the thesis to support your answer to each
of the following cases, will the death (a) of the lessee extinguish the lease agreement?
(b) of a partner terminate the partnership?
(c) of an agent end an agency?
Answer:
a)
No. The death of the lessee will not extinguish the
lease agreement, since lease is not personal in Character and
the right is transmissible to the heirs. (Heirs ofDimaculangan
Vs. LAC, 170 SCRA 393).
(b) Yes. The death of a partner will terminate the
partnership, by express provision of par. 5, Art. 1830 of the
Civil Code.
(c) Yes. The death of an agent extinguishes the agency,
by express provision of par. 3, Art 1919 of the Civil Code.
Question No. 18:
In order to secure a bank loan, XYZ Corporation surren­
dered its deposit certificate, with a maturity date of 01
September 1997 to the bank. The corporation defaulted on
the due repayment of the loan, prompting the bank to encash
241
the deposit certificate. XYZ Corporation questioned the above
action taken by the ban k as being a case of pactum
c o m m i s s o r t u m . The bank disagrees.
What Is your opinion?
Answer:
W e submit that there is no pactum commissortum here.
Deposits of money in banks and similar institutions are
governed by the provisions on simple loans (Art. 1980, Civil
Code). The relationship between the depositor and a bank Is
one of creditor and debtor. Basically this Is a matter of
compensation as all the elements of compensation are present
In this case (BPI vs. CA, 232 SCRA 302).
Additional Answer:
Where the security for the debt is also money deposited
in a bank, it is not illegal for the creditor to encash the time
deposit certificates to pay the debtor's overdue obligation.
[Chu vs. CA. etaL, G .R 78519, September 26, 1989).
Question No. 19:
(a) When would an employer's liability for damage,
caused by an employee In the performance of his assigned
tasks, be primary and when would it be subsidiary in nature?
(b) Would the defense of due diligence in the selection
and supervision of the employee be available to the employer
in both instances?
Answer:
(a) The employer’s liability for damage based on culpa
aquiliana under Art. 2176 and 2180 of the Civil Code is
primary, while that under Art. 103 of the Revised Penal Code
is subsidiary.
(b) The defense of diligence in the selection and super­
vision of the employee under Article 2180 of the Civil Code is
available only to those primarily liable thereunder, but not to
those subsidiarily liable under Article 103 of the Revised
Penal Code (Yumul vs. Juliano, 11 Phil. 94).
242
Question No. 20:
On 10 September 1965, Melvin applied for a free patent
covering two lots - Lot A and Lot B - situated in Santiago,
Isabela, Upon certification by the Public Land Inspector that
Melvin had been In actual, continuous, open, notorious,
exclusive and adverse possession of the lots since 1925, the
Director of Land approved Melvin's application on 04 June
1967. O n 26 December 1967, Original Certificate of Title
(OCT) No. P-2277 was issued in the name of Melvin.
O n 7 September 1971, Percival filed a protest alleging
that Lot B which he had been occupying and cultivating since
-1947 w as included in the Free Patent issued in the name of
Melvin. The Director of Lands ordered the investigation of
Percival's protest, The Special Investigator who conducted
the investigation found that Percival had been in actual
cultivation of Lot B since 1947.
On 28 NpVember 1986, the Solicitor General Hied in
behalf of the Republic of the Philippines a complaint for
cancellation of the free patent and the OCT Issued in the
name of Melvin and the reversion of the land to public domain
on the ground of fraud and misrepresentation in obtaining
the free patent. On the same date, Percival sued Martin for
the reconveyance of Lot B.
Melvin filed his answers interposing the sole defense in
both cases that the Certificate of Title issued in his name
became incontrovertible and indefeasible upon the lapse of
one year from the issuance of the free patent.
Given the circumstances, can the action of the Solicitor
General and the case for reconveyance filed by Percival
possibly prosper?
Answer:
"If fraud be discovered in the application which led to the
issuance of the patent and Certificate of Title, this Title
becomes ipso facto null and void. Thus, in a case where a
person who obtained a free patent, knowingly made a false
statement of material and essential facts in his application
for the same, by stating therein that the lot in question was
part of the public domain not occupied or claimed by any
243
Other person, his title becomes ipso facto canceled and con­
sequently rendered null and void."
"It is to the public interest that one who succeeds in
fraudulently acquiring title to public land should not be
allowed to benefit therefrom and the State, through the
Solicitor General, may file the corresponding action for
annulment of the patent and the reversion of the land
involved to the public domain" (Dinerc vs. Director of Lands-,
Kayabanvs. Republic L-33307.8-20-73; Director ofLands vs.
Hon. Pedro Samson Animas, L-37682, 3-29-74.)
This action does not prescribe.
With respect to Perctval’s action for reconveyance, it
would have prescribed, having been filed more than ten (10)
years after registration and issuance of an O.C.T. in the name
of Melvin, were it not for the inherent infirmity Of the latter's
title. Under the facts, the statute of limitations will no t apply
to Percival because Melvin knew that a part of the land
covered by his title actually belonged to Percival. So, instead
of nullifying in totothe title of Melvin, the court, in the exercise
of equity and jurisdiction, may grant prayer for the
reconveyance of Lot B to Percival who has actually possessed
the land under a claim of ownership since 1947. After all, if
Melvin's title Is declared void ab initio and the land is reverted
to the public domain, Percival would just the same be entitled
to preference right to acquire the land from the government,
Besides, well settled is the rule that once public la n d has
been in open, continuous, exclusive and notorious posses­
sion under a bona fide claim of acquisition of ownership for
the period prescribed by Section 48 of the Public Land Act,
the same ipsoJure ceases to be public and in contemplation
of law acquired the character of private land.
Thus,
reconveyance of the land from Melvin to Percival would be the
better procedure. (Vitale vs. Anore, 90 Phil. 855; Pena, Land
Titles and deeds, 1982, Page 427)
Alternative Answer:
The action of the Solicitor General should prosper,
considering that the doctrine of indefeasibility of title does
not apply to free patent secured through fraud. A certificate
of title cannot be used as shield to perpetuate fraud. The
State is not bound by the period of prescription stated in Sec.
38 of Act 496. (Director of Lands vs. AbaniMa, 124 SCRA 358)
244
The action for reconveyance filed by Percival may still
prosper provided that the property has not passed to an
innocent third party for value (Dablo vs. Court of Appeals, 226
SCRA 618), and provided that the action is fUed within the
prescriptive period of ten years (Tale vs. Court 6fAppeals, 208
SCRA 266), Since the action w as filed by Percival 19 years
after the issuance of Melvin’s title, it is submitted that the
same is already barred by prescription.
Alternative Answer (to second part o f question)
The action for reconveyance filed, by Percival will pros­
per, because the land has ceased to be public land and has
become private land by open, continuous, public, exclusive
possession under a bona fide; claim of ownership for more
than thirty years, and Percival is still in possession of the
property at present. His action for reconveyance can be
considered as an action to quiet title, which does not pre­
scribe if the plaintiff is in possession erf the property. (Olviga
v. CA, G R 1048013, October 21. 1993)
245
1996 BAR EXAMINATION
Question No. 1:
*
1) Is there any difference in their legal effect between
ignorance o f the law and ignorance or mistake of fact?
Answer:
Yes, there is a difference. While ignorance of the law is
not an excuse for not complying with it, ignorance o f fact
eliminates criminal intent as long as there Is no negligence
(Art, NCC). In addition, mistake on a doubtful or difficult
question of law may be the basis of good faith (Art. 526, NCC).
Mistake of fact may, furthermore, vitiate consent In a contract
and make it voidable (Art. 1390, NCC).
Alternative Answer:
Yes, ignorance of the law differs in legal effect from
ignorance or mistake of fact. The former does not excuse a
party from the legal consequences of his conduct while the
latter does constitute an excuse and is a legal defense.
2)
Distinguish juridical capacity from capacity to act.
Answer:
Juridical capacity is the fitness to be the subj ect of legal
relations while capacity to act is the power or to do acts with
legal effect. The former is inherent in every natural person
and is lost only through death while the latter is merely
acquired and may be lost even before death (Art. 37, NCC).
Alternative Answer:
Juridical capacity, as distinguished from capacity to
act: (a) the former is passive while the latter is active, (b) the
former is inherent in a person while the latter is merely
acquired, (c) the former is lost only through death while the
latterm ay be lost through death or restricted by causes other
246
than death, and (d) the former can exist.without capacity to
act while the latter cannot exist without juridical capacity.
Question No. 2:
Rosa was leasing an apartment in the city. Because of
the Rent Control Law, her landlord could not increase the
rental as much as he wanted to, nor terminate her lease as
long as she was paying her rent. In order to force her to leave,
the premises, the landlord stopped making repairs on the
apartment, and caused the water and electricity services to
be disconnected. The difficulty of .living without electricity
and running water resulted in Rosa's suffering a nervous
breakdown. She sued the landlord for actual and moral
damages.
Will the action prosper? Explain.
Answer:
Yes, based on quasi-delict under the human relations
provisions o f the New Civil Code (Articles 19, 20 and 21)
because the act committed by the lessor is contrary to
morals. Moral damages are recoverable under Article 2219
(10) in relation to Article 21. Although the action is based on
quasi-delict and not on contract, actual damages may be
recovered if the lessee is able to prove the losses and expenses
she suffered.
Alternative Answers:
a) Yes, based on breach of contract. The lessor has the
obligation to undertake repairs to make the apartment
habitable and to maintain the lessee in the peaceful and
adeiquate enjoyment of the lease for the entire duration of the
contract (Article 1654, NCC). S'ince there was willful breach
of contract by the lessor, the lessee is entitled to moral
damages under Article 2220, NCC. She is also entitled to
actual damages, e. g. loss of income, medical expenses, etc.,
which she can prove at the trial.
b) Yes, based on contract and/or on tort. The lessor
willfully breached his obligations under Article 1654. NCC,
hence, he is liable for breach of contract. For such breach,
the lessee may recover moral damages under Art. 2220 of the
247
NCC, and actual damages that she may have suffered on
account thereof. And since Lhe conduct of the lessor was
contraiy to morals, he may also be held liable for quasi-delict.
The lessee may recover .moral damages under Article 2219
(10) in relation to Article 21, and all actual damages which
she may have suffered by reason of such conduct under
Articles 9. 20 and 21.
c)
Yes, the action should prosper for both actual and
moral damages. In fact, even exemplary damages and
attorney's fees can be claimed by Rosa, on the authority of
Magbanua vs. LAC (137 SCRA. 328), considering that, as
given, the lessor's willful and illegal act of disconnecting the
water and electric services resulted in Rosa's suffering a
nervous breakdown. Art. 20 NCC and Art. 21, NCC authorize
the award of damages for such willful and illegal conduct.
Question No. 3:
On April 15, 1983, Jose, an engineer, and Marina, a
nurse, were married to each other in a civil ceremony in Boac,
Marinduque. Six months after their marriage, Jose was
employed in an oil refinery in Saudi Arabia for a period of
three years. When he returned to the Philippines. Marina
was no longer living in their house, but in Zamboanga City,
working in a hospital. He asked her to come home, but she
refused to do so, unless he agreed not to work overseas
anymore because she cannot stand living alone. He could not
agree as, in fact, he had signed another three year contract.
When he returned in 1989, he could not locate Marina
anymore. In 1992, Jose filed an action served by publication
in a newspaper of general circulation. Marina did not file any
answer. A possible collusion between the parties was ruled
out by the Public Prosecutor. Trial was conducted, and
Marina neither appeared nor presented evidence in her favor.
If you were the judge, will you grant the annulment.
Explain.
Answer:
As judge, I will not grant the annulment. The facts do
not show any taint of personality disorder on the part o f the
wife Marina so as to lend substance to her husband's
averment of psychological incapacity within the meaning of
248
Art. 36 of the Family Code. In Santos vs. CA (240 SCRA 20),
this particular ground for nullity of marriage was held to be
limited only to the most serious cases of personality disorders
clearly demonstrative of utter sensitivity or inability to give
meaning and significance to the marriage. Marina's refusal
to come home to her husband unless he agreed not to work
overseas, far from being indicative of an insensitivity to the
meaning o f marriage, or of a personality disorder, actually
shows a sensitive awareness on her part of the marital duty
to live together as husband and wife. Mere refusal to rejoin
her husband when he did not accept the condition imposed
by her does not furnish' any basis for concluding that she was
suffering from psychological incapacity to discharge the
essential marital obligations.
Mere intention to live apart does not fall under Art. 36,
FC. Furthermore, there is no proof that the alleged psy­
chological incapacity existed at the time of the marriage.
Question No. 4:
On Valentine's Day, 1996, Elias and Fely, both single
and 25 years of age, went to the city hall where they sought
out a fixer to help them obtain a quickie marriage. For a fee,
the fixer produced an ante-dated marriage license for them,
issued by the Civil Registrar of a small remote municipality.
He then brought them to a licensed minister in a restaurant
behind the city hall, and the latter solemnized their marriage
right there and then.
1)
Is their marriage valid, void or voidable? Explain.
Answer:
The marriage is valid. The irregularity in the issuance
of a valid license does not adversely affect the validity of the
marriage. The marriage license is valid because it was in fact
issued by a Civil Registrar (Arts. 3 and 4, FC).
Alternative Answer:
It depends. If both or one of the parties was a
member of the religious sect of the solemnizing officer, the
marriage is valid. If none of the parties is a member of the sect
and both of them were aware of the fact, the marriage is void.
249
They cannot claim good faith in believing that the solemn­
izing officer was authorized because the scope of the authority
of the solemnizing officer is a matter of law. If, however, one
of the parties believed in good faith that the other was a
member o f the sect, then the marriage is valid under Article
35 (2), FC. In that case, the party in good faith is acting under
a mistake of fact, not a mistake of law.
2) Would your answer be the same if it should turn out
that the marriage license was spurious? Explain.
Answer:
No, the answer would not be the same. The marriage
would be void because of the absence of a formal requisite. In
such 'a case, there was actually no valid marriage license,
j
Question No. 5:
1)
Flor and Virgilio were married to each other in Roxas
City in 1980. In 1984, Flor was offered a teaching job in
Canada, which she accepted. In 1989, she applied for and
w as granted Canadian citizenship. The following year, she
sued for divorce from Virgilio in a Canadian court. After
Virgilio was served with summons, the Canadian court tried
the case and decreed the divorce. . Shortly thereafter, Flor
married a Canadian.
Can Virgilio m an y again in the Philippines? Explain.
Answer:
No, Virgilio cannot validly remarry. His case is not
covered b y Article 26 of the Family Code. For said Article to
be applicable, the spouse who filed for divorce must be a
foreigner at the time of the marriage. Since both of them were
Filipinos at the time o f the marriage, the divorce obtained by
Flor did not capacitate Virgilio to remariy. The fact that Flor
was already an alien at the time she obtained the divorce does
not give Virgilio the capacity to remarry under Philippine
Law.
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Alternative Answers:
a) Yes, Virgilio can validly remarry. Art. 26 of the FC,
merely states the alien spouse without taking into considera­
tion his or her nationality at the time of the marriage. While
his case is not covered by the letter of Article 26 FC, it is,
however, covered by the spirit of said Article. The injustice
to the Filipino spouse sought to be cured by said Article is
present in this case. (Department of Justice Opinion No. 134
Series of 1993).
b) Although the marriage originally involved Filipino
citizens, it eventually became a marriage between an alien
and a Filipino after Flor became a Canadian citizen. Thus,
the divorce decree was one obtained by an alien spouse
married.to a Filipino. Although nothing is said about whether
such divorce did capacitate Flor to remarry, that fact may as
well be assumed since the problem states that she married
a Canadian shortly after obtaining the divorce. Hence,
Virgilio can marry again under Philippine law, pursuant to
Art. 26, FC which applies because Flor was already an alien
at the time of the divorce.
2)
Bert and Baby were married to each other on
December 23, 1988. Six months later, she discovered that he
was a drug addict. Efforts to have him rehabilitated were
unsuccessful.
f
. Can Baby ask for annulment of marriage, or legal
separation? Explain.
Answer:
No, Baby cannot ask for annulment of her marriage or
for legal separation because both these actions had already
prescribed.
While concealment of drug addiction existing at the time
of marriage constitutes fraud under Art. 46 of the FC which
makes the marriage voidable under Art. 45 of the FC, the
action must, however, be brought within 5 years from the
discovery thereof under Article 47(3), FC. Since the drug
addiction of Bert was discovered by Baby in June 1989, the
action had already prescribed in June of 1994.
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Although drug addiction is a ground for legal separation
under Art. 55(5) and Art. 57 of the FC requires that the action
must be brought within 5 years from the occurrence of the
cause. Since Bert had been a drug addict from the time of
the celebration of the marriage, the action for legal separation
must have been brought not iater than 23 December 1993.
Hence, Baby cannot, now, bring the action for legal separa­
tion.
Question No. 6 :
/
1)
On the occasion of Digna's marriage to George, her
father gave her a donation propter nuptias of a car. Subse­
quently, the marriage was annulled because o f the psycho­
logical immaturity of George.
May Digna's father revoke the donation and get back the
car? Explain.
Answer:
No, Digna's father may not revokie the donation because
Digna was not In bad faith, applying Art. 86(3) of the Family
Code.
Alternative Answer:
a) Yes, the donation is revocable. Since the ground for
the annulment of the marriage is the psychological immatu­
rity of George, the j udgment was in the nature o f a declaration
of nullity under Art. 36 of the FC and, therefore, the donation
m aybe revoked under Art. 86(1) of the FC for the reason that
the marriage has been judicially declared void ab initio.
b) No, the donation cannot be revoked.
The law provides that a donation by reason of marriage
may be revoked by the donor if, among other cases, the
marriage is judicially declared void ab initio [par. (1) Art. 86,
Family Code], or when the marriage is annulled and the
donee acted in bad faith Ipar. (3), Id.]. Since the problem
states that the marriage was annulled and there is no
intimation of bad faith on the part of the donee Digna, the
conclusion is that the donor cannot revoke the donation.
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c) Yes, the donation can be revoked.
The ground used in dissolving the marriage was the
psychological immaturity of George, which is not a ground for
annulment of marriage. If this term is eqyated with psy­
chological incapacity as used in Art. 36 of the Family Code,
then it is a ground for declaration of nullity of the marriage.
Consequently, par. (1) of Art. 86, FC, is the applicable law.
Since Art. 86 of the FC makes no qualification as to who
furnished the ground or who was in bad faith in connection
with the nullification of the marriage, the conclusion is that
Digna's father may revoke the donation and get back the car.
2)
Tess, a former Filipina, now a naturalized American,
and Gary, her American husband, filed a petition for adop­
tion o f her three-year old nephew, one of the eleven children
of her destitute sister inTondo. She had been supporting the
child since his birth, and being childless, she and her
husband have come to love him as their own son. They are
both well-employed in the United States.
If you were the judge, will you grant the adoption?
Explain.
Answer:
No, I will not grant the adoption. Tess and Gary must
adopt join tly under Art. 185 of the Family Code. They do not
fall in any of the exceptions to this rule. In addition, both Tess
and G aiy must be qualified to adopt. While Tess is qualified
to adopt under Article 184(3)(a) of the FC, G aiy is hot so
qualified because he is an alien and he does not fall under any
o f the exceptions. Hence, the adoption must be denied
(Toledano v. CA, 933 SCRA 9; Republic u.CA, 227 SCRA 401).
Question No. 7:
Bartolome constructed a chapel on the land of Eric.
W hat are Bartolome's rights if he were:
1)
a possessor of the land in good faith?
253
Answer:
' A chapel is a useful improvement. Bartolome may
remove the chapel if it can be removed without damage to the
land, unless Eric chooses to acquire the chapel. In the latter
case, Bartolome has the right to the reimbursement of the
value of the chapel with right of retention until he is reim­
bursed. (Art. 448 in relation to Art. 546 & 547, NCC).
Alternative Answer:
Assuming that Eric acted in good faith, Bartolome's
rights will depend upon what option Eric chooses. Eric, the
owner o f the land, may choose to acquire the chapel, which
is a useful expense or to sell the land to the builder (Bartolome).
I f Eric chooses to acquire the chapel, he has the right to
reimbursement for useful expenses, with a right of retention
until paid.
If Eric chooses to sell the land to Bartolome, Bartolome
m ay refuse to buy the land if the value of the land is
considerably miore than the value of the building, in which
case, there will be a forced leased between them.
A d d itio n a l Answer:
If Eric acted in bad faith, then Bartolome has the right
of absolute removal of the chapel, plus damages. However,
If Eric chooses to acquire the chapel, then Bartolome has the
right to reimbursement, plus payment of damages, with right
o f retention (Art. 454 in relation of Art. 447, NCC)
2)
a possessor of the land in bad faith?
Answer:
Bartolome, under Art. 449 of the NCC, loses whatever he
built, without any right to indemnity.
A lte r n a tiv e Answer:
It is th e o w n e r o f the la n d w h o h a s the rig h t to a c q u ir e
th e c h a p e l w ith o u t p a y in g in d e m n ity , p lu s d a m a g e s , o r to
254
r e q u ir e B a r t o lo m e lo re m o v e the c h a p e l, p l u s d a m a g e s o r to
re q u ire B a r t o lo m e to b u y th e la n d , w it h o u t a n y o p tio n to
r e fu s e to b u y it.
(A rts. 4 4 9 a n d 4 5 8 , N C C )
If Eric acted in bad faith, then his bad faith cancels the
bad faith of Bartolome, and both will be taken to have acted
in good faith. (Art. 453, NCC)
3)
a usufructuary of the land?
Answer:
Bartolome has the right to remove the improvement if it
is possible to do so without causing damage to the property
(Art. 579, NCC). He may also set off the improvement against
any damages which the property held in usufruct suffered
because o,f his act or the acts ofhis assignee. (Art. 580, NCC).
4)
a lessee of the land?
Answer:
The owner of the land, as lessor, can acquire the
improvement by paying for one-half of its value. Should the
lessor refuse to reimburse said amount, the lessee may
remove the improvement, even though the principal thing
may suffer damage thereby (Art. 1678, NCC).
Question No. 8 :
David is the owner of the subdivision in Sta. Rosa,
Laguna, without an access to the highway. When he applied
for a license to establish the subdivision, David represented
that he will pu rchase a rice field located between his land and
the highway, and develop it into an access road. But, when
the license was already granted, he did not bother to buy the
rice field, which remains unutilized until the present.'instead,
he chose to connect his subdivision with the neighboring
subdivision of Nestor, which has an access to the highway.
Nestor allowed him to do this, pending negotiations on the
compensation to 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, for
the establishment of an easement of right of way through the
255
subdivision of Nestor which he claims to be the most ad­
equate and practical outlet to the highway.
1)
What are the requisites for the establishment of a
compulsory easement of a right of way?
Answer:
Art. 649, NCC. The owner, or any person who by virtue
of a real right may cultivate or use any immovable which is
surrounded by other immovables pertaining to other persons
and without adequate outlet to a public highway, is entitled
to demand a right of way through the neighboring estates,
after payment of the property indemnity.
Should this easement be established in such a manner
that its use may be continuous for all the needs of the
dominant estate, establishing a permanent passage, the
indemnity shall consist of the value of the land occupied and
the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary
p assage for the cultivation of the estate surrounded by others
and for the gathering of its crops through the servient estate
without a permanent way, the.indemnity shall consist in the
payment of the damage cause by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a).
The easement of right of way shall be established at the
point least prejudicial to the servient estate, and insofar as
consistent with this rule, where the distance from the dominant
estate to a public highway may be the shortest (Art. 650,
NCC: Vda. de Baltazar v. CA, 245 SCRA 333)
Alternative Answer:
The requisites for a compulsory easement of right of way
are: (a) the dominant estate is surrounded by other immova­
bles and is without an adequate outlet to a public street or
highway: (b) proper indemnity must be paid; (c) the isolation
must not be due to the acts of the owner of the dominant
estate: and (d) the right of way claimed is at a point least
256
prejudicial to the servient estate and, insofar as is consistent
with this rule, where the distance to the street or highway is
shortest.
2)
Is David entitled to a right of way in this case? Why
or why not?
Answer:
No, David is not entitled to the right of way being
claimed. The isolation of his subdivision was due to his own
act or omission because he did not develop into an access
road the rice field which he was supposed to purchase
according to his own representation when he applied for a
license to establish the subdivision {Floro vs. Llenado, 244
SCRA 713).
Question No 9:
Sometime in 1955, Tomas donated a parcel ofland to his
stepdaughter Irene, subject to the condition that she may not
sell, transfer or cede the same for twenty years. Shortly
thereafter, he died. In 1965, because she needed money for
medical expenses, Nene sold the land to Conrado. The
following year, Irene died, leaving as her sole heir a son by the
name of Armando. When Armando learned that the land
which he expected to inherit had been sold by Irene to
Conrado, he filed an action against the latter for annulment
of the sale, on the ground that it violated the restriction
imposed by Tomas. Conrado filed a motion to dismiss, on the
ground that Armando did not have the legal capacity to sue.
If you were the judge, how will you rule on this motion
to dismiss? Explain.
Answer:
As judge, I will grant the motion to dismiss. Armando
has no personality to bring the action for annulment of the
sale to Conrado. Only an aggrieved party to the contract may
bring the action for annulment thereof (Art. 1397, NCC).
While Armando is heir and successor-in-interest of his
mother (Art. 1311, NCC), he (standing in place of his mother)
has no personality to annul the contract. Both are not
aggrieved parties on account of their own violation of the
257
condition of, or restriction on, their ownership imposed by
the donation. Only the donor or his heirs would have the
personality to bring an action to revoke a donation for
violation o f a condition thereof or a restriction thereon.
(Garrido v. CA, 236.SCRA 450). Consequently, while the
donor or his heirs were not parties to the sale, they have the
right to annul the contract of sale because their rights are
prejudiced by one of the contracting parties thereof (DBF v.
CA, 96 SCRA 342; Teves vs. PHHC, 23 SCRA 1141. Since
Armando is neither the donor nor heir of the donor, he has
no personality to bring the action for annulment.
Alternative Answer:
As judge, I will grant the motion to dismiss. Compliance
with a condition imposed by a donor gives rise to an action to
revoke the donation under Art. 764, NCC. However, the right
of action belongs to the donor, is transmissible to his heirs,
and may be exercised against the donee's heirs. Since
Armando is an heir of the donee, not of the donor, he has no
legal capacity to sue for revocation of the donation. Although
he is not seeking such revocation but an annulment of the
sale which his mother, the donee, had executed in violation
of the condition imposed by the donor, an action for annulment
of a contract may be brought only by those who are princi­
pally or subsidiarily obliged thereby (Art. 1397, NCC). As an
exception to the rule, it has been held that a person not so
obliged may nevertheless ask for annulment if he is preju­
diced in his rights regarding one of the contracting parties
(DBPvs. CA, 96 SCRA 342 and other cases) and can show the
detriment which would result to him from the contract in
which he had no intervention. (Teves vs. PHHC, 23 SCRA
1141).
Such detriment or prejudice cannot be shown by
Armando. As a forced heir, Armando's interest in the
property was, at best, a mere expectancy. The sale of the land
by his mother did not impair any vested right. The "fact
remains that the premature sale made by his mother (pre­
mature because only half of the period of the ban had
elapsed) was not voidable at all, none of the vices o f consent
under Art. 139 of the NCC being present. Hence, the motion
to dismiss should be granted.
258
Question No. 10:
1) Vanessa died on April 14, 1980, leaving behind a
holographic will which is entirely written, dated and signed
in her own handwriting. However, it contains insertions and
cancellations which are not authenticated by her signature.
For this reason, the probate o f Vanessa's will was opposed by
her relatives who stood to inherit by her intestacy.
May Vanessa's holographic will be probated? Explain.
Answer:
Yes, the will as originally written m aybe probated. The
insertions and alterations were void since they were not
authenticated by the full signature of Vanessa, under Art.
814, NCC. The original will, however, remains valid because
a holographic will is not invalidated by the unathenticated
insertions or alterations (Ajero v. CA, 236 SCRA 468).
Alternative Answer:
It depends. As a rule, a holographic will is not adversely
affected by insertions or cancellations which were not au­
thenticated by the full signature of the testator (Ajero v. CA,
236 SCRA 468). However, when the insertion or cancellation
amounts to revocation of the will, Art.814 of the NCC does
not apply but Art. 830, NCC. Art. 830 of the NCC does not
require the testator to authenticate his cancellation for the
effectivity of a revocation effected through such cancellation
(Kalaw v. Relova, 132 SCRA 237). In.the Kalaw case, the
original holographic will designated only one heir as the only
substantial provision, which was altered by substituting the
original heir wi.th another heir. Hence, if the unauthenticated
cancellation amounted to a revocation of the will, the will may
not be probated because it had already been revoked.
2) Alfonso, a bachelor without any descendant or
ascendant, wrote a last will and testament in which he
devised," all the properties of which I may be possessed at the
time of my death" to his favorite brother Manuel. At the time
he wrote the will, he owned only one parcel of land. But by
the time he died, he owned twenty parcels of land. His other
brothers and sisters insist that his will should pass only the
parcel ofland he owned at the lime it was written, and did not
259
cover his properties acquired, which should be by intestate
succession. Manuel claims otherwise.
Who is correct? Explain.
Answer:
Manuel is correct because under Art. 793, NCC, prop­
erty acquired after the making of a will shall only pass
thereby, as if the testator had possessed it at the time of
making the willt should it expressly appear by the will that
such 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 20 parcels of land are
included in the devise,
Question No. 11:
Cristina, the illegitimate daughter of Jose and Maria,
died intestate, without any descendant or ascendant. Her
valuable estate is being claimed by Ana, the legitimate
daughter of Jose, and Eduardo, the legitimate son o f Maria.
Is either, both, or neither of them entitled to inherit?
Explain.
Answer:
Neither Ana nor Eduardo is entitled to inherit ab intestalo
from Cristina. Both are legitimate relatives of Cristina!s
illegitimate parents and therefore they fall under the prohi­
bition prescribed by Art. 992, NCC (Manuel v. Ferrer, 242 SCRA
477; Diaz v. Court o f Appeals, 182 SCRA 427).
Question No. 12:
Baldomero leased his house with a telephone to Jose.
The lease contract provided that Jose shall pay for all
electricity, water and telephone services in the leased premises
during the period of the lease. Six months later, Jose
surreptitiously vacated the premises. He left behind unpaid
telephone bills for overseas telephone calls amounting to over
P20.000.00. Baldomero refused to pay the said bills on the
ground that Jose had already substituted him as the cus­
tomer of the telephone company. The latter maintained tha t
260
Baldomero remained as his customer as far as their service
contract was concerned, notwithstanding the lease contract
between Baldomero and Jose.
Who is correct, Baldomero or the telephone company?
Explain.
Answer:
The telephone company is correct because as far as it is
concerned, the only person it contracted with was Baldomero.
The telephone company has no contract with Jose. Baldomero
cannot substitute Jose in his stead without the consent of the
telephone company (Art. 1293, NCC). Baldomero is, there­
fore, liable under the contract.
Question No. 13:
In December 1985, Salvador and the Star Semiconduc­
tor Company (SSC) executed a Deed of Conditional Sale
wherein the former agreed to sell his 2,000 square meter lot
in Cainta, Rizal, to the latter for the price of P I,000,000.00,
payable P 100,000.00 down, and the balance 60 days after
the squatters in the property have been removed. If the
squatters are not removed within sixmonths, the P100,000.00
down payment shall be returned by the vendor to the vendee.
Salvador filed ejectment suits against the squatters, but
in spite of the decisions in his favor, the squatters still would
not leave. In August, 1986, Salvador offered to return the
P 100,000.00 down payment to the vendee, on the ground
that he is unable to remove the squatters on the property.
SSC refused to accept the money and demanded that Salvador
execute a deed o f absolute sale of the property in its favor, at
which time it will pay the balance of the price. Incidentally,
the value of the land had doubled by that time.
Salvador consigned the P 100,000.00 in court, and filed
an action for rescission of the deed of conditional sale, plus
damages.
Will the action prosper? Explain.
261
Answer:
No, the action will not prosper. The action for rescission
may be brought only by the aggrieved party to the contract.
Since it was Salvador who failed to comply with his condi­
tional obligation, he is not the aggrieved party who may file
the action/for rescission but the Star Semiconductor Com­
pany. The. company, however, is not opting to rescind the
contract but has chosen to waive Salvador's compliance with
the condition which it can do under Art. 1545, NCC.
Alternative Answer:
The action for rescission will not prosper. The buyer has
not committed any breach, let alone a substantial or serious
one, to warrant the rescission/resolution sought by the
vendor. On the.contrary, it is the vendor who appears to have
failed to comply with the condition imposed by the contract
the fulfillment of which would have rendered the obligation
to pay the balance of the purchase price demandable. Fur­
ther, far from being unable to comply with what is incumbent
upon it, te., pay the balance of the price - the buyer has
offered to pay it even without the vendor having complied
with the suspensive condition attached to the payment of the
price, thus waiving such condition as well as the 60-day term
in its favor. The stipulation that the P100,000.00 down
payment shall be returned by the vendor to the vendee if the
squatters are not removed within six months, is also a
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 upon the execution of a deed
of absolute sale by the vendor. (Art. 1545, NCC)
Question No. 14:
Ubaldo is the owner oi a building which has been leased
by Remigio for the past 20 years. Ubaldo has repeatedly
assured Remigio that if he should decide to sell the building,
he will give Remigio the right of first refusal. On June 30,
1994, Ubaldo informed Remigio that he was willing to sell the
building for P5 Million. The following day, Remigio sent a
letter to Ubaldo offering to buy the building at P4.5 Million.
Ubaldo did not reply. One week later, Remigio received a
letter from Santos informing him that the building has been
sold to him by Ubaldo for P5 Million, and that he will not
262
renew Remigio's lease when it expires. Remigio filed an
action against Ubaldo and Santos for cancellation of the sale,
and to compel Ubaldo to execute a deed of absolute sale in his
favor, based on his right of first refusal.
1) Will the action prosper'? Explain.
Answer:
No, the action to compel Ubaldo to execute the deed of
absolute sale will not prosper. According to Ang Yu v. Court
o f Appeals (238 SCRA 602), the right of first refusal is not
based on contract but is predicated on the provisions of
human relations and, therefore, its violation is predicated on
quasi:delict. Secondly, the right o f first refusal implies that
the offer of the person in whose favor that right was given
must Conform with the same terms and conditions as those
given to the offeree. In this case, however, Remigio was
offering only P4:5 Million instead of P5 Million.
Alternative Answer:
No, the action will not prosper. The lessee's right o f first
refusal does not go so far as to give him the power to dictate
on the lessor the price at which the latter should sell his
property. Upon the facts given, the lessor had sufficiently
complied with his commitment to give the lessee a right of
first refusal when he offered to sell the property to the lessee
for P5 Million, which was the same price he got in selling it
to Santos. He certainly had the right to treat the lessee's
counter-offer of a lesser amount as a rejection of his offer to
sell at P5 Million. Thus, he was free to find another buyer
upon receipt o f such unacceptable counter-offer (Art. 1319,
NCC).
2) If Ubaldo had given Remigio an option to purchase
the building instead of a right of first refusal, will your answer
be the same? Explain.
Answer:
Yes, the answer will be the same. The action will not
prosper because an option must be supported by a consi­
deration separate and distinct from the purchase price. In
263
this case there is no separate consideration. Therefore, the
option may be withdrawn by Ubaldo at any time. (Art. 1324,
NCC)
Question No, 15:
In the province, a farmer couple borrowed money from
the local merchant. To guarantee payment, they left the
Torrens Title of their land With the merchant, for him to hold
until they pay the loan. Is there a a) contract of pledge,
b) contract o f mortgage,
c) contract of antichresis, or
d) none o f the above?
Explain.
Answer:
None of the above. There is no pledge because only
movable property may be pledged (Art. 2094, NCC). If at all,
there was a pledge of the paper or document constituting the
Torrens Title, as a movable by itself, but not of the land which
the title represents. There is no mortgage because no deed
or contract was. executed in the manner required by law for
a mortgage (Arts. 2085 to 2092, NCC; 2124 to 2131. NCC).
There is no contract of antichresis because no right to the
fruits of the property was given to the creditor (Art. 2132
NCC).
A contract of simple loan was entered into with security
arrangement agreed upon by the parties which is not one of
those mentioned above.
Alternative Answer:
There is a contract of mortgage constituted over the
land. There is no particular form required for the validity of
a mortgage of real property. It is not covered by the statute
o f frauds in Art. 1403, NCC and even assuming that it is
covered, the delivery of the title to the creditor has taken it out
of the coverage thereof. A contract of mortgage of real
property is consensual and is binding on the parties despite
absence of writing. However, third parties are not bound
264
because o f the absence o f a written instrument evidencing
the mortgage and, therefore the absence of registration. But
this does not affect the validity of the mortgage between the
parties (Art. 2125, NCC). The creditor may compel the debtor
to execute the mortgage in a public document in order to
allow its registration (Art. 1357, NCC xn relation to Art. 1358,
NCC).
Question No. 16:
Marcial, who does not know how to drive, has always
been driven by Ben, his driver o f ten years whom he had
chosen carefully and has never figured in a vehicular mishap.
One day, Marcial was riding at the back seat of his Mercedes
Benz being driven along EDSA by Ben. Absorbed in reading
a book, Marcial did not notice that they were approaching the
com er o f Quezon Avenue, when the traffic iight had just
turned yellow. Ben suddenly stepped on the gas to cross the
intersection before the traffic light could turn red. But, too
late. Midway in the intersection, the traffic light changed,.
and a jeepney full of passengers suddenly crossed the car's
path. A collision between the two vehicles was inevitable. As
a result, several jeepney passengers were seriously injured.
A suit for damages based on culpa aquiliana was filed against
Marcial and Ben, seeking to hold them Jointly and severally
liable for such injuries.
May Marcial be held liable? Explain.
Answer:
Marcial may not be liable because under Art. 2184,
NCC, the owner who is in the vehicle is not liable with the
driver if by the exercise of due diligence he could have
prevented the injury. The law does not require the owner to
supervise the driver every minute that he was driving. Only
when, through his negligence, the owner has lost an op­
portunity to prevent the accident would he be liable (Caedo
v. YuKhe Thai, 26 SCRA 410 citing Chapman v. Underwood
and Mardanglt u. Maujer, 250 SCRA 560). In this case, the
fact that the owner was absorbed in reading a book does not
conclusively show that he lost the opportunity to prevent the
accident through his negligence.
265
Alternative Answer:
Yes, Marcial should be held liable. Art. 2184, NCC
makes, an owner of a motor vehicle solidarity liable with the
driver if, being in the vehicle at the time of the mishap, he
could have prevented it by the exercise of due diligence. The
traffic conditions along EDSA at any time of day or night are
such as to require the observance o f utmost care and total
alertness in view of the large number of vehicles running at
great speed. Marcial was negligent in that he rendered
him self oblivious to the traffic hazards by reading a book
instead of focusing his attention on the road and supervising
the m anner in which his car was being driven. Thus he failed
to prevent his driver from attempting to beat the traffic light
at the junction of Quezon Avenue and EDSA, which Marcial,
without being a driver himself, could have easily perceived as
a reckless course of conduct.
Question No. 17:
In 1989, the heirs of Gavino, who died on August 10,
1987, filed a petition for reconstitution of his lost or destroyed
Torrens Title to a parcel of land'in Ermita, Manila. This was
opposed by Marilou, who claimed ownership of the said land
by a series of sales. She claimed that Gavino had sold the
property to Bernardo way back in 1941, and as evidence
thereof, she presented a Tax Declaration in 1948 in the name
of Bernardo, which cancelled the previousTax Declaration in
the name of Gavino. Then she presented two deeds of sale
duly registered with the Register of Deeds, the first one
executed by Bernardo in 1954, selling the same property to
Carlos, and the second one executed by Carlos in 1963,
selling the same property to her. She also claimed that she
and her predecessors in interest have been in possession of
the property'Since 1948.
If you were the judge, how will you decide the petition?
Explain.
Answer:
If I were the judge, I will give due course to the petition
of the heirs of Gavino despite the opposition of Marilou forthe
following reasons:
266
Judicial reconstitution of a certificate o f title under R A .
No. 26 partakes of a land registration proceeding and is
perforce a proceeding in rem. It denotes restoration of an
existing instrument which has been lost or destroyed in its
original form and condition. The purpose of reconstitution of
title or any document is to have the same reproduced, after
proceedings, in the same form they were when the loss or
destruction occured.
If the Court goes beyond that purpose, it acts without or
in excess of jurisdiction. Thus, where the Torrens Title
sought to be reconstituted is in the name of Gavino, the court
cannot receive evidence proving that Marilou is the owner of
the land. Marilou's dominical claim to the land should be
ventilated in a separate civil action before the Regional Trial
Court in its capacity as a court of general jurisdiction.
References: Heirs o f Pedro Pinote us. Dulay, 187 SCRA
12-20 (1990); Bunagan vs. CFI Cebu Branch VI, 97 SCRA 72
(1980); Republic vs.\LAC, 157 SCRA 62, 66 (1988); Margolles
vs. CA, 230 SCRA 709; Republic vs. Feliciano, 148 SCRA 924.
Question No 18:
<
Alma was hired as a domestic helper inHongkong by the
Dragon Services, Ltd., through its local agent. She executed
a standard employment contract designed by the Philippine
Overseas Workers Administration (POEA) for overseas Fili­
pino workers. It provided for her employment for one year at
a salary of US$1,000.00 a month. It was submitted to and
approved by the POEA. However, when she arrived in
Hongkong, she was asked to sign another contract by Dragon
Services, Ltd. which reduced her salary to only US$600.00
a month. Having no other choice, Alma signed the contract
but when she returned to the Philippines, she demanded
payment of the salaiy differential of US$400.00 a month.
Both Dragon Services, Ltd. and its local agent claimed that
the second contract is valid under the laws of Hongkong, and
therefore binding on Alma.
Is their claim correct? Explain.
Answer:
Their claim is not correct. A contract is the law between
the parties but the law can disregard the contract if it is
267
contraiy to public policy. The provisions of the 1987 Consti­
tution on the protection of labor and on socialjustice (Sec. 10,
Art II) embody a public policy of the Philippines. Since the
application of Hongkong law in this case is in violation of that
public policy, the application shall be disregarded by our
Courts. (Cadalin v. POEA, 238 SCRA 762)
Alternative Answers:
a) Their claim is not correct. Assuming that the second
contract is binding under Hongkong law, such second con­
tract is invalid under Philippine law whiGh recognizes as valid
only the first contract. Since the case is being litigated in the
Philippines, the Philippine Court as the forum will not
enforce any foreign claim obnoxious to the forum's public
policy. There is a strong public policy enshrined in our
Constitution on the protection of labor. Therefore, the
second contract shall be disregarded and the first contract
will be enforced. [Cadalin v. POEA, 238 SCRA 762).
b) No, their claim is not correct. The second contract
executed in Hongkong, partakes of the nature of a waiver that is contrary to Philippine law and the public policy governing.
Filipino overseas workers. Art. 17, provides that our
prohibitive laws concerning persons, their acts, or their
property or which have for their object public order, public
policy and good customs shall not be rendered ineffective by
laws or conventions agreed upon in a foreign country.
Besides, Alma's consent to the second contract was vitiated
by undue influence, being virtually helpless and under
financial distress in a foreign country, as. indicated by the
given fact that she signed because she had no choice.
Therefore, the defendants claim that the contract is valid
under Hongkong law should be rejected since under the
doctrine of processual presumption a foreign law is deemed
similar or identical to Philippine law in the absence of proof
to the contrary, and such is not mentioned in the problem as
having been adduced.
268
1995 BAR EXAMINATION
Question No. 1:
1. What is easement? Distinguish easement from
usufruct.
2. Can there be (a) an easement over a usufruct? (b)
a usufruct over an easement? (c) an easement over another
easement? Explain.
Answer:
1 .' A n easement or servitude is an encumbrance im ­
posed upon an immovable for the benefit of another im­
movable belonging to a different owner. (Art. 613, NCC)
Usufruct gives a right to enjoy the property of another
with the obligation of preserving its form and substance,
unless the title Constituting it or the law otherwise provides.
(Art. 562, NCC). An easement or servitude is an encum­
brance imposed upon an immovable for the benefit of
another immovable belonging to a different owner (Art. 613,
NCC).
Alternative Answer:
Easement is an encumbrance imposed upon an im­
movable for the benefit of another immovable belonging to a
different owner in which case it is called real or predial
easement, or for the benefit of a community or group of
persons in which case it is known as a personal easement.
The distinctions between usufruct and easement are:
a. Usufruct includes all uses o f the property and for all
purposes, inclu din gju sJruendL Easement is limited to a
specific use.
b. Usufruct may be constituted on immovable or
movable property. Easement may be constituted only on an
immovable property.
269
c. Easement is not extinguished by the death, of the
owner of the dominant estate while usufruct is extinguished
by the death of the usufructuary unless a contrary intention
appears.
d. An easement contemplates two (2) estates belonging
to two (2) different owners; a usufruct contemplates only one
property (real or personal) whereby the usufructuary uses
and enjoys the property as well as its fruits, while another
owns the naked title during the period of the usufruct.
e. A usufruct may be alienated separately from the
property to which it attaches, while an easement cannot be
alienated separately from the property to which it attaches.
NOTE: It is recommended by the Committee that any
two (2) distinctions should be given full credit.
Answer:
2. (a) There can be no easement over a usufruct. Since
an easement may be constituted only on a corporeal immov­
able property, no easement may be constituted on a usufruct
which is not a corporeal right.
(b)
There can be no usufruct over an easement.
While a usufruct may be created over a right, such right must
have an existence of its own independent of the propeirty. A
servitude cannot be the obj ect of a usufruct because it has no
existence independent of the property to which it attaches.
Alternative Answers:
There cannot be a usufruct over an easement since an
easement presupposes two (2) tenements belonging to diffe­
rent persons and the right attaches to the tenement and not
to the owner. While a usufruct gives the usufructuary aright
to use, right to enjoy, right to the fruits, and right to possess,
an easement gives only a limited use of the servient estate.
However,, a usufruct can be constituted over a property
that has in its favor an easement or one burdened with a
servitude. The usufructuary will exercise the easement
during the period of usufruct.
270
(c)
There can be no easement over another easement for
the same reason as in (a). An easement, although it is a real
right over ah immovable, is not a corporeal right.‘ There is a
Roman maxim which says that: There can be no servitude
over another servitude.
Question No. 2:
While in Afghanistan, a Japanese by the name of Sato
sold to Ramoncito, a Filipino, a parcel of land situated in the
Philippines which Sato inherited from his Filipino mother.
1. What law governs the formality in the execution of
the contract of sale? Explain your answer and give its legal
basis.
Answer:
Under Art. .16 par. 1, NCC, real property is subject to the
law of the country where it is situated. Since the property is
situated in the Philippines, Philippine law applies. The rule
o f lex rei sitae in Article 16 prevails over lex loci contractus in
Article 17 of the NCC.
Alternative Answer:
Afghanistan law governs the formal requirements of the
contract since the execution is in Afghanistan. Art. 17 of the
Civil Code provides that the forms and solemnities of contracts,
wills, and other public instruments shall be governed by the
laws of the country in which they are executed. However, if
the contract was executed before the diplomatic or consular
officials o f the Republic of the Philippines in Afghanistan,
Philippine law shall apply.
2. What law governs the. capacity of the Japanese to
sell the land? Explain your answer and give its legal basis.
Answer:
Japanese law governs .the capacity of the Japanese to
sell the land being his personal law on the basis of an
interpretation of Art. 15, NCC.
271
Alternative Answers:
a) Since capacity to contract is governed by the personal
law of an individual, the Japanese seller's capacity should be
governed either by his national law (Japanese law) or by the
law of his domicile, depending upon whether Japan follows
the nationality or domiciliary theory of personal law for its
citizens.
b) Philippine law governs the capacity of the Japanese
owner in selling the land. While as a general rule capacity of
persons is governed by the law of his nationality, capacity
concerning transactions involving property is ari exception.
Under Article 16 of the NCC, the capacity of persons in
transactions involving title to property is governed by the law
o f the country where the property Is situated. Since the
property is in the Philippines, Philippine law governs the
Capacity of the seller.
3.. What law governs the capacity of the Filipino to buy
the land? Explain your answer and give its legal basis.
Answer:
Philippine law governs the capacity of the Filipino to buy
the land. In addition to the principle of lex rei sitae given
above. Article 15 of the NCC specifically provides that Philip­
pine laws relating to legal capacity of persons are binding
upon citizens of the Philippines no matter where they are.
Question No. 3:
In 1980 spouses Felisa and George, both Filipino citi­
zens, migrated to the United States. Six years 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 daughter of Helen, Felisa's
younger sister. The government opposed the petition on the
ground that Felisa and George were disqualified since they
were already American citizens.
1.
How will you resolve the petition? Explain
2. Will your answer be the same if George were a
natural-bom American citizen? Explain.
272
3. Will your answer be the same if Felisa were the
illegitimate parent of Gilda? Explain.
4. Going backto the basic facts-, suppose Felisa acquired
her American citizenship during the pendency of the petition
for adoption, will your answer be the same as in Question No.
1?
Explain.
Answer:
1. The petition should be denied because George is not
qualified to adopt. As husband and wife, they have to adopt
jointly under Article 185 of the Family Code. Their case does
not fall in any of the exceptions, where a spouse may adopt
alone. In Republic u. Toledano, (233 SCRA 9), the Court ruled
that both spouses must be qualified.to adopt when required
by law to adopt jointly. Being aliens, Felisa and George are,
as a rule, disqualified to adopt under Art. 184 of the FC.
While Felisa falls in one of the exceptions to this rule, being
a former Filipino who seeks to adopt a relative by consan­
guinity, George does not. He does not seek to adopt his
relative by consanguinity, or a legitimate child of his spouse
and neither is his spouse a Filipino. One of the spouses being
disqualified to adopt, the petition has to be denied.
Alternative Answer:
Since the adopters are former Filipino" citizens and the
child sought to be adopted is a relative by Consanguinity of
one of them, and since the rule of joint adoption by spouses
is duly complied with, the petition should be granted.
2. The answer will be the same if George were a
natural-bom American. He will still not fall in any of the
exceptions to the disqualification of aliens.
Alternative Answer:
No, my answer will be different because in that case,
while Felisa is qualified to adopt, the petition for joint
adoption cannot be granted. It should be converted into a
petition only by Felisa. It cannot be granted as ajoint petition
but can be granted as an individual petition.
273
3. No, the answer will be different. In such a case,
Felisa m ay adopt alone. Her case falls under the exception
to the rule in Art. 18.5 requiring husband and wife to adopt
jointly, because she seeks to adopt her own illegitimate child.
She is qualified to adopt alone under Art. 184 because she is
a former Filipino citizen who seeks to adopt a relative by
consanguinity. Hence, the court may decree the adoption of
Gilda by Felisa.
4. Yes, the answer will be the same as in No. 1. The
adopter must be qualified to adopt not only on the date of
filing o f the case, but also on the date of judgment.
Question No. 4:
Rommel was issued a certificate o f title over a parcel of
land in Quezon City. One year later Rachelle, the legitimate
owner of the land, discovered the fraudulent registration
obtained by Rommel. She filed a complaint against Rommel
for reconveyance and caused the annotation of a notice of lis
pendens on the certificate of title issued to Rommel. Rommel
now invokes the indefeasibility of his title considering that
one year has already elapsed from its issuance. He also seeks
the cancellation of the notice of lis pendens.
1. Will
Explain.
Rachelle’s
suit for reconveyance prosper?
2. May the court cancel the notice of lis pendens even
before final judgment is rendered? Explain.
Answer:
1.
Yes, Rachelle’s suit will prosper because all ele­
ments for i n action for reconveyance are present, namely:
a.
Rachelle is claiming dominical rights over the
same land.
b . Rommel procured his title to the land by fraud.
c.
The action was brought within the statutory
period of four (4) years from discovery of the
fraud and not later than ten (10) years from the
date of registration of Rommel's title.
274
d. Title to the land has not passed into the hands
of an innocent purchaser for value.
Rommel can invoke the indefeasibility of his title if
Rachelle had filed a petition to reopen or review the decree of
registration. But Rachelle instead filed an ordinary action in
personamforreconveyance. In the latter action, indefeasibil­
ity is not a valid defense because, in filing such action,
Rachelle is not seeking to nullify nor to impugn the indefea­
sibility of Rommel’s title. She is only asking the court to
compel Rommel to reconvey the title to her as the legitimate
owner of the land,
i
Alternative Answer:
Yes. The property registered is deemed to be held in
trust for the real owner by the person in whose name it is
registered. The Torrens system was not designed to shield
one who had committed fraud or misrepresentation and thus
holds the title inbad faith. [WaLs trom v.Mapa, Jr., (G.R 38387,
29 Jan. 1990) as cited in Martinez, D ., Summary o f SC Deci­
sions, January to June, 1990, p. 359].
2.
A notice of lis pendens may be canceled even before
final judgment upon proper showing that the notice Is for the
purpose of molesting or harassing the adverse party or that
the notice o f lis. pendens is not necessary to protect the right
of the party who caused it to be registered. (Section 77, P.D.
No. 1529)
In this case, it is given that Rachelle is the legitimate
owner of the land in question. It can be said, therefore, that
when she filed her notice of lis pendens her purpose was to
protect her interest in the land and not just to molest
Rommel. It is necessary to record the lis pendens to protect
her interest because if she did not do it, there is a possibility
that the land will fall into the hands of an innocent purchaser
for value and in that event, the court loses control over the
land making any favorable judgment thereon moot and
academic. For these reasons, the notice of lis pendens may
not be canceled.
Question No. 5:
O liv ia o w n s a v a st m a n g o p la n ta tio n w h ic h s h e c a n no
lo n g e r p r o p e r ly m a n a g e d u e to a lin g e rin g illn e ss. S in c e sh e
275
is indebted to Peter in the amount of P500.000.00 she asks
Peter to manage the plantation and apply the harvest to the
payment of her obligation to him, principal and interest, until
her indebtedness shall have been fully paid. Peter agrees^
1. What kind o f contract is entered into between Olivia
and Peter? Explain.
2. What specific obligations are imposed by law on
Peter as a consequence of their contract?
3. Does the law require any specific form for the
validity o f their contract? Explain
4. May Olivia re-acquire the plantation before her
entire indebtedness shall have been fully paid? Explain.
Answer:
1. A contract o f antichresis was entered into between
Olivia and Peter. Under Article 2132 of the New Civil Code,
by a contract of antichresis the creditor acquires the right to
receive the fruits of an immovable of his debtor, with the
obligation to apply them to the payment of the interest, and
thereafter to the principal of his credit.
2. Peter must pay taxes and charges upon the land and
bear the necessary expenses for preservation and repair
which he may deduct from the fruits. (Art. 2135, NCC)
3. The amount of the principal and interest must be
specified in writing, otherwise the antichresis will be void.
(Art. 2134, NCC)
4. No. Art. 2136 specifically provides that the debtor
cannot re-acquire the enjoyment of the immovable without
first having totally paid what he owes the creditor. However,
it is potestative on the part of the creditor to do so in order to
exempt him from his obligation under Art. 2135, NCC. The
debtor cannot re-acquire the enjoyment unless Peter compels
Olivia to enter again the enjoyment of the property.
Question No. 6:
On 10 September 1988 Kevin, a 2.6-year old business­
man, married Karla, a winsome lass of 18. Without the
276
"T7r?W
knowledge of their parents or legal guardians, Kevin and
Karla entered into an antenuptial contract the day before ,
their marriage stipulating that conjugal partnership of gains
shall govern their marriage. At the time of their marriage
Kevin’s estate was worth 50 Million while Karla’s was valued
at 2 Million.
A month after their marriage Kevin died in a freak
helicopter accident. He left no will, no debts, no obligations.
Surviving Kevin, aside from Karla, are his only relatives: his
brother Luis and first cousin Lilia.
1. What property regime governed the marriage of
Kevin and Karla? Explain.
2.
Determine the value of the estate of Kevin.
3. Who are Kevin’s heirs?
4. How much
inherit?
is each
of Kevin’s heirs entitled to
Answer:
1. Since the marriage settlement was entered into
without the consent and without the participation of the
parents (they did not sign the document), the marriage
settlement is invalid applying Art. 78, F.C. which provides
that a minor who according to law may contract marriage
may also enter into marriage settlements but they shall be
valid only if the person who may give consent to the marriage
are made parties to the agreement. (Karla was still a minor
at the time the marriage settlement was executed in Septem­
ber 1988 because the law, R.A. 6809, reducing the age of
majority to 18 years took effect on 18 December 1989). The
marriage settlement being void, the property regime govern­
ing the marriage is,, therefore, absolute community of
property, under Art. 75 of the FC.
2. All the properties which Kevin and Karla owned at
•the time of marriage became community property which
shall be divided equally between them at dissolution. Since
Kevin owned 50 Million and Karla, 2 Million, at the time of the
marriage, 52 Million constituted their community property.
Upon the death of Kevin, the community was dissolved and
277
half o f the 52 Million or 26 Million is his share in the
community. This 26 Million therefore is his estate.
3. Karla and Luis are the Intestate heirs o f Kevin.
4. They are entitled to share the estate equally under
Article 1001 of the NCC. Therefore, Karla gets 13 Million and
Luis gets 13 Million.
Question No. 7:
Abraham died intestate on 7 January 1994 survived by
his son Braulio. Abraham’s older son Carlos died on 14
February 1990.
Danilo who claims to be an adulterous child of Carlos
intervenes in the proceedings for the settlement of the estate
of Abraham in representation of Carlos. Danilo was legally
adopted on 17 March 1970 by Carlos with the consent of the
latter’s wife.
1. Under the Family Code, how may an illegitimate
filiation be proved? Explain.
2. As lawyer for Danilo, do you have to prove Danilo’s
illegitimate filiation? Explain.
3 . Can Danilo inherit from Abraham in representation
of his father Carlos? Explain.
Answer:
1.
Under Art. 172 in relation to Art. 173 and Art. 175
of the FC, the filiation of illegitimate children may be estab­
lished in the same w ay and by the same evidence as legiti­
mate children. Art. 172 provides that the filiation o f legiti­
mate children is established by any o f the following: (1) the
record o f birth appearing in the civil register or a final
Judgment; or (2) an admission of legitimate filiation in a
public document or a private handwritten instrument and
signed by the parent concerned. In the absence of the
foregoing evidence, the legitimate filiation shall be proved by:
(1) the open and continuous possession o f the status of a
legitimate child; or (2) any other means allowed by the Rules
of Court and special laws.
278
2. No. Since Danilo has already been adopted by
Carlos, he ceased to be an Illegitimate child. An adopted child
acquires all the rights o f a legitimate child under Art. 189 of
the FC.
3. No, he cannot. Danilo cannot represent Carlos as
the latter’s adopted child in the inheritance of Abraham
because adoption did not make Danilo a legitimate grand­
child of Abraham. Adoption is personal between Carlos and
Danilo. He cannot also represent Carlos as the latter’s
Illegitimate child because in such .case he is barred by Art.
992 of the NCC from inheriting from his illegitimate grandfa­
ther Abraham.
Alternative Answer:
An'adopted child’s successional rights do not include
the right to represent his deceased adopter in the inheritance
of the latter’s legitimate parent, in view of Art. 973 which
provides that in order that representation may take place, the
representative must himself be capable of succeeding the
decedent. Adoption by itself did not render Danilo an heir of
the adopter’s legitimate parent. Neither does his being a
grandchild o f Abraham render him an heir of the latter
because as an illegitimate child of Carlos, who was a legiti­
mate child of Abraham, Danilo is incapable of succeeding
Abraham under Art. 992 of the Code.
Question No. 8:
Pauline, Patricia and Priscilla formed a business part­
nership for the purpose of engaging in neon advertising for a
term of five (5) years. Pauline subsequently assigned to Philip
her interest in the partnership. When Patricia and Priscilla
learned of the assignment, they decided to. dissolve the
partnership before the expiration o f its term as they had an
unproductive business relationship with Philip in the past.
On the other hand, unaware of the move of Patricia and
Priscilla but sensing their negative.reaction to his acquisition
of Pauline’s interest, Philip simultaneously petitioned for the
dissolution o f the partnership.
1.
Is the dissolution done by Patricia and Priscilla
without the consent of Pauline or Philip valid? Explain.
279
2.
Does Philip have any right to petition for the disso­
lution of the partnership before the expiration of its specified *
term? Explain.
Answer:
1. Under Art. 1830 (1) (c) of the NCC, the dissolution by
Patricia and Priscilla is valid and did not violate the contract
of partnership even though Pauline and Philip did not
consent thereto. The consent of Pauline is not necessary
because she had already assigned her interest to Philip. The
consent of Philip is not also necessary because the assign­
ment to him of Pauline's interest did not m akehim a partner,
under Art, 1813 of the NCC.
Alternative Answer:
Interpreting Art. 1830 (1) (c) to mean that if one of the
partners had assigned his interest on the partnership to
another the remaining partners may hot dissolve the part­
nership, the dissolution by Patricia and Priscilla without the
consent of Pauline or Philip is not valid.
2. No, Philip has no right to petition for dissolution
because he does not have the standing of a partner (Art. 1813
NCC).
Question No. 9:
Tim came into possession of an old map showing where
a purported cache of gold bullion was hidden. Without any
authority from the government Tim conducted a relentless
search and finally found the treasure buried in a new river
bed formerly part of a parcel of land owned by spouses Tirso
and Tessie. Tlie old river which used to cut through the land
of spouses Ursula and Urbito changed its course through
natural causes.
1. To whom shall the treasure belong? Explain.
2. Suppose Tirso and Tessie were married on 2 August
1988 without executing any antenuptial agreement. One
year after their marriage, Tirso while supervising the clearing
of Tessie’s inherited land upon the latter’s request, acciden­
tally found the treasure not in the new river bed but on the
280
property o f Tessie.
Explain.
To whom shall the treasure belong?
Answer:
1. The treasure was found in a properly of public
dominion, the new river bed. Since Tim did not have
authority from the government and, therefore, was a tres­
passer, he is not entitled to the one-half share allotted to a
finder o f hidden treasure. All of it will go to the State. In
addition, under Art. 438 of the NGC, in order that the finder
be entitled to the 1/2 share, the treasure must be found by
chance, that is by sheer luck. In this case, since Tim found
the treasure not by chance but because he relentlessly
searched for it, he is not entitled to any share in the hidden
treasure.
Alternative Answer:
The law grants a one-half share to a finder of hidden
treasure provided he is not a trespasser and the finding is by
chance. It is submitted that Tim is not a trespasser despite
his not getting authority from the government, because the
new river bed where he found the treasure is property for
public use (Art. 420 NCC), to which the public has legitimate
access. The question, therefore, boils down to whether or not
the finding was by chance in view of the fact that Tim
“conducted a relentless search" before finding the treasure.
The strict or literal view holds that deliberate or intentional
search precludes entitlement to the one-half Share allotted
b y law to the finder since the phrase “by chanCe” means “by
accident", meaning an unexpected discovery. The liberal
view, however, would sustain Tim’s right to the allocated
share interpreting the phrase in question as meaning “by a
stroke o f good fortune", which does not rule out deliberate or
intentional search. It is submitted that the liberal view
should prevail since in practical reality, hidden treasure is
hardly ever found without conscious effort to find it, and the
strict view would tend to render the codal provision in
question illusory.
2. Since Tirso and Tessie were married before the
effectivity of the Family Code, their property relation is
governed by conjugal partnership of gains. Under Art. 54 of
the Civil Code, the share of the hidden treasure which the law
281
awards to the finder or the proprietor belongs to the conj ugal
partnership of gains. The one-half share pertaining to Tessie
as owner of the land, and the one-half share pertaining to
Tirso as finder o f the treasure, belong to the conjugal
partnership of gains.
Question No. 10:
On 8 December 1991 Vanessa, purchased from the
Manila office of Euro-Aire an airline ticket for its Flight No.710 from Dallas to Chicago on 16 January 1992. Her flight
reservation was confirmed: On her scheduled departure
Vanessa checked in on time at the Dallas airport. However,
at the check-incounter she discovered that she was waitlisted
with some other passengers because of intentional overbook­
ing, a Euro-Aire policy and practice. Euro-Aire admitted that
Vanessa was not advised of such policy when she purchased
her plane ticket. Vanessa was only able to fly two days later
by taking another airline.
Vanessa sued Euro-Aire in Manila for breach of contract
and damages. Euro-Aire claimed that it cannot be held liable
for damages because its practice of overbooking passengers
wasallqwedbytheU.S. Code of Federal Regulations. Vanessa
on the other hand contended that assuming that the U.S.
Code of Federal Regulations allowed intentional overbook­
ing, the airline company cannot invoke the U.S. Code on the
ground that the ticket was purchased in Manila, hence,
Philippine law should apply, under which Vanessa can
recover damages for breach of contract of carriage.
Decide. Discuss fully.
Answer:
Vanessa can recover damages under Philippine law for
breach o f contract of carriage. Philippine law should govern
as the law of the place where the plane tickets were bought
and the contract of carriage was executed. InZalameav. Court
o f Appeals (G.R. No. 104235, Nov. 10, 1993) the Supreme
Court applied Philippine law in recovery of damages for
breach of contract of carriage for the reason that it is the law
of the place where the contract was executed.
282
Alternative Answer:
If the violation of the contract was attended with bad
faith, there is a ground to recover moral damages. But since
there was a federal regulation which was the basis of the act
complained of, the airline cannot be inbad faith. Hence, only
actual damages can be recovered. The same is true with
regards to exemplary damages.
Question No. 11:
Armando owns, a row of residential apartments in San
Juan, Metro Manila, which he rents out to tenants. On 1
April 1991 he left for the United States without appointing
any administrator to manage his apartments such that
uncollected rentals accumulated for three (3) years, Amparo,
a niece of Armando, concerned with the interest ofh er uncle,
took it upon herself to administer the property. As a
consequence, she incurred expenses in collecting the rents
and in some instances even spent for necessary repairs to
preserve the property.
1, W h at ju rid ica l relation between Am paro and
Armando, if any, has resulted from Amparo’s unilateral act
of assuming the administration of Armando’s apartments?
Explain.
2. What rights and obligations, if any, does Amparo
have under the circumstances? Explain.
Answer:
1. Negotiorum gestio existed between Amparo and
Armando. She voluntarily took charge of the agency or
management of the business or property ofher uncle without
any power from her uncle whose property was neglected. She
is called the gestor negotiorum or officious manager. (Art.
2144, NCC)
2. It is recommended by the Committee that an enu­
meration o f any two {2} obligations and two (2) rights as
enumerated in Arts. 2145 to 2152, NCC, would entitle the
examinee to full credit.
Art. 2145. The officious manager shall perform his
duties with all the diligence of a good father of a family, and
283
pay the damages which through his fault or negligence may
be suffered by the owner of the property or business under
management.
The courts may, however, increase or moderate the
indemnity according to the circumstances of each case.
Art. 2146. If the officious manager delegates to an­
other person all or some of his duties, he shall be liable forthe
acts o f the delegate, without prejudice to the direct obligation
of the latter toward the owner of the business.
The responsibility of two or more officious managers
shall be solidary, unless management was assumed to save
the thing or business from imminent danger.
Art. 2147. The officious manager shall be liable for
any fortuitous event:
(1) If he undertakes risky operations which the owner
was not accustomed to embark upon;
(2) If he has preferred his own interest to that of the
owner;
(3) If he fails to return the property or business after
demand by the owner;
(4) If he assumed the management in bad faith.
Art. 2148. Except when the management was as­
sumed ,to save the property or business from imminent
danger,, the officious manager shall be liable for fortuitous
events
(1) If he is manifestly unfit to carry on the management;
(2) Ifb y his intervention he prevented a more competent
person from taking up the management.
Art. 2149. The ratification of the management by the
owner o f the business produces the effects of an express
agency, even if the business may not have been successful.
Art. 2150. Although the officious management may
not have been expressly ratified, the owner of the property or
284
business who enjoys the advantages of the same shall be
liable for obligations incurred in his interest, and .shall
reimburse the officious manager for the necessary and useful
expenses and for the damages which the latter may have
suffered in the performance of his duties.
The same obligation shall be incumbent upon him when
the management had for its purpose the prevention o f an
imminent and manifest loss, although no benefit may have
been derived.
Art. 2151. Even though the owner did not derive any
benefit and there has, been no imminent and manifest danger
to the property or business, the owner is liable as under the
first paragraph of the preceding article, provided:
(1) The officious manager has acted in good faith, and
(2) The property or business is intact, ready to be
returned to the owner.
Art. 2152. The officious manager is personally liable
for contracts which he has entered ihto with third persons,
even though he acted in the name of the owner, and there
shall be no right of action between the owner and third
persons. These provisions shall not apply:
(1) If the owner has expressly or tacitly ratified the
management, or
(2) W hen the contract refers to things pertaining to the
owner of the business.
(NOTE: It is recommended by the Committee that an
enumeration o f any two (2) obligations and any two (2) rights
as enumerated in Arts. 2145 to 2152, NCC would entitle the
examinee to full credit.)
Question No. 12:
In 1983 PHILCREDIT extended loans to Rivett-Strom
Machineries, Inc. (RIVETT-STROM), consisting of US$10
Million for the cost of machineries imported and directly paid
by PHILCREDIT, and 5 Million incash payable In installments
over a period of ten (10) years on the basis of the value thereof
285
computed at the rate of exchange of the U.S. dollar vis-a-vis
the Philippine peso, at the time of payment.
RIVETT-STROM made payments on both loans which if
based on the rate of exchange in 1983 would have fully settled
the loans.
PHILCREDITcontends that the payments on both loans
should be based on the rate of exchange existing at the time
of payment, which rate of exchange has been consistently
increasing, and for which reason there would still be a
considerable balance on each loan.
Is the contention of PHILCREDIT correct? Discuss fully.
Answer:
As regards the loan consisting of dollars, the contention
of PHILCREDIT is correct. It has to be paid in Philippine
currency computed on the basis of the exchange rate at the
time of payment .of each installment, as held in Kalalo v. Luz,
34 SCRA 337. As regards the P5 Million loan in Philippine
pesos, PHILCREDIT is wrong. The payment thereof cannot
be measured by the peso-dollar exchange rate. That will be
violative of the Uniform Currency Act (R.A. 529) which
prohibits the payment of an obligation which, although to be
paid in Philippine currency, is measured by a foreign cur­
rency. (Palanca v. CA, 238 SCRA 593). .
Question No, 13:
Salvador, a timber concessionaire, built on his lot a
warehouse where he processes and stores his timber for
shipment. Adjoining the warehouse is a furniture factory
owned by NARRAMIX of which Salvador is a majority stock­
holder. NARRAMIX leased space in the warehouse where it
placed its furniture-making machinery.
1. How would you classify the fumiture-making ma­
chinery as property under the Civil Code? Explain.
2. Suppose the lease contract between Salvador and
NARRAMIX stipulates that at the end of the lease the
machinery shall become the property of the lessor, will your
answer be the same? Explain.
Answer:
1. The furniture-making machinery is movable pro­
perty because it was not installed by the owner of the
tenement. To become immovable under Art. 415 (5) of the
NCC, the machinery must be installed by the owner of the
tenement.
Alternative Answer:
It depends on the circumstances of the case. If the
machinery was attached in a fixed manner, in such a way
that It cannot be separated from the tenement without
breaking the material or causing deterioration thereof, it is
immovable property [Art. 415 (3), NCC], However, if the
machinery can be transported from place to place without
impairment of the tenement to which they were fixed, then it
is movable property. [Art. 416 (4), NCC}
2. It is Immovable property. When there is a provision
in the lease contract making the lessor, at the end of the
lease, owner of the machinery installed by the lessee, thesaid
machinery is considered to have been installed by the lessor
through the lessee who acted merely as his agent. Having
been installed by the owner of the tenement; the machinery
became immovable under Art. 415 of the NCC. (Davao
Sawmill v. Castillo, 61 Phil. 709)
Question No. 14:
Yvette was found to be positive for HIV virus, considered
sexually transmissible, serious and incurable. Her boyfriend
Joseph was aware of her condition and yet married her. After
two (2) years of cohabiting with Yvette, and in his belief that
she would probably never be able to bear him a healthy child,
Joseph now wants to have his marriage with Yvette annulled.
Yvette opposes the suit contending that Joseph is estopped
from seeking annulment oftheir'marriage since he knew even
before their marriage that she was afflicted with HIV virus.
Can the action of Joseph for annulment of his marriage
with Yvette prosper? Discuss fully.
287
Answer:
No. Joseph knew that Yvette was HIV positive at the
time o f the marriage. He is, therefore, not an injured party.
The FC gives the right to annul the marriage only to an
injured party. [Art. 47 (5), FC]
Alternative Answer:
The action for annulment can prosper because the
prescriptive period of five (5) years has not yet lapsed. [Art. 45
(6), FC].
Question No. 15:
Michelle, the French daughter of Penreich, a German
national, died in Spain leaving real properties in the Philip­
pines as well as valuable personal properties in Germany.
1. What law determines who shall succeed the de­
ceased? Explain your answer and give its legal basis.
2. What law regulates the distribution of the real
properties in the Philippines? Explain your answer and give
its legal basis.
3. What law governs the distribution of the personal
properties in Germany? Explain your answer and give its
legal basis.
Answer:
Assuming that the estate of the decedent is being settled
in the Philippines)
1.
The national law of the decedent (French law) shall
govern in determining who will succeed to his estate. The
legal basis is Art. 16 par. 2, NCC.
Alternative Answer:
French law shall govern the distribution of his real
properties in the Philippines except when the real property is
land which may be transmitted to a foreigner only by
hereditary succession.
288
2. The distribution of the real properties in the Philip­
pines shall be governed by French law. The legal basis is Art.
16, NCC).
3. The distribution of the personal properties in Ger­
many shall be governed by French law. The legal basis is Art.
16, NCC).
Question No. 16:
Lawrence, a retired air force captain, decided to go into
the air transport business. He purchased an aircraft in cash
except for an outstanding balance of P500.000.00. He
incurred an indebtedness of P300,000.00 for repairs with an
aircraft repair company. He also borrowed P I Million from a
bank for additional capital and constituted a chattel m ort­
gage on the aircraft to secure the loan.
While on a test flight the aircraft crashed causing
physical injuries to a.third party who was awarded damages
of P200.000.00.
Lawrence's insurance claim for damage to the aircraft
was denied thus leaving him nothing else but the aircraft
which was then valued only at P i Million. Lawrence was
declared insolvent.
Assuming that the aircraft was sold for PIMillion, give
the order of preference of the creditors of Lawrence;and
distribute the amount of P I Million.
Answer:
Assuming that the aircraft was sold for P 1 Million, there
is no order of preference. T h e P l Million will all go to the bank
as a chattel mortgagee because a chattel mortgage under Art.
2241 (4) NCC. defeats Art. 2244 (12) and (14). Art. 2241 (3)
and (5) are not applicable because the aircraft is no longer in
the possession of the creditor.
Question No. 17:
In 1980, Maureen purchased two lots in a plush subdi­
vision registering Lot 1 in her name and Lot 2 in the name of
her brother Walter with the latter’s consent. The idea was to
circumvent a subdivision policy against the acquisition of
289
more than one lot by one buyer. Maureen constructed a
house on Lot 1 with an extension on Lot 2 to serve as a guest
house. In 1987, Walter who had suffered serious business
losses demanded that Maureen remove the extension house
since the lot on which the extension was built was his
property. In 1992, Maureen sued for the reconveyance to her
of Lot 2 asserting that a resulting trust was created when she
had the lot registered in Walter’s name even if she paid the
purchase price. Walter opposed the suit arguingthat assum­
ing the existence of a resulting trust the action of Maureen
has already prescribed since ten years have already elapsed
from the registration of the title in his name.
Decide. Discuss fully
Answer:
This is a case of an implied resulting trust. If Walter
claims to have acquired ownership of the land by prescription
or if he anchors his defense on extinctive prescription, the ten
year period must be reckoned from 1987 when he demanded
that Maureen remove the extension house on 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 filed in 1992 is not yet baijed by prescription.
(Spouses Huang v. Court o f Appeals, Sept. 13, 1994).
Question No. 18:
Isidro and Irma, Filipinos, both 18 years of age, were
passengers of Flight No. 317 of Oriental Airlines. The plane
they boarded ,was of Philippine registry. While en route from
Manila to Greece some passengers hijacked the plane, held
the chief pilot hostage at the cockpit and ordered him to fly
instead to Libya. During the hijacking Isidro suffered a heart
attack and was on the verge of death. Since Irma was already
eight months pregnant by Isidro, she pleaded to the hijackers
to allow the assistant/pilot to solemnize her marriage with
Isidro. Soon after the marriage, Isidro expired. As the plane
landed in Libya Irma gave birth. However, the baby died a few
minutes after complete deliveiy.
Back in the Philippines Irma immediately filed a claim
for inheritance. The parents of Isidro opposed her claim
contending that the marriage between her and Isidro was
290
void ab initio on the following grounds: (a) they had not given
their consent to the marriage of their son; (b) there was no
marriage license: (c) the solemnizing officer had no authority
to perform the marriage; and, (d) the solemnizing officer did
not file an affidavit of marriage with the proper civil registrar.
1. Resolve eacn of the contentions ([a] to [d]) raised by
the parents of Isidro. Discuss fully.
2. Does Irma have any successional rights at all?
Discuss fully.
Answer:
1.
(a) The fact that the parents o f Isidro and of Irma did
not give their consent to the marriage did not
make the marriage void ab initio. The marriage
is merely voidable under Art 45 of the FG.
(b) Absence of marriage license did not make the
marriage void ab initio. Since the marriage was
solemnized in articulo mortis, it was exempt from
the license requirement under Art. 31 of the FC.
(c) On the assumption that the assistant pilot was
acting for and in behalf of the airplane chief who
was under disability, and by reason of the extra­
ordinary and exceptional circumstances of the
case (le . hostage situation), the marriage was
solemnized by an authorized officer under Art. 7
(3) and Art. 31, of the FC.
(d) Failure of the solemnizing officer to file the
affidavit of marriage did not affect the validity of
the marriage. It is merely an irregularity which
may subj ect the solemnizing officer to sanctions.
Alternative Answer:
Considering that the solemnizing officer has no author­
ity to perform the marriage because under Art. 7 the law
authorizes only the airplane chief, the marriage is void,
hence, a, c, and d are immaterial.
2. Irma succeeded to the estate of Isidro as his
surviving spouse to the estate of her legitimate child. When
291
Isidro died, he was succeeded by his surviving wife Irma, and
his legitimate unborn child. They divided the estate equally
between them, the child excluding the parents of Isidro. An
unborn child is considered bom for all purposes favorable to
it provided it is bom later. The child was considered bom
because, having an intra-uterine life of more than seven
months, it lived for a few minutes after its complete delivery.
It was legitimate because it was bom within the valid
marriage of the parents. Succession is favorable to it. When
the child died, lima inherited the share of the child. However,
the share of the child in the hands of Irma is subject to
reserva troncal for the benefit of the relatives of the child
within the third degree of consanguinity and who belong to
the line of Isidro.
Alternative Answer:
If the marriage is void, Irma has no successional rights
with respect to Isidro but she would have successional rights
with respect to the child.
292
1994 BAR EXAMINATION
Question No. 1:
In Private International Law (Conflict of Laws) what is:
1)
Cognovit?
2) A borrowing statute?
3)
Characterization?
Alternative Answers:
1) a) Cognovit is a confession of judgment whereby a
portion of the complaint is confessed by the defendant who
denies the rest thereof [Philippine law Dictionary, 3rd Ed.)
(Ocampo v. Florenciano, L-M 13553, 2/23/50).
b) Cognovit is a “statement of confession” . Often­
times, it is referred to as a “power of attorney" or simply as a
“power", it is the written authority of the debtor and his
direction to the clerk of the district court, or justice of the
peace to enter judgment against the debtor as stated therein.
[Words and Phrases, vol. 7, pp. 115-166).
c) Cognovit is a plea in an action which acknow­
ledges that the defendant did undertake and promise as the
plaintiff in its declaration has alleged, and that it cannot deny
that it owes and unjustly detains from the plaintiff the sum
claimed by him in his declaration, and consents that ju dg­
ment be entered against the defendant for a certain sum.
(Words and Phrases, vol. 7, pp. 115-166).
d)
C o g n o v it is a n o te a u th o riz in g a la w y e r fo r c o n ­
fe s s io n o f j u d g m e n t b y d e fe n d a n t .
2)
“B o r r o w in g S ta tu te " - L a w s o f th e s ta te o r j u r i s d i c ­
tio n u s e d b y a n o t h e r sta te in d e c id in g c o n flic ts q u e s t io n e d
293
involved in the choice of law (Black’s Law Dictionary, 5th ed.
1979).
3)
a) “Characterization” is otherwise called “classifica­
tion” or “qualification.” It is the process of assigning a
disputed question to its correct legal category (Private Inter­
national Law, Salonga).
b) “Characterization" is a process in determining
under what category a certain set of facts or rules fall. (Paras,
Conflict o f Laws, p. 94, 1984 ed.)
Question No. 2:
1) What is the doctrine of forum non conveniensf?
2) What is a “long arm statute”?
Alternative Answers:
1)
a) Forum non conveniens is a principle in Private
International Law that where the ends of justice strongly
indicate that the controversy may be more suitably tried
elsewhere, then jurisdiction should be declined and the
parties relegated to relief to be sought in another forum.
(Moreno, Philippine Law Dictionary, p. 254, 1982 ed.).
b) Where in a broad sense the ends of justice
strongly indicate that the controversy may be more suitably
tried elsewhere, thenjurisdiction should be declined and the
parties relegated to relief to be sought in another forum.
(Handbook on Private International Law, Aruego).
c) Forum non conveniens means simply that a court
m ay resist imposition upon its jurisdiction even when juris­
diction is authorized by the letter of a general venue statute.
(Salonga, Private International Law, p. 51, 1967 ed.)
d) Forum non conveniens is a doctrine whereby a
court of law having full jurisdiction over a case brought in a
proper venue or district declines to determine the case on its
merits because justice would be better served by the trial
294
over the case in another jurisdiction. (Webster’s Dictionary)
(2). a] Long arm statute is a legislative act which pro­
vides for personal jurisdiction, via substituted service or
process, over persons or corporations which are non-residents
of the state and which voluntarily go intp the state, directly
or by agent or communicate with persons in the state for
limited purposes, in actions which concern claims relating to
performance or execution of those purposes (Black’s Law Dic­
tionary, 5th Ed. 1979).
b)
stituted service.
Long arm statute refers simply to authorized sub­
Question No. 3:
1) What is the procedure of consulta when an instru­
ment is denied registration?
2) Distinguish the Torrens system of land registration
from the system of recording of evidence o f title.
3) How do you register now a deed o f mortgage o f a
parcel of land originally registered under the Spanish Mort­
gage Law?.
~
Alternative Answers:
1)
a)
(1) The Register of Deeds shall notify the
interested party in writing, setting forth the defects of the in­
strument or the legal ground relied upon for denying the reg­
istration, and advising that if he is not agreeable to such
ruling, he may, without withdrawing the documents from the
Registry , elevate the matter by Consulta to the Administrator
of the Land Registration Authority (LRA).
(2) Within five (5) days from receipt of notice
of denial, the party in interest shall file his Consulta with the
Register o f Deeds concerned and pay the consulta fee.
(3) After receipt of the Cons ulta and payment
295
of the corresponding fee, the Register of Deeds makes an an­
notation of the pending consulta at the back of the certificate
of title.
(4) The Register of Deeds then elevates the
case to the LRA Administrator with certified records thereof
and a summary of the facts and issues involved.
(5) The LRA Administrator then conducts
hearings after dye notice or may just require parties to
submit their memoranda.
(6) After hearing, the LRA Administrator is­
sues an order prescribing the step to be taken oir the
memorandum to be made. His resolution in consulta shall be
conclusive and binding upon all Registers of Deeds unless
reversed on appeal by the Court of Appeals or by the Supreme
Court. (Section 117, P.D. 1529).
b) The procedure of consulta is a mode of appeal from
denial by the Register of Deeds of the registration of the
instrument to the Commissioner of Land Registration.
c) Within five days from receipt of .the notice of
denial, the interested party may elevate the matter by con­
sulta to the Commissioner of Land Registration who shall
enter an order prescribing the step to be taken or memoran­
dum to be made. Resolution in consulta shall be binding
upon all Registers of Deeds provided that the party in interest
may appeal to-the Court o f Appeals within the period pre­
scribed (Sec. 117, P.D. 1529).
2)
a) The Torrens system of land registration is a sys­
tem for the registration of title to the land. Thus, .under this
system what is entered in the Registry of Deeds, is a record
of the owner’s estate or interest in the land, unlike the system
under the Spanish Mortgage Law or the system under
Section 194 of the Revised Administrative Code as amendjed
by Act 3344 where only the evidence of such title is recorded.
In the latter system, what is recorded is the deed of convey­
ance from hence the owner’s title emanated— and not the title
itself.
296
b)
Torrens system of land registration is that which
is prescribed in Act 496 (now PD 1529), which is either
judicial or quasi-judicial. System or recording of evidence of
title is merely the registration of evidence of acquisitions of
land with the Register of Deeds, who annotates the same on
the existing title, cancels the old one and issues a new title
based on the document presented for registration.
3)
a) After the Spanish Mortgage Law was abrogated by
P.D. 892 on February 16, 1976, all lands covered by Spanish
titles that were not brought under the torrens system within
six (6) months from the date thereof have been considered as
“unregistered private lands.”
Thus, a deed o f mortgage aiTecting land originally regis­
tered under the Spanish Mortgage Law is now governed by
the system of registration of transactions or instruments
affecting unregistered land under Section 194 of the Revised
Administrative Code as amended by Act No. 3344. Underthis
law, the instrument or transaction affecting unregistered
land is entered in a book provided for the purpose but the
registration thereof Is purely voluntary and does not ad­
versely affect third persons who have a better right.
b)
By recording and registering with the Register of
Deeds of the place where the land is located, in accordance
with Act 3344. However, P.D. 892 required holders of
Spanish title to bring the same under the Torrens System
within 6 months from its effectivity on February 16, 1976.
Question No. 4:
1) Are decisions of the Court of Appeals considered
laws?
2) What are the binding effects of an obiter dictum and
a dissenting opinion?
297
3)
aside?
How can a decision of the Supreme Court be set
Alternative Answers:
1). a) No, but decisions of the Court of Appeals may
serve as precedents for inferior courts on points of law not
covered by any Supreme Court decision, and a ruling of the
Court of Appeals may become a doctrine. (Miranda v.
Im p eria l,77 Phil. 1066).
b)
No. Decisions of the Court of Appeals merely
have persuasive, and therefore no mandatory effect. However, a conclusion or pronouncement which covers a point of
law still undecided may still serve as judicial guide and it is
possible that the same maybe raised to. the status of
doctrine, if after it has been subjected to test in the crucible
of analysis, the Supreme Court should find that it has
merits and qualities sufficient for its consideration as a rule
of jurisprudence [Civil Code, Paras).
2) None. Obiter dictum and opinions are not necessary
to the determination of a cas.e. They are not binding and
cannot have the force of official precedents. It is as if the
Court were turning aside from the main topic of the case to
collateral subjects: a dissenting opinion affirms or overrules
a claim, right or obligation. It neither disposes nor awards
anything it merely expresses the view of the dissenter. (Civil
Code, Paras) ,
3) A decision ofa division of the Supreme Court may be
set aside by the Supreme Court sitting en banc: a Supreme
Court decision may be set aside by a contrary ruling of the
Supreme Court itself or by a corrective legislative act.of
Congress, although said laws cannot adversely affect those
favored prior to the Supreme Court decision. (Civil Code,
Paras).
Question No. 5:
1) Can a husband and wife form a limited partnership
298
to engage in real estate business, with the wife being a limited
partner?
2) Can two corporations organize a general partner­
ship under the Civil Code of the Philippines?
3) Can a corporation and an individual form a general
partnership?
Alternative Answers:
1) a) Yes. The Civil Code prohibits a husband and wife
from constituting a universal partnership. Since a limited
partnership is not a universal partnership, a husband and
wife may validly form one.
b)
Yes. While spouses cannot enter into a univer­
sal partnership, they Can enter into a limited partnership or
be members thereof (CIR v. Suter, et al., 27 SCRA 152).
2) a) No. A corporation is managed by its board of di­
rectors.
If the corporation were to become a partner,
co-partners would have the power to make the corporation
party to transactions in an irregular manner since the
partners are not agents subject to the control of the Board of
Directors. But a corporation may enter into a joint venture
with another corporation as long as the nature of the venture
is in line with the business authorized by its charter. [Tuason
& Co., Inc. v. Bolano, 95 Phil. 106).
b)
As a general rule a corporation may not form a
general partnership with another corporation or an individ­
ual because a corporation may not be bound by persons who
are. neither directors nor officers of the corporation.
However, a corporation may form a general partnership
with another corporation or an individual provided the
following conditions are met:
1) The Articles of Incorporation of the corporation
expressly allows the corporation to enter into
299
partnerships;
2) The Articles of Partnership must provide that
all partners will manage the partnership, and
they shall be jointly and severally liable; and
3)
In ease of a foreign corporation, It must be
licensed to do business in the Philippines.
c)
No. A corporation may not be
because the principle of mutual agency in general
ship allowing the other general partner to bind the
tion will Violate the corporation law principle that
board of directors may bind the corporation.
a general partner
partner­
corpora­
only the
3)
No, for the same reasons given in the Answer to
Number 2 above.
Question No. 6 :
Paulita left the conjugal home because of the excessive
drinking o f her husband, Alberto. Paulita, out o fh e r own
endeavor, was able to buy a parcel of land which she was able
to register under her name with the addendum “Widow.” She
also acquired stocks in a listed corporation registered in her
name. Paulita sold the parcel of land to Rafael, who first
examined the original of the transfer certificate of title.
1) Has Alberto the right to share in the shares of stock
acquired by Paulita?
2) Can Alberto recover the land from Rafael?
Alternative Answers:
1.
a) Yes. The Family Code provides that all prop­
erty acquired during the marriage, whether the acquisition
appears to have been made, contracted or registered in the
name of one or both spouses, is presumed to be absolute
community property unless the contrary is proved.
b)
Yes. The shares are presumed to be absolute
community property having been acquired during the mar­
300
riage despite the fact, that those shares were registered only
in her name. Alberto’s right to claim his share will only arise,
however, at dissolution.
c) The presumption is still that the shares of stock
are owned in common. Hence, they will form part of the
absolute community or the conjugal partnership depending
on what the property regime is.
d) Since Paulita acquired the shares of stock by
onerous title during the marriage, these are part of the
conjugal or absolute community property as the case may be
(depending on whether the marriage was celebrated prior to,
or after, the effectivity of the Family Code). Her physical
separation from her husband did not dissolve the community
o f property. Hence, the husband has a right to share in the
shares of stock.
2)
a) Under a community of property, whether abso­
lute or relative, the disposition of property belonging to such
community is void if done by just one spouse without the
consent of the other or authority o f the proper court. How­
ever, 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 the Register of Deeds and should,
consequently, be protected. Alberto cannot recover the land
from Rafael but would have the right of recourse against his
wife.
b) The parcel of land is absolute community pro­
perty having been acquired during the marriage and through
Paulita’s industry despite the registration being only in the
name of Paulita. The land being community property, its sale
to Rafael without the consent of Alberto is void. However,
since the land is registered in the name of Paulita as widow,
there is nothing in the title which would raise a suspicion for
Rafael to make inquiry. He, therefore, is an innocent
purchaser for value from whom the land may no longer be
recovered.
c) No. Rafael is an innocent purchaser in good faith
who, upon relying on the correctness of the certificate of
301
title, acquires rights which are to be protected by the courts.
Under the estalished principles of land registration
law, the presumption is that the transferee of registered land
is not aware of any defect in the title of the property he
purchased. (See Tajonera v. Court o f Appeals, 103 SCRA
467). Moreover, the person dealing with registered land may
safely rely on the correctness of its certificate of title and the
law will in n.o way oblige him to go behind the certificate to
determine the condition of the property. (Director o f Lands u.
Abache, et a l, 73 Phil. 606). No strong considerations of
public policy have been presented which would lead the
Court to reverse the established and sound doctrine that
the buyer in good faith of a registered parcel of land does not
have to look beyond the Torrens Title and search for any
hidden defect or inchoate right which may later invalidate or
diminish his right to what he purchased. (Lopez v. Court o f
Appeals, 189 SCRA 271)
d)
The parcel of land is absolute community pro­
perty having been acquired during the marriage and through
Paulita’s Industry despite registration only in the name of
Paulita. The land being community property, its sale to
Rafael without the consent of Alberto is void.
Question No, 7:
In 1975, Carol begot a daughter Bing, out of wedlock.
When Bing was ten years old, Carol gave her consent for
Bing’s legal adoption by Norma and Manuel, which was
granted by the court in 1990. In 1991, Carol learned that
Norma and Manuel were engaged in a call-girl-ring that
catered to tourists. Some of the girls lived with Norma and
Manuel. Carol got Bing back, who in the first place wanted
to return to her natural mother.
1) Who has a better right to the custody of Bing. Carol
or Norma?
2) Aside from taking physical custody of Bing, what
302
legal actions can Carol lake to protect Bing?
Alternative Answers:
1) a) It depends on whether or not Bing was at least
18 years old at the time Carol asserts the prerogative to take
custody of Bing. If she.was at least 18 years old, then she is
no longer under parental authority and neither Carol nor
Norma can assert the prerogative to take custody. However,
if she was less than 18 years old, then Norma has a better
right since the adoption by Norma of Bing terminates the
parental authority of Carol over Bing.
_b)
The natural mother, Carol, should have the
better right in light of the principle that the child’s welfare is
the paramount consideration in custody rights. Obviously,
Bing’s continued stay in her adopting parents’ house,' where
interaction with the call' girls is inevitable, would be detri­
mental to her moral and spiritual development. This could
be the reason for Bing’s expressed desire to return to her
natural mother. It should be noted, however, that Bing is no
longeF a minor, being 19 years of age now. It is doubtful that
a court can still resolve the question of custody over one who
is sui ju ris and not otherwise incapacitated.
2) a) On the assumption that Bing is still a minor or
otherwise incapacitated, Carol may petition the proper court
for resolution or rescission o f the decree of adoption on the
ground that the adopting parents have exposed. Or are
exposing, the child to corrupt influence, tantamount to
giving her corrupting orders or examples. She can also ask
for the revesting in her of parental authority over Bing. If,
however, Bing is already 19 years of age and therefore no
longer a minor, it is not Carol but Bing herself who can
petition the court for judicial rescission of the adoption,
provided she can show a ground for disinheritance of an
ascendant.
b)
Carol may file an action to deprive Norma of
parental authority under Article 231 of the F amily Code or file
an action for the rescission of the adoption under Article 191
303
in relation to Article 231 (2) of the Family Code.
Question No. 8 :
In January 1993, Four-Gives Corporation leased the
entire twelve floors of the GQS Towers Complex, for a period
of ten years at a monthly rental of P3,000,000.00. There is
a provision in the contract that the monthly rentals should
be paid within the first five days of the month. For the month
of March, May, June, October and December 1993, the
rentals were not paid on time with some rentals being delayed
up to ten days. The delay was due to the heavy paper work
involved in processing the checks.
Four-Gives Corporation also subleased five of the twelve
floors to wholly-owned subsidiaries. The lease contract
expressly prohibits the assignment of the lease contract or
any portion thereof. The rental value of the building has
increased by 50% since its lease to Four-Gives Corporation.
1) Can the building owner eject Four-Gives Corpora­
tion on grounds of the repeated delays in the payment of the
rent?
2) Can the building owner ask for the cancellation of
- the contract for Violation of the provision against assign­
ment?
Alternative Answers:
1)
a) The “repeated delays" in the payment of rentals
would, at best, be a slight or casual breach which does not
furnish a ground for ejectment especially because the delays
were only due to heavy paper work. Note that there was not
even a demand for payment obviously because the delay
lasted for only a few days (10 days being the longest), at the'
end of which time payments were presumably made and were
accepted. There was, therefore, no default. Note also that
there was no demand made upon the lessee to vacate the
pfem ises for non-payment of the monthly rent. There is,
therefore, no cause of action for ejectment arising from the
“repeated delays"
304
b) The building owner cannot ej ect Fou r-Gives Cor­
poration on the ground of repeated delays in the payment of
rentals. The delay in the payment of the rentals is minimal
and cannot he made the basis of an ejectment suit. The delay
was due to the heavy paper work involved in processing the
checks. It would be otherwise if the lease contract stated that
in the payment o f rentals within the first five days o f the
month, time is o f the essence or that the lessee will be in delay
if he fails to pay within the agreed period without need of
demand. In this case he can j udicially ej ect the tenant on the
ground of lack of payment of the price stipulated after a
demand to vacate. (Article 1673(2), New Civil Code).
c) No. Resolution of a contract will not be permitted .
for a slight or casual breach, but only for such substantial
and fundamental breach as would defeat the very object of
the parties in making the agreement. . (Zepeda v. CA, 216
SCRA 293). The delay of ten (10) days is not such a
substantial and fundamental breach to warrant the resolu­
tion o f the contract of lease specially so when the delay was
due to the heavy paperwork in processing the checks.
2)
a) No. Sublease is different from assignment of
lease. Sublease, not being prohibited by the contract of lease
is therefore allowed and cannot be invoked as a ground to
cancel the lease.
b) No, the lessor cannot have the lease cancelled for
alleged violation of the provision against assignment. The
lessee did not assign the lease, or any portion thereof, to the
subsidiaries. It merely subleased some floors to its subsidi­
aries. Since the problem does not state that the contract of
lease contains a prohibition against sublease, the sublease is
lawful, the rule being that in the absence of an express
prohibition a lessee may sublet the thing leased, in whole or
in part, without prejudice to his/its responsibility to the
lessor for the performance of the contract.
305
Question No. 9:
1) The complete publication of the Family Code was
made on August 4, 1987. On September 4, 1987, Junior
Cruz and Gemma Reyes were married before a municipal
mayor. Was the marriage valid?
2) Suppose the couple got married on September 1,
1994 at the Manila Hotel before the Philippine Consul
General to Hongkong* who was on vacation In Manila. The
couple executed an affidavit consenting to the celebration of
the marriage at the Manila Hotel. Is the marriage valid?
Answer:
1) a) Yes, the marriage is valid. The Family Code took
effect on August 3, 1988. At the time of the marriage on
September 4, 1987, municipal mayors were empowered to
solemnize marriage under the Civil Code of 1950.
2) a) The marriage is not valid. Consuls and viceconsuls are empowered to solemnize marriages between
Philippine citizens abroad in the consular office of the foreign
country to which they were assigned and have no power to
solemnize marriage on Philippine soil.
b) A Philippine consul is authorized by law to solem­
nize marriages abroad between Filipino citizens. He has no
authority to solemnize a marriage in the Philippines. Conse­
quently, the marriage in question is void, unless either or
both of the contracting parties believed in good faith that the
consul general had authority to solemnize their marriage in
which case the marriage is valid.
Questian No. 10:
On his deathbed, Vicente was executing a will. In the
room were Carissa, Carmela, Comelio and Atty. Cimpo, a
notary public. Suddenly, there was a street brawl which
caught Comelio’s attention, prompting him to look out the'
window. Comelio did not see Vicente sign a will. Is the will
valid?
306
Alternative Answers:
a) Yes. The will is valid. The law does not require
a witness to actually see the testator sign the will. It is
sufficient if the witness could have seen the act of signing had
he chosen to do so by casting his eyes to the proper direction.
b) Yes, the will is valid. Applying the “test of posi­
tion”, although Comelio did not actually see Vicente sign the
will, Com elio was in the proper position to see Vicente sign
if Com elio so wished.
Question No. 11:
In 1978, Bobby borrowed P I,000,000.00 from Chito
payable in two years. The loan, which was evidenced by a
promissory note, was secured by a mortgage on real property.
No action was filed by Chito to collect the loan or to foreclose
the mortgage. But in 1991, Bobby, without receiving any
amount from Chito, executed another promissory note which
was worded exactly as the 1978 promissory note, except for
the date thereof, which was the date of its execution1) Can Chito demand payment on the 1991 promis­
sory note in 1994?
2) Can Chito foreclose the real estate mortgage if
Bobby fails to make good his obligation under the 1991
promissory note?
Answer:
1)
Yes, Chito can demand payment on the 1991 prom­
issory note in 1994. Although the 1978 promissory note for
P I million payable two years later or in 1980 became a
natural obligation after the lapse of ten (10) years, such
natural obligation can be a valid consideration of a novated
promissory note dated in 1991 and payable two years later,
or in 1993.
307
A ll the elements of an Implied real novation are present:
a)
an old valid obligation;
b)
a new valid obligation;
c)
capacity of the parties;
d)
animus novandi or intention to novate; and
e)
The old and the new obligation should be
incompatible with each other on all material
points (Article 1292). The two promissory
notes cannot stand together, hence, the period
of prescription of ten (10) years has not yet
lapsed.
2)
No. The mortgage being an accessory contract
prescribed with the loan. The novation of the loan, however,
did not expressly include the mortgage, hence, the mortgage
is extinguished under Article 1296 of the NCC. The contract
has been extinguished by the novation or extinction of the
principal obligation Insofar as third parties are concerned.
Question No. 12:
Rosa and Ariel were married in the Catholic Church of
Tarlac, Tarlac on January 5, 1988. in 1990, Ariel went to
Saudi Arabia to work. There, after being converted into
Islam, Ariel married Mystica. Rosa learned of the second
marriage of Ariel on January 1, 199.2 when Ariel returned to
the Philippines with Mystica. Rosa filed an action for legal
separation on February 5, 1994.
1) Does Rosa have legal grounds to ask for legal
separation?
2)
Has the action prescribed?
308
Alternative Answers:
1) a) Yes, the abandonment of Rosa by Ariel for more
than one (1) year is a ground for legal separation unless upon
returning to the Philippines, Rosa agrees to cohabit with Ariel
which is allowed under the Muslim Code. In this case, there
is condonation.
1
b)
Yes. The contracting of a subsequent bigamous
marriage whether in the Philippines or abroad is a ground for
legal separation under Article 55(7) of the Family Code.
Whether the second marriage is valid or not, Ariel having
converted into Islam, is immaterial.
2) No. Under Article 57 of the Family Code, the
aggrieved spouse must file the action Within five (5) years
from the occurrence of the cause. The subsequent marriage
o f Ariel could not have occurred earlier than 1990, the time
he went to Saudi Arabia. Hence, Rosa has until 1995 to bring
the action under the Family Code.
Question No. 13:
In 1991, Victor established judicially out of conjugal
property, a family home in Manila worth P200,000.00 and
extrajudicially a second family home in Tagaytay worth
P50.000.00. Victor leased the family home in Manila to a
foreigner. Victor and his family transferred to another house
of his in Pasig.
Can the two family homes be the subject of execution on
a judgment against Victor’s wife for non-payment Of the
purchase in 1992 of household appliances?
Answer:
The two (2) so-called family homes can be the subject of
execution. Neither of the abodes are considered family
homes because for purposes of availing the benefits under
the Family Code, there can only be one (1) family home which
309
is defined as the “dwelling house” where the husband and the
wife and their family actually “reside” and the land on which
it is situated. (Arts. 152 and 161. Family Code)
Question No. 14:
On January 5, 1992, Nonoy obtained a loan of
P I , 000,000.00 from his friend Raffy. The promissory note
' did not stipulate any payment for interest. The note was due
on January 5, 1993 but before this date the two became
political enemies. Nonoy, out of spite, deliberately defaulted
in paying the note, thus forcing Raffy to sue him.
1) What actual damages can Raffy recover?
2)
Gan Raffy ask for moral damages from Nonoy?
3) Can Raffy ask for nominal damages?
4)
Can Raffy ask for temperate damages?
5)
Can Raffy ask for attorney’s fees?
Answer:
1) Raffy may recover the amount of the promissory
note o f P I million, together with Interest at the legal rate from
the date o f judicial or extrajudicial demand. In addition,
however, Inasmuch as the debtor is in bad faith, he is liable
for all damages which may be reasonably attributed to the
non-performance of the obligation. (Art. 2201(2;), NCC).
2) Yes, under Article 2220, NCC moral damages are
recoverable in case of breach of contract where the defendant
acted fraudulently or in bad faith.
3) Nominal damages may not be recoverable in this
case because Raffy may already be indemnified of his losses
with the award of actual and compensatory damages. Nominal
damages are adjudicated only in order that a right of the
plaintiff, which has been violated or invaded by the defendant
may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.
310
(Article 2231, Civil Code)
• 4) Raffy may ask for, but would most likely not be
awarded temperate damages, for the reason that his actual
damages m ay already be compensated upon proof thereof
with the promissory note. Temperate dartiages may be
awarded only when the court finds that some pecuniary loss
has been suffered but its amount cannot, from the nature of
the case, be proved with certainty. (Article 2224, Civii Code)
5)
Yes, under paragraph 2, Article 2208 of the Civil
Code, considering that Nonoy’s act or omission has com­
pelled Raffy to litigate to protect his interests. Furthermore,
attorneys’ fees may be awarded by tne court when it is just
and equitable. (Article 2208(110) Civil Code).
Question No. 15:
Vini constructed a building on a parcel of land he leased
fromAndrea. He chattel mortgaged the land to Felicia. When
he could not pay Felicia, Felicia initiated foreclosure proceed­
ings. Vini claimed that the building he had constructed on
the leased land cannot be validly foreclosed because the
building was, by law, an immovable.
Is Vini correct?
Alternative Answers:
a) The Chattel Mortgage is void and cannot be fore­
closed because the building Is an immovable and cannot be
an object of a chattel mortgage.
b) It depends. If the building was intended and is
built o f light materials, the chattel mortgage may be consid­
ered as valid as between the parties and it may be considered
in respect to them as movable property, since it can be
removed from one place to another. But if the building is of
strong material and is not capable of being removed or
transferred without being destroyed, the chattel mortgage is
void and cannot be foreclosed.
311
c) If it was the land which Vini chattel mortgaged,
such mortgage would be void, or at least unenforceable, since
he was not the owner of the land.
If what was mortgaged as a chattel is the building, the
chattel mortgage is valid as between the parties only, on
grounds of estoppel which would preclude the mortgagor
from assailing the contract on the ground that its
subject-matter is an immovable. Therefore Vini’s defense is
untenable, and Felicia can foreclose the mortgage over the
building, observing, however, the procedure prescribed for
the execution ofsale of ajudgment debtor’s immovable under
Rule 39, Rules of Court, specifically, that the notice of
auction sale should be published in a newspaper of general
circulation.
d) The problem that Vini mortgaged the land by way
of a chattel mortgage is untenable. Land can only be the
subject matter of a real estate mortgage and only an absolute
owner o f real property may mortgage a parcel of land. (Article
2085 (2) Civil Code). Hence, there can be no foreclosure.
But on the assumption that what was mortgaged by
way o f chattel mortgage was the building on leased land, then
the parties are treating the building as chattel. A building
that is not merely superimposed on the ground is an Immov­
able property and a chattel mortgage on said building is
legally void but the parties cannot be allowed to disavow their
contract on account of estoppel by deed. However, if third
parties are involved such chattel mortgage is void and has no
effect.
Question N 6 . 16:
Johnny Maton’s conviction for homicide was 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 from P30.000.00 to
P50.000.00. On his appeal to the Supreme Court, among the
other things Johnny Maton brought to the high court’s
312
attention, was the increase of indemnity imposed by the
Court of Appeals despite the clear fact that the People had not
appealed from the appellate court’s judgment.
Is Johnny Maton correct?
. Alternative Answers:
a)
In Abejam v. Court o f Appeals, the Supreme Court
said that even if the issue of damages were not raised by the
appellant in the Court of Appeals but the Court of Appeals in
its findings increased the damages, the Supreme Court will
not disturb the findings of the Court of Appeals.
b)
No, the contention of the accused is not correct
because upon appeal to the Appellate Court, the court
acquired jurisdiction over the entire case, criminal as well as
civil. Since the conviction of homicide had been appealed,
there is no finality in the amount of indemnity because the
civil liability arising from the crime and the judgment on the
crime has not yet become final.
c) Yes. Since the'civil indemnity is an award in the civil
action arising from the criminal offense, the rule that a party
cannot be granted affirmative relief unless he himself has
appealed should apply. Therefore, it was error for the Court1
of Appeals to have expanded the indemnity since the ju dg­
ment on the civil liability had become final.
d) No. Courts can review matters not assigned as
errors. (Hydro Resource vs. CA , 204 SCRA 309).
Question No. 17;
Dino sued Ben for damages because the latter had failed
to deliver the antique Marcedes Benz car Dino had purchased
from Ben, which was— by agreement— due for delivery on
December 31, 1993. Ben, in his answer to Dino’s complaint,
said Dino’s claim has no basis for the suit, because as the car
313
was being driven to be delivered to Dino on January 1, 1994,
a reckless truck driver had rammed into the Mercedes Benz.
The trial court dismissed Dino’s complaint, saying Ben’s
obligation had, indeed, been extinguished by force majeure.
Is the trial court correct?
Alternative Answers:
a) No. Article 1262, New Civil Code provides, “An obli­
gation which consists in the delivery of a determinate thing
shall be extinguished if it should be lost or destroyed without
the fault of the debtor, and before he has incurred in delay.
b) The judgment of the trial court is incorrect. Loss of
the thing due by fortuitous events or force majeure is a valid
defense for a debtor only when the debtor has not incurred
delay. Extinguishment of liability for fortuitous event re­
quires that the debtor has not yet incurred any 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 31, 1993. (Art. 1262 Civil Code)
c) It depends whether or not Ben, the seller, was
already in default at the time of the accident because a
demand for him to deliver on due date was not complied with
by him. That fact not having been given in the problem, the
trial court erred in dismissing Dino’s complaint. Reason:
There is default making him responsible for fortuituous
events including the assumption o f risk or loss.
If on the other nand Ben was not in default as rio
demand has been sent to him prior to the accident, then we
must distinguish whether the price has been paid or not. If
It has been paid, the suit for damages should prosper but
only to enable the buyer to recover the price paid, It should
be noted that Ben, the seller, must bear the loss on the
principle of res p eril domino. He cannot be held answerable
for damages as the loss of the car was not imputable to his
fault or fraud. In any case, he can recover the value of the car
from the party whose negligence caused the accident. If no
price has been paid at all, the trial court acted correctly in
314
dismissing the complaint.
Question No. 18:
Prime Realty Corporation appointed Nestor the exclu­
sive agent in the sale of lots of its newly developed subdivi­
sion. Prime Realty told Nestor that he could not collect or
receive payments from the buyers. Nestor was able to sell ten
lots to Jesus and to collect the downpayments for said lots.
He did not turn over the collections to Prime Realty, Who
shall bear the loss for Nestor’s defalcation. Prime Realty or
Jesus?
Alternative Answer:
a) The general rule is that a person dealing with an agent
must inquire into the authority of that agent. In the present
case, if Jesus did not inquire into that authority, he is liable
for the loss due to Nestor’s defalcation unless Article 1900,
Civil Code governs, in which case the developer corporation
bears the losfe.
Art. 1900 Civil Code provides: “So far as third persons
are concerned, an act is deemed to have been performed
within the scope o f the agent’s authority, if such act is within
the terms of the power of attorney, as written, even if the
agent has in fact exceeded the limits of his authority accord­
ing to an understanding between the principal and the agent.
However, if Jesus made due inquiry and he was not
informed by the principal Prime Realty of the limit's of
Nestor’s authority, Prime Realty shall bear the loss.
b)
Considering that Prime Realty Corporation only
“told" Nestor that he could not receive or collect payments, it
appears that the limitation does not appear in his written
authority or power of attorney. In this case, insofar as Jesus,
who is a third person, is concerned, Nestor’s acts of collecting
payments is deemed to have been performed within the scope
o f his authority (Article 1900, Civil Code). Hence, the
principal is liable.
315
However, if Jesus was aware of the limitation of Nestor’s
power as an agent, and Prime Realty Corporation does not
ratify the sale contract, then Jesus shall be liable (Article
1898, Civil Code).
Question No. 19:
In 1982, Steve borrowed P400,000.00 from Danny, col­
lateralized by a pledge of shares of stock of Concepcion
Corporation worth P800,000.00. In 1983, because of the
economic crisis, the value of the shares pledged fell to only
P 100,000.00. Can Danny demand that Steve surrender the
other shares worth P700.000.00?
Alternative Answers:
a)
No. Bilateral contracts cannot be changed unilater­
ally. A pledge is only a subsidiary contract, and Steve is still
indebted to Danny for the amount of P400,000.00 despite
the fall in the value of the stocks pledged.
b)
No. Danny’s right as pledgee is to sell the pledged
shares at a public sale and keep the proceeds as collateral for
the loan. There is no showing that the fall in the value o f the
pledged property was attributable to the pledger’s fault or
fraud. On the contrary, the economic crisis was the culprit.
Had the pledgee been deceived as to the substance or quality,
of the pledged shares of stock, he would have had the right
to claim another thing in their place or to the immediate
1 payment of the obligation. This is not the case here.
Question No. 20:
Able, a corporation domiciled in State A, but, doing
business in the Philippines, hired Eric, a Filipino engineer,
for its project in State B. In the contract of employment
executed by the.parties in State B, it was stipulated that the
contract could be terminated at the company’s will, which
stipulation is allowed in State B. When Eric was summarily
dismissed by Able, he sued Able for damages in the Philip­
pines.
316
Will the Philippine court apply the contractual stipula­
tion?
Alternative Answers:
a) Using the “significant relationships theory”, there
are contacts significant to the Philippines. Among these are
that the place of business is the Philippines, the employee
concerned is a Filipino and the suit was filed in the Philip­
pines, therebyjustifying the application of Philippine law. In
the American Airlines case the Court held that when what is,
involved is paramount state interest such as the protection
o f the rights of Filipino laborers, the court can disregard
choice of forum and choice of law. Therefore the Philippine
Court should not apply the stipulation in question:
b) No. Lex/orishould be applied because the suit is filed
in Philippine courts and Eric was hired in the Philippines.
The Philippine Constitution affords full protection to labor
and the stipulation as to summary dismissal runs counter to
our fundamental and statutory laws.
317
1993 BAR EXAMINATION
Question No. 1:
A and B, both 18 years old, were sweethearts study­
ing In Manila. On August 3, 1988, while in first year col­
lege, they eloped. They stayed In the house of a mutual
friend in town X, where they were able to obtain a mar­
riage license. On August 30, 1988, their marriage was
solemnized by the town mayor of X in his office. Thereaf­
ter, they returned to Manila and continued to live sepa­
rately In their respective boarding houses, concealing from
their pareints, who were living in the province what they
had done. In. 1992, after graduation from college, A and B
decided to break their relation and parted ways. Both
went home to their respective towns to live and work.
lj Was the marriage of A and B solemnized on Au­
gust 30, 1988 by the town mayor of X in his office a valid
marriage? Explain your answer.
Answer:
The marriage of A and B is void because the solem­
nizing officer had no legal authority to solemnize the mar­
riage. But if either or both parties believed in good faith
that the solemnizing officer had the legal authority to do
so, the marriage is voidable because the marriage between
the. parties, both below 21 years of age, was solemnized
without the consent of the parents. (Art. 35, par. (2) and
Art. 45 par. (1),,Family Code)
2)
Cari either or both of them contract marriage with
another person without committing bigamy? Explain your
answer.
Answer:
E it h e r o r b o th o f the p a rtie s c a n n o t c o n tra c t m a r r ia g e
in th e P h ilip p in e s w ith a n o t h e r p e r s o n w ith o u t c o m m ittin g
b ig a m y , u n le s s
th e re is
c o m p lia n c e w ith
th e r e q u ir e ­
m e n t s o f A rtic le 52 F a m ily C o d e, n a m e ly : th ere m u s t be a
318
judgment o f annulment or absolute nullity of the mar­
riage, partition and distribution of the properties of the'
spouses and the delivery of their children’s presumptive
legitimes, which shall be recorded in the appropriate Civil
Registry and Registry of Properly, otherwise the same shall
not affect third persons and the subsequent marriage shall
be null and void. (Arts. 52 and 53, Family Code)
Alternative Answer:
Yes, they can. The subsequent marriage contracted
by one of the parties will not give rise to bigamy even in
the absence of a court declaration of nullity of the first
marriage. The subsistence of a prior valid marriage is an
indispensable element of the crime of bigamy. The prior
court declaration of nullity of the first marriage is required
by the Family Code only for the purpose of the validity of
the subsequent marriage, not as an element of the crime
o f bigamy.
Question No. 2:
A is the acknowledged natural child of B who died
when A was already 22 years old. When B’s- full blood
brother, C, died he (C) was survived by his widow and four
children of his other brother, D. Claiming that he is en­
titled to inherit from his father’s brother, C, A brought suit
to obtain his share in the estate of C.
Will his action prosper?
Answer:
No, the action of A will not prosper. On the premise
that B, C and D are legitimate brothers, as an illegitimate
child of B, A cannot inherit in intestacy from C who is a
legitimate brother of B. Only the wife of C in her own right
and the legitimate relatives of C [le . the children of D as
C’s legitimate nephews inheriting as collateral relatives)
can inherit in intestacy. fArts. 992, 1001, 1005 and 975,
Civil Code)
Alternative Answer:
The action 'of A will not prosper. Being an illegiti­
mate, he is barred by Article 992 of the Civil Code from
319
Inheriting ab inLeslalo from the legitimate relatives of his
-father.
Question No. 3:
A, a Filipino, executed a will in Kuwait while there as
a contract worker. Assume that under the laws of Kuwait,
it is enough that the testator affix his signature in the
presence of two witnesses and that the will need not be
acknowledged before a notary public.
May the will be probated in the Philippines?
Answer:
Yes. Under Articles 815 and 17 of the Civil Code, the
formality of the execution of a will is governed by the law
o f the place of execution. If the will was executed with the
formalities prescribed by the laws of Kuwait and valid there
as such, the will is valid and may be probated in the
Philippines.
Question No. 4:
In 1937, A obtained a loan of P20.000.00 from the
National City Bank of New York, an American-owned bank
doing business in the Philippines. To guarantee payment
of his obligation, A constituted a real estate mortgage on
his 30-hectare parcel of agricultural land. In 1939, before
he could pay his obligation, A died intestate leaving three
children. B, a son by a first marriage, and C and D,
daughters by a second marriage. In 1940, the bank fore­
closed the mortgage for non-payment of the principal obli­
gation. As the only bidder at the extrajudicial foreclosure
sale, the bank bought the property and was later issued a
certificate of sale. The war supervened in 1941 without
the bank having been able to obtain actual possession of
the property which remained with A ’s three children who
appropriated for themselves the income from it. In 1948,
B bought the property from the bank using the money he
received as backpay lrom the U. S. Government, and uti­
lized the same in agri-business. In 1960, as B’s business
flourished, C and D sued B for partition and accounting of
the Income o f the property, claiming that as heirs of their
father they were co-owners thereof and offering to reim­
burse B for whatever he had paid in purchasing the pro­
perty from the bank.
320
In brief, how wiiJ. you answer the complaint of C and
D, if you were engaged by B as his counsel?
Answer:
As counsel of B, I shall answer the complaint as fol­
lows: When B bought the property, it was not by a right of
redemption since the period therefore had already expired.
Hence, B bought the property in an independent uncondi­
tional sale. C and D are not co-owners with B of the
property. Therefore, the suit o f C and.D cannot prosper.
Alternative Answer:
As counsel o f B, I shall answer the complaint as fol­
lows: From the facts described, it would appear that the
Certificate of sale has not been registered. The one-year
period of redemption begins to run from registration. In
this case, it has not yet even commenced. Under the
Rules of Court, the property may be released by the Judg­
ment debtor or his successor in interest. (Sec-. 29, Rule
27). It has been -held that this includes a joint owner.
(Ref. Magno us.Ciola, 61 Phil. 80).
Question No. 5:
A, about to leave the country on a foreign assign­
ment, entrusted to B his brand new car and its certificate
of registration. Falsifying A ’s signature, B sold A s car to C
for P200,000.00. C then registered the car in his name.
To complete the needed amount, C borrowed P 100,000.00
from the savings and loan association in his office, consti­
tuting a chattel mortgage on the car. For failure of C to
pay the amount owed, the savings and loan association
filed in the RTC a complaint for collection with application
for issuance of a writ of replevin to obtain possession of
the vehicle so that the chattel mortgage could be fore­
closed. The RTC issued the writ of replevin. The car was
then seized from C and sold by the sheriff at public auc­
tion at which the savings and loan association was the
lone bidder. Accordingly, the car was sold to it. A few
days later, A arrived from his-Joreign assignment. Learn­
ing of what happened to his car, A sought to recover pos­
session and ownership of it from the savings and loan
association.
321
Can A recover his car from the savings and loan asso­
ciation? Explain your answer.
Answer:
. Under the prevailing rulings of the Supreme Court, A
can recover the car from the Savings and Loan Association
provided he pays the price at which the Association bought
the car at a public auction. Under that doctrine, there
has been an unlawful deprivation by B of A of his car and,
therefore, A can recover it from any person in possession
thereof. But since it was bought at a public auction in
good faith by the Sayings and Loan Association, he must
reimburse the Association at the price for which the car
was bought.
Alternative Answer:
Yes, A can recover his car from the Savings and Loan
Association. In a Chattel Mortgage, the mortgagor must
be the absolute owner o f the thing morgaged. Further­
more. the person constituting the mortgage must have the
free disposal of the property, and in the absence thereof,
m ust be legally authorized for the purpose. In the case at
bar, these essential requisites did not apply to the mortga­
gor B, hence the’ Chattel Mortgage was not valid.
Question No. 6 :
On January 2, 1986, A executed a deed of donation
inter vivos of a parcel of land to Dr. B who had earlier
constructed thereon a building in which researches on the
dreadpd disease AIDS were being conducted.
The deed,
acknowledged before a notary public, was handed over by
A to Dr. B who received it. A few days after, A flew to
Davao City. Unfortunately, the airplane he was riding
crashed on landing killing him. Two days after the Unfor­
tunate accident. Dr. B v upon advice o f a lawyer, executed
a deed acknowledged before a notary public accepting the
donation.
Is the donation effective? Explain your answer.
322
Answer:
No, the donation is not effective. The law requires
that the separate acceptance of the donee of an immovable
must be done in a public document during the lifetime of
the donor (Art. 746 & 749, Civil Code) In this case, B exe­
cuted the deed o f acceptance before a notary public after
the donor had already died.
Question No. 7:
Maria, to spite her husband Jorge, whom she sus­
pected was having an affair with another woman, executed
a will, unknown to him, bequeathing all the properties she
inherited from her parents, to her sister Miguela. Upon
her death, the will was presented for probate. Jorge op­
posed probate o f the will on the ground that the will was
executed by his wife without his knowledge, much less
consent, and that it deprived him of his legitime. After all,
he had given her no cause for disinheritance, added Jorge
in his opposition.
How will you rule on Jorge’s opposition to the probate
o f Maria’s will, if you were the Judge?
■
Answer;
As Judge, I shall rule as follows: Jorge’s opposition
should be sustained in part and denied in part. Jorge’s
omission as spouse of Maria is not preterition of a compul­
sory heir in the direct line.
Hence, Art. 854 of the Civil
Code does not apply, and the institution of Miguela as heir
is valid, but only to the extent of the free portion of onehalf. Jorge is still entitled to one-half o f the estate as his
legitime. (Art. 1001, Civil Code)
Alternative Answers:
a)
As Judge, I shall rule as follows: Jorge’s opposi­
tion should be sustained in part and denied in part,
This is a case o f ineffective disinheritance under Art. 918
of the Civil Code, because the omission of the compulsory
heir Jorge by Maria was intentional. Consequently, the
institution of Miguela as heir is void only insofar as the le­
gitime of Jorge is prejudiced. Accordingly; Jorge is en­
titled to his legitime of one-half of the estate, and Miguela
gets the other half.
323
.
b) As Judge, I shall rule as follows: Jorge’s opposi­
tion should be sustained.
This is a case of preterition
under Article 854 Civil Code. The result of the omission of
Jorge as compulsory heir having the same right equivalent
to a legitimate child “in the direct line” is that total intes­
tacy will arise, and Jorge will inherit the entire estate.
c) As Judge, I shall rule as follows: the opposition
should be denied since it is predicated upon causes not
recognized by law as grounds for disallowance of a will, to
wit:
1) that the will was made without his knowl­
edge;
2) that the will was made without his consent;
and
3)
that it has the effect of depriving him of his
legitime, which is a ground that goes into the
intrinsic validity of the will and need not be
resolved during the probate proceedings.
However, the opposition may be entertained
for the purpose of securing to the husband
his right to the legitime on the theory that
the will constitutes an ineffective disinheri­
tance under Art. 918 of the Civil Code.
d) A s Judge, I shall rule as follows: Jorge Is entitled
to receive his legitime from the estate of his wife. He was
not disinherited in the will even assuming that he gave
ground for disinheritance, hence, he is still entitled to his
legitime. Jorge, however, cannot receive anything from
the free portion. He cannot claim preterition as he is not
a compulsory heir in the direct line. There being no pre­
terition, the institution of the sister was valid and the only
right of Jorge is to claim his legitime.
Question No. 8 :
LT applied with BPI to purchase a house and lot in
Quezon City, one of its acquired assets. The amount of­
fered was P I, 000,000.00 payable, as follows: P200.000.00
down payment, the balance of P800,000.00 payable within
90 days from June 1, 1985. BPI accepted the offer, where­
upon LT drew a check for P200.000.00 in favor of BPI
324
which the latter thereafter deposited in its account. On
September 5, 1985, LT wrote BPI requesting extension
until October 10, 1985, within which to pay the balance,
to which BPI agreed. On October 5, 1985, due to the
expected delay in the remittance of the needed amount by
his financier from the United States, LT wrote BPI request­
ing a: last extension until October 30, 1985, within which
to pay the balance. BPI denied L T s request because an­
other had offered to buy the same property for
P I , 500,000.00, cancelled its agreement with LT and of­
fered to return to him the amount of P200,200.00 that LT
had paid to it. On October 20, 1985, upon receipt of the
amount o f P800.000.00 from his US financier, LT offered
to pay the amount by tendering a cashier’s check therefor
but which BPI refused to accept. LT then filed a complaint
against BPl in the RTC for specific performance and de­
posited in court the amount of P800.000.00.
Is BPI legally correct in cancelling its contract with
LT?
Answer:
BPI is not correct in cancelling the contract with LT.
In Lina Topacio v. Court o f Appeals and BPI Investment
(G. R. No. 102606, July 3. 1993, 211 SCRA 291). the
Supreme Court held that the earnest money Is part of the
purchase price and is proof o f the perfection of the con­
tract. Secondly, notarial or judicial rescission under Art.
1592 and 1991 of the Civil Code is necessary [Taguba v.
de Leon, 132 SCRA 722.)
Alternative Answer:
BPI is correct in cancelling its contract with LT but
BPI must do so by way of judicial rescission under Article
1191 Civil Code. The law requires a judicial action, and
mere notice of rescission Is insufficient if it is resisted. The
law also provides that slight breach is not a ground for re­
scission (Song Fo & Co. vs. Hawaiian PhiL Co., 47 Phils.
821). Delay in the fulfillment of the obligation (Art. 1169,
Civil Code) is a ground to rescind, only,if time Is o f the
essence. Otherwise, the court may refuse the rescission if
there is a just cause for the fixing of a period.
325
Question No. 9:
A is the owner o f a lot on which he constructed a
building in the total cost of P 10,000,000.00. O f that
amount B contributed P5.000,000.00 provided that the
building as a whole would be leased to him (B) for a period
of ten years from January 1, 1985 to December 31. 1995
at a rental of P I 00,000.00 a. year. To such condition, A
agreed. On December 20, 1990, the building was totally
burned.
Soon thereafter, A ’s workers cleared the debris
and started construction of a new building. Bi then served
notice upon A that he would occupy the building being
constructed upon completion, for the unexpired portion of
the lease term, explaining that he had spent partly for the
construction of the building that was burned. A rejected
B’s demand.
Did A do right in rejecting B’s demand?
Answer:
Yes, A was correct in rejecting the demand of B. As a
result o f the total destruction of the building by fortuituous event, the lease was extinguished. (Art. 1655, Civil
Code.)
Question No. 10:
A, B and C formed a partnership for the purpose of
contracting With the Government in the construction of
one of its bridges. On June 30, 1992, after completion of
the project, the bridge was turned over by the partners to
the Government.
On August 30, 1992, D, a supplier of
materials used in the project sued A for collection of the
indebtedness to him. A moved to dismiss the complaint
against him on the ground that it was the ABC partnership
that is liable for the debt. D replied that ABC partnership
was dissolved upon completion of the project for which
purpose the partnership was formed.
Will you dismiss the complaint against B if you were
the judge?
Answer:
As Judge, I would not dismiss the complaint against
A, because A is still liable as a general partner for his pro
326
rata share of 1/3 (Art. 1816, C. C.). Dissolution of a
partnership caused by the termination of the particular
undertaking specified in the agreement does not extin­
guish obligations, which must be liquidated during the
“winding up" of the partnership affairs (Articles 1829 and
1830, par. 1-a, Civil Code).
Question No. 11:
In 1971, Able Construction, Inc. entered into a con­
tract with Tropical Home Developers, Inc. whereby the for­
m er would build for the latter the houses within its subdi­
vision.
The cost of each house, labor and materials in­
cluded, was P 100,000.00. Four hundred units were to be
constructed within five years. In 1973, Able found that it
could no longer continue with the job due to the increase
in the price o f oil and its derivatives and the concomitant
worldwide spiralling of prices of all commodities, including
basic raw materials required for the construction of the
houses. The cost of development had risen to unantici­
pated levels and to such a degree that the conditions and
factors which formed the original basis of the contract had
been totally Changed. Able brought suit against Tropical
Homes praying that the Court relieve it of its obligation.
Is Able Construction entitled to the relief sought?
Answer:
Yes, the Able Construction, Inc. is entitled to the re­
lie f sought under Article 1267, Civil Code. The law pro­
vides: “When the service has become so difficult as to be
manifestly beyond the contemplation of the parties, the
obligor may also be released therefrom, in whole or in
part.”
Question No. 12:
On January 2, 1980, A and B entered into a contract
whereby A sold to B a parcel of land for and in considera­
tion of P10,000.00, A reserving to himself the right to
repurchase the same. Because they were friends, no pe­
riod was agreed upon for the repurchase of the property.
1)
chase?
Until when must A. exercise his right of repur­
327
2)
If A fails to redeem the property within the allow­
able period, what would you advise B to do for his better
protection?
Answer:
1) A can exercise his right of repurchase within four
(4) years from the date of the contract (Art. 1606; Civil
Code).
2) I would advise B to file an action for consolidation
of title and obtain a judicial order of consolidation which
must .be recorded in the Registry of Property (Art. 1607,
Civil Code).
Question No. 13:
In September, 1972, upon'declaration of martial rule
in the Philippines, A, together with his wife and children,
disappeared from his residence along A. Mabini Street.
Ermita, Manila. B, his immediate neighbor, noticing that
mysterious disappearance of A and his family, closed the
doors and windows of his house to prevent it from being
burglarized. Years passed without B hearing from A and
his family. B' continued taking care of A's house, even
causing minor repairs to be done at his house to preserve
it. In 1976, when business began to perk up in the area,
an enterprising man, C, approached B and proposed that
they build stores at the ground floor of the house and
convert its second floor into a pension house. B agreed to
C's proposal and together they spent for the construction
of stores at the ground floor and the conversion of the sec­
ond floor into a pension house.
While construction was
going on, fire occurred at a nearby house. The houses at
the entire block, including A’s, were burned. After the
EDSA revolution in February 1986, A and hts family re­
turned from the United States where they took refuge in
1972. Upon learning of what happened to his h ou se,‘A
sued B for damages. B pleaded as a defense that he
merely took charge of his house under the principle of
negoliorum geslio. He was not liable as Ihe burning of the
house is a fortuitous event.
Is B liable to A for damages under the foregoing
circumstances?
328
Answer:
No, B is not liable for damages, because he is a gestor
in negotiorum gestio (Art ; 2144, Civil Code)
Furthermore, B is not liable to A because Article 2147
of the Civil Code is not applicable.
B did not undertake risky operations which the owner
was not accustomed to embark upon:
a) he has not preferred his own interest to that of the
owner:
b) he has not failed to return the property or busi­
ness after demand by the owner; and
c) he has not assumed the management in bad faith.
Alternative Answer:
He would be liable under Art. 2147 (1) of the Civil
Code, because he used the property for an operation which
the operator is not accustomed to, and in so doing, he
exposed the house to increased risk; namely the operation
of a pension house on the second floor and stores on the
first floor.
Question No. 14:
Peter Co, a trader from Manila, has dealt business
with Allied Commodities in Hongkong for five years. All
through the years, Peter Co accumulated an indebtedness
of P500.000.00 with Allied Commodities. Upon demand
by its agent in Manila, Peter Co paid Allied Commodities
by check the amount owed. . Upon deposit in the payee’s
account in Manila, the check was dishonored for insuffi­
ciency of funds. For and in consideration of P I.00, Allied
Commodities assigned the credit to Hadji Butu who brought
suit against Peter Co in the RTC of Manila for recovery of
the amount owed. Peter Co moved to dismiss the com­
plaint against him on the ground that Hadji Butu was not
a real party in interest and, therefore, without legal capa­
city to sue and that he had not agreed to a subrogation of
creditor.
329
W ill Peter Co’s defense of absence of agreement to a
subrogation of creditor prosper?
Answer:
No, Co’s defense will not prosper. This is not a case
o f subrogation, but an assignment of credit. Assignment
o f credit is the process of transferring the right Of the
assignor to the assignee. The assignment may be done
either gratuitously or onerously, in which case, the assign­
ment has an effect similar to that of a sale (Nyco Sales
Corp.v.BA Finance Corp. G.R. No.71694, A u g.16, 1991
200 SCRA 637); As a result of the assignment, the. plain­
tiff acquired all the rights of the assignor Including the
right to sue in his own. name as the legal assignee. In
assignment, the debtor’s consent is not essential for the
validity o f the assignment (Art. 1624; 1475, CC; Rodriguez
v. CA, et a l, G. R. No. 84220, March 25, 1992 207 SCRA
553).
Alternative Answer:
No, the defense of Peter Co will not prosper. Hadji
Butu validly acquired his right by an assignment of credit
under Article 1624 of the Civil Code. However, the provi­
sions on the contract of sale (Article 1475 Civil Code) will
apply, and the transaction is covered by the Statute of
Frauds. (Art. 1403 par. (2) Civil Code)
Question No.
15:
Julio and Lea, both 18 years old, were sweethearts.
A t a party at the house of a mutual friend, Lea met Jake,
also 18 years old, who showed interest in her. Lea seemed
to entertain Jake because she danced with him many times.
In a fit of jealousy, Julio shot Jake with his father's 38
caliber revolver which, before going to the party he was
able to get from the unlocked drawer inside his father’s
bedroom.' Jake died as a result of the lone gunshot wound
he sustained. His parents sued Julio’s parents for dam­
ages arising from quasi-delict. At the time of the incident,
Julio was 18 years old living with his parents. Julio’s
parents moved to dismiss the complaint against them claim­
ing that since Julio was already of majority age, they were
no longer liable for his, acts.
330
1 ) Should the motion to dismiss be granted? Why?
2) What is the liability of Julio’s parents to Jake's
parents? Explain your answer.
Answer:
1) No, the Motion to Dismiss should not be granted.
Article 236 of the Family Code as amended by Republic
Act 6809, provides in the third paragraph that “nothing in
this Code shall be construed to derogate from the duty or
responsibility o f parents and guardians for children and
wards below twenty-one years of age mentioned in the
second and third paragraphs of Article 2180 of the Civil
Code".
2) The liability of Julio’s parents to Jake’s parents
arises from quasi-delict (Arts. 2176 and 2180 Civil
Code) and shall cover specifically the following:
a) P50.000.00 for the death of the son;
b)
such amount as would correspond to lost
earning capacity; and
c)
moral damages.
Question No. 16:
Tomas Encamacion’s 3,000 square meter parcel of
land, where he has a plant nursery, is located Just behind
Aniceta Magsino’s two hectare parcel land. To enable To­
mas to have access to the highway, Aniceta agreed to
grant him a road right of way a meter wide through which
he could pass. Through the years Tomas’ business flour­
ished which enabled him to buy another portion which
enlarged the area of his plant nursery. But he was still
landlocked. He could not bring in and out of his plant
nurseiy a jeep or delivery panel much less a truck that he
needed to transport his seedlings.
He now asked Aniceta
to grant him a wider portion of her property, the price of
which he was willing to pay, to enable him to construct a
road to have access to his plant nursery. Aniceta refused
claiming that she had already allowed him a previous road
right of way.
331
Is Tomas entitled to the easement he now demands
from Aniceta?
Answer:
Art. 651 of the Civil Code provides that the width of
the easement must be sufficient to meet the needs of the
dominant estate, and may accordingly change from time to
time. It is the need of. the dominant estate which deter­
mines the width of the passage. These needs may vary
from time to time. As Tomas' business grows, the need for
use of m odem conveyances requires widening of the ease­
ment.
Alternative Answer:
The facts show that the need for a wider right of way
arose from the increased production owing to the acquisi­
tion by Tomas of an additional area. Under Art. 626 of the
Civil Code, the easement can be used only for the immov­
able originally contemplated. Hence, the increase in width
is justified and should have been granted.
Question No. 17:
Joaquin Reyes bought from Julio Cruz a residential
lot o f 300 square meters in Quezon City for which Joaquin
paid Julio the amount of P300,000.00. When the defed
was about to be prepared Joaquin told Julio that it be
drawn in the name of Joaquina Roxas, his acknowledged
natural child. Thus, the deed was so prepared and exe­
cuted by Julio. Joaquina then built a house on the lot
where she, her husband and children resided.
Upon
Joaquin’s death; his legitimate children sought to recover
possession and ownership of the lot, claiming that Joaquina
Roxas was but a trustee of their father.
Will the action against Joaquina Roxas prosper?
Answer:
Yes, because there is a presumed donation in favor of
Joaquina under Art. 1448 of the Civil Code (De los Santos
v. Reyes, 27 January 1992, 206 SCRA 437). However, the
donation should be collated to the hereditary estate and
the legitime of the other heirs should be preserved.
332
Alternative Answer:
Yes, the action against Joaquina Roxas will prosper,
but only to the extent of the aliquot hereditary rights of
the legitimate children as heirs. Joaquina will be entitled
to retain her own share as an illegitimate child. (Arts.
1440 and 1453, Civil Code; Art. 176, F. C.)
Question No. 18:
A, upon request, loaned his passenger jeepney to B to
enable B to bring his sick wife from Paniqui, Tarlac to the
Philippine General Hospital in Manila for treatment. On
the w ay back to Paniqui, after leaving his wife at the hos­
pital, people stopped the passenger Jeepney. B stopped for
them and allowed them to ride on board, accepting pay­
ment from them just as in the case of ordinary passenger
jeepneys plying their route. As B was crossing Bamban,
there was an onrush of lahar from Mt. Pinatubo. The jeep
that was loaned to him was wrecked.
1) What do you call the contract that was entered
into by A and B with respect to the passenger jeepney that
was loaned by A to B to transport the latter’s sick wife to
Manila?
2) Is B obliged to pay A for the use of the passenger
jeepney?
3) Is B liable to A for the loss of the jeepney?
Answer:
1) The contract is called “commodatum”. (Art. 1933,
Civil Code)
2) No, B Is not obliged to pay A for the use of the
passenge-r jeepney because commodatum is essentially
gratuitous. (Art. 1933, Civil Code)
3) Yes, because B devoted the thing to a purpose dif­
ferent from that for which it has been loaned (Art. 1942,
par. 2, Civil Code)
333
Alternative Answer:
No, because an obligation which consists in the deli­
very of a determinate thing shall be extinguished if it should
be lost or destroyed without the fault of the debtor, and
before he has incurred in delay. {Art. 1262, Civil Code)
Question No. 19:
Maria and Luis, both Filipinos, were married by a
Catholic priest in Lourdes Church, Quezon City in 1976.
Luis was drunk on the day of his wedding. In fact, he
slumped at the altar soon after the ceremony. After mar­
riage, Luis never had a steady job because he was drunk
most o f the time. Finally, he could not get employed at
all because o f drunkenness. Hence, it was Maria who had
to earn a living to support herself and her child begotten
with Luis. In 1986, Maria filed a petition in the church
matrimonial court in Quezon City to annul her marriage
with Luis on the ground of psychological incapacity to
comply with his marital obligation.
Her petition was
granted by the church matrimonial court.
1) Can Maria now get married legally to another man
under Philippine laws after her marriage to Luis was an­
nulled by the church matrimonial court? Explain.
2) What must Maria do to enable her to get married
lawfully to another man under Philippine laws?
Answers:
1) No, Maria cannot validly contract a subsequent
marriage without a court declaration o f nullity of the first
marriage. The law does not recognize the church declara­
tion of nullity of a marriage.
2) To enable Maria to get married lawfully to another
man, she must obtain a judicial declaration of nullity of
the prior marriage under Article 36 Family Code.
Question No. 20:
On June 30, 1986, A filed in the RTC of Abra an
application lor registration of title to a parcel of land under
P. D. No. 1529, claiming that since June 12, 1945, he has
334
been in open, continuous, exclusive and notorious posses­
sion and occupation of said parcel of land of the public
domain which was alienable and disposable, under a bona
fy ie claim of ownership. After issuance of the notice of
initial hearing and publication, as required by law, the
petition was heard on July 29, 1987. On the day of the
hearing nobody but the applicant appeared. Neither was
there anyone who opposed the application. Thereupon, on
motion of the applicant* the RTC issued an order of gene­
ral default and allowed the applicant to present his evi­
dence. That he did. On September 30, 1989, the RTC
dismissed A ’s application for lack o f sufficient evidence. A
appealed to the Court of Appeals.
The appellant urged that the RTC erred in dismissing
his application for registration and in not ordering regis­
tration "of his title to the parcel of land in question despite
the fact that there was no opposition filed by anybody to
his application.
Did the RTC commit the error attributed to it?
Answer:
No, the RTC did not commit the error attributed to it.
In an application for judicial confirmation of imperfect or
incomplete title to public agricultural land under Section
48 of the Public Land Act, the lack of opposition and the
consequent order of default against those who did not
answer or show up on the date of Initial hearing, does not
guarantee the success of the application. It is still incum­
bent upon the applicant to. prove with well nigh incontro­
vertible evidence that he has acquired a title to the land
that is fit for registration. Absent such registrable title, it
is the clear duty of the Land Registration Court to. dismiss
the application and declare the land as public land.
An application for land registration is a proceeding in
rem. Its main objective is to establish the status of the res
whether it is still part of our public domain as presumed
under the Regalian doctrine or has acquired the character
o f a private property. It is the duty of the applicant to
overcome that presumption with sufficient evidence.
335
1992 BAR EXAMINATION
Question No. 1:
In 1989, Maris, a Filipino citizen, married her boss
Johnson, an American citizen, in Tokyo in a wedding cere­
mony celebrated according to Japanese laws. One year later,
Johnson returned to his native Nevada, and he validly
obtained in that state an absolute divorce from his wife Maris.
After Maris received the final judgment of divorce, she
married her childhood sweetheart Pedro, also a Filipino
citizen, in a religious ceremony in Cebu City celebrated
according to the formalities of Philippine law. Pedro later left
forthe United States andbecame naturalized as an American
citizen. Maris followed Pedro to the United States, and after
a serious quarrel, Maris filed a suit and obtained a divorce
decree issued by the court in the state of Maryland.
Maris then returned to the Philippines and in a civil
ceremony celebrated in Cebu City according to the formali­
ties of Philippine law, she married her former classmate
Vincent likewise a Filipino citizen.
a) Was the marriage of Maris and Johnson valid when
celebrated? Is their marriage still validly existing now? Rea­
sons.
b) Was the marriage of Maris and Pedro valid when
celebrated? Is their marriage still valid existing now? Rea­
sons.
cj Was the marriage of Maris and Vincent valid when
celebrated? Is their marriage still validly existing now?
Reasons.
d)
At this point in time, who is the lawful husband of
Maris? Reasons.
Answer:
(a)
The marriage of Maris and Johnson was valid when
celebrated because all marriages solemnized outside the
Philippines (Tokyo) in accordance with the laws in force in the
country where they are solemnized (Japan), and valid there
as such, are also valid in the Philippines.
336
Their marriage no longer validly subsists, because it has
been dissolved by the absolute divorce validly obtained by
Johnson which capacitated Maris to remarry (Art. 26, Family
Code).
(b) The marriage o f Maris and Pedro was valid when
celebrated because the divorce validly obtained by Johnson
in Manila capacitated Maris to marry Pedro.
The marriage of Maris and Pedro is still validly existing,
because the marriage has not been validly dissolved by the
Maryland divorce (Art. 26, Family Code).
(c) The marriage of Maris and Vincent is void ab initio
because it is a bigamous marriage contracted by Maris
during the subsistence of her marriage with Pedro (Art. 25
and 41, Family Code).
The marriage of Maris and Vincent does not validly exist
because Article 26 does not apply. Pedro was not a foreigner
at the time of his marriage with maris and the divorce abroad
(in Maryland) was initiated and obtained not by the alien
spouse, but by the Filipino spouse. Hence, the Maryland
divorce did not capacitate Maris to marry Vincent.
(d) At this point in time, Pedro is still the lawful husband
of Maris because their valid marriage has not been dissolved
by any valid cause (Art. 26, Family Code).
Question No. 2:
In 1989, Rico, then a widower forty (40) years of age,
cohabited with Cora, a widow thirty (30) years of age. While
living together, they acquired from their combined earnings
a parcel of riceland.
After Rico and Cora separated,.Rico lived together with
Mabel, a maiden sixteen (16) years of age. While living
together, Rico was a salaried employee and Mabel kept house
for Rico and did full-time household chores for him. During
their cohabitation, a parcel of coconut land was acquired by
Rico from his savings.
After living'together for one (1) year, Rico and Mabel
separated. Rico then met and married Letty, a single woman
twenty-six (26) years of age. During the marriage of Rico and
337
Letty, Letty bought a manago orchard out of her own
personal earnings.
a) Who would own the riceland, and what property
regime governs the ownership? Explain.
b) Who would own the coconut land, and what prop­
erty regime governs the ownership? Explain.
c) Who would own the mango orchard, and what
property regime governs the ownership? Explain.
Answer:
(a) Rico and Cora are the co-owners of the riceland. The
regime is that of co-ownership (Art. 147, Family Code, first,
paragraph).
(Optional Addendum: However, alter Rico’s marriage to
Letty, the half interest of Rico in the riceland will then become
absolute community property of Rico and Letty.)
(b) Rico is the exclusive owner of the coconut land. The
regime is a sole/singleproprietorship (Art. 148, Family Code,
first paragraph is applicable, and not Art. 147 Family Code).
(Optional Addendum: However, after Rico’s marriage to
Letty, the coconut land of Rico will then become absolute
community property of Rico and Letty.)
(c) Rico and Letty are the co-owners. The regime is the
Absolute Community of Property (Arts. 75,90 and 91, Family
Code).
Question No. 3:
In June 1988, X obtained a loan from A and executed
with Y as solidary co-maker a'promissory note In favor of A
for the sum of P200.000.00. The loan was payable at
P20.000.00 with, interest monthly within the first week of
each month beginning July 1988 until maturity in April
1989. To secure the payment of the loan, X put up as security
a chattel mortgage on his car, a Toyota Corolla sedan.
Because of failure of X and Y to pay the principal amount of
338
the loan, the car was extrajudiclally foreclosed. A acquired
the car at A ’s highest bid of P120.000.00 during the auction
sale.
After several fruitless letters of demand against X and Y,
A sued Y alone for the discoveiy of P80.000.00 constituting
the deficiency.
Y resisted the suit raising the following defenses;
a) That Y should not be liable at all because X was not
sued together with Y.
b) That the obligation has been paid completely by A ’s
acquisition of the car through “dacion en pago” or payment
by cession.
c) That Y should not be held liable for the deficiency of
P80.000.00 because he was not a co-mortgagor in the chattel
mortgage of the car,, which contract was executed by X alone
as owner and mortgagor.
d) That assuming that Y is liable, he should only pay
the proportionate sum of P4O.O0O.OO.
Decide each defense with reasons.
Answer:
(a). This first defense of Y is untenable. Y is still liable
as solidary debtor. The creditor may proceed against any one
of. the solidary debtors. The demand against one does not
preclude further demand against the others so long as the
debt is not fully paid.
(b) The second defense ofY is untenable. Y is still liable.
The chattel mortgage is only given as a security and not as
payment for the debt in case of failure to pay. Y as a solidary
co-maker is not relieved of further liability on the promissory
note as a result of the foreclosure of the chattel mortgage.
(c) The third defense of Y is untenable. Y is a surety of
X and the extrajudicial demand against the principal debtor
is not inconsistent with ajudicial demand against the surety.
A suretyship may co-exist with a mortgage.
339
(d)
The fourth defense of Y iis untenable. Y is liable for
the entire prestation since Y incurred a solidary obligation
with X.
(Arts. 1207; 1216, 1252 and 2047 Civil Code; Bicol
Savings and Loan Associates vs. Guinhawa 188 SCRA 642)
Question Number 4:
A owns a parcel of residential land worth P500.000.00
Unknown to A, a residential house costing P100.000.00 is
built on the entire parcel by B who claims ownership of the
land. Answer all the following questions based on the
premise that B is a builder in good faith and A is a landowner
in good faith.
a)
May A acquire the house built by B? If so, how?
b) If the land increased in value to P500.000.00 by
reason of the building of the house thereon, what amount
should be paid by A in order to acquire the house from B?
c) Assuming that the cost of the house wasP900.000.00
and not P I 00,000.00, may A require B to buy the land?
d) If B voluntarily buys the land as desired by A, under
what circumstances may A nevertheless be entitled to have
the house removed?
e) In what situ ation may a “forced lease" arise between
A and B, and what terms and conditions would govern the
lease?
Give reasons for your answers.
Answer:
(a)
Yes, A may acquire the house build by B by paying
indemnity to B. Article 448 of the Civil Code provides that the
owner of the land on which anything has been built, sown or
planted in good faith, shall have the right to appropriate as
his own the works, sowing or planting, after payment of the
indemnity provided for in Articles 546 and 545 of the Civil
Code.
r
340
(b) Ashouldpay B the sum of P50,000.00, Article 548
of the Civil Code provides that useful expenses shall be re­
funded to the possessor in good faith with the right of
retention, the person who has defeated him in the possession
having the option of refunding the amount of the expenses or
of paying the increase in value which the thing may have
acquired by reason thereof. The increase in value amounts
to P50.000.00.
(c) Yes, A may require B to buy the land. Article 448 of
the Civil Code provides that the owner of the land on which
anything has been built in good faith shall have the right to
oblige the one who built to pay the price of the land if its value
is not considerably more than that of the building.
(d) If B agrees to buy land but fails to pay, A can have
the house removed ( Depra vs. Dumlao, 136 SCRA 475).
(e) Article 448 of the Civil Code provides that the
builder cannot be obliged to buy the land if its value is
considerably more than that of the building. In such case, he
shall pay reasonable rent, if the owner of the land does not
choose to appropriate the building after proper indemnity.
The parties shall agree upon the terms of the lease and in case
of disagreement, the court fix the terms thereof.
Question Number 5:
F had three (3) legitimate children: A, B, and C. B has
one (1) legitimate child X. C has two (2) legitimate children:
Y and Z.
Graphically illustrated, the relationships are as follows;
F and A rode together in a car and perished together
at the same time in a vehicular accident. F and A died, each
of them leaving substantial estates in intestacy.
341
a) Who are the intestate heirs of F? What are their
respective fractional shares?
b) Who are the intestate heirs of A? What are their
respective fractional shares?
c) If B and C both precLeceasedF. who are F’s intestate
heirs? What are their respective fractional shares? Do they
inherit in their own right or by representation? Explain your
answer.
d) If B and C both repudiated their shares in the estate
of F, who are F’s intestate heirs? What are their respective
fractional shares? Do they inherit in their own right or by
representation? Explain your answer.
Answer:
(a) B = 1/2
(c)
X = 1/2 by representation of B
C = 1/2
Y = 1/4 by representation of C
(b) B = 1/2
Z = 1/4 by representation of C
C = 1/2
Article 982 of the Civil Code provides that grandchildren
inherit by right 6f representation.
(d) X - 1/3 in his own right
Y - 1/3 in his own right
Z - 1/3 in his own right
Article 977 of the Civil Code provides that heirs who
repudiate their share cannot be represented.
Question Number 6 :
A.
B and C are the co-owners in equal shares of a
residential house and lot. During their co-ownership, the
following acts were respectively done by the co-owners:
342
1. A undertook the repair of the foundation of the
house, then tilting to one side, to prevent the house from
collapsing.
2.
B and C mortgaged the house and lot to secure a
loan.
3. B engaged a contractor to build a concrete fence all
around the lot.
4.
C built a beautiful grotto in the garden.
5. A and C sold the land to X for a very good price.
a) IsA 's sole decision to repair the foundation of the
house binding on B and C? May A require B and C to
contribute their 2/3 share of the expense? Reasons.
b) What is the legal, effect of the mortgage contract
executed by B and C? Reasons.
c) Is B’s sole decicion to build the fence binding
upon A and C? May B require A and C to contribute their 2/
3 share o f the expense? Reasons.
d) Is C’s sole decision to build the grotto binding
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
executed by A, C $nd X? Reasons.
Answer:
(a) Yes. A ’s sole decision to repair the foundation is
binding upon B and C. B and C must contribute 2/3 of the
expense. Each co-owner has the right to compel the other co­
owners to contribute to the expense of preservation of the
thing (the house) owned in common in proportion to their
respective interests (Arts. 485 and 488, Civil Code).
(b) The mortgage shall not bind the 1/3 right and
interest of A and shall be deemed to cover only the rights and
interests of B and C in the house and lot. The mortgage shall
be limited to the portion (2/3) which may be alloted to B and
343
C in the partition (Art. 493. Civil Code).
(c) B's sole decision to build the concrete fence is not
binding upon A and C. Expenses to improve the thing owned
in common must be decided upon by a majority of the co­
owners who represent the controlling interest (Arts* 489 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 contribute to the
expenses for the embellishment o f the thing owned in com­
mon if not decided upon by the majority of the co-owners who
represent the controlling interest (Arts: 489 and 492, Civil
Code).
(e) The sale to X shall not bind the 1/3 share of B and
shall be deemed to cover only the 2/3 share of A and C in the
land (Art. 493, Civil Code). B shall have the right to redeem
the 2/3 share sold to X by A and C since X is a third person
(Art. 1620, Civil Code).
Question Number 7:
A owned a parcel of unregistered land located on the
Tarlac side of the boundary between Tarlac and Pangasinan.
His brother B owned the adjoining parcel of unregistered land
on the Pangasinan side.
A sold the Tarlac parcel to X in a deed of sale executed
as a public instrument by A and X. After X paid in full the
price o f the sale, X too k possession of the Pangasinan parcel
in the belief that it was the Tarlac parcel covered by the deed
of sale executed by A and X.
After twelve (12) years,, a controversy arose between B
and X on the issue of the ownership of the Pangasinan parcel.
B claims a vested right of ownership over the Pangasi­
nan parcel because B never sold that parcel to X or to anyone
else.
Oil the other hand, X claims a vested right of ownership
over the Pangasinan parcel by acquisitive prescription, be­
cause X possessed this parcel for over ten (10) years under
claim o f ownership.
344
Decide on these claims, giving your reasons.
Answer:
At this point in time, X cannot claim the right of vested
ownership over the Pangasinan parcel by acquisitive pre­
scription. In addition to the requisites common to ordinary
and extraordinary acquisitive prescription consisting of
uninterrupted, peaceful, public, adverse and actual posses­
sion in the concept of owner, ordinary acquisitive prescrip­
tion for ten (1.0) years requires (1) possession in good faith
and (2) ju st title. “Just title” means that the adverse claimant
came into possession of the property through one of the
modes recognized by law for the acquisition of ownership but
the grantor was not the owner or could not transmit any right
(Art. 1129, Civil Code). In this case, there is no “j ust title” and
no “mode*1that can be invoked by X for the acquisition of the
Pangasinan parcel. There was no constructive delivery of the
Pangasinan parcel because it was not the subject-matter of
the deed of sale.
Hence, B retains ownership of the Pangasinan parcel of
land.
Question Number 8:
A as principal appointed B is his agent granting him
general and unlimited management over A ’s properties,
stating that A withholds no power from B. and that the agent
may execute such acts as he may consider appropriate.
Accordingly, B leased A ’s parcel of land in Manila to C
for four (4) years at P60.000.00 per year, payable annually in
advance.
B leased another parcel o f land o f A in Caloocan City to
D without a fixed term at P3.000.00 per month payable
monthly.
B sold to E a third parcel of land belonging to A located
in Quezon City for three (3) times the price that was listed in
the inventory by A to B.
All those contracts were executed by B while A was
confined due to illness in the Makati Medical Center.
345
Rule on the validity and binding effect of each of the
above contracts upon A the principal. Explain your answers.
Answer:
The agency couched in general terms comprised only
acts of administration (Art. 1877, Civil Code). The lease
contract on the Manila parcel is not valid, not enforceable
and not binding upon A. F orB to .lease the property to C, for
more than one (1) year, Am ust provide B with a special power
o f attorney (Art. 1878, Civil Code).
The lease of the Caloocan City property to D is valid and
binding Upon A. Since the lease is without a fixed term, it is
understood to be from month to month, since the rental is
payable monthly (Art. 1687, Civil Code).
The sale Of the Quezon City parcel to E is not valid and
not binding upon A. B needed a special power of attorney to
validly sell the land (Arts. 1877 and 1878, Civil Code). The
sale of the land at a very good price does not cure the defect
of the contract arising, from lack of authority.
Question Number 9:
X and Y staged a daring bank robbery in Manila at 10:30
A.M. in the morning of a regular business day, and escaped
with their loot of two (2) bags, each bag containingP50,000.00.
During their flight to elude the police, X and Y entered
the nearby locked house of A, then working in his Quezon
City office. From A ’s house, X and Y stole a box containing
cash totalling P50,000.00 which box A had been keeping in
deposit for his friend B.
In their huriy, X and Y left in A ’s bedroom one (1) of the
bags which they had taken from the bank.
With X and Y now at large and nowhere to be found, the
bag containing P50.000.00 is now claimed by B, by the Mayor
of Manila, and by the bank.
346
B claims that the depository, A, by force maieurp b ar!
obtained the bag of money in place of the box of money
deposited by B.
The Mayor of Manila, on the other hand, claims,that the
bag of money should be deposited with the Office of the Mayor
as required of the finder by the provisions of the Civil Code.
The bank resists the claims of B and the Mayor of
Manila.
To whom should A deliver the bag of money? Decide
with reasons.
Answer:
B would have no rignt to claim the money. Article 1990
of the Civil Code is not applicable. The law refers to another
thing received in substitution of the object deposited and is
predicated upon something exchanged.
The Mayor of Manila cannot invoke. Article 719 of the
Civil Code which requires the finder to deposit the thing with
the Mayor only when the previous possessor is unknown.
In this case, a must return the bag of money to the bank
as the previous possessor and known Owner (Arts. 719 and
1990. Civil Code).
Question Number 10:
As the result of a collision between a public service pas­
senger bus and a cargo truck owned by D, X sustained
physical injuries and Y died. Both X and Y were passengers
of the bus. Both drivers were at fault, and So X an d Z, the only
heir and legitimate child of the deceased Y, sued the owners
of both vehicles.
a) May the owner of the bus raise the defense of having
exercised the diligence of a good father of a family?
b)
May D raise the same defense?
c)
May X claim moral damages from both defendants?
347
d) M ay Z claim moral damages from both defendants?
Give reasons for all your answers.
Answer:
(a) No. The owner of the bus cannot raise thie defense
because the carrier’s liability is based on breach of contract.
(b) Yes. D can raise the defense because his liability is
based on a quasi-delict.
(c) Because X suffered physical injuries,. X can claim
moral damages against D. B ut as against the owner o f the
bus, X can claim moral damages only if X proves reckless
negligence of the carrier amounting to fraud.
(d) Z ca n claim moral damages against both defendants
because the rules on damages arising from death due to a
quasi-delict are also applicable to death of a passenger
caused by breach of contract by a Common carrier (Arts.
1755, 1756, 1764, 2206 and 2219, Civil Code).
Question Number 11:
What are the essential requisites or elements for the
allowance of the reopening or review of a decree of registra­
tion?
Answer:
The essential elements are: (1) that the petitioner has
a real or dominical right; (2) that he has been deprived thereof
through fraud; (3) that the petition is filed within one (1) year
from the issuance of the decree ; and (4) that the property has
not yet been transferred to an innocent purchaser (Rublieo
vs. Orellana 30 SCRA 511; Libudan vs. Gil 45 SCRA 17).
Optional extended answer:
Petition for review of the Decree of Registration. A
remedy expressly provided in Section 32 of P. D. No. 1529
348
(formerly Section 38, Act 496), this remedy has the following
elements:
a. The petition must be filed by a person claiming
dominical or other real rights to the land registered in the
name of respondent.
b. The registration of the land in the name of respon­
dent was procured by means of actual, (not just constructive)
fraud, which must be extrinsic, Fraud is actual if the
registration was made through deceit or any other inten­
tional act of downright dishonesty to enrich oneself at the
expense of another. It is extrinsic when it is something that
was not raised, litigated and passed upon in the main
proceedings.
c. The petition must be filed within one (1) year from
the date of the issuance of the decree.
d. Title to the land has not passed to an innocent
purchaser for value (Libudan vs. Gil, 45. SCRA 27, 1972),
Rublico vs. Orrelana, 30 SCRA 511, 1969); RP vs. CA, 57 G.
R. No. 40402, March 16, 1987).
1. The buyer in good faith of a registered parcel of
land does not have to look beyond the torrens title in search
for any hidden defect or inchaote right which may later
invalidate or diminish his right to what he purchased (Lopez
vs. CA, G. R. 49739, January 20, 1989).
Question Number 12:
W, X, Y.and Z organized a general partnership with W
and. X as industrial partners and Y and Z as 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 appointed managing partners,
without any specification of their respective powers and
duties.
A applied for the position of Secretary and B applied for
the position of Accountant of the partnership.
The hiring of A was decided upon by W and X. but was
opposed by Y and Z.
349
The hiring of B was decided upon by W and Z, but was
opposed by X and Y.
Who of the applicants should be hired by the partner­
ship? Explain and give your reasons.
Answer:
A should be hired as Secretary. The decision for the
hiring of A prevails because it is an act of administration
which can be performed by the duly appointed managing
partners, W and X.
B cannot be hired, because in case of a tie in the decision
of the managing partners, the deadlock must be decided by
the partners owning the controlling interest. In this case, the
opposition o fX and Y prevails because Y owns the controlling
interest (Art. 1801, Civil Code).
Question Number 13:
In fear of repraisals from lawless elements besieging his
barangay, X abandoned his fishpond, fled to Manila and left
for Europe. Seeking that the fish in the fishpond Were ready
for harvest, Y, who is in the business of managing fishponds
on a commission basis, took possession of the property,
harvested the fish and sold the entire harvest to Z.
Thereafter, Y borrowed money from W and used the
m oney to buy new supplies, of fish fry and to prepare the
fishpond for the next crop.
a) What is the juridical relation between X and Y
during X ’s absence?
b) Upon the return o fX to the barangay, what are the
obligations of Y to X as regards the contract with Z?
c) Upon X ’s return, what are the obligations of X as
regards Y ’s contract with W?
d) W hatlegaleffectswillresultifXexpresslyratiflesY’ s
management and what would be the obligations o fX in favor
of Y?
350
Explain all your answers
Answer:
(a) The juridical relation is that of the quasi-contract of
“negotiorum gestio”. Y is the “gestor” or.“officious manager"
and X is the “owner” (Art. 2144, Civil Code).
(b) Y must render an account, of his operations and
deliver to X the price he received for the sale of the harvested
fish (Art. 2145, Civil Code),
(c) X must pay the loan obtained by Y from W because
X must answer for obligations contracted with third persons
in the interest o f the owner (Art. 2150, Civil Code).
(d) Express ratification by X provides the effects o f an
express agency and X is liable to pay the commissions
habitually received by the gestor as manager (Art. 2149 . Civil
Code).
Question Number 14:
X and Y entered into a contract in Australia, whereby it
was agreed that X would build a commercial building for Y in
the Philippines, and in payment for the construction, Y will
transfer and convey his cattle ranch located in the United
States in favor of X.
What law would govern:
a) The validity of the contract?
b) The performance of the contract?
c)
The consideration of the contract?
Answer:
(a)
The validity of the contract will be governed by Aus­
tralian law, because the validity refers to the element of the
making of the contract in this case:
351
(Optional Addendum: “ . .. unless the parties agreed to
be bound by another law”.)
(b) The performance will be governed by the law of the
Philippines where the contract is to be performed.
(c) The consideration Will be governed by the law o f the
United States where the ranch is located.
(Optional Addendum; In the foregoing cases, when the
foreign law would apply, the absence of proof of that foreign
law would render Philippine law applicable under the “eclec­
tic theory” .)
352
1991 BAR EXAMINATION
Question Number 1:
A. How does the 1987
family as an institution?
Constitution strengthen the
B. Do the Constitutional policy on the family and the
provision that marriage is the foundation of the family and
shall be protected by the State bar Congress from enacting a
law allowing divorce in the Philippines?
Answer:
A. Sec. 2, Article II of the Constitution provides that:
The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autono­
mous social institution. It shall wqually protect the life of the
mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral
character shall receive the support of the Government.
Section I, Article XV, further'provides that:
The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its
total development.
(Note: The Committee recommends that a citation of
either one of the provisions be credited as a Complete
answer).
Answer:
B.
No, the Constitutional policy, as well as the support­
ing provision, does not amount to a prohibition to Congress
to enact a law on divorce. The Constitution only meant to
help the marriage endure, to “strengthen its solidarity and
actively promote its total development."
353
Alternative Answer:
B.
Yes, Congress is barred from enacting a law allowing
divorce, since Section 2 of Article XV provides:
“Sec. 2. Marriage, as an inviolable social
institution, is the foundation of the family and
shall be protected by the State.”
Since marriage is “inviolable”, it cannot be dissolved
by an absolute divorce.
Question Number 2:
On her third month of pregnancy, Rosemarie, married
to Boy, for reasons known only to her, and without informing
Boy, went to the clinic ofX , a known abortionist, who, for a
fee, removed and expelled the foetus from her womb. Boy
learned of the abortion six (6) months later.
Availing of that portion of Section 12 of Article II o f the
1987 Constitution which reads:
The State x x x shall equally protect the life of
the mother and the life of the unborn from concep­
tion. “x x x"
which he claims confers a civil personality on the unborn
from the moment of conception. Boy filed a case for damages
against the abortionist, praying therein that the latter be
ordered to pay him: (a) P30,000.00 as indemnity for the
death o f the foetus, (b) P I 00,000.00 as moral damages for the
mental anguish and anxiety he suffered, (c) P50.000.00 as
exemplary damages, (d) P20,000-Q0 as nominal damages,
and (e) P25;000.00 as attorney’s fees.
(a) Is Boy’s, interpretation o f the above con­
stitutional provision correct?
(b) Is Boy entitled to the foregoing damages
and attorney’s fees?
(c)
Should exemplary damages be proved?
(d) May actual damages be also recovered? If
so. what facts should be alleged and proved?
354
Answer:
A. No. Because under the Child and Youth Welfare
Code, the personality of the child commences from the time
of conception for purposes favorable to him, subject to the
requirement that it is bom alive at the time of the complete
delivery from the mother’s womb.
B. He is not entitled to damages claimed under (a) and
(d) because the foetus had no civil personality and no
property right has been invaded. But Boy is entitled to
damages under (b), (c) and (e). Moral damages are due
because they are the proximate result of the defendant’s
wrongful act. Exemplary damages are due by way of example
or correction for the public good. Attorney’s fees are due if
exemplary damages or double judicial costs are awarded,
and the"court deems the recovery of attorneys fees equitable,
C. The amount of the exemplary damages need not be
proved, but the plaintiff must show that he is entitled to
moral* temperate or compensatory damages. (Art. 2234,
Civil Code).
D. Yes, provided that the pecuniary loss suffered should
be substantiated and duly proved.
ALTE R N A TIVE ANSW ER:
A. Yes. A s legitimate ascendant, he can demand
damages due to the death of the foetus whose personality
commenced from conception. (Article 5, PD No: 603, Art.
2206, Civil Code)
B. He is entitled to damages claimed under (a), (b), (c)
and (e). Moral damages are due because they are the
proximate result of the defendant’s wrongful act. Exemplary
damages are due by way of example or correction for the
public good. Attorney’s fees are due if exemplary damages or
double judicial costs are awarded, and the court deems the
recovery of attorney's fees equitable.
C. The amount of the exemplary damages need not be
proved, but the plaintiff must show that he is entitled to
moral, temperate or compensatory damages (Art. 2234, Civil
Code).
355
D.
Yes. provided that the pecuniary loss suffered should
be substantiated and duly proved.
Question Number 3:
Bar Candidates Patricio Mahigugrriaon and Rowena
Amor decided to marry each other before the .last day o f the
1991 Bar Examinations: They agreed to execute a Marriage
Settlement. Rowena herself prepared the document in her
own handwriting. They agreed on the following: (1) a
conjugal partnership of gains; (2) each donates to the other
fifty percent (50%) of his/her present property; (3) Rowena
shall administer the conjugal partnership property; and (4)
neither may bring an action for the annulment or declaration
of nullity of their marriage. Both signed the agreement in the
presence of two (2) witnesses. They did not, however,
acknowledge it before a notary public.
(a) As to form, is the Marriage Settlement
valid? May it be registered in the registry of
property? If not, what steps must be taken to make
it registerable?
(b) Are the stipulations valid?
(c) If the Marriage Settlement is valid as to
form and the above stipulations are likewise valid,
does it now follow th at said Marriage Settlement is
valid and enforceable?
Answer:
A. Yes, it is valid as to form, because it is in writing.
No, it cannot be registered in the registry of property
because it is not a public document. To make it registerable,.
it must be reformed and has to be notarized.
B. Stipulations (1) ana (3) are valid because they are
noi contrary to law. Stipulation (4) is void because it is
contrary to law. Stipulation (2) is valid up to 1/5 of their
respective present properties but void as to the excess (Art.
84, Family Code).
356
C.
No, on September 15,1991, the marriage settlement
is nbt yet valid and enforceable until the celebration of the
marriage, to take place before the last day of the 1991 bar
Examinations.
Alternative Answers:
A. Yes, it is valid as between the parties but not as
against third persons. No, because, it is not a public
document. To make it registerable, it must be reformed and.
has to be notarized.
B. It depends. As between the parties, stipulations (1)
and [3) are valid because they are not Contrary to law.
. Stipulation (2) is void because, it is contrary to law. Stipu­
lation (2) is valid up to 1/5 of their respective present
properties but void as to the excess (Art. 84, Family Code).
Question Number 4:
A. One of the grounds for annulment of marriage is
that either party, at the time of their marriage was.afflicted
with a sexually-transmissible disease, found to be serious
and appears incurable. Two (2) years after theif marriage,
which took place on 10 October 1988., Bethel discovered that
her husband James has a sexually-transmissible disease
which he contracted even prior to their marriage although
James did not know it himself until he was examined two (2)
years later when a child was already born to them. Bethel
sues James for annulment of their marriage. James opposes
the annulment on the ground that he did not even know that
he had such a disease so that there was no fraud or bad faith
on his part.
Decide.
B. Suppose that both parties at the time of their
marriage were similarly afflicted with sexually-transmissible
diseases, serious and incurable, and both knew of their
respective infirmities, can Bethel or James sue for annul­
ment of their marriage?
357
Answer:
A. The marriage can be annulled, because good faith is
not a defense when the ground is based upon sexuallytransmissible disease on the part of either party.
B. Yes, the marriage can still be annulled because the
fact that both of them are afflicted with sexually-transmissible diseases does not efface or nullity the ground.
Alternative Answer:
B.
No, the marriage can no longer be annulled, because
the fact that both were afflicted arid that both knew o f their
respective infirmities constitutes a waiver of that ground.
Question Number 5:
In June 1985, James married Maiy. InSeptember 1988,
he also married Ophelia with whom he begot two (2) children,
A and B. In July 1989, Mary died. In July 1990, he married
Shirley and abndorted Ophelia. During their union, James
and Ophelia acquired a residential lot worth P300.000.00.
Ophelia sues James for bigamy and prays that his
marriage with Shirley be declared null and void. James, on
the other hand, claims that since his marriage to Ophelia was
contracted during the existence of his marriage with Mary,
the former is not binding upon him, the same being void ab
initio; he further claims that his marriage to Shirley is valid
and binding as he was already legally capacitated at the time
he married her.
(a) Is the contention of James correct?
(b) What property regime governed the union of James
and Ophelia?
(c) Is the estate of Mary entitled to a share in the
residential lot acquired by James and Ophelia?
358
Answer:
A. Yes. His marriage to Ophelia is void ab initio
because of his subsisting prior marriage to Mary. His
marriage to Shirley, after Mary’s death, is valid and binding.
A lte rn a tiv e Answ er:
k
A. No. The contention of James is not correct.
Art. 40, Family Code, provides that the “absolute
nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring
such previous marriage void.” It can be said, therefore, that
the marriage of James to Shirley is void since his previous
marriage to Ophelia, although itself void, had not yet been
judicially declared void.
A lte rn a tiv e Answ er:
A.
No. The contention of James is not correct.
cannot set up as a defense his own criminal act or wrongdo­
ing.
Answ er:
B. The provisions Of Art 148 of the Family Code, shall
govern:
Art. 148. In cases of cohabitation not falling under
the preceding Article, only the properties acquired by both of
the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence
of proof to the contrary, their contributions and correspond­
ing shares are presumed to be equal. The same rule and
presumption shall apply to joint deposits of money and
evidences o f credit.
C. It should be distinguished when the property was
acquired.
If it was acquired before Mary’s death, the estate of
Mary is entitled to 1/2 of the share of James.
359
He
If it was acquired after Mary’s death, there will be
no share at all for the estate of Mary.
Q u estion N u m ber 6:
(a) For purposes of succession, when is death deemed
to occur or take place?
(b) May succession be conferred by contracts or acts
inter vivos? Illustrate.
(c) Is th ere any law which allows the delivery to compul­
sory heirs of their presumptive legitimes during the lifetime
o f their parents? If so, in what instances?
A nsw er:
A. Death as a fact is deemed to occur when.it actually
takes place. Death is presumed to take place in the circum­
stances under Arts. 390-391 of the Civil Code. The time of
death is presumed to be at the expiration of the 10-year
period as prescribed by Article 390 and at the moment of
disappearance under Article 391.
B. Under Art. 84 of the Family Code amending Art. 130
of the Civil Code, contractual succession is no longer possible
since the law now requires that donations of future property
be governed by the provisions on the testamentary succes­
sion and formalities of wills.
A lte rn a tiv e Answ er:
B.
In the case of Coronado vs , CA (191 SCRA 81), it was
ruled that no property passes under a will Without its being
probated, but may under Article 1058 of the Civil Code of
1898, be sustained as a partition by an act inter vivos (ManyOy vs. CA 144 SCRA 33).
And in the case of Chavez vs. IAC (191 SCRA 211),
it was ruled that while the law prohibits contracts upon
future inheritance, the partition by the parent, as provided
in Art. 1080, is a case expressly authorized by law. A person
has two options in making a partition of his estate: either by
360
an act inter vivos or by will. If the partition is by will, it is
imperative that such partition must be executed in accor­
dance with the provisions of the law on wills; if by an act inter
vivos, such partition may even be oral or written, and need
not be in the form of a will, provided the legitime is not
prejudiced.
“Where several sisters execute deeds of sale
over their 1/6 undivided share of the paraphernal
property o f their mother, in favor of another sister,
with their mother not only giving her authority
thereto but even signing said deeds , there is a valid
partition inter vivos between the mother and her
children which cannot be, revoked by the mother.
Said deeds of sale are not contracts entered into
with respect to future inheritance.
“It would be unjust for the .mother to revoke
the sales to a son and to execute a simulated sale
in favor of a daughter who already benefited by the
partition.”
Answer:
C.
Yes, under Arts. 51 and. 52 of the New Family Code,
in. case of legal separation, annulment of marriage, declara­
tion of nullity o f marriage and the automatic termination of
a subsequent marriage by the reapperance of the absent
spouse, the common or community property of the spouses
shall be dissolved and liquidated.
Art. 51. In said partition, the value of the presump­
tive legitimes o f all common children, computed as of the date
of the.final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by
mutual agreement, judicially approved, had already pro­
vided for such matters.
The children of their guardian, or the trustee of .their
property, may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein
prescribed shall in ho way prejudice the ultimate succes­
sional rights of the children accruing upon the death of either
or both of the parents; but the value of the properties already
361
received under the decree of annulment or absolute nullity
shall be considered as advances on their legitime.
Art. 52. The judgmennt of annulment or of absolute
nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the children’s
presumptive legitimes shall be recorded in the appropriate
civil registry and registries of property; otherwise, the same
shall not affect third persons.
Question Number 7:
A. The Japan Air Lines (JAL), a foreigner corporation
licensed to do business in the Philippines, executed in Manila
a contract of employment with Maritess Guapa under which
the latter was hired as a stewardess on the aircraft plying the
Mandla-Japan-Manila route. The contrast specifically pro­
vides that (1) the duration of the contract shall be two (2)
years, (2) notwithstanding the above duration, JAL may
terminate the agreement at any time by giving her notice in
writing ten (10) days in advance, and (3) the contract shall be
construed as governed under and by the laws of Japan and
only the court in Tokyo, Japan shall have the jurisdication to
consider any matter arising from or relating to the contract.
JAL dismissed Maritess on the fourth month of her
employment without giving her due notice. Maritess then
filed a complaint with the Labor Arbiter for reinstatement,
backwages and damages. The lawyer of JAL contends that
neither the Labor Arbiter nor any other agency or court in the
Philippines has jurisdiction over the case in view-ofthe above
provision (3) of the contract which Maritess voluntarily
signed. The contract is the law between her and JAL.
Decide the issue.
B. Where under a State’s own conflicts rule that do­
mestic law of another State should apply, may the courts of
the former nevertheless Tefuse to apply the latter? If so,
under what circumstance?
Answer:
A. Labor Legislations are generally intended as expres­
362
sions of public policy on employer-employee relations. The
contract therefore, between Japan Air Lines (JAL) and Maritess may apply only to the extent that its provisions are not
inconsistent with Philippine labor laws intended particularly
to protect employees.
Under the circumstances, the dismissal of Maritess
without complying with Philippine Labor law would be inva­
lid and any stipulation in the contract to the contrary is
considered void . Since the law of the forum in this case is the
Philippine law, the issues should be resolved in accordance
With Philippine liaw.
B.
The third paragraph of Art. 17 of the Civil Code
provides that:
“Prohibitive laws concerning persons, their
acts or property, and those which have for their
object public order, public policy and good cus­
toms shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.”
Accordingly, a state’s own conflict of laws rule may,
exceptionally be inapplicable, given public policy considera­
tions by the law of the forum.
Going into the specific provisions of the contract in
question, I would rule as follows:
1. The duration of the contract is not opposed to
Philippine law and it can therefore be valid as stipulated;
2. The second provision to the effect that notwith­
standing duration, Japan Air Lines (JAL) may terminate her
employment is invalid, being inconsistent with our Labor
laws;
3.. That the contract shall be construed as governed
under and by the laws of Japan and only the courts of Tokyo,
Japan shall have jurisdiction, is invalid as clearly opposed to
the aforecited third paragraph of Arts. 17 and 1700 of the
Civil Code, which provides:
“Art. 1700. The relations between capital and
labor are not merely contractuals. They are so
363
impressed with public interest that labor contracts
must yield to the common good. Therefore, such
contracts are subject to the special laws on labor
unions, collective bargaining, strikes and lock­
outs, closedshop, wages, working conditions, hours
of labor and similar subjects.”
Alternative Answer:
A.
W hen a contract has a foreign element such as in the
factual setting stated in the problem where one of the parties
is a foreign corporation, the contract can be sustained as
valid particularly the stipulation expressing that the contract
is governed by the laws o f the foriegn country. Given this
generally accepted principle of international law, the con­
tract between Maritess and JAL is valid and it should
therefore be enforced.
Question Number 8 :
Jacob, a Swiss national, married Lourdes, a Filipina, in
Berne, Switzerland. Three years later, the couple decided to
reside in the Philippines. Jacob subsequently acquired
several properties in the Philippines with the money he
inherited from his parents. Forty years later, Jacob died
intestate, and is survived by several legitimate children and
duly recognized illegitimate daughter Jane, all residing in the
Philippines.
(a) Suppose that Swiss law does not allow illegitimate
children to inherit, can Jane, who is a recognized illegitimate
child, inherit part of the properties of Jacob under Philippine
law?
(b) Assuming that Jacob executed a will leaving certain
properties to Jane as her legitime in accordance with the law
of succession in the Philippines, will such testamentary
disposition be valid?
Answer:
A.
Yes. As stated in the problem, Swiss law does not
allow illegitimate children to inherit. Hence. Jane cannot
inherit the property of Jacob under Philippine law.
364
B.
The testamentary disposition will not be valid if it
would contravene Swill law; otherwise, the disposition would
be valid. Unless the Swiss law is proved, it would be
presumed to be the same as that of Philippine law under the
doctrine of processual presumption.
Question Number 9:
Roland, a basketball star, was under contract for one
year to play-for-play exclusively for Lady Love, Inc. However,
even before the basketball season could open, he was offered
a more attractive pay plus fringes benefits by Sweet Taste,
Inc. Roland accepted the offer and transferred to Sweet
Taste. Lady Love sues Roland and Sweet Taste for breach of
contract. Defendants claim that the restriction to play for
Lady Love alone is void, hence, unenforceable, as it consti­
tutes an undue interference with the right o f Roland to enter
into contracts and the impairment of his freedom to play and
enjoy basketball.
Can Roland be bound by the contract he entered into
with Lady Love or can he disregard the same? Is he liable at
all? How about Sweet Taste? Is it liable to Lady Love?
Answer:
Roland is bound by the contract he entered into with
Lady Love and he cannot disregard the same, under the
principles of obligatoriness of contracts. Obligations arising
from contracts have the force of law between the parties.
Yes, Roland is liable under the contract as far as Lady
Love is concerned.
He is liable for damages under Article 1170 of the Civil
Code since he contravened the tenor of his obligation. Not
being a contracting party, Sweet Taste is not bound by the
contract but it can be held liable under Art. 1314. The basis
of its liability is not prescribed by contract but is founded on
quasi-delict, assuming that- Sweet Taste knew of the con­
tract. Article 1314 of the Civil Code provides that any third
person who induces another to violate his contract shall be
liable for damages to *he other contracting party.
365
Alternative Answer:
It is assumed that Lady Love knew of the contract.
Neither Roland nor Sweet Taste would be liable, because
the restriction in the contract is violative of ARticle 1306 as
being contrary to law, morals, good customs, public order or
public policy.
Question Number 10:
On 20 December 1970, Juliet, a widow, borrowed'from
Romeo P4.000.00 and, as security therefore, she executed a
deed o f mortgage over one of her two (2) registered lots which
has a market value of P I 5,000.00. The document and the
certificate of title of the property were delivered to Romeo.
On 2 June 1971, Juliet obtained an additional sum of
P3,000.00 from Romeo. On this date, however, Romeo
caused the preparation of a deed of absolute sale of the above
property, to which Juliet affixed her signature without first
reading the document. The consideration indicated is
P7.000.00. She thought that this document was similar to
the first she signed. When she reached home, her sonX, after
reading the duplicate copy of the deed, informed her that
what she signed was not a mortgage but a deed Of absolute
sale. On the following day, 3 June 1971, Juliet, accompanied
by X, went back to Romeo and demanded the reformation it,
Romeo prepared and signed a document wherein, as vendee
in the deed of sale above mentioned, he obligated and bound
him self to resell the land to Juliet or her heirs and successors
for Jthe same consideration as reflected in the deed of sale
(P7,000.00) within a period of two (2) years, or until 3 June
1973. It is further stated therein that should the Vendor
(Juliet) fail to exercise her right to redeem within the said
period, the conveyance shall be deemed absolute and irrevo­
cable. Romeo did not take possession of the property. He did
not pay the taxes thereon.
Juliet died in January 1973 without having repur­
chased the property. Her only surviving heir, her sonX, failed
to repurchase the property on or before 3 June 1973. In
1975, Romeo sold the property to Y for P50,000.00. Upon
learning of the sale, X filed an action for the nullification of
the sale and for the recovery of the property on the ground
366
that the so-called deed of absolute sale executed by his
mother was-merely an equitable mortgage, taking into account the inadequacy of the price and the failure of Romeo to
take possession of the property arid to pay the taxes thereon.
Romeo and Y maintain that there was a valid absolute sale
and that the document signed by the former on 3 June 1973
was merely a promise to sell.
(a) If you were the Judge, would you uphold the theory
of X?
(b) If you decide in favor of Romeo and Y, would you
uphold the validity of the promise to sell?
Answ er:
A. I will not uphold the theory of X for the nullification
of the sale and for the recovery of the property on the ground
that the so-called sale was only an equitable mortgage. An
equitable mortgage may arise only if, in truth, the sale was
one with the right of repurchase. The facts of the case state
that the right to repurchase was granted after the.absolute
deed of sale was executed. Following the rule in Cruzo vs.
Carriaga (174 SCRA 330), a deed of repurchase executed
independently of the deed of sale where the two stipulations
are found in two instruments instead of one document, the
right of repurchase would amount only to one option granted
by the buyer to the seller. Since the contract cannot be
upheld as a contract of sale with the right to repurchase, Art.
1602 of the Civil Code on equitable mortgage will not apply.
The rule could have .been different if both deeds were exe­
cuted on the same occasion or date, in which case, under the
ruling in spouses Claravall v. CA (190 SCRA 439), the
contract may still be sustained as an equitable mortgage,
given the circumstances expressed in Art. 1.602. The re­
served right to repurchase is then deemed an original inten­
tion.
B. If I were to decide in favor oi Romeo and Y, I wo uld
not uphold the validity of the promise to sell, so as to enforce
it by an action for specific 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.
367
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 which again may not be the basis for an action for
specific performance.
Question Number 11:
A is the lessee of an apartment owned by Y. A allowed
his married but employed daughter B , whose husband works
in Kuwait, to occupy it. The relationship between Y and A
soured. Since he has no reason at all to eject A, 'Y, in
connivance with the City Engineer, secured from the latter an
order for the demolition of the building. A immediately filed
an action in the Regional Trial Court to annul the order and
to enjoin its enforcement. Y and A were able to forge a
compromise, agreement under which A agreed to a twenty
percent (20%) increase in the monthly rentals. They further
agreed that the .lease will expire two (2) years later and that
in the event that Y would sell the property, either A or his
daugther B shall have the right of first refusal. The
Compromise Agreement was approved by the court. Six (6)
months before the expiration of the lease, A died. Y sold the
property to the Visorro Realty Corp. without notifying B. B
then filed an action to rescind the sale in favor of the
corporation and to compel Y to sell the property to her since
under the Compromise Agreement, she was.given the right of
first refusal which, she maintains, is a stipulation pour atrui
under Article 1311 of the Civil Code.
Is she correct?
Answer;
B is not correct. Her action cannot prosper. Article 1311
requires that the third person intended to be benefited must
communicate his acceptance to the obligor before the revo­
cation. There is no showing that B manifested her accep­
tance to Y at any time before the death of A and before the
sale. Hence, B cannot enforce any right under the alleged
stipulation pour atrui.
368
guestion Number 12:
Maria Enriquez failed to pay the realty taxes on her
unregistered agricultural land located in Magdugo, Toledo
City. In 1989, to satisfy the taxes due, the City sold it at
public auction to Juan Miranda, an employee at the Treas­
urer’s Office of said City, whose bid at P 10,000.00 was the
highest. In due time, a final bill of sale was executed in his
favor.
Maria refused to turn-over the possession Of the prop­
erty to Juan alleging that (1) she had been, in the meantime,
granted a free patent and on the basis thereof an Original
Certificate of Title was issued to her, and (2) the sale in favor
of Juan is void from the beginning in view of the provision in
the Administrative Code of 1987 which prohibits officers and
employees o f the government from purchasing directly or
indirectly any property sold by the government for non­
payment of any tax, fee or other public charge.
(a) Is the sale to Juan valid? If so, what is the effect of
the issuance of the Certificate of Title to Maria?
(b) Ifthe sale is void, may Juan recover the P 10,000.00?
If not, why not?
(c) If the sale is void, did it not nevertheless, operate to
divent Maria of her ownership? If it did, who then is the owner
of the property?
Answ er:
A.
The sale of the land to Juan is not valid, being
contrary to law. Therefore, no transfer of ownership of the
land was effected from the deliquent taxpayer to him. The
original certificates of title obtained by Maria thru a free
patent grant from the Bureau of Lands (under Chapter VII,
CA 141) is valid but in view o f her delinquency, the said title
is subject to the right of the City Government to sell the Iand
at public auction. The issuance of the OCT did not exempt
the land from the tax sales. Section 44 of P.D. No. 1529
provides that every registered owner receiving a Certificate of
Title shall hold the same free from all encumbrances, subject
to certain exemptions.
369
B. Juaii may recover because he was not a party to the
violation o f the law .
C . N o , the s a le d id n ot d iv est M a r ia o f h e r title p r e c is e ly
b e c a u s e th e s a le is void. It is a s g o o d a s if n o sa le e v e r to o k
p la c e .
In tax sales, the owner is divested of his land initially
upon award and issuance of a Certificate of Sale, and finally
after the lapse of the 1 year period from date of registration,
to redeem, upon execution by the treasurer of an instrument
sufficient in form and effects to convey the property. Maria
remained owner of the land until another tax sale is to be
performed in favor of a qualified buyer.
Question Number 13:
. In a deed of sale of a realty, it was stipulated that the
buyer would construct a commercial building on the lot while
the seller would construct a private passageway bordering
the lot. The building was eventually finished but the seller
failed to complete the passageway as some of the squatters,
who were already known to be there at the time they entered
into the contract, refused to vacate the premises. In fact,
prior to its execution, the seller filed ejectment cases against
the squatters.
The buyer now sues the seller for specific performance
with damages. The defense is that the obligation to construct
the passageway should be with a period which, incidentally,
had not been fixed by them, hence, the need for fixing a
judicial period.
Will the action for specific performance of the buyer
against the seller prosper?
Answer:
No, the action for specific performance filed by the buyer
is premature under Art. 1197 of the Civil Code. Ifa period has
not been fixed although contemplated by.the parties, the
parties themselves should fix that period, failing in which,
the Court maybe asked to fix it taking into consideration the
probable contemplation of the parties. Before the period is
fixed, an action for specific performance is premature.
370
A lternative Answer:
It has been held in Borromeo vs. CA (47 SCRA 69), that
the Supreme Court allowed the simultaneous.filing of action
to fix the probable contemplated period of the parties where
none is fixed in the agreement, if this would avoid multiplicity
of suits. In addition, technicalities must be subordinated to
substantial justice.
Alternative Answer:
The action for specific performance will not prosper.
The filing of the ejectment suit by the seller was precisely in
compliance with his obligations and should not, therefore, be
faulted if no decision has yet been reached by the Court on
the matter.
Question Number 14:
Spouses Michael and Linda donated a 3-hectare resi­
dential land to the City o f Baguio on the condition that the
city government would build thereon a public park with a
boxing arena, the construction of which shall commence
within six (6) months from the date the parties ratify the
donation. The donee accepted the donation and the title to
the property was transferred in its name. Five years elapsed
but the public park with the boxing arena was never started.
Considering the failure of the donee to comply witn the
condition of the donation, the donor-spouses sold the prop­
erty to Ferdinand who then sued to recover the land from the
city government.
Will the suit prosper?
Answer:
Ferdinand has no right to recover the land. It is true that
the donation was revocable because of breach of the condi­
tions. But until and unless the donation was revoked, it
remained valid. 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 have done first was
to have the donation annulled or revoked. And after that was
371
done, they could validly have disposed of the land in favor of
Ferdinand.
Alternative Answer:
A. Until the contract of donation has been resolved or
rescinded under Article 1191 of the Civil Code or revoked
under Art. 764 of the Civil Code, the donation stands effective
and valid. Accordingly, the sale made by the donOr to
Ferdinand cannot be said to have conveyed title to Ferdi­
nand, who, thereby, has no cause o f action for recovery of the
land acting for and in his behalf.
B. The donation is onerous. And being onerous, what
applies is the law on contracts, arid not the law on donation
(tie Luna vs. Abrige, 81 SCRA 156). Accordingly, the pre­
scriptive period for the filing of such an action would be the
ordinary prescriptive period for contacts which may either be
six or ten depending upon whether it is verbal or written. The
filing o f the Case five years later is within the prescriptive
period and, therefore, the action can prosper.
Alternative Answer:
The law on donation lays down a special prescriptive
period in the case of breach of condition, which is four years
from non-compliance thereof (Article 7.64 Civil Code). Since
the action has prescribed, the suit will not prosper.
Question Number 15:
Bruce4s the registered owner, of a parcel of land with a
building thereon and is in peaceful possession thereof. He
pays the real estate taxes and collects the rentals therefrom.
Later, Catalino, the only brother of Bruce, filed a petition
where he, misrepresenting to be the attorney-in-fact of Bruce
and falsely alleging that the certificate of title was lost,
succeeded in obtaining a second owner’s duplicate copy of
•the title and then had the same transferred in his name
through a, simulated deed of sale in his favor. Catalino then
Mortgaged the property to Desiderio who had the mortgage
annotated on the title. Upon learning of the fraudulent
transaction, Bruce filed a complaint against Catalino and
372
Desiderio to have the title of Catalino and'the mortgage in
favor of Desiderio declared null and void.
Will the complaint prosper, or will the title of Catalino
and the mortgage to Desiderio be sustained?
Answer:
The complaint for the annulment of Catalino’s Title will
prosper. In the first place, the second owner’s copy of the title
secured by,him from the Land Registration Court is void ab
initio, the owner's copy thereof having never been lost, let
alone the fact that said second owner’s copy of the title was
fraudulently procured and improvidently issued by the Court.
In the second place, the Transfer Certificate of Title procured
by Catalino is equally null and void, it having been issued on
the basis of a simulated or forged Deed of Sale. A forged deed
is an absolute nullity and conveys no title.
The mortgage in favor of Desiderio is likewise null and
void because the mortgagor is not the owner of the mortgaged
property. While it may be true that under the “Mirro
Principle” of the Torrens System of Land Registration, a
buyer or mortgagee has the right to rely on what appears on
the Certificate of Title, and in the absence of anything to
excite suspicion, is under no obligation to look beyond the
certificate and investigate the mortgagor’s title, this rule does
not find application in the case at hand because here,
Catalino’s title suffers from two fatal infirmities, namely:
1. The fact that it emanated from a forged deed of a
simulated sale;
2. The fact that it was derived from a fraudulently
procured or improvidently issued second owner’s copy, the
real owner’s copy being still intact and in the possession of
the true owner, Bruce.
The mortgage to Desiderio should be cancelled without
prejudice to his right to go after Catalino and/or the govern­
ment for compensation from the assurance fund.
373
Question Number 16:
Romano was bumped by a minivan owned by the
Solomon School of Practical .Arts (SSPA). The minivan was
driven by Peter, a student assistant whose assignment was
to clean the school passageways daily one hour before and
one hour after regular classes, in exchange for free tuition.
Peter was able to drive the school vehicle after persuading the
regular driver, Paul, to turn over the wheel to him (Peter).
Romano suffered serious physical injuries. The accident
happened at night when only one headlight of the vehicle was
functioning and Peter only had a student driver’s permit.
As a consequence, Peter was convicted in the criminal
case. Thereafter. Romano Sued for damages against Peter,
and SSPA.
(a) Will the action for damages against Peter and SSPA
prosper?
(b) Will your answer be the same if, Paul, the regular
driver, was impleaded as party defendant for allowing Peter
to drive the minivan without a regular driver's license.
(c) Is the exercise of due diligence in the selection and
supervision of Peter and Paul a material issue ‘to be resolved
in this case?
Answer:
A, Yes. It will prosper (Art. 2180) because at the time
he drove the vehicle, he was not performing his assigned
tasks as provided for by Art. 2180. With respect to SSPA, it
is not liable for the acts of Peter because the latter was not an
employee as held by Supreme Court in Filamer Christian
Institute vs. CA, (190 SCRA 485).
Peter belongs to a special category of students who
render service to the school in exchange for free tuition fees.
B. I would maintain the same answer because the
incident did not occurwhile the employee was in the perform­
ance o f his duty as such employee. The incident occured at
night time, and, in any case, there was no indication in the
problem that he was performing his duties as a driver.
374
C.
In the case of Peter, if he were to be considered as
employee, the exercise of due diligence in the selection and
supervision o f peter would not be a material issue since the
conviction of Peter would result in a subsidiary liability where
the defense would not be available by the employer.
In the case of Paul, since the basis of subsidiary
liability is the paterfamilias rule under Art. 2180, the defense
of selection and supervision of the employee would be a valid
defense.
Alternative Answer:
C.
In the case of Peter, if he were to be considered an
employee, the exercise of due diligence in the selection and
supervision of Peter would not be a material issue since the
conviction o f Peter would result in a subsidiary liability where
the defense would not be available by the employer.
to the case of Paul,, since he was in the performance
of his work at the time the incident oceured, the school may
be held subsidiarily liable not because of the conviction of
Peter, but because of the negligence of Paul under Art. 2180.
Question Number 17:
Pablo sold his car to Alfonso who isssued a postdated
check in full payment therefor. Before the maturity of the
check. Alfonso sold the car to Gregorio who later sold it to
Gabriel. When presented for payment, the check issued by
Alfonso was dishonored by the drawee bank for the reason
that he, Alfonso, had already closed his account even before
he issued his cheek.
Pablo sued to recover the car from Gabriel alleging that
he (Pablo) had been unlawfully deprived of it by reason of
Alfonso’s deception.
Will the suit prosper?
Answer:
No. The suit will not prosper because Pablo was not
unlawfully deprived of the car although he was unlawfully
375
deprived of the price. The perfection of the sale and the'
delivery of the car was enough to allow Alfonso to have a right
of ownership over the car, which can be lawfully transferred
to Gregorio. Art. 559 applies only to a person Who is in
possession in good faith of the property, and not to the owner
thereof. Alfonso, in the problem, was the owner, and, hence,
Gabriel acquired the title to the car.
Non-payament of the price in a contract of sale does not
render ineffective the obligation to deliver.
The obligation to deliver a thing is different from the
obligation to pay its price.
EDCA Publishing Co. v. Santos (1990)
376
1990 Bar Examination
Question Number 1:
A vacant lot several blocks from the center, of the town
was leased by its owner to a young businessman B, for a term
of fifteen (15) years renewal upon agreement of the parties.
After taking possession of the lot, the lessee built thereon a
building of mixed materials and a store. As the years passed,
he expanded his business, earning more profits. By the tenth
(10th) year of his possession, he was.able to build a three (3)storey building worth al least P300,000.00. Before the end
of the term of the lease, B negotiated with the landowner for
its renewal, but despite their attempts to do so, they could not
agree on the new conditions for the renewal. Upon the
expiration of the term of the lease, the landowner asked B to
vacate the premises and remove his building and other
improvements. B refused unless he was reimbursed for
necessary and, useful expenses. B claimed that he was a
possessor and builder in good faith, with right of retention.
This issue is now before the court for resolution in a pending
litigation.
a)
What are the rights of B?
b) What are the rights of the landowner?
Answer:
a) B has the right to remove the building and other
improvements unless the landowner decides to retain the
building at the time of the termination of the lease and pay
the lessee one-half of the value of the improvements at that
time. The lessee may remove the building even though the
principal thing may suffer damage but B should not cause
any more impairment upon the property leased than is
necessary. The claim of B that he was a possessor and
builder in good faith with the right of retention is not tenable.
B is not a builder in good faith, because as lessee he does not
claim ownership Over the property leased.
b) The landowner/lessor may refuse to reimburse 1/2
of the value of the improvements and require the lessee to
remove the Improvements. (Article 1678. Civil Code).
377
Question Number 2:
In 1950’s, the Government acquired a big landed estate
In Central Luzon from the registered owner for subdivision
Into small farms and redistribution of bona fid e occupants.
F w as a former lessee of a parcel of land, five hectares in area.
After completion of the resurvey and subdivision, F applied
to buy the said land in accordance with the guidelines of the
implementing agency. Upon full payment of the price in
1957, the corresponding deed of absolute sale was executed
in his favor and was registered, and in 1961, a new title was
issued in his name. In 1963, F sold the said land to X; and
in 1965 X sold it to Y. New titles were successively issued in
the names o f the’ said purchasers.
In 1977, C filed an action to annul the deeds of sale to
F, X and Y and theii titles, on the ground that he (C) had been
in actual physical possession of the land, and that the sale to
F and the subsequent sales should be set aside on the ground
of fraud. Upon motion of defendants, the trial court dis­
missed the complaint, upholding their defenses of their being
innocent purchasers for value, prescription and laches.
Plaintiff appealed.
(a) Is the said appeal meritorious? Explain your an­
swer.
(b) Suppose the government agency concerned joined C
in filing the said action against the defendants, would that
change the result of the litigation? Explain.
Answer:
(a)
The appeal is not meritorious. The trial court ruled
correctly in granting defendant’s motion to dismiss for the
following reasons:
1.
While there is the possibility that F, a former lessee
of the land was aware of the fact that C was the bona fid e
occupant thereof and for this reason his transfer certificate
of title may be vulnerable, the transfer of the same land and
the issuance of new TCT’s to X and Y who are innocent
purchasers for value, render the latters’ titles indefeasible. A
person dealing with registered land may safely rely on the
correctness of the certificate of title and the law will not in any
378
way oblige him to go behind the certificate to determine the
condition of the property in search for any hidden defect or
inchaote right which may later invalidate or diminish his
right to the land. This is the mirror principle of the Torrens
System oflan d registration.
2. The action to annul the sale was instituted in 1977
or more than ten (10) years from the date of execution thereof
in 1957, hence, it has long prescribed.
3. Under Section 45 of Act 496, “the entry of a certifi­
cate o f title shall be regarded as an agreement running with
the land, and binding upon the applicant and all his succes­
sors in title that the land shall be and always remain
registered land. A title under Act 496 is indefeasible and to
preserve that character, the title is cleansed anew with every
transfer for value. (De Jesus u. City o f Manila, 29 Phil. 73;
Laperal u. City o f Manila, 62 Phil. 313 , Penullar v. PNB 120
SCRA 111).
(b)
Even if the government joinsC, this will not alter
the outcome of the case so much because of estoppel as an
express provision in Section 45 of Act 496 and Section 31 of
P.D. No. 1529 that a decree of registration and the certificate
oftitle issued in pursuance thereof “shall be conclusive upon
and against all persons, including the national government
and all branches thereof, whether mentioned by name in the
application or notice, or not."
Question Number 3:
/
B donated to M a parcel ofland in 1980. B made the deed
of donation, entitled “Donation Inter Vivos," in a public in­
strument and M accepted the donation in the same docu­
ment. It was provided in the deed that the land donated shall
be immediately delivered to M and that M shall have the right
to enjoy the fruits fully. The deed also provided that B was
reserving the right to dispose Of said land during his (B’s)
lifetime, and that M shall not register the deed ol donation
until after B’s death. Upon B’s death, W, B’s widow and sole
heir, filed an action for the recovery of the donated land,
contending that the donation made by B is a donation mortis
causa and not a donation inter vivos. Will said action
prosper? Explain your answer.
379
Answer:
Yes, the action will proper. The donation is a donation
mortis causa because the reservation is to dispose of all the
property donated and, therefore, the donation is revocable at
will. Accordingly, the donation requires the execution of a
valid will, either notarial or holgraphic. (Arts 755, 728 Civil
Code)
Question Number 3:
Mr. and Mrs. R own a bumed-out building, the firewall .
o f which collapsed and destroyed the shop occupied by the
family o f Mr. and Mrs. S, which resulted in injuries to said
couple and the death of their daughter. Mr. and Mrs. S haid
been warned by Mr. Mrs. R to vacate the shop in view of its
proximity to the weakened wall but the former failed to do so.
Mr. and Mrs. S filed against Mr. and Mrs. R an action for
recovery of damages the former suffered as a result of the
collapse of the firewall. In defense, Mr. and Mrs. Rrely on the
doctrine of “last clear chance” alleging that Mr. and Mrs. S
had the last clear chance to avoid the accident if only they
heeded the former’s warning to vacate the shop, and there­
fore Mr. and Mrs. R’s prior negligence should be disregarded.
If you were the judge, how would you decide the case?
State your reasons.
A nsw er:
I would decide in favor of Mr. and Mrs;. S. The proprietor
of a building or structure is responsible for the damages
resulting from its total or partial collapse, if it should be due
to the lack of necessary repairs. (Article 2190, Civil Code).
As regards the defense of Mr. and Mrs. R relying on the
doctrine o f “last clear chance,” the same is not tenable
because according to the Supreme Court in one case (DeRoy
v. Court o f Appeals, G. R. L-80718, January 29, 1988, 157
SCRA 757) the doctrine of “last clear chance” is not applicableto instances covered by Art. 2190, Civil Code.
380
Further, in Phoenix Construction, Inc. v. Intermediate
Appellate Court (G.R. L-65295, March 10, 1987, 1'48 SCRA
353), the Supreme Court held that the role of the common law
“last clear chance” doctrine in relation to Article 2179 Of the
Civil Code is merely to mitigate damages within the context
of contributory negligence.
Question Number 5:
D sold a second-hand car to E for P150,000.00 The
agreement between D and E was that half of the purchase
price, or P75.000.00, shall be paid upon delivery of the car to
E and the balance of P75.000.00 shall be paid in five equal
monthly installments of P15.000.00 each. The car was
delivered to E, and E paid the amount of P75.000.00 to D.
Less than one month thereafter, the car was stolen from E’s
garage with no fault on E’s part and was never recovered. Is
E legally bound to pay the said unpaid balance of P75.000.00?
Explain your answer.
Answ er:
Yes, E is legally bound to pay the balance of P75.000.00.
The ownership of the car sold was acquired by E from the
moment it was delivered to him. Having acquired ownership.
E bears the risk of the loss of the thing under the doctrine of
res peril domino. (Articles 1496, 1497, Civil Code).
Question Number 6:
A leased a parcel of land to- B for a period of two years.
The lease contract did not contain any express prohibition
against the assignment of the leasehold or the subleasing of
the leased premises, During the third year of the lease, B
subleased the land to C. In turn, C, without A's consent,
assigned the sublease to D. A then filed an action for the
rescission of the contract of lease on the ground that B has
violated the terms and conditions of the lease agreement. If
you were the judge, how would you decide the case, particu­
larly with respect to the validity of:
(a) B’s sublease to C? and
381
(b) C’s assignment of the sublease to D?
Explain your answers.
A n sw er:
(a) B's sublease to C is valid. Although the original
period of two years for the lease contract has expired, the
lease continued with the acquiescence of the lessor during
the third year. Hence, there has been an implied renewal of
the contract oflease. Under Art. 1650 of the Civil Code, the
lessee may sublet the thing leased, in whole or in part, when
the contract of lease does not contain any express prohibi­
tion. (Articles 1650, 1670 Civil Code).' A ’s action for
rescission should not prosper on this ground.
(b) C’s assignment of the sublease to D is not valid.
Under Art. 1649, of the Civil Code, the lessee cannot assign
the lease without the consent of the lessor, unless there is a
stipulation to the contrary. There is no such stipulation in
the contract. If the law prohibits assignment of the lease
Without the consent of the lessor, all the more would the
assignment of a sublease be prohibited without such con­
sent. This iS a violation of the contract and is a valid ground
for rescission by A.
Question Number 7;
X was the owner of a 10,000 square meter property. X
married Y and out of their union. A, B and C were bom. After
the death of Y, X married Z and they begot as children, D, E
and F. After the death of X, the children of the first and
second marriages executed an extrajudicial partition of the
aforestated property on May 1, 1970. D, E and F were given
a one thousand square meter portion of the property. They
were minors at the time of the execution of the document. D
was 17years.old, Ewas 14andFwas 12; and they were made
to believe by A, B and C that unless they sign the document
they will not get any share. Z was not presesnt then. In
January 1974, D.Eand F filed an action in court to nullify the
suit alleging they discovered the fraud only in 1973.
(a). Can the minority of D, E and F be a basis to nullify
the partition? Explain your answer.
382
(b) How about fraud? Explain your answer.
Answer:
(a) Yes, minority can be a basis to nullify the partition
because D, E and F were not properly represented by their
parents or guardians at the time they contracted the extra­
judicial partition. (Articles 1327, 1391, Civil Code).
(b) In the ease of fraud, when through insidious words
or machinations of one party the other is induced to enter
into the contract without which he would not have agreed to,
the action still prosper because under Art. 1391 of the Civil
Code, in case of fraud, the action for annulment may be
brought, within four years from the discovery of the fraud.
Question Number 8:
B and G (college students, both single and not disquali­
fied to marry each other) had a romantic affair. G was seven
months in the family way as of the graduation of B. Right
after graduation B went home to Cebu City. Unknown to G,
B had a commitment to C (his childhood sweetheart) to marry
her after getting his college degree. Two weeks after B
marriage in Cebu City, G gave birth to a son E in Metro
Manila.
After ten years of married life in Cebu, B became a
widower by the sudden death of C in a plane crash. Out of
the. union of B and C. two children, X and Y, were bom.
Unknown to C, while on weekend trips to Manila during the
last 5 years of their marriage, B invariably visited G and lived
at her residence and as a result of which, they renewed their
relationship. A baby girl F was bom to B and G two years
before the death of C. Bringing his family later to Manila, B
finally .married G. Recently, G died.
What ate the rights of B's four children: X and Y of his
first marriage; and E and F, his children with G? Explain
your answer.
383
Ausioer:
Under the facts stated, X and Y are legitimate children
of B and G. E is the legitimate children of B and G. E is the
legitimated child of B & G. F is the illegitimate child of B and
C. As legitimate children of B and C, X and Y have the
following rights:
(1) To bear the surnames of the father and the mother,
in conformity with the provisions of the Civil Code on
Surnames;
(2) To receive support from their parents, their ascen­
dants. and in proper cases, their brothers and sisters, in
conformity with the provisions of the Family Code on Sup­
port; and
(3) To be entitled to the legitime and other successional
rights granted to them by the Civil Code. (Article 174, Family
Code). E is the legitimated child of B and G. Under Art. 177
of the Family Code, only children conceived and bom outside
of wedlock of parents who, at the time of the concepcion of the
former, were not disqualified by any impediment to marry
each other may be legitimated. E will have the same rights
as X and Y. F is the illegitimate child of B and G. F has the
right to use the surname of G, her mother, and is entitled tO
support as well as the legitime consisting of 1/2 of that of
each o fX , Y and E. (Article 176, Family Code)
Question Number 9:
H died leaving a last will and testament wherein it is
stated that he was legally married to W by whom he had two
legitimate children A and B. H devised to his said forced heirs
the entire estate except the free portion which he gave to,X
who was living with him at the time of his death.
In said will he explained that he had been estranged
from his wife W for more than 20 years and he has been living
with X as man and wife since his separation from his
legitimate family.
In the probate proceedings, X asked for the issuance of
letters testamentary in accordance with the will wherein she
Is named sole executor. This was opposed by W and her
children.
384
(a) Should the will be admitted in said probate proceed­
ings?
(b) Is the said devise to X valid?
(c) Was it proper for the trial court to consider the
intrinsic validity of the provisions of said will? Explain your
answers.
Answer:
(a) Yes, the will may be probated if executed according
to the formalities prescribed by law.
(b) The institution giving X the free portion is not valid,
because'the prohibitions under Art. 739 of the Civil Code on
donations also apply to testamentary dispositions (Article
1028, Civil Code). Among donations which are considered'
void are those made between persons who were guilty of
adultery or concubinage at the time of the donation.
(c) As a general rule, the will should be admitted in
probate proceedings if all the necessary requirements for its
extrinsic validity have been met, and the court should not
consider the intrinsic validity of the provisions of said will.
However, the exception arises when the will in effect contains
only one testamentary disposition. In effect, the only testa­
mentary disposition under the will is the giving of the free
portion to X, since legitimes are provided by law. Hence, the
trial court may consider the intrinsic validity of the provi­
sions of said will. (Dfuguid u. Nuguid, e tai , No. L-23445, June
23, 1966, 17 SCRA; Nepomucenov. CA, L-62952, 9 October
1985, 139.SCRA 206).
Question Number 10:
The marriage of H and W was annulled by the competent
court. Upon finality of the judgment of nullity, H began
looking for his prospective second mate. He fell in love with
a sexy woman S who wanted to be married as soon as
possible, i.e., after a few months of courtship. As a young
lawyer, you were consulted by H.
385
(a) How soon can H be joined in lawful wedlock to his
girlfriend S? Under existing laws, are there certain requisites
that m ust be complied with before he can remarry? What
advice would you give H?
(b) Suppose that children were bom from the union of
H and W, what would be the status of said children? Explain
your answer.
(.c) If the subsequent marriage of H to S was
contracted before compliance with the statutory condition
for its validity, what are the rights o f the children o f the first
marriage (i.e., of H and W) and of the children of the
subsequent marriage (of H and S)?
Answer:
(a)
H, or either spouse for that matter, can marry again
after complying with the provisions of Article 52 of the.Family
Code, namely, there must be a partition and distribution of
the properties of the ,spouses, and the delivery of the chil­
dren's presumptive legitimes, which should be recorded in
the; appropriate civil registry and registries o f property. H
should be so advised.
Alternative Answer: f o r (a)
The following are the requisites prescribed by law and
the advice to H is to comply with them, namely.
(1) If either spouse contracted the marriage inbadfaith,
his or her share of the net profits of the community property
or conjugal partnership property shall be forfeited in favor of
the common children or, if there are none, the children of the
guilty spouse by a previous marriage or, in default of chil­
dren, the innocent spouse;
(2) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad faith,
such donations made to said donee are revoked by operation
of law;
(3) The spouse who contracted the subsequent mar­
riage in bad faith shall be disqualified to inherit from the
386
innocent spouse by testate and intestate succession;
(4) If both spouses of the subsequent marriage acted
in bad faith all donations by reason of marriage and testa­
mentary dispositions made by one in favor of the other are
revoked by opeiation of law.
(5) The judgment of annulment of the marriage, the
partition and distribution of the properties of the spouses,
and the delivery of the children’s presumptive legitimes shall
be recorded in the appropriate civil registry and registers of
property. (Articles 53, 52, 43, 44, Family Code)]
(b)
The children bom from the union of H and W
would be legitimate children if conceived or bom before the
'
decree of annulment of the marriage (under Art. 45 of the
Family Code) has become final and executory (Art. 54, Family
Code).
(g) The children of the first marriage shall be consid­
ered legitimate children if conceived or bom before the
judgment of annulment of the marriage of H and W has
become final and executory. Children conceived or bom of
the subsequent marriage shall likewise be legitimate even if
the marriage of H and S be null and void for failure to comply
with the requisites ofArticle 52 of the Family Code (Article 53,
Family Code).
As legitimate children, they have the following rights:
(1) To bear the surnames of the father ana the mother
in conformity with the provisions of the Civil Code on
Surnames:
(2) To receive support from their parents, their ascen­
dants, and in proper cases, their brothers and sisters, in
conformity with the provisions of this Code on Support; and
(3) To be entitled to the legitime and other successional
rights granted to them by the Civil Code (Article 174, Family
Code).
Question Number 11:
(1) If a will is executed by a testator who is a Filipino
387
citizen, what law will govern if the will is executed in the
Philippines? What law will govern if the will is executed in
another country? Explain your answers.
(2)
If a will is executed by a foreigner, for instance, a
Japanese, residing in the Philippines, what law will govern if
the will is executed in the Philippines? And what law will
govern if the will is execu ted in Japan; or some other countiy,
for instance, the U.S. A.? Explain your answers.
Answer:
(1) a. If the testator who is a Filipino citizen executes his
will in the Philippines, Philippine law will govern the formali­
ties,
b. If said Filipino testator executes his will in another
country, the law Of the country where he may be or Philippine
law will govern the formalities. (Article 815, Civil Code)
(2) a. If the testator is a foreigner residing in the Philip­
pines and he executes his will in the Philippines, the law of
the country of which he is a citizen or Philippine law will
govern the formalities.
b. If the testator is a foreigner and executes his will
in a foreign country, the law of his place of residence or the
law o f the country of which he is a citizen or the law o f the
place of execution, or Philippine law will govern the formali­
ties (Articles 17, 816, 817, Civil Code),
Possible Additional Answers:
a. In the case of a Filipino citizen, Philippine law shall
govern substantive validity whether he executes his will in
the Philippines or in a foreign country.
b. In the case of a foreigner, his national law shall govern
substantive validity whether he executes his will in the
Philippines or in a foreign country.
388
Question Number 12:
In 1960, an unregistered parcel ofland was mortgaged
by owner O to M, a family friend, as collateral for a loan. O
acted through his attorney-in-fact, son S, who was duly
authorized by way of a special power of attorney, wherein O
declared that he was the absolute owner of the land, that the
tax declarations/receipts were all issued in. his name, and
that he has been in open, continuous and adverse possession
in the concept of owner.
As O Was unable to pay back the loan plus interest for
the past five (5) years, M had to foreclose the mortgage. At the
foreclosure sale. M was the highest bidder. Upon issuance of
the sheriffs final deed of sale and registration in January,
1966, the mortgage property was turned over to M’s posses­
sion and control. M has since then developed the said
property. In 1967, O died, survived by sons S and P.
In 1977, after the tenth (10th) death anniversary of his
father O, son P filed a suit to annul the mortgage deed and
subsequent sale of the property, etc., on the ground of fraud.
He asserted that the property in question was conjugal in
nature actually belonging, at the time of the mortgage, to O
and his wife, W, whose conjugal share went to their sons (S
and P) and to O.
(a) Is the suit filed by P barred by prescription? Explain
your answer,
(b) After the issuance of the sheriffs final deed of sale in
1966 in this case, assuming that M applied for registration
under the Torrens System and was issued a Torrens Title to
the said property in question, would that added fact have any
significant effect on yOur conclusion? State your reason.
Answer:
(a)
Under Art. 173 of the Civil Code, the action is barred
by prescription because the wife had only ten (10) years from
the transaction and during the marriage to file a suit for the
annulment of the mortgage deed.
389
Alternative Answers to (a)
First Alternative Answer:
(a)
The mortgage contract executed by O, if at all, is only
a voidable contract since it involves a conjugal partnership
property. The action to annul the same instituted in 1977,
or eleven years after the execution of the sheriffs final sale,
has obviously prescribed because:
1. An action to annul a contract on the ground of
fraud must be brought within four (4) years from the date of
discovery of the fraud. Since this is in essence an action to
recover ownership, it must be reckoned from the date of
execution of the contract or from the registration o f the
alleiged fraudulent document with the assessor’s office forthe
purpose of transferring the tax declaration, this being unreg­
istered land, (Bael v. Intermediate Appellate Court G. R. L74423 Jan.30, 1989 169 SCRA 617).
2. If the action is to be treated as an action to recover
ownership, of land, it would have prescribed just the same
because more than 10 years have already elapsed since the
date of the execution of the sale.
Second Alternative Answer: •
(a) The action to recover has been barred by acquisitive
prescription lii favOr of M considering that M has possessed
the land under a claim of ownership for ten (10) years with a
just title.
(b) If M had secured a Torrens Title to the land, all the
more S and P could not recover because if at all their remedies
would be:
1. A Petition to Review the Decree of Registration.
This can be availed of within: one (1) year from the entry
thereof, but only upon the basis of “actual fraud." There is
no showing that M committed actual fraud in securing his
title to the land; or
2. An action in personam against M for the reconvey­
ance of the title in their favor. Again, this remedy is available
within four years from the date of the discovery of the fraud'
but not later than ten (10) years from the date of registration
of the title in the name of M.
390
guestion Number 13:
B and G, age 20 and 19, respectively, and both single,
eloped and got married to each other without parental
consent in the case of G, a teenaged student of an exclusive
college for girls. Three years later, her parents wanted to seek
judicial annulment on that ground. You were consulted and
asked to prepare the proper complaint. What advice would
you give G’s parents? Explain your answer.
Answer:
G himself should file the complaint under Article 45 of
the Fariiily Code, and no longer the parents because G4s
already 22 years of age.
Question Number 14:
After a devastating storm causing widespread destruc­
tion in four Central Luzon provinces, the executive arid
legislative branches of the government agreed to enact ,a
special law appropriating P 1 billion for purposes of relief and
rehabilitation for the provinces. In view of the urgent nature
of the legislative enactment, it is provided in its effectivity
clause that it shall take effect upon approval and after
completion of publication in the Official Gazette and a
newspaper of general circulation in the Philippines. The law
was passed by the Congress on July 1, 1990, signed into law
by the President on July 3, 1990, and published in such
newspaper of general circulation on July 7, 1990 and in the
Official Gazette on July 10, 1990.
(a) As to the publication of said legislative enactment,
is there sufficient observance or compliance with the require­
ments' for a valid publication? Explain your answer.
(b) When did the law take effect? Explain your answer.
(c) Can the executive branch start releasing and dis­
bursing funds appropriated by the said law the day following
its approval? Explain your answer.
391
Answer:
(a) Yes, there is sufficient compliance. The law itself
prescribes the requisites of publication for its effectivity, and
all requisites have been complied with. (Article 2, Civil Code)
(b) The law takes effect upon compliance with all the
conditions for effectivity, and the last condition was complied
with on July 10, 1990. Hence, the law became effective on
that date.
(c) No. It was not yet effective when it was approved by
Congress on July 1, 1990 and approved by the President oh
July 3, 1990. The other requisites for its effectivity were not
yet complete at the time,
e
392
1989 BAR EXAMINATION
Question No. 1:
(1) Robert and Evelyn, both Filipinos, met in Los An­
gles, California. They agreed to get married on June 10,
1989. On June 7, 1989, Robert flew to New York due to an
urgent business matter but intended to return to Los Angeles
on June 9, 1989, in time for the wedding. The business
emergency of Robert, however, lasted longer than he
expected so that he failed to return to Los Angeles as
planned. In order not to postpone the wedding, Robert
immediately Called his brother V al who was also residing at
Los Angeles to stand as his proxy at the wedding, which the
latter did. Is the marriage of Robert and Evelyn valid in the
Philippines? Give your reasons.
Answer:
If the marriage was performed in accordance with the
laws of California and valid there, then the marriage is
likewise valid in the Philippines.
Alternative Answer:
Since the problem does not state the California law on
marriage by proxy, the presumption in Private International
L a w is that the California la w is the same as the Philippine
law. Therefore, the marriage would be void.
(2) W hile “X”, an Associate Justice of thg Court of
Appeals, was vacationing in Cebu City, he was requested to
solemnize the marriage of Serge and Joan in the residence of
Serge’s parents. “X” could not refuse the request of both the
parents of the couple because they were his relatives. On the
393
day set f o r the wedding, there were so many visitors at the
residence of Serge’s parents so that “X” decided to solemnize
. the marriage at the kiosk of the public plaza located nearby.
Is the marriage of Serge and Joan valid? Give your reasons.
Answer:
YeSj because the requirement that the marriage be
solemnized in a public place is not an essential requisite of
the law.
Question No. 2:
(1) Paul, a 17-yea:r old Filipino and a permanent resi­
dent in the United States, married Jean, a 16-year old
American in Las Vegas, Nevada. The parents of both gave
their consent to the marriage. The marriage is valid in
Nevada. Is its also valid in the Philippines? Give your
reasons.
Answer;
No, the marriage is not valid. Under the Family Code,
the law requires that the contracting parties are at least
eighteen (18) years of age.
Alternative Answer:
If the marriage took place before the effectivity of the
Family Code, the marriage will be valid since under the
provisions of the Civil Code a marriage valid in the place of
celebration is valid in the Philippines except bigamous, polygamous, and incestuous marriages as determined by Philip­
pine law. The minimum age under the old law was sixteen
(16) for the male and fourteen (14) for the female.
(2) Cesar and Baby contracted marriage on June 15,
1983. A year later, Baby bore a child, “X ” The following
year, the couple acquired a car and a residential lot in Metro
394
Manila. On September 1, 1988, the marriage was declared
void from the beginning by a competent court because Cesar
was below 16 years of age at the time o f the marriage.
Sometime in December, 1988, Cesar met Rosa with whom
he fell in love. Cesar married Rosa on January 15, 1989. On
September 1, 1989, Rosa gave birth prematurely to a child,
“Y ”. Is the marriage of Cesar and Rosa valid? What is the
status of the child “Y?” Give your reasons.
Answer:
If there was a liquidation of the properties of the first
marriage and the presumptive legitime of “X” was duly
delivered, the second marriage is valid. If there was no such
compliance, then the marriage is void. The child is
legitimate since “Y” was born a full year after the
termination of the first marriage and during the second
marriage.
Alternative Answers:.
A. The Family Code requires the registration of the
judgment of nullity, the partition of the properties and the
delivery of the legitimes to be made with the appropriate
civil registry and registries of property. It further provides
that failure to comply with the said requirement shall render
the marriage null and void. If there was such a recording,
the marriage is valid. Otherwise, the marriage is void.
Nevertheless, child “Y” is a legitimate child because it was
born during the marriage of Cesar and Rosa.
B. Since the problem does not state that there was
compliance with the requirements as to recording of judg­
ment of nullity and the liquidation and delivery of the
presumptive legitime of the child “X ”, the marriage of Cesar
and Rosa is void. However, the child “Y” is legitimate
because it was born during the marriage of Cesar and Rosa.
Question No. 3:
(1)
W hat properties are excluded from the regime of
absolute community of property between spouses?
Answer:
The following shall be excluded from the community
property:
(1) Property acquired during the marriage by
gratuitous title by either spouse, and the fruits as well as the
income thereof, if any, unless it is expressly provided by the
donor, testator Or grantor that they shall form part of the
community property;
(2) Property for personal and exclusive use of either
spouse; however, jewelry shall form part of the community
property;
(3) Property acquired before the marriage by either
spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if any, of such
property.
(2)
W hen should the property relations of the spouses
be mandatorily governed by the regime of complete separa­
tion of property?
Answer:
Should the surviving spouse contract a subsequent
marriage without complying with the requirement that the
community or conjugal property be liquidated judicially or
extra-judicially within one year from the death of the
deceased spouse, a mandatory regime of complete separation
of property shall govern the property relations of the
subsequent marriage.
Question No. 4:
(1) Cadio and Corona contracted marriage on June 1,
396
1982. A few days after the marriage, Corona discovered that
Cadio was a homosexual. As homosexuality was not a
ground for legal separation under the Civil Code, there was
nothing that Corona could do but bear with her problem.
The couple, however, stated to live separately. With the
enactment of the Family Code, Corona decided to be legally
separated from Cadio based on the new ground of homo­
sexuality' Corona brought her action for legal separation on
September 15, 1988. W ill the action prosper? Give your
reasons.
Answer:
Yes, the action will prosper because the “cause” arose
only on August 3, 1988, the effectivity of the Family Code,
and the action had not yet prescribed.
Alternative Answer:
The action will prosper. The offense of homosexuality
as a continuing offense can be a ground for legal separation.
The prescriptive period of five years will apply only when
the offense has a fixed period of time and, therefore, the date
of its occurrence can be computed.
(2)
W hat is “Family Home” and when is it deemed
constituted? W h o are the beneficiaries thereof?
Answer:
The “Family Home” is the dwelling house where the
husband, the wife, and their family including the unmarried
head of the family reside and the land on which it is situated.
The “Family Home” is deemed constituted on a house
and lot from the time it is occupied as a family residence.
The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person
who is the head of a family;, and
(2) Their parents, ascendants, descendants, brothers
and sisters, whether the relationship be legitimate or
397
illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.
Question No. 5:
(1)
of a child?
W hat are the grounds for impugning the legitimacy
Answer:
Legitimacy of a child may be impugned only on the
following grounds:
(1) That it was physically impossible for the husband to
have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded the birth
of the child because of:
(a) the physical incapacity of the husband to have
sexual intercourse with his wife;
(b) the fact that the husband and wife were
living separately in such a way that sexual inter­
course was not possible; or
(c) serious illness of the husband, which ab­
solutely prevented sexual intercourse:
(2) That it is proved that for biological or other scien­
tific reasons, the child could not have been that of the husbandj except in the instance provided in the second para­
graph of Art. 164; or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of
either parent was obtained through mistake, fraud, violence;
intimidation, or undue influence.
(2)
Felix, a Filipino doctor of medicine, married
Monique, an Italian nurse, in 1985. It was later discovered
that Monique cannot bear a child so that the couple decided
398
to adopt one. Can they jointly adopt Marie, the 19-year old
niece of Monique? Explain.
Answer:
Since the child to be adopted is an Italian citizen, the
joint adoption cannot be effected. Had the child been a
relative by consanguinity of the Filipino spouse, the adop­
tion would have been valid under the Philippine law.
Question No. 6:
(1)
uished?
W hat is USUFRUCT? H o w . is usufruct exting­
Answer:
Usufruct gives a right to enjoy the property of another
with the obligation of preserving its form and substance,
unless the title constituting it or the law otherwise provides.
Usufruct is extinguished:
(1) By the death of the usufructuary, unless a contrary
intention clearly appears;
(2) By the expiration of the period for which it was
constituted, or by the fulfillment of any resolutory condition
provided in the title creating the usufruct;
(3) By merger of the usufruct and ownership in the
same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in.usufruct;
(6) By the termination of the right of the person consti­
tuting the usufruct;
(7) By prescription.
R E C O M M E N D A T IO N O F T H E C O M M IT T E E :
An enumeration of four (4) should be given full credit.
399
(2)
Spouses “A ” and “B” are registered owners of lot “1”
consisting of 20,000 square meters while spouses “C ” and
“D ” are owners of lot “2”. These lots are separated by a
river. For a period of more than 40 years, the river
overflowed its banks yearly and the property of the spouses
" C ” and “D ” gradually received deposits of soil from the
effects of the current of the river so that, an alluvial deposit of
29,000 square meters was added to their lot, 11,000 square
meters of which used to be part of lot “1.” Spouses “A ” and
“B” contend that accretion should not extend to registered
land because to allow the spouses “C ” and “D ” to acquire
title over the accretion will be in derogation of the indefeasi­
bility of the Torrens Title o f spouses “A ” and “B ”. Is this
contention correct? Explain.
Answer:
No, the contention of A and B is not correct because the
registration under the Torrens L a w does not protect the
owner against the diminution of his land through gradual
changes due to the effects of the current of the river. The
accretion will benefit C and D .
Question No. 7:
(1)
“X '’ mortgaged his land to the Philippine National
Bank (PNB) to secure a promissory note. He defaulted in the
payment of the loan so that the land was sold at public auc­
tion on January 20, 1960, for P3,500 with the PNB as the
highest bidder. On January 20, 1970, “X” offered to redeem
the property in the amount of P3,500. He enclosed a postal
money order for P I ,000 as partial payment and stated that
the balance is to be paid in 12 monthly installments. The
PNB then discovered that the sheriffs certificate of sale
prepared after the public auction of the land was not
registered so that it cause the same to be registered On
January 30, 1970. The PNB refused the offer of “X”
400
.contending that the offer to redeem was beyond the one-year
period provided under Act No. 3135 and that it was not
accompanied by an actual and simultaneous tender of the
entire repurchase price. In view of the refusal of the PNB,
“X ” filed an action to repurchase on February 20, 1970. W ill
the action prosper? Give your reasons.
Answer:
Yes, the action should prosper. The one (1) year period
of redemption is counted from the registration of the sheriffs
certificate of sale hence the action has not yet prescribed.
However, there need not be a tender of the redemption price
because the filing of the judicial action to enforce the right of
redemption within the redemption period suffices.
(2)
Subsequent to the original registration of a parcel of
land bordering a river, its area was increased by accession.
This additional area was not included in the technical
description appearing on the Torrens Certificate of Title
having been acquired subsequent to the registration
proceedings. May such additional area be acquired by third
persons thru prescription? Give your reasons.
Answer:
The Land Registration L a w provides that no title in
derogation of the registered owner may be acquired by
adverse possession or acquisitive possession. Since the law
refers to registered lands, the accession mentioned in this
question may be acquired by a third person through adverse
possession or acquisitive possession.
Alternative Answer:
If the accession is man made, then it cannot be
considered as private property. It belongs to the public
domain, and, therefore, cannot be acquired by adverse
possession or acquisitive possession.
401
Question No. 8:
(1) Distinguish an implied contract from a quasi­
contract.
Answer:
Any of the follow ing answers should be given full
credit:
A. An implied contract requires consent of the parties. A
quasi-contract is not predicated on consent; being a
unilateral act.
B. The basis of an implied contract is the will of the
parties. The basis of a quasi-contract is law to the end that
there be no unjust situation.
(2) W hat is dation in payment and how is it disting­
uished from assignment of property?
Answer:
Dation in payment is a special form of payment where­
by property is alienated to the creditor in satisfaction of a
debt in money.
Assignment of property, or payment by cession, is a
special form of payment whereby the debtor cedes or assigns
his property to his creditors so that the proceeds thereof will
be applied in payment of his debts.
Alternative Answer:
In dation in payment whereby property is given by the
debtor to the creditor in payment of a debtin money, there is
only one creditor. In assignment of property, there are
several creditors.
In the former, the debtor may be solvent. In the latter,
there may be partial in,solvency.
In the former, particular property is ceded. In the
latter, all the property of the debtor is ceded.
402
In the former, the particular obligation is extinguished
in whole or in part as agreed upon. In the latter, it releases
the debtor from the net proceeds only, unless otherwise
agreed or intended .
Question No. 9:
(1) If the same thing should have been sold to different
vendees, to whom shall the ownership be transferred?
Answer:
If the same thing should have been sold to different
vendees; the ownership shall be transferred to the person
who may have first taken possession thereof in good faith, if
it should be movable property .
Should it be immovable property, the ownership shall
belong to the person acquiring it who in good faith first
recorded it in the Registry of Property.
Should there be an inscription, the ownership shall per­
tain to the person who in good faith was first in the posses­
sion; and, in the absence thereof, to the person who presents
the oldest title, provided there is good faith.
(2) “X ” used his savings from his salaries amounting to
a little more than P2,000 as capital in establishing a restau­
rant. “Y” gave the amount of P4,000 to»“X” as “financial
assistance” with the understanding that “Y ” would be
entitled to 22% of the annual profits derived from the
operation of the restaurant. After the lapse of 22 years, “Y”
filed a case demanding his share in the said profits. “X”
denied that there was a partnership and raised the issue of
prescription as “Y ” did not assert his rights anytime within
ten (10) years from the start of the operation of the restau­
rant. Is “Y ” a partner of “X” in the business? Why? W hat is
the nature of the right to demand one’s share in the profits of
a partnership? Does this right prescribe?
403
Answer:
Yes, because there is an agreement to contribute to a
common fund and an intent to divide profits. It is founded
upon an express trust. It is imprescriptible unless repudiated.
Alternative Answer :
No, “Y ” is not a partner because the amount is extended
in the form of a financial assistance and therefore it is a loan,
and the mere sharing of profits does not establish a partner­
ship. The right is founded upon a contract of loan whereby
the borrower is bound to pay principal and interest like all
ordinary obligations. Yes, his right prescribes in six or ten
years depending upon whether the contract is oral or
written.
Question No, 10:
(1) W h at are the characteristics of a will?
Answer:
A w ill is —
1. Personal
2. Unilateral
3. Formal or Solemn
4. Ambulatory or revocable
5. Individual, not joint
6. Free and voluntary
7. Mortis causa
R E C O M M E N D A T IO N O F T H E C O M M IT T E E :
Since this is not a codal provision, it is recommended
that an answer of three (3) be given full credit.
(2) “X ”, a Spanish citizen and a resident of Los
Angeles, California, executed a will in Tokyo. Japan. May
404
such will be probated in the Philippines? May his state
located in the Philippines be distributed in conformity with
the provisions of the said will? Give your reasons.
Answer:
A
Yes, it may be made "according to the formalities of
Spanish law , California law, Japanese law, of Philippine
law.
B.
Yes* provided that the provisions conform to the
order of succession and the amount of successional rights as
regulated by Spanish law.
Q uestioriN o.il:
I
(1) The probate of the will of Nicandro is contested on
the ground that the notary public before whom the will, was
acknowledged was also one of the three instrumental
witnesses. If you were the probate judge, how would you
decide the contest? Give your reasons.
Answer:
The will is void. The acknowledging officer cannot
serve as attesting witness at the same time. In effect there are
only two witnesses since the notary cannot swear before him­
self.
(2) Jose and Ana are husband and wife. O n January 10,
1980, Jose learned that Ana was having illicit relations with
juan. In fact, Jose personally saw his wife and Juan leaving a
motel on one occasion. Despite all the evidence he had at
hand, Jose did not bring any action for legal separation
against Aria. Instead, Jose simply prepared a will wherein he
disinherited Ana for her acts of infidelity. The validity of the
disinheritance was questioned by Ana upon Jose’s death. If
you were the judge, how would you resolve this question?
Give your reasons.
405
Answer:
The disinheritance is valid. Under the Civil Code, the
legal ground for disinheriting a spouse is that the spouse has
given cause for legal separation. Therefore, a final judgment
is riot needed.
Alternative Answer:
The disinheritance is not valid. The facts indicate that
there was condonation by Jose of A na’s illicit relationship
with Juan since th6y appear to have continued to live
together.
Question No. 12:
(1)
Distingui$h between a.contract of.real estate mort­
gage and a contract of sale with right of repurchase.
Answer:
1. Real estate mortgage is an accessory contract. A con­
tract of sale with right of repurchase is a principal contract.
2. Real estate mortgage involves no transfer of title. A
contract of sale involves a conditional transfer of title.
3. Real estate mortgage involves no transfer of posses^
siori. A contract of sale involves a conditional transfer of
possession.
4. In a real estate mortgage the creditor has no rights to
the fruits. In a contract of sale, the vendee is entitled to the
fruits,
5- In a real estate mortgage, upon default the creditor
is not the owner. In a contract of sale, upon consolidation*
the vendee is the owner.
R E C O M M E N D A T IO N O F T H E C O M M IT T E E :
Any three (3) of the foregoing distinctions should be
given full credit.
406
(2)
Does an action to foreclose a real estate mortgage
affecting registered land under the Torrens System prescribe?
Give your reasons.
Answer:
Even if the property given as collateral is covered by a
Torrens Title, the right to foreclose a real estate mortgage
thereon prescribes. This is really an action to enforce collec­
tion of the loan.
Question N o. 13:
(1)
“X ” offered to buy the house and lot of “Y” for
P3OO,OO0. Since “X” had only P200,000 in cash at the time,
he proposed to pay the balance of Pl00,000 in four (4) equal
monthly installments. As the title to the property was to be
immediately transferred to the buyer, “X ”, to secure the
payment of the balance of purchase price,' proposed to
constitute a first mortgage on the property in favor of “Y”.
“Y” agreed to the proposal so that on April 15, 1987, the
contract of sale in favor of “X” was executed and on the same
date (April l 5, 1987), “X” constituted the said first mortgage.
When the first installment became due. “X” defaulted in the
payment thereof. “Y ” now brings an action to rescind the
contract of sale, which “X” opposed. H ow would you decide
the conflict? Give your reasons.
Answer:
Either of the follow ing answers should be. given fu ll
credit:
A.
“Y ” cannot rescind. The relationship is no longer
that of buyer and seller because the sale was already
perfected and consummated. The relationship is already that
of mortgagor and mortgagee. Rescission is not a principal
action retaliatory in character but a subsidiary one available
407
only in the absence of any other legal remedy. Foreclosure is
not only a legal but a contractual remedy. The debtor must
pay and, in case of breach, the mortgagee may foreclose.
B. “Y ” can rescind. Specific performance and rescis­
sion are alternative remedies in breach of reciprocal obliga­
tions. The contract is only partly consummated. The price is
not fully paid. The mortgage is an accessory contract of
guarantee arid can be waived by the creditor who can avail
of his remedies in the principal contract.
Alternative Answers:
C. Considering that the default covers only P25,000.00
and the sum of P200,000.00 has already been paid, there is
only, a slight or casual breach negating the right of the seller
to rescind the contract of sale.
D. Rescission is available provided that the vendor give
the vendee the 60-day period as required by the Maceda L aw
or the Realty Installment Buyers Law .
(2)
“X ” came across an advertisement in the “Manila
Daily Bulletin” about the rush sale of three slightly used
T O Y O T A cars, Model 1989 for only P200,000 each. Finding
the price to be very cheap and in order to be sure that he gets
ohe unit ahead of the others, “X” immediately phoned the
advertiser “Y ” and place an order for one car. “Y ” accepted
the order and promised to deliver the ordered unit on July
15, 1989. O n the said date, however, “Y ” did not deliver the
unit. “X ” brings an action to compel “Y ” to deliver the unit.
W ill such action prosper? Give your reasons.
Answer:
The contract in this case has been perfected. However,
the contract is unenforceable under the statute of frauds.
The action will prosper if there is no objection to the oral
evidence, which amounts to a waiver of the statute of frauds.
408
Question No. 14:
(1)
W hat do you understand by ANTICHRESIS? H ow
is it distinguished from pledge and mortgage?
Answer:
Antichresis is a contract whereby the creditor acquires
the right to receive the fruits of an immovable of his debtor
with the obligation to apply them to the payment of interest
if owing and thereafter to the principal.
Pledge is an accessory and real contract whereby the
debtor delivers to the creditor movable property as security
for the performance of a principal obligation upon the fulfill­
ment'of which the thing pledged shall be returned to the
debtor.
A real estate mortgage is an accessory contract whereby
the debtor guarantees the performance of the principal obli­
gation by subjecting real property or real right as security
for the performance of such obligation.
Alternative Extended Answer:
By the contract of antichresis the creditor acquires the
right to receive the fruits of an immovable of his debtor,
with the obligation to apply them to the payment of the
interest, if owing* and thereafter to the principal of his
credit.
Antichresis distinguished from pledge:
1. Antichresis is consensual, pledge is a real contract.
2. Antichresis involves real property, pledge involves
personal property.
3. In antichresis, the principal and the interest must be
provided in writing for validity. In pledge, the date and
description of the pledge must be in a public instrument to
affect third persons.
Antichresis distinguished from mortgage:
409
1. In antichresis the fruits that are applied to the
interest and thereafter to the principal. In mortgage the
fruits are not applied to the principal obligation.
2. In antichresis, the creditor is in possession. In
mortgage, the debtor is in possession.
3. The principal and interest must be in writing tor
validity. In mortgage, registration is required to bind third
persons.
4. In antichresis, the creditor pays the taxes. In mort­
gage, taxes are not imposed on the creditor.
R E C O M M E N D A T IO N O F T H E C O M M IT T E E :
If the above alternative answer is given, two (2) distinc­
tions for each should be given full credit.
(2)
A diamond ring and a female cow were pledged to
secure a loan in the amount of P100,000. The pledge
appeared in a public instrument. A month later, the cow
gave birth. W hen the amount of the loan was not paid upon
its maturity date, the pledged caused to be sold at a public
auction the ring, the cow and the cow’s offspring and the
amount of P I 50,000 as realized. The pledgor, upon learning
of the sale, demanded from the pledgee the excess in the
price over and above the amount of the principal obligation,
claiming that he is entitled to the excess and that the
offspring was not included in the pledge. The pledgee
refused to comply with the demand. H ow 'w ould you decide
this conflict? Give your reasons..
Answer:
Debtor/pledgor is not entitled to the excess unless the
contrary is agreed upon. The offspring shall pertain to the
pledgor but is subject to the pledge if there is no stipulation
to the contrary.
410
Question No. 15:
(1) W hat do you understand, by ESTOPPEL? W h at are
the different kinds of estoppel? Explain.
Answer:
The Civil Code enumerates only two (2) kinds of
estoppel: estoppel in pais or, by conduct and estoppel by
deed. Estoppel in pais or by conduct arises when one by his
act, representation, oral admission or by his silence induces
another to believe certain facts to exist and the other realize
an act on such belief.
Estoppel by deed is that by virtue of which a party to a
deed and his privies are precluded from asserting as against
the other party any right or title in derogation of the deed or
any fact asserted therein.
Alternative Extended Answer:
The Civil Code gives two (2) kinds of estoppel, namely:
estoppel in pais and estoppel by deed; and jurisprudence
gives a third, namely: estoppel by laches.
Estoppel in pais or by conduct arises when one by his
act, representation, oral admission or by his silence induces
another to believe certain facts, to exist and the other realize
an act on such belief.
Estoppel by deed is that by virtue of which a party, to a
deed and his privies are precluded from asserting as against
the other party by which any. right or title in derogation of
the deed or any fact asserted therein.
Laches is negligence or omission to assert a right within
a reasonable time giving, rise to the presumption that the
party entitled to assert it either has abandoned it or declined
to assert it.
(2) H ow is a civil obligation distinguished from a
natural obligation? Give an example of a natural obligation.
411
Answer:
Civil obligations give a right of action to compel their
performance. Natural obligations, not being based on
positive law but on equity and natural law, do not grant a
right of action to enforce their performance, but after volun­
tary fulfillment by the obligor, they authorize the retention
of what has been delivered on rendered by reason thereof.
Example ot a natural obligation (one example out of
any of the following):
1. W hen a right to sue upon a civil obligation has
lapsed by extinctive prescription, the obligor who volun­
tarily performs the contract cannot recover what he has
delivered or the value of the service he has rendered .
2. W hen without the knowledge or against the will of
, the debtor a third person pays a debt which the obligor is not
legally bound to pay because the action thereon has
prescribed, but the debtor later voluntarily reimburses the
third person, the obligor cannot recover what he has paid.
3. W hen a minor between eighteen and twenty-one
years of age who has entered into a contract without the
consent of the parent or guardian, after the annulment of the
contract voluntarily returns the whole thing or price re­
ceived, notwithstanding the fact that he has not been
benefited thereby, there is no right to demand the thing;or
price thus returned.
4. W hen a minor between eighteen and twenty-one
years of age, who has entered into a contract without the
consent of the parent or guardian, voluntarily pays a sum of
money or delivers a fungible thing in fulfillment of the
obligation, there shall be no right to recover the same from
the obligee who has spent or consumed it in good faith.
5. W hen, after an action to enforce a civil obligation has
failed, the defendant voluntarily performs the obligation, he
cannot demand the return of what he has delivered or the
payment of the value of the service he has rendered,
6. W hen a testate or intestate heir voluntarily pays a
412
'
debt of the decedent exceeding the value of the property
which he received by will or by the law of intestacy from the
estate of the deceased, the payment is valid and cannot be
rescinded by the payer.
7.
When a will is declared void because it has not been
executed in accordance with the formalities required by law,
but one of the intestate heirs, after the settlement of the debts
of the deceased, pays a legacy in compliance with a clause in
the defective will, the payment is effective and irrevocable.
Question No, 16:
(1) May the owner of a building constructed on an
unregistered land belonging to another apply for the regis­
tration of such building under th^ Land Registration Act and
P.D. 1529? W h at should he do to protect his rights in case
the owner of the land applied for registration thereof? Give
your reasons.
Answer:
The Land Registration Act and P D 1529 apply to
registration of land only. It may include the building as an
accessory but the building cannot be registered independent­
ly of the land because registration contemplated under this
Act refers only to ownership of land.
The owner of the building should file an opposition or
answer to the application for registration and ask the court
that his right to the building be annotated in the decree and
later in the certificate of title.
(2) “A ” is the owner of a registered land. The Torrens
Title is entrusted to “B”, his clerk secretary, who forges “A ’s”
signature on a deed of sale of said land in his (B’s) favor. A
new title is issued in the name of “B,” upon registration.
Does “B” have a valid title over the land? If “B” sells the
property to “C ”, does the latter acquire a valid title over it?
413
l,v
Answer:
A forged deed is an absolute nullity and conveys no title
but it can be the root of a title. If title to the land has been
transferred to a party based upon a forged deed, and later on
after the issuance of such title the property is transferred to
another who is an innocent purchaser for value, then the
latter acquires a valid title.
414
1988 BAR EXAMINATION
Question No. 1:
(a) What is' a prejudicial question? W hat are its ele­
ments? What is its effect upon a criminal action?
(b) Mojar, a passenger in a bus operated by Times
Transit Co., suffered serious physical injuries as a result of a
vehicular accident. An information was filed against Ailes,
driver of the bus, for serious physical injuries through reck­
less imprudence. Ailes was, however, acquitted on the merits
of the case because, according to the judgment of acquittal,
he was not negligent. Subsequently, Mojar instituted an
action'against Times Transit Co., to recover damages. W ill
the action prosper? Give your reasons.
(c) As a rule, once the criminal action has been com­
menced, the civil action for damages arising from the offense
charged shall be suspended until the final termination of the
criminal action. What are the exceptions to said rule as
provided by the Civil Code?
Answer:
(a)
A prejudicial question is a question which arises in a
case, the resolution of which is a logical antecedent of the
issue involved in said case, and the cognizance of which per­
tains to another tribunal (People vs. Aragon 94 Phil. 357;
Jimenez vs. Aceria 22 SCRA 1380).
It has two elements. They are: First, that it must be
determinative of the guilt or innocense of the accused in the
criminal case* and second, jurisdiction to try said question
must be lodged in another tribunal (Ibid.)
Its effect upon a criminal case i§ to suspend it if one has
already been commenced (Article 36, C C ). This is of course,
415
the reverse of the ordinary rule of procedure. The reason for
this is that the resolution of the question is determinative of
the guilt or innocence of the accused in the criminal case.
(b) If Mojar can prove the negligence of Ailes by pre­
ponderance of evidence, the action will prosper. He can still
recover damages from the operator of the bus even if the
driver had been acquitted in the criminal action, because it
is clear that the action to recover is based on culpa contract­
ual and not on the act or omission complained of as a felony
(Bernaldez vs. Bohol Trans. Co. 7 SCR A 276). According to
article 31 of the Civil Code, when the civil action is based on
an obligation not arising from the act or omission com­
plained of as a felony, such civil action may proceed inde­
pendently of the criminal proceedings and regardless of the
result of the latter.
(c) The exceptions are as follows:
(1) Where the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
such as when the basis of the civil action is culpa contractual,
culpa aquiliana, etc. (Arts. 31, 2177, C C ).
(2) Where the law grants to the injured party the right
to institute a civil action which is entirely separate and
independent from the criminal action, such as when the
action is based on (a), interferences by public officers'or
employees or by private individuals with civil rights and
liberties; (b) defamation; (c) fraud; (d) physical injuries; or
(e) refusal or neglect of a city or municipal police officer to
render aid or protection in case of danger to life or property
(Arts. 32, 33, 34, C C ).
(3) Where the question to be resolved in the civil action
is prejudicial to the criminal action (Art. 36, C C ).
Alternative Answers to: No. 1 (a) and (b)
(a) A prejudicial question is a question which arises
in a civil suit, the resolution of which is determinative
of the guilt or innocence of the accused.
416
Its essential elements, as prescribed by Section 5 of
Rule 111 are: (a) the civil action involves an issue raised
in the criminal action; and (b) the resolution of such
issue determines whether or not the criminal action
may proceed.
Its effect upon a criminal case is to suspend the
criminal case if one has already been commenced.
(b)
Considering that the acquittal is not based on
reasonable doubt but on a positive finding of innocence
(he was not negligent) the civil action can no longer
prosper.
The civil liability arising from the act complained of
as a felony is barred by the finding of innocence. H ow ­
ever, the civil action for damages based on an obliga­
tion ex-contractu is not deemed barred because of arti­
cle 31 of the Civil Code.
Question No, 2:
(a) Distinguish co-ownership from partnership.
(b) Is the lease of the entire community property in coownership an act of administration or an act of ownership or
alteration? Explain, in relation to the need of consent of the
co-owners.
(c) Since 1935, Janice possessed alone a parcel of land
which she co-owned with Lenny. In 1970, with the
knowledge of Lenny, Janice obtained a torrens title over the
land in her own name alone. On August 1, 1988, Lenny
brought an action against Janice for reconveyance of her
share. Janice set up the defense of laches. W ill the defense
prosper? Reasons.
Answer-:
(a)
Co-ownership is distinguished from an ordinary
partnership in the following ways:
(1) As to creation: Whereas co-ownership may be
417
created by law, contract, succession, fortuitous event,
or occupancy, partnership is always created by contract.
(2) As to purpose: Whereas the purpose of co-owner­
ship is the common enjoyment of the thing or right
owned in common, the purpose of a partnership is to
obtain profits.
(3) As to personality: Whereas a co-ownership has
no juridical personality which is separate and distinct
from that of the owners, a partnership has.
(4) As to duration: Whereas an agreement not to
divide the community property for more than ten years
is not allowed by law, such an agreement would be
perfectly valid in the case of partnerships. This is so,
because under the law, there is no lim itation upon the
duration of partnerships.
(5) As to power of members: Whereas a co-owner
has no power to represent the co-ownership, unless
there is an agreement to that effect, a partner has the
power to represent the partnership, unless there is a sti­
pulation to the contrary.
(6) As to effect of disposition of shares: If a co-owner
transfers his share to a third person, the latter becomes
automatically a co-owner, but if a partner transfers
his share to: a third person, the latter does not become a
partner, unless agreed upon by all of the partners.
(7) As to division of profits: Whereas in co-ownership
the division of the benefits and charges is fixed by law,
in a partnership the division of profits arid losses may
be subject to 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 the co-ownership, the death of a partner shall result in the dissolu­
tion ofthe partnership.
(b)
Lease of personal property is a mere act of admin­
istration, and, therefore, requires the resolution of the
majority o f the co-owners. However, lease of real property
may be an act of administration or an act of alteration de­
418
pending upon the circumstances of each particular case. (1)
If the lease is recorded in the Registry of Property, whatever
m^y be the duration thereof, it is an act of ownership, and
therefore, requires the unanimous consent of all the coOwners, since under the law, a special power of attorney is
required (See Art. 1647, C C ). (2). If the lease is not recorded
in the Registry of Property, but the duration thereof is more
than one year, it is also an act of ownership, and therefore,
requires the unanimous consent of all the co-owners, since,
again, under the law, a special power of attorney is required
(See Art. 1878 No. 8, C C ). (3) If the lease, however, is not
recorded in the Registry of Property and the duration thereof
is only one year or less, it is an act of administration, and
therefore, merely requires the resolution of the majority of
the co-owners.
(c)
It is submitted that the defense of laches will pros­
per. As held by the Supreme Court in several notable
decisions, in order that the doctrine of laches or “stale
demands” can be applied, the following elements must
concur: (1) Conduct on the part of the: defendant, or of one
under whom he claims, giving rise to the situation of -which
complaint is made arid for which the complaint seeks a
remedy; (2) delay in asserting the complainant’s rights, the
complainant having had knowledge or notice, of the de­
fendant’s conduct and having been afforded an opportunity
to institute a suit (3) lack of knowledge or notice on the part
of the defendant that the complainant would assert the right
on which he bases the suit; and (4) injury or prejudice to the
defendant in the event relief is accorded to the complainant,
or the suit is not held to be barred (Miguel vs. Catalino, 26
SCRA 234)... All of these elements are present in the instant
case. As. a matter of fact, the doctrine was applied to a case
wherein co-heir and another were able, through fraud, to
register a tract of land in their names. According to the
Supreme Court, the action for reconveyance brought by the
other co-heirs more than twenty years later is now barred
419
not only by extinctive prescription but also by laches. (Fabian
vs. Fabian, 22 SCRA 231).
Committee’s Recommendation Re: No. 2 (a):
(a) It is recommended that a mention of three dis­
tinctions should merit a full credit for this question.
Question No. 3:
(a) H ow are easements acquired?
(b) In acquiring easement by prescription, how shall
the period of possession be computed?
(c) About fifteen years ago, Adelaida constructed a
house on her lot at Quezon City adjoining a lot owned by
Bernie. She provided it with several windows overlooking
Bernie’s lot half a meter away from the boundary line. A
month ago, Bernie brought an action against Adelaida for
the closure of the windows alleging that they violate the law
on distances.
1. Has Adelaida acquired an easement of light and
view by prescription?
2. W ill the action of Bernie prosper?
3. If the action will not prosper, will, that not be tan­
tamount to saying that Adelaida has already acquired an
easement of light and view?
Answer:
(a) Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten years (Art.
620, C C ), while continuous nonapparent easements and
discontinuous easements whether apparent or nonapparent,
can only be acquired by virtue of a title (Art. 622, C C ).
(b) In order that an easement may be acquired by pre­
scription, the time of possession shall be computed thus: In
positive easements, from the day o.n which the owner of the
dominant estate, or. the person who may have made use of
420
the easement, commenced to exercise it upon the servient
estate; and in negative easements, from the day on which the
owner of the dominant estate forbade, by an instrument ac­
knowledged before a notary public, the owner of the servient
estate, from executing an act which would be lawful with­
out the easement. (Art. 621, C C .)
(c)
(1) Adelaida has not acquired an easement of light
and view by prescription after- ten years. There are two
reasons for this. In the first place, there Was no formal pro­
hibition as required by law. This should have been done by
means of an instrument acknowledged before a notary
public wherein she should have prohibited Bernie from
obstructing his light and view. She did not. In the second
place, she did not observe the legal requirement that there
should be a distance of at least two meters between the
windows and Bernie’s lot, since the view is direct. Accord­
ing to the Civil Code, non-observance of this distance does
not give rise to prescription.
(2) The action will not prosper because more than ten
years has already elapsed from the time of the opening of
the windows. Bernie’s right of action has already prescribed.
(3) This is not tantamount to saying that Adelaida has
already acquired an easement of light and view. Under the
Civil Code, nobody can preyent Bernie from obstructing
Adelaida’s light and view by constructing a building on his
lot or by raising a wall thereon contiguous to the windows of
Adelaida.
Question No. 4:
(a) What is meant by “la w ” as a inode of acquiring
ownership? W hat are the different instances under the Civil
Code whereby there is an acquisition of ownership by
operation of law? State at least three.
(b) A donated to X a parcel of land in 1975. The
donation was made in a public instrument, while the
acceptance made by X was embodied in the same public
421
instrument. The Deed of Donation was entitled “Donation
Inter Vivos. ” There is however a provision in the deed to the
effect that, although the land donated shall be delivered
immediately to X upon the perfection of the donation with
full right to enjoy all of the fruits thereof, “title shall pass to
the donee only upon the donor’s death.” Upon the death of
A, his w idow and only heir, B, brought an action for the
recovery of the property on the ground that the donation is a
donation mortis causa and not a donation inter vivos. W ill
the action prosper? Give your reasons.
Answer;
(A) W hen the Civil Code speaks of law as a distinct
mode of acquiring ownership, it refers to those instances
where the law, independently, of the other modes of
acquiring ownership, automatically and directly vests the
ownership of the thing in a certain individual once the pre­
scribed requisites or conditions are present or complied with.
Examples of this are:
(1) Land which belongs exclusively to either of the
spouses where a building is constructed with conjugal
funds. Here, the ownership of the. land is vested auto­
matically in the conjugal partnership once the condition
that its value has been reimbursed to the owner has been
complied with (Art. 158, par. 2, C C .)
(2) Hidden treasure which a stranger discovers by
chance on another’s property. Here, one-half of the
treasure belongs by right of occupation to the stranger,
while the other half belongs by Operation of law to the
proprietor. (Art. 438, par.,2,,CC.)
(3) Abandoned beds, when a river or stream sudden­
ly changes its course to traverse private lands. The
former owners of the new bed shall be the owners of
the abandoned bed in proportion to the area lost by
each. (Art. 58, P.D. No. 1067.)
(4) Fruits naturally falling from a tree upon adjacent
422
land. Here, the ownership of the fruits is vested auto­
matically in the owner of the adjacent land. (Art. 681,
C C .)
(b)
Yes, the action will prosper. In Bonsato vs. Court of
Appeals, and Howard vs. Court of Appeals, the Supreme
Court declared that in order that a donation will be
considered a disposition post mortem, it should reveal any or
all of the following characteristics:
(1)
Convey no title or ownership to the transferee
before the death of the transferor; or, what amounts to
the same thing, that the transferor should retain the
ownership, full or naked, and control the property
while alive;
-(2) That before his death the transfer should be re­
vocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the property
conveyed:
(3)
That the transfer should be void if the transferor
should survive the transferee.
It is clear from the facts stated in the problem that the
donation reveals the first characteristic. Hence, it is a
disposition, post mortem. Therefore, in order that the
donation can take effect it is essential that it must be made in
a will executed in accordance with all of the formalities pre­
scribed by law (Art. 728, C C ) Since this requisite has not
been complied with, the donation in the instant case is void
or inexistent.
Committee’s Recommendations Re: No. 4 (a) and (b)
(a)
It is recommended that the following be likewise
considered as instances whereby there is acquisition of
ownership by operation of law:
(1)
The acquisition of property in co-ownership
under a marriage governed by the absolute community
regime.
423
, (2) Estoppel under article 1434 of the Civil Code
which provides that:
“W hen a person who is not the owner of a thing sells
or alienates and delivers it, and later the seller or
grantor acquires title thereto, such title passes by opera­
tion of law to the buyer or grantee” .; and
(3) Registration of land under Act 496 where the
applicant is not the real owner.
(b) It is recommended that the mention of the first
characteristic of the three mentioned above, should merit a
full credit for this question..
Question No. 5:
(a) In probate proceedings, what are the only questions
which a probate court can determine?
(b) A presented for probate a will purporting to be the
last will and testament of his deceased wife. The will was
admitted to probate without any opposition. Sixteen months
later, the brothers and sisters of the deceased discovered that
the will was a forgery. Can A now be prosecuted for the
criminal offense of forgery? Give your reasons.
Answer:
(a)
Under our law, there are Only three possible ques
tiorts which can be determined by the probate court. They are:
(1) Whether or not the instrument which is offered
for probate is the last will arid testament of the de­
cedent; in other words, the question is one of identity.
(2) Whether or not the will has been executed in ac­
cordance with the formalities prescribed by law; in
other words, the question is one of due execution.
(3) Whether or not the testator had the necessaiy
testamentary capacity at the time of the execution of
the will; in other words, the question is one of capacity.
Consequently, the probate court cannot inquire into
the intrinsic validity of testamentary dispositions.
424
(b) A can no longer be prosecuted for the criminal
offense of forgery. This is so because, according to the last
paragraph of Art. 838 of the Civil Code, subject to the right
of appeal the allowance of the will, either during the lifetime
of the testator or after his death, shall be conclusive as to its
due execution. Since sixteen months have already elapsed
from the allowance of the w ill to the time when the forgery
was discovered,, there is' now no possible remedy of
impugning the validity of the Will. Even a petition to set
aside a judgment or order of a Court of First Instance on the
ground of fraud in accordance with Secs. 2 and 3 of Rule 38
of the Rules of Court is no longer possible because more than
six months from the time of the promulgation of the judg­
ment or order have alreadv elapsed. (Mercado vs. Santos, 66
Phil. 215.)
Committee’s Recommendation Re: No. 5 (a)
(a)
It is recommended that a mention of numbers (2)
or (3) should merit a full credit for this question.
Suggested Alternative Answer To: No. 5 (b):
The criminal action can still prosper because the
question of probate is a civil law matter while the ques­
tion of forgery is a penal matter. That does not preclude
the determination of guilt of the forger because the two'
are founded on different legal bases. Besides, in a crimi­
nal case, proof beyond reasonable doubt is required
while in civil cases, only preponderance of evidence is
required.
Question No. 6:
(a) W h at is preterition? W hat are its requisites? What
is its effect?
(b) W hat are the different limitations imposed by law
upon fideicommissary substitutions?
(c) W h o are compulsory heirs?
425
Answer:
Preterition or pretermission, as it is sometimes called
may be defined as the omission in the testator’s will of one,
some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born
after the death of the testator (Art. 854, C C ). Stated in
another way, it consists in the omission in the testator’s will
of the compulsory heirs in the diret line, or of anyone of
them, either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heir nor
expressly disinherited (Neri vs. Akutin, 74 Phil. 185; Nuguid
vs. Nuguid, 17 S C R A 449). Its requisites are:
(1) The heir omitted must be a compulsory heir in
the direct line;
(2) The ommission must be total and complete; and
(3) The omitted heir must survive the testator.
The effect is to annul entirely the institution of heirs but
legacies and devises shall be valid insofar as they are not in­
officious. (Art. 854, C C .)
(b) There are four limitations. They are:
(1) The substitution.must not go beyond one degree
from the heir originally instituted (Art. 863, C C ).
(2) The fiduciary and the fideicommissary must be
living at the time of the death of the testator (Ibid).
(3) The.substitution must not burden the legitime of
compulsory heirs (Art. 864, CC).
(4) The substitution must be made expressly (Art.
865, par. 1, C C .)
(c) In general, compulsory heirs are those for whom the
lawr has reserved a portion of the testator’s estate which is
known as the legitime..
In particular, the following are compulsory heirs:
(1)
Legitimate children and descendants, with res­
pect to their legitimate parents and ascendants;
426
(2) In default of the foregoing, legitimate parents
and ascendants, with respects to their legitimate chil­
dren and descendants;
(3) The widow or widower;
(4) Acknowledged natural children and natural chil­
dren by legal fiction;
(5) Other illegitimate childen referred to in article
287.
Compulsory heirs mentioned in numbers 3, 4, and 5
are not excluded by those in numbers 1 and 2; neither
do they exclude one another.
Compulsory heirs mentioned in numbers 3, 4, and 5
are riot excluded by those in numbers 1 and 2; neither
do they exclude one another.
In all cases of illegitimate children, their filiation
must be duly proved.
The father or mother of illegitimate children of the
classes mentioned shall inherit from them in the manner and
to the extent established by the Civil Code. (Art. 887, C C .)
Committee’s Recommendation Re: No. 6 (c):
(c)
It is recommended that an enumeration of num­
bers one to five without the mention of the additional
last three paragraphs should merit full credit for this
question.
Question No. 7:
(a) When does the right of representation take place?
(b) Suppose that the beneficiary in a will is the wife of
the minister of the gospel who rendered aid to the testator
during the Iatter’s last illness, would she be disqualified from
inheriting from the testator? Explain.
Answer:
The right of representation shall take place in the
following cases:
427
(1) In testamentary succession:
(a) In case a compulsory heir in the direct descend­
ing line dies before the testator survived by his children
or descendants (Art, 85.6, C C ).
(b) In case a compulsory heir in the direct descend­
ing line is incapacitated to succeed from the testator and
he has children or descendants. (Arts. 856,1035, C C ).
(c) In case a compulsory heir in the direct descending
line is disinherited and he has children or descendants.
(Art, 923, C C ).
(2) In intestate succession:
(a) In case a legal heir in the direct descending line
dies before the decedent survived by his children or
descendant (Arts. 981, 982, C C ), or in the absence of
other heirs who can exclude them from the succession,
abro'ther or sister dies before the decedent survived by
his or her own children. (Ars. 972, 975, C C ),
(b) In case a legal heir in the direct descending line
is incapacitated to succeed from the decedent and he
has children or descendants (Art. 1035, C C ), or in the
absence of other heirs who can exclude them from the
succession, a brother dr sister is incapacitated to succeed
from the decedent and he or she has children. (Arts.
972, 975,1035, C C ).
(b)
W e believe that the wife of the minister would not
be disqualified from inheriting from the testator. Under No.
2 of Art. 1027 of the Civil Code, the law extends the disquali­
fication of priests and ministers of the gospel tp their relatives
within the fourth degree as well as to the church, order,
chapter, community,, organization or institution to which
they may belong. The spouse is not included. Consequently,
such spouse is not disqualified. Otherwise, we would be
reading into the law what is not found there. Besides,
capacity to succeed is the general rule, while incapacity to
succeed is the exception. Hence, the rules on incapacity must
always be strictly construed.
428
Suggested Alternative Answer To: No. 7(b):
(b) If the testamentary disposition was actually in­
tended to favor the Minister as a disqualified person and
was ostensibly made thru an intermediary, namely, the
wife, then the Minister is considered disqualified as the
real and intended heir.
Question No. 8:
(a) Mario received from Edgar a pendant with dia­
monds valued at P5,000.00 to be sold on commission basis or
to be returned on demand. In the evening of August 31,
1987, while he was walking home, two men snatched his
clutch -bag containing the pendant and ran away. Subse­
quently, the snatchers were apprehended and charged.
During the pendency of the criminal case, Edgar brought an
action against Mario for the recovery of the pendant or its.
value and damages. Mario interposed the defense of
fortuitous event but Edgar contends—
(1) That the defense of fortuitous event is untenable
because there was negligence on the part of the defend­
ant; and
(2) That if the defense is untenable, there must be a
prior conviction of robbery before it can be availed of.
Decide the case.
(b) Distinguish between the effects of suspensive and
resolutory conditions upon an obligation.
Answer:
(a)
The factual setting of the above problem is identical
to that of Austria vs. Court of Appeals (39 SCRA 527). In
' that case the Supreme Court held that defendant is not
liable.
To constitute a caso fortuito that would exempt a person
from responsibility, it is necessary (1) that the event must be
independent of the will,of the debtor; (2) that it must be
429
either unforeseeable or unavoidable; (3) that the occurrence
must render it impossible for the debtor to fulfill the
obligation in a normal manner; and (b) that the debtor must
be free of participation in, or aggravation of, the injury to
the creditor.
All of the above requisites or conditions are present in
this case. It is undeniable that in order to completely
exonerate the debtor by reason of a fortuitous event, such
debtor must,'in addition into the causes itself, be free of any
concurrent or contributory fault or hegligence. W e believe,
however, that her act in travelling alone in the evening,
carrying jewelry of considerable value, cannot be considered
as either concurrent or contributory negligence. While it
may be so considered now, w e are not persuaded that the
same rule should obtain ten years previously when the
robbery iii question took place, for at that time criminality
had not by far reached the levels attained in the present day.
There is likewise no merit in the contention that to
allow the fact of robbery to be recognized in this case before
conviction is secured in the criminal action, would prejudice
the latter case, or would result in inconsistency should the
accused obtain an acquittal or should the criminal case be
dismissed. It must be realized that a court finding that a
robbery has happened would not necessarily mean that those
accused in the criminal action would be found guilty of the
crime; nor would a ruling that those actually accused did not
commit the robbery be inconsistent with a finding that a
robbery did take place. The evidence to establish these facts
would not necessarily be the same.
(b)
It is evident that a resolutory condition affects the
obligation to which it is attached in a manner which is
diametrically opposed to that of a suspensive condition. If
the suspensive condition is fulfilled, the obligation arises or
becomes effective if the resolutory condition is fulfilled, the
obligation is extinguished. If the first is not fulfilled, the
juridical relation is created; if the second is not fulfilled, the
430
juridical relation is consolidated. In other words, in the 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 acquired, but subject to the threat of extinction (8
Manresa, 5th Ed., Bk. 1, p. 311.)
Suggested Alternative Answers to No. 8(a):
(a) (1) W e would like to call attention to the fact that
the question says “contends.” So perhaps we should
make a distinction if negligence is proven and if neg­
ligence is not proven. If the negligence of the defendant
is not proven as Edgar eontends, then the defense of
fortuitous event is tenable. However, if negligence is
proven to be present then the defense of fortuitous event
is not tenable here and the defendant will be liable.
(2)
There is no need of prior conviction in either
case. .
Question No. 9:
(a) Define alternative and facultative obligations.
(b) Define joint and solidary obligations.
(c) A, B, and C borrowed P12,000 from X. This debt is
evidenced by a promissory note wherein the three bound
themselves to pay the debt jointly and severally. However,
according to the note, A can be compelled to pay only on
June 15, 1962, B can be compelled to pay only on June 15,
1964, while C can be compelled to pay only on June 15.
1966. On June 15, 1962, X made a demand upon A to pay
the entire indebtedness but the latter aid only P4,000.00.
Subsequently, because of A ’s refusal to pay the balance, X
brought an action against him for collection of the amount.
W ill such an action prosper? Reasons.
Answer:
(a)
Alternative obligations refer to those juridical
relations which comprehend several objects or prestations
431
which are due, but the payment or performance of one of
them would be sufficient. Qn the other hand, facultative
obligations refer to those juridical relations where only one
object or-prestation has been agreed upon by the parties to the
obligation, but the obligor may deliver or render another
in substitution.
(b) W hen there is a concurrence of two or more creditors
or of two or more debtors in one and the same obligation,
such obligation may be either joint (obligacion inancomunada) or solidary (obligacion solidaria). A joint
obligation may be defined as an obligation where there is a
concurrence of several creditors or .several' debtors, or of
several creditors and debtors, by virtue which each of the
creditors has a right to demand, while each of.debtors is
bound to render compliance with his proportionate part of
the prestation which constitutes the object of the obligation.
In other words, each of the creditors is entitled to demand
the payment of only a proportionate part of the credit, while
each of the debtors is liable for the payment of only a
proportionate part of the debt. A solidary obligation, on the
other hand, may be defined as an obligation where there is a
concurrence of several creditors, or several debtors, or of
several creditors and debtors, by virtue which each of the
creditors has a right to demand, while each of the debtors is
bound to render entire compliance with the prestation which
constitutes the object of the obligation. In other words, each
of the creditors is entitled to demand the payment of the
entire credit;. while each of the debtors is liable for the
payment of the entire debt. (See Art. 1207, C C ; 3 Castan,
7th Ed., pp. 65-66.)
(c) For the present, the action w ill not prosper. It is of
course true that the obligation here is solidary and that its
solidary character is not destroyed by the fact that the
debtors are bound by different periods for payment is
expressly provided for in Art. 1211 of the Civil Code.
However, in solidary obligations of this type, the right of the
creditor is limited to the recovery of the amount owed by the
432
debtor whose obligation has already matured, leaving in
suspense his right to recover the shares corresponding to the
other debtors whose obligations have not yet matured. This
restriction upon the creditor’s right does not destroy the
solidary character of the obligation, because ultimately, he
can still compel one and the same debtor, if that is his wish,
to pay the entire obligation. Therefore, in the instant case, X
shall have to wait for June 15,, 1964, when B ’s obligation shall
have matured, and for June 15, 1966, when C ’s obligation
shall have also matured. On June 15, 1966, he can collect
P4,000 from either A or B. On June 15, 1966, he can again
collect another, P4,000 from either A or B or C. (See
Ynchausti vs. Yulo, 34 Phil. 978.)
Suggested Alternative Answer To: No. 9 (c):
(c) It now being 1988, the action can no longer prosper
because it has already prescribed. Actions upon written
contracts prescribe in 10 years.
Question No. 10:
(a) Under the Civil Code, what are the different special
forms of payments?
(b) What are the special requisites of consignation in
order that it shall produce the effect of payment?
(c) A treasury warrant payable to Rosenne and
indorsed by Boni Was cashed at the Philippine National
Bank. The warrant was subsequently dishonored by the
Philippine Treasury. The Bank then applied the deposit of
Boni to the payment of the amount paid for the warrant. Is
the action of the Bank in accordance with law? Reasons.
Answer:
(a)
Under the Civil Code, there are actually four
special forms of payment. They are (1) application of
payment (Arts. 1252-1254); (2) dation in payment (Art.
433
1245); (3) payment by cession (Art. 1255); and (4) tender of
payment and consignation (Arts. 1256-1261). Strictly
speaking^ however, application of payment, by its very
nature, is not a special form of payment.
(h) In order that consignation shall produce the effect
of payment, it is not only essential that it must conform with
all of the requisites of payment, but it is also essential that
certain special requirements prescribed by law must be
complied with. The debtor must show:
(1) That there is a debt due;
(2) That the consignation has been made either be­
cause the creditor to whom tender of payment was
made refused to accept the payment without just cause,
or because any of the cause stated by law for effective
consignation without previous tender of payment
exists (Art. 1256, C C );
(3) The previous notice of the consignation had been
given to the persons interested in the fulfillment of the
obligation (Art- 1.25.6, C C );
(4) That the thing or amount due had been placed at
the disposal of judicial authority (Art. 1258, par. 1,
C C ); and
(5) That after the consignation had been made, the
persons interested in the fulfillment of the obligation had
been notified thereof (Art. 1258, par. 2, C C ).
(c)
Yes, the action of the Bank is in accordance with
law. The facts stated in the above problem are exactly the
same as those in the case of Gullas vs. National Bank, 62
Phil. 519, where the Supreme Court held that a bank has a
right of set-off of the deposit in its hands for the payment of
any indebtedness to it on the part of the depositor. W hen a
person deposits his money at a bank, whether such deposit'is
fixed, savings or current, a relationship of creditor and debtor
is established between the depositor and bank. It is,
therefore, evident that all of the requisites for compensation
are present in this case.
434
Committee’s Recommendation Re: No. 10(a):
(a) The committee recommends that if application for
payment is not mentioned by the examinee, full credit
must likewise be given.
Question No. 11:
(a) Suppose that under an obligation imposed by a final
judgment, the liability of the judgment debtor is to pay the
amount of P6,000.00 but both the judgment debtor and the
judgment creditor subsequently entered into a contract
reducing the liability of the former to only P4,000.00, is there
an implied novation which will have the effect of exting­
uishing the judgment obligation and creating a modified
obligatory relation? Reasons.
(b) Merle offered to sell her automobile to Violy for
P60*000.00. After-inspecting the automobile, Violy offered
to buy it for P50,000.00. This offer was accepted by Merle.
The next day, Merle offered to deliver the automobile, but
Violy being short of funds, secured postponement of the
delivery, promising to pay the price “upon arrival of the
steamer, Helena”. The steamer however never arrived
because it was wrecked by a typhoon and sank somewhere
off the Coast of Samar.
(1) Is there a perfected contract in this case? Why?
(2) Is the promise to pay made by Violy conditional
or with a term? Why?
(3) Can Merle compel Violy to pay the purchase
price and to accept the automobile? Why?
Answer:
There is no implied novation in this case. W e see no
valid objection to the judgment debtor and the judgment
creditor in entering into an agreement regarding the
monetary obligation of the former under the judgment
referred to. The payment by the judgment debtor of the
435
lesser amount of P4,000, accepted by the creditor without
any protest of objection and acknowledged by the latter as
in full satisfaction of the money judgment, completely ex­
tinguished the judgment debt and released the debtor from
his pecuniary liability.
Novation results in two stipulations— one to extinguish
an existing obligation, the other to substitute a new one in its
place. Fundamental it is that novation effects a substitution
or modification of an obligation by another or an extinguish­
ment of one obligation by the creation of another. In the case
at hand, We fail to see 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 sustain
novation necessitates that the same be so declared in un­
equivocal terms clearly and unmistakably shown by the ex­
press agreement of the parties or by acts of equivalent im­
port— or that there is complete and substantial incompati­
bility between the two obligations. (Sandico vs. Piguing,
42 SCRA 322.)
(b) (1) Yes, there is a perfected contract because there
is already a concurrence between the offer and the ac­
ceptance with respect to the object and the cause which
shall coastitute the contract. Such concurrence is mani­
fested by the acceptance made by Merle of the offer
made by Violy.
(2) I submit that the promise to pay made by Violy
is not conditional, but With a term. The promise is to
pay the P50,000 upon arrival in this port of the steamer,
Helena* not if the steamer Helena shall arrive in this
port. Hence, the promise is with regard to the date of
arrival and not with regard to the fact of arrival.
(3) Yes, Merle can compel Violy to pay the purchase
price and to accept the automobile. She will, however,
have to wait for the date when the steamer, Helena,
would have arrived were it not for the shipwreck. After
all, there is already a perfected contract.
436
Suggested Alternative Answers To: No. 11(a) and (b):
(a) (1) There remains an obligation on the basis of the
facts given. There is no showing in the facts that the
P4,000 has been paid so it created a modified obligatory
obligation ho. longer based on the judgment but based
on the novatory agreement.
(2) There is no implied novation. Instead there has
been a partial remission in the amount of P2,000 leav­
ing P4,000 still enforceable under the judgment.
(3) It can amount to a compromise. A final judgment
which has hot yet been fully satisfied may be the sub­
ject of a compromise. The compromise partakes the
nature of a novation. Article 204; provides that:
“If one of the pairties fails or refuses to abide
by the compromise, the other party may either
enforce the compromise or regard it as rescinded
and insist upon his original demand.”
(Gatchalian vs; Arlegui 75 SCRA 234; Dormitorio vs.
Fernandez 72 SCRA 388).
(b) (2) The. promise to pay is subject to a term. When
there is a pre-existing obligation and the “condition”
affects only the time of payment such “condition” can f
be considered as a period. In other, words, the parties
must be deemed to have contemplated a period.
(3)
Yes Merle can compel Violy to pay the purchase
price and to accept the automobile but only after the
parties would have fixed the period. Failing in that, the
Courts may be asked to fix the period. Article 1180 pro­
vides that:
“W hen the debtor binds himself to pay when
his means permit him to do so, the obligation
shall be deemed to be one with a period, subject
to the provisions of article 1197.”
Question No. 12:
(a) Pursuant to private internatiqnal law or conflict of
laws, to what law is real property as well as personal
property subject? Are there any exceptions to the rule? If
there are, name them,
(b) W hat are the four aspects of succession which are
governed by the national law of the decedent if he is a
foreigner?
(c) A, a citizen of California, U.S.A. but domiciled in
the Philippines, died testate in Manila, survived by two ac­
knowledged natural children, B and G. In his will, he left
more than P500,000.00 to B and only P3,000.00 to C. It is
admitted that under the Civil Code of California, the
domiciliary law of the decedent shall govern questions
involving the validity of testamentary provisions. C , who is
contesting the validity of the disposition in favor of B now
contends that the Philippine laws with respect to succession
are applicable. Is this correct? Give your reasons.
Answer:
(a) Real property as well as personal property is subject
to the law of the country where it is situated (Art. 16, par. 1,
C C ). There are, however, two exceptions to this rule. They
are: (1) under the second paragraph of Art. 16, which
declares that testamentary and intestate succession, both
with respect to the order of succession, the amount of successional rights and the intrinsic validity of testamentary pro­
visions shall be regulated by the national law of the dece­
dent; and (2) under No. 2 Art. 124, which declares that if the
husband is a foreigner and the wife is a Filipino, their
property relationsshall be governed by the husband’s national
law, without prejudice to the provisions of the Civil Code
with regard to immovable property.
(b) The four aspects of succession which are governed
by the national law of the decedent if he is a foreigner are:
first, the order of succession; second, the ^amount of
438
successional rights; third, the intrinsic validity of testamen­
tary provisions; and fourth, the capacity to succeed. (Arts.
16, par. 2, 1039, C C ; see Beilis vs. Beilis, 20 SCRA 358.)
(c)
Yes, this is correct. The doctrine of renvoi is
applicable in the instant case. Although the Civil Code in
Art. 16 states that the intrinsic validity of testamentary pro­
visions shall be regulated b y the decedents national law,
nevertheless, the Civil Code of California declares that the
decedent’s domiciliary law shall govern. Hence, the question
shall be referred back to the decedent’s domicile. In other
words, the laws of the Philippines with respect to succession
shall govern. Consequently, in the partition of the estate, C
shall be given a share which must not be less than his legi­
time. (Aznar ys. Garcia, 7 SCRA 95).
Question No, 13:
(a) A sold to B a house and lot for P50,000.00 payable
30 days after; the execution of the deed of sale. It was
expressly agreed' in the deed that the sale would ipso facto be
of no effect upon the buyer’s failure to pay as" agreed. B
failed to pay on maturity, and A sued to declare the contract
of no force and effect. If B tendered payment before the
' action was filed, but subsequent to the stipulated date of
payment, would the action prosper? Why?
(b) In 1950, A executed a power of attorney authorizing
B to sell a parcel of land consisting of more than 14 hectares.
A died in 1954. In 1956, his four childen sold more than 12
hectares of the land to C. In 1957, B sold. 8 hectares of the
same land to D. It appears that C did not register the sale
executed by the children. D , who was not aware of the
previous sale, registered the sale executed by B, whose, au­
thority to sell was annotated at the back of the Original Cer­
tificate of Title.
(1) What was the effect of the death of A upon B’s
authority to sell the land?
(2) Assuming that B still had the authority to sell the
439
land— who has a better right over the said land, C or
D?
(3)
What are the requisites in order that the defen­
dant can be held liable for damages in a quasi-delict
case?
Answer:
(a) The action would not prosper in such a case. Ac­
cording to the law, “in the sale of immovable property, even
though it may have been stipulated that upon failure to pay
the price at the time agreed upon the rescission of the
contract shall of right take place, the vendee may pay, even
after the expiration of the period, so long as no demand for
the rescission of the contract has been made upon him either
judicially or by notarial act. After the demand, the court
may not grant him a new term.” (Art. 1592, C C .) Here, at
the time B tendered payment of the purchase price, there
was still no demand made upon him by A for the payment of
said purchase price either judicially or by notarial act.
(b) (1) W hile the death of the principal in 1954 ended
the authority of the agent to sell the land, it has not been
shown that he Was aware of his principal’s demiseHence, the act of such agent is valid and shall be fully
effective with respect to third persons which may have
contracted with him in good faith in conformity with
Art. 1931 of the Civil Code. (Buason vs. Panuyas, 105
Phil. 795, Herrera vs. Luy, 110 Phil. 1020.)
(2)
As the case at bar is a case of double sale of re­
gistered land he who recorded the sale in good faith has
a better right in conformity with Art. 1544 of the Civil
Code. Since D was not aware of the previous sale, he
had to rely on the face of the certificate of title of the
registered owner. Hence, he now has a better right to
theland. (Buason vs. Panuyas, supra.)
(c) In actions based on quasi-delicts, before the person
injured can recover damages from the defendant, it is
440
necessary that he m ust b e a b le to p r o v e the fo llo w in g
facts:
(1 ) T h e fau lt o r n e g lig e n c e o f the d e fe n d a n t;
(2) The damages suffered or incurred by the plain­
tiff; and
(3) The relation of cause and effect between the fault
or negligence of the defendant and the damage incurred
by the plaintiff. (Taylor vs. Manila Electric Co., 16
Phil. 8.)
Alternative Answer to: No. 13 (b):
(b) (1) The agency is terminated upon the death of
either the principal or agent. Exceptionally, a transac­
tion entered into by the agent with a third person where
both had acted in good faith is valid. Article 1930 of
the Givil Code provides that:
“The agency shall remain in full force and ef­
fect even after the death of the principal, if it
has been constituted in the common interest of
the latter and of the agent, or in the interest of
a third person who has accepted the stipulation
in his favor.”
and Article 1931 provides that:
“Anything done by the agent, without know­
ledge of the death o f the principal or of any
other cause which extinguishes the agency, is
valid and shall be fully effective with respect to
third persons who may have contracted with
him in good faith;”
Question No. 14:
(a) 1) Is title to registered land subject to prescription?
Explain your answer.
2) H ow about the right of the registered owner to
recover possession, is it equally imprescriptible? Why?
3) W hat effect has the equitable principle of laches
441
on the imprescriptibility of Torrens Title? Explain.
(b)
In passing upon the registrability of a document
sought to be registered, what formal requisites is the Register
of Deeds charged to determine, under his responsibility,
whether or not they have been complied with?
Answer:
(a) 1) No because under Section 47, P.D. 1529, no title
to registered land in derogation of that of the registered
owner shall be acquired by prescription or adverse pos­
session. A similar provision is found in the Civil Code.
The reason is that once a piece of land is registered
under the Torrens System, it operates as a notice to the
whole World. All persons are bound by it. No one can
plead ignorance of the registration.
(2) The right to recover the. land from another per­
son holding it is equally imprescriptible, the reason
being that possession is a mere consequence of owner­
ship.
(3) While a Torrens Title is imprescriptible, under
certain exceptional circumstances, it may yield to the
equitable principle of laches. In other ward's, certain
■circumstances such as inaction or utter neglect on the
part of the owner and the intervention of rights by third
parties may, for reasons of equity, convert the claim of
imprescriptibility into a stale demand. (Mejia vs. Gamponia,. 1B0 Phil. 277; Miguel vs. Catalino, G.R.
L-23072, Nov. 29, 1968; Heirs of Batiog Lacamen vs.
Heirs of Laruan, G.R. L-27058, July 31, 1985).
(b) To be registerable, a voluntary document affecting
registered land must be sufficient in law. (Section 51, P.D.
1529) Sufficiency refers to both substance and form. As to
form, it is the R O D ’s responsibility to check such items as the
full name and signature of vendor or grantor, the marital
consent of the wife if the land sold is conjugal, the full name.,
442
nationality, the civil status, the name of spouse, if married,
the resident and postal address of the grantee. If the grantee
is a corporation, the deed must be accompanied with the
Articles of Incorporation, a board resolution authorizing the
corporation to buy and another resolution of the Board
naming the corporate officer authorized to execute and sign
the contract. This is not to mention the proper observance of
the requirements in the acknowledgment portion of the
deed.
Question No. 15:
(a) Suppose that in an oral contract, which by its terms
is not to be performed within one year from the execution
thereof, one of the contracting parties has aleady complied
within the year with the obligations imposed upon him by
said contract, can the other party avoid fulfillment of those
incumbent upon him by invoking the Statute of Frauds?
(b) One-half of a parcel of land belonging to A and B
was sold by X to Y for the amount of P I,500.00. The sale was
executed verbally. One year later,. A and ,B sold the entire
land to X. Is the sale executed verbally by'X to Y valid and
binding? Reasons.
(c) Distinguish between a contract of sale and a con­
tract to sell.
Answer:
(a)
No, he cannot. This is so, because the Statute of
Frauds aims to prevent and hot to protect fraud. It is wellsettled that when the law declares that an agreement which
by its terms is not to be performed within a year from the
making thereof is unenforceable by action, unless the same,
or some note or memorandum thereof, be in writing, and
subscribed by the party charged, or by his agent, it refers only
to an agreement which by its terms is not to be performed on
either side within a year fom the execution thereof. Hence.
one which has already been fully performed on one side
within a year is taken out of the operation of the statute.
(Phil. Nat. Bank vs. Phil. Vegetable Oil Co., 49 Phil. 857;
Shoemaker vs. La Tondena. 68 Phil. 24.)
(b) The sale, although not contained in a public instru­
ment or formal writing, is nevertheless valid and binding.for
the time-honored rule is that even a verbal contract of sale qf
real estate produces legal effects between the parties. In'the
premises, Art. 1434 of the Civil Code, which declares that
when a person who is not the owner of a thing sells or
alienates and delivers it, and later the seller or grantor ac­
quires title thereto, such title passes by operation of law to
the buyer or grantee, is applicable. (Bucton vs. Gabar, 55
SCR A 499.)
(c) The two may be distinguished from each other in
the following ways:
(1) In the first, title passes to the vendee upon deli­
very of the thing sold, whereas in the second, by agree­
ment:, ownership is reserved in the vendor and is not to
pass until full payment of the price.
(2) In the first, nonpayment is a negative resolutory
condition, whereas in the second, full payment is a posi­
tive suspensive condition.
(3) In the first, the vendor has lost and cannot re­
cover ownership until and unless the Contract is re­
solved or rescinded, whereas in the second, title remains
in the vendor, and when he seeks to eject the vendee be­
cause of noncompliance by such vendee with the sus­
pensive condition stipulated, he is enforcing the con­
tract arid not resolving the same. (Santos vs. Santos,
C A , 47 Off. Gaz, 6372.)
Suggested Alternative Answers To: No. 15 (b):
(b) 1) The contract of sale is valid and enforceable in
view of the payment of the price of P I ,500 but there is
no showing the problem that there was delivery of the
444
land. Accordingly, Article 1434 does not apply. H o w ­
ever, Y can compel under Article 1357 to observe the
proper form of a deed of sale involving real property
and simultaneously compel specific performance to
deliver.
2)
The verbal sale of land is unenforceable since
there is no statement in the problem that the agreed
price of P I ,500 was paid, nor was the. land delivered.
Being, Article 1434 will not apply since it is predicated
on a valid or enforceable contract of sale.
445
1987 BAR EXAMINATION
Question No. 1:
Alma, a Filipino citizen went to the United States on
a tourist visa. Wanting to legalize her stay and obtain per­
manent employment, she married John, an American citizen,
for a fee, with the understanding that after a year, John
would divorce her. As agreed upon the two obtained a
divorce in Reno, Nevada.
(a) Suppose that after the divorce Alma consults you
on the question of how she can now marry her childhood
sweetheart Rene, in the Philippines preferably, or if that
cannot be done, in some other country where Alma and Rene
are prepared to go so that they can be joined in wedlock and
live the life they had dreamed about. What advice will you
give Alma. Explain.
(b ) Suppose on the other hand that Alma arid John
decided to give their marriage a try. They had seven years
of marriage. Alma eventually became an American citizen,
but the marriage soured and ended up in a divorce, just the
same.
This time Alma wants a martiage for keeps, so she
comes back to the Philippines to Rene: who, ever faithful,
has waited for seven long years. Can she and Rene contract
a valid marriage? Explain.
Answer:
(First Assumption)
a. Assuming that the marriage of Alma and John is
valid, then the divorce obtained by them is void
because of Article 15 of the Civil Code. Hence a
marriage between Alma and Rene in the Philippines
446
or elsewhere will be bigamous. The advice to Alma,
therefore, is for her not to marry Rene.
b. Since Alma became an. American citizen and presum­
ably she had that citizenship at the time of the
divorce, if the divorce is valid under the American
law or the law of her nationality at that time* then
she would be released from her marriage with John.
Alma and Rene can contract a valid marriage when
she comes back to the Philippines.
(Second Assumption)
a. Assuming that the marriage of'Alma and John is ficti,tious, there having been no real intent to enter into the
marriage, and there having been no consent at all
since Alma’s intention was merely to legalize her
stay and obtain permanent employment, the marriage
between Alma and John is void. On this premise, my
advice to Alma would be'that she can now marry
her childhood sweetheart Rene in the Philippines or
in any other country for that matter.
b. Assuming, upon the other hand, that Alma ana John
did intend to marry and give their marriage a try,
and Alma eventually became an American citizen, the
divorce would be valid. Hence, she and Rene can
contract a valid marriage upon her return to the Phil­
ippines.
Question No. 2:
Ato was the registered owner of a passenger jeepney,
which was involved in a collision accident with a vegetable
truck, resulting in the death of four passengers and injuries
to three. At the time of the accident, Ato was legally married
to Maria but was cohabiting with Tonia in a relationship
akin to that of husband and wife.
Could the heirs of the dead passengers and the injured
447
persons recover damages from:
(a) Ato?
(b ) Maria?
(c) Tania?
Explain each case.
Answer:
a, Ato — Yes. Insofar as the dead passengers are con­
cerned, the heirs can recover damages on the basis of
culpa contractual. If the injured persons are also pas­
sengers, Ato is likewise liable on the same basis of
culpa contractual. However, if . the injured persons
are not .passengers, then the liability for damages of
Ato will be on the basis of a quasi-delict.
b,. Maria — In view of the ruling in Juaniza y. Jose (89
SCRA 306) that the passenger jeepney acquired by
the husband during an illicit cohabitation with
the paramour is conjugal property, Maria is liable
to the same extent as Ato insofar as the conjugal
property in the marriage between Ato and Maria
could be answerable.. But as regards her paraphernal
property, Maria cannot be held answerable.
c, Tonia — No, In Juaniza v. Jose the paramour of the
owner of the passenger jeepney that figured in an
accident was held to be not a co-owner, and therefore
not liable for damages. Article 144 is inapplicable.
Question No, 3;
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 not as a Fili­
pino. Among the evidence Celso Lim had are his own birth
certificate describing him as a Filipino, the birth certificate
of his other children, all describing them as Filipinos and a
448
court decision describing his father (Celso, Jr.’s grandfather)
as a Filipino.
(a) What action must Celso Lim take to ensure the
effective correction of the allegedly wrong entry in his son’s
birth certificate?
(b ) Who should be made parties to such action or pro­
ceeding?
Answer:
a. Celso must file a petition in an adversary proceeding
to correct the erroneous entry. In the case o f Republic v.
Valencia, (L-32181, March 5, 1986), it was ruled that not
only clerical errors can be the subject-matter o f the petition,
but even the controversial entries can be corrected.
b. Under Rule 108 of the Rules o f Court, he should
notify the Civil Registrar and all the persons affected or who
have an interest in the subject matter of the petition, in­
cluding the Solicitor General.
Question No. 4:
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 has 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?
(b) the adopted son?
(c) the child of the deceased legitimate daughter?
(d ) the two recognized illegitimate children?
449
(e) the mother?
Answer:
a. the widow — 1/4
b. the adopted son — 1/4
c. the child o f the deceased legitimate daughter — 1/4
d. the two “ recognized illegitimate children” — we must
distinguish:
Assuming that the two recognized illegitimate children
are natural children, then each of them will get 1/8,
Upon the other hand, if they are recognized spurious
children then each of them will get 2/5 o f 1/4 o f the estate.
The remaining 1/5 o f 1/4 will be distributed as follows:
Under the theory o f concurrence, that 1/5 o f 1/4 will
be divided equally among the widow, the adopted son and
the child o f the deceased legitimate daughter.
Under the theory o f exclusion that 1/5 o f 1/4 will
be divided equally between the adopted son and the child
of the deceased legitimate daughter.
e. the mother — will get nothing.
Question No. 5:
Tomas, Rene and Jose entered into a partnership under
the firm name “Manila Lumber.” Subsequently, upon mutual
agreement, Tomas withdrew from the piartnership and the
partnership was dissolved. However, the remaining partners,
Rene and Jose, did not terminate the business of “ Manila
Lumber.” Instead o f winding up the business of the partner­
ship and liquidating its assets, Rene and Jose continued the
business in the name of “Manila Lumber” apparently with­
out objection from Tomas. The withdrawal o f Tomas from
the partnership was not published in the newspapers.
450
Could Tomas be held liable for any obligation or indebt­
edness Rene and Jose might incur while doing business in
the name o f “ Manila Lumber” after his withdrawal from the
partnership? Explain.
Answer:
Yes. Tomas can be held liable under the doctrine of
estoppel. But as regards the parties among themselves, only
Rene and Jose are liable. Tomas cannot'be held liable since
. there was no proper notification or publication.
In the event that Tomas is made to pay the liability to
third person, he has the right to seek reimbursement from
Rene and Jose (Articles 1837 to 1840; Goquiolay vs. Sycip,
9 SCRA 663).
Question No. 6:
M/S Philippines, operated by United Shipping Lines,
loaded in Japan for shipment to Manila 50 crates of pipes
consigned to Standard Blooming Mills. The shipment was
insured againts marine risks with Marine Insurance Company.
Enroute, the ship caught fire resulting in the total loss of
ship and cargo. The insurance company paid the consignee
and thereafter sought recovery and reimbursement from the
United Shipping Lines as subrogee unto the rights of the
insured. Evidence was presented establishing the fact that
from the time the goods were stored in the ship’s hatch, nO
regular inspection was made during the voyage such that the
fire must have started 24 hours before it was noticed.
Could the insurance company claim reimbursement of
the amount it had paid its insured from the United Shipping
Lines? Explain.
Answer:
Yes. Under Article 2207, the insurer is subrogated to
the rights of the insured against the wrongdoer or the person
451
who violated the contract when the insurer pays or indem­
nifies the insured for the injury or loss arising out of the
wrong or breach of contract complained of. There being a
breach of contract o f carriage in view of total loss o f the
cargo insured, Marine Insurance Company may claim reim­
bursement of the amount paid the insured from the United
Shipping Lines.
Question No. 7:
Fred sold to Juan a parcel of land, belonging to his
minor son, Lino, then under his guardianship, without judi­
cial approval. After the sale, Juan immediately took pos­
session o f the land, built a house iand religiously paid the
taxes' thereon. Nine years thereafter, Lino, no longer a minor,
rented the ground floor of the house built by Juan, Lino paid
the rent for the first month, then stopped paying. Two
years thereafter, when pressed for payment o f the accrued
rent. Lino refused, claiming ownership over the property,
alleging that the sale o f the property to Juan while he was
a minor without the approval of the guardianship court ren­
dered the sale null and void.
Is the claim of Lino valid and meritorious.? Explain.
Answer:
No, Lino’s claim is not valid and not meritorious be­
cause Lino is in estoppel. A lessee cannot assail the right and
title of the lessor and cannot claim ownership as against the
lessor. The fact that the sale was made while Lino was a
minor is of no moment because he recognised and ratified
the contract after he was already of majority age.
A nswer:
No, Lino’s claim is not valid and riot meritorious be­
cause Juan had already become the owner of the land by
ordinary acquisitive prescription through adverse possession
o f the land for over ten (10) years.
452
A n sw er:
No, Lino's claim is not valid and not meritorious. Lino
can no longer recover the land because o f laches.
Question No. 8:
Miguel, Carlos and Lino are neighbors. Miguel owned a
piece of registered land which both Carlos and Lino wanted
to buy. Miguel sold the land to Carlos. The sal£ was not.
registered upon the request o f Miguel. Later on, the same
property was sold by Miguel to Lino. Miguel told Carlos
about the second sale. Carlos immediately tried to see Lino
to discuss the matter and inform him of the previous sale to
him (Carlos) o f the Same property but Lino refused to see
Carlos.' Thereupon Carlos annotated in the Registry of Pro­
perty his adverse claim On the property. A week later, Lino
registered the sale on his favor and had a new transfer certi­
ficate of title issued in his name. However, the adverse claim
of Carlos was duly annotated in the title. Notwithstanding,
Lino took possession o f the property and built a small
bungalow thereon.
(a) Who is the rightful owner of the property? Explain.
(b ) To whom would the bungalow built by Lino on the
property belong? Explain.
Answer:
a. In double sales, under Article 1544. the land sold
belongs to the first registrant in good faith. If none, it be­
longs to the first possessor in good faith. If none it belongs
to the person with the oldest title, provided there is good
faith. Carlos, who has the oldest title, is therefore the right­
ful owner of the property, because there was no registration
in good faith by Lino.
b. The bungalow built by Lino belong? to Carlos. Lino
is a builder in bad faith. Article 449 provides that he who
builds in bad faith on the land of another loses what it built
453
w ith o u t right to indem nity.
Question No. 9:
Rita owned a valuable painting which was stolen from
her house. The theft was duly reported to the authorities.
A year after, Rita saw the painting hanging in the office of
Mario. When queried, Mario said that he bought the painting
in a gallery auction. Th£ painting was positively identified as
the one stolen from the house of Rita.
(a) Could Rita recover the painting? i f so, would
Mario be entitled to reimbursement of the amount he paid
for the painting? Explain.
(b ) Supposing Mario bought the painting from a
friend, would your answer be the same? Explain.
Answer:
a. Yes, Rita could recovcr the painting, but Mario is
not entitled to reimbursement because a gallery auction is
a public sale (Article 559).
b. Yes, insofar as recovery of the painting is concerned.
Rita can recover it. No, as regards reimbursement, because
the painting was not bought at a public sale as provided
under Article 559 of the Civil Code. Mario is entitled to reim­
bursement.
Question No, 10:
Lino entered into a written agreement for the repair of
his private plane with Airo Repair Works, Inc. for P500,00().
Additional work was done upon the verbal request and
authority, of a duly recogni-zed representative of Lino. Lino
refused to pay for the additional, work, interposing as a
defense the absence of a written contract for the additional
work done.
454
Is the defense put up by Lino valid? Explain?
Answ er:
The defense put up by Lino is valid under Article 1724
of the Civil Code. The change must have been authorized by
the proprietor in writing, and the additional price to be paid
the contractor must have been determined in writing by both
parties.
Answer:
It appearing that the additional work was done upon
verbal request and authority of a duly authorized represent­
ative of Lino, and the bene Tits have been received by Lino in
consequence o f the actual repair and the additional work,
the defense put up by Lino is not valid on the ground that
no person may unjustly enrich himself at the expense of
another.
Question N o, 11 :
Ana rented a safety deposit box at the Alto Bank, paid
the rental fee and was given the key. Ana put her jewelry and
gold coins in the box. Days after, three armed men gained
entry into the Alto Bank, opening its vault and several safety
deposit boxes, including Ana’s and emptied them -of their
contents.
Could Ana hold the Alto Bank liable for the loss of the
contents of her deposit box? Explain'
Answer:
No, because under Article 1990 of the Civil Code, if
the depository by force majeure loses the thing and receives
money or another thing in its place, he shall deliver the sum
or other thing to be depositor. There being no showing that
there was anything received in place of the things deposited,
the Alto Bank is not liable foi the contents of the safety
box.
455
Answer:
The Alto Bank is not liable because the contract is not
a deposit but a rental o f the safety deposit box. Hence, the
Alto Bank is not liable for the loss of the contents o f the
box.
Question No. 12:
Spouses Martin and Tecla bought a parcel of land on
installment. At the time the total sale price was paid, Martin
had left the conjugal abode and was cohabiting with Tina,
Notwithstanding such separation, Tecla religiously paid the
installments as they fell due out of her earnings from a small
sari-sari store. After the total purchase price had been paid,
Martin had the property titled in the name o f “Martin
married to Tina.” Tecla died and her two children by Martin
demanded partition of the property and their mother’s share.
Martin and Tina refused, claiming that the property belonged
to their “conjugal partnership.” No proof was presented
that Martin marned Tina during or after the death of Tecla,
To whom does the property titled in the name of
“ Martin married to Tina” belong? How would the property
be divided among Martin, the two children of Martin and
Tecla and Tina? Explain.
Answer:
The property is conjugal p r o p e r t y 1/2 belongs to
Martin and the other half of Tecla. However, 1/2 belonging
to Tecla will be divided among Martin and the two children,
each o f them getting 1/3 o f that 1/2.
Question No. 13:
Lilia and Nelia are relatives, Lilia being the grand niece
of Nelia. They had a common ancestor, Bonong, father o f
Nelia and great-grandfather of Lilia. Bonong had a sister,
Rosa, who donated gratuitously a parcel of land to her niece.
456
Mely, sister o f Nelia and grandmother of Lilia. Mely died
intestate, leaving aforementioned parcel of land, survived by
her husband Jose and their two children, Rico and Nina.
Bonong died intestate survived by his legitimate grand­
children, Rico and Nina. In the adjudication of his estate, the
portion pertaining to Mely, who had predeceased her father,
went to her two legitimate children, Rico and Nina. Rico
died instestate, single , and without any issue, leaving his
share in the inheritance to his father, Jose, subject to a
reserva troncal duly annotated on the title. Thereafter Nina
died intestate and her rights and interests were inherited by
her only legitimate child, Lilia-; Thereafter, Jose died intestate
survived by his only descendant, Lilia. Nelia, aunt of Rico,
would like to lay claim as reservatario to a portion o f the
one-half pro indiviso share of the property inherited by Jose
from his son Rico.
How should the estate of Jose, including the property
subject to reserva troncal be adjudicated? Explain.
Answer:
This is a proper case of reserva troncal. The prepositus is
Rico, the reservista is Jose and the reservatarios are Lilia (a
niece) and Nelia (an aunt), both o f them being relatives
within the 3rd degree of Rico (the prepositus) and belonging
to the maternal line represented by Mely. Accordingly, Nelia
as reservatario cannot claim any portion of the proindiviso
share of the property inherited by Jose from Rico. Lilia alone
should inherit because in reserva troncal, the successional
rights of relativeis who are reservatarios are determined by
the rules of intestate succession. In intestacy, nephews and
nieces exclude uncles and aunts. Hence, Lilia the niece,
excludes Nelia, the aunt, from the reservable property (De
Papa vs. Camacho 144 SCRA 281).
T h e rest of Jose’s estate, not subject to reserva, will be
inherited by his granddaughter Lilia as sole intestate heir.
457
Answer:
This is a proper case of reserva troncal. The prepositus
is Rico, the reservista and the reservatarios are Lilia arid
Nelia, both o f them being relatives within the 3rd degree
computed from Rico and belonging to the: maternal line
represented by Mely. Under the doctrine o f “ reserva integral”
all the reservatarios in the nearest degree will inherit in equal
shares the reservable portion o f the pro-indiviso share of the
property inherited by Jose from Rico. The properties trans­
mitted to Jose by Rico are the following:
Firstly, the property which Rico obtained from Mely
consisted o f his share in Mely’s interest as donee o f Rosa’s
land. The interest acquired by Rieo was 1/3, because 1/3
thereof was inherited by Jose and 1/3 by Nina. So the pro­
perty that was obtained by Jose from Rico is the latter’s
i/3 interest o f the land.
In the case of BonOng’s estate, the share of Mely was
1/2 and Nelia’s was the other half. Out of Mely’s share, 1/2
belonged to Rico and the other half belonged to Nina, both
Inheriting by right of representation.
Summarizing, the reservable estate is the 1/3 share o f
Rico in Rosa’s land which was donated to Mely, and the 1/2
interest o f Rico in Mely’s share of the estate o f Bonong.
These reservable properties should be divided equally bet­
ween Nelia and Lilia (Article 891).
Question No. 14:
Lina married Hugo in a church ceremony. Hugo dis­
covered that five years before, Lina married Six to in a ci/il
ceremony. Lina however, did not know at the time she
married Six to that the latter was already married. Upon
learning that Sixto was already married Lina immediately left
Sixto and since then had not seen nor heard from him. Lina,
however, did not take any step to have her marriage with
Sixto annuled before she married Hugo.
458
Could Hugo successfully sue for a declaration of nullity
of his marriage with Lina? Explain.
Answer:
No, Hugo cannot sue for a declaration of nullity of his
marriage with Lina. The marriage of Lina with Sixto was
void, so the marriage of Hugo with Lina is valid. There was
no need for a prior court action to declare the marriage with
Sixto as void (Yap vs. Court of Appeals, 145 SCRA 229).
Answer:
Yes, because the marriage of Hugo with Lina is not
valid, for the reason that there was no prior judicial decla­
ration that the marriage with Sixto is void. Such judicial
declaration is required by law (Wiegel vs. Sempio Dy 143
SCRA 499\
Question No. 15:
The X Electric Cooperative services a small; town where
the roads are lined with lush acacia trees. Normally these trees
are pruned before the onset of the rainy season by the co­
operative itself since the power lines of the cooperative
are not infrequently affected by falling branches. This year,
for financial reasons, the electric cooperative omitted the
pruning in spite of reminders from the townspeople. In
August this year a strong typhoon hit the town and live wires
fell to the ground. While the cooperative made a preliminary
survey o f the damages, it did not immediately take pre­
cautionary measures against possible harm. Thus, the at­
tention o f one o f its employees was. called to the fallen wire
in the center of the town. Before the cooperative could make
the necessary repairs, a four-year old boy crossed the street
and was electrocuted by the live wire.
His parents sued the electric cooperative for damages.
(a)
If you were counsel for the parents, what argu­
459
ments would you advance to support your claim for damages
and how much damages would you demand?
(b ) If you were counsel for the- electric cooperative,,
what defenses would you offer?
(c)
If you were judge, how would you decide the
case?
Answer:
a. The damages that can be claimed by the parents are the
following:
1. civil indemnity for death - P30,000.00,
The People o f the Philippines v. Leopoldo Ttaya,
L-48065, Jan. 29, 1987;
2. actual and compensatory damages;
3. moral damages for mental anguish;
4. exemplary or corrective damages,
b. As counsel for the electric cooperative, I would offer the
defense of “ fortuitous event,” because the strong typhoon
could not be foreseen and even if foreseen, could not be
avoided.
c. As judge, I would rule for the parents. The attention of
the cooperative through its employee was called to the. fallen
live wire. If there had been care and diligence, the death
could have been avoided. The cooperative could have made
the necessary repairs before the 4 year old boy crossed the
street and was electrocuted by tl\e live wire. It failed to do
so, hence it is liable..
Question No. 16:
Manny and Nita, husband and wife, decided to separate
by mutual agreement. They had a contract prepared, signed
it and had it notarized* providing for their separation and for
the extra-judicial liquidation o f their conjugal assets. They
460
likewise agreed to live separately and that if either spouse
should find a more compatible partner, the other would
raise no objection and would refrain from taking any judicial
action against the other.
>
Determine the validity of each of the provisions of the
agreement. Explain briefly.
'Answer:
1. The provision for their separation is.void.
2. The provision for the extra-judicial liquidation of
their conjugal assets is void.
3. The agreement to live separately is void.
4. The agreement that should either spouse find a more
compatible partner, the other would raise no ob­
jection and would refrain from taking any judicial
action against the other is void.
The aforementioned stipulations are all Yoid because
they are contrary to law, morals, good custom, public order
and public policy. The specific provision o f law is Article 221
o f the Civil Code.
461
1986 BAR EXAMINATION
Question No. 1:
Mr. Mekanieo leased some autorriobile'repair equipment
to Mr. Masipag, who was opening his auto repair shop. The
lease agreement wafc executed on February 15, 1985- It
stipulated that the penod was one month only, at the expi­
ration o f which Masipag was to return the equipment of Mekanico. The equipment was delivered on February 15, 1985.
On March 15, 1985 Mekanieo, in a telephone call, asked
Masipag to return the leased property that same day. Because
his truck broke down, Masipag was unable to comply. Early
the next morning, the equipment was burned in an acci­
dental fire that started in a nearby restaurant and gutted
Masipag’s auto repair shop. Mekaniko seeks to hold Masipag
liable for the value of the lost property plus damages on the
gfound that he did not return it as agreed upon. Is Mekanico’s claim tenable? Explain.
A nswer:
Mekaniko’s claim in untenable.
The fire of accidental origin which destroyed the equip­
ment which is the object of the obligation in the instant caise
is clearly fortuitous in character. Therefore, the doctrine of
fortuitous events is applicable. The debtor or obligator,
Masipag, is not liable. In other words, the obligation is extin­
guished.
The fact that the loss took place on March 16, 1985,
which is one day after Mekaniko had made a demand upon
Masipag to return the leased property, does not mean that
the loss took place after the obligor had already incurred in
delay, It must be noted that the lease agreement was exe­
cuted on February 15, 1985, Obviously, on March 16, 1985.
Masipag had not yet incurred in delay.
462
(N ote: The above answer is based upon Arts. 13 and
1174 of the Civil Code. We recommend that an answer
based on Arts. 13 and 1262 of the Civil Code or on Arts. 13,
1665 and 1667, arriving at the same conclusion should also
be considered correct.) .
A n s w e r — The loss occurred by fortuitous event before
Masipag incurred in delay. Therefore, the general rule applies:
No one shall be held liable for loss due to fortuitous event.
The one-month period of lease would expire only on
March 18th while the fire occurred on the 29th day. The C.C.
provides that one-month consists of 30 days and February
1985 had-only 28 days, not being a leap year.
Question No. 2:
Mr. Mamirapal, 19 years old and married, seeks to do
the following:
1. Lend his money at interest,
2.' Donate a piece of his land to his infant son.
3. Sell his car.
4. Sue his neighbor for damages.
The land, money, and car are Mamirapal’s separate property
derived from his own income. He is not sure whether he can
legally do all these things without his father’s consent and
assistance. He \comes to you for: advice. What advice will you
give him?
Answer:
I will advice Mamirapal: (1) to lend his money at inte­
rest without securing his father’s consent or assistance;
(2) to donate a piece of his land to his infant son, but with
father’s consent; (3) to sell his car without father’s consent
or assistance; and (4) to sue his neighbor for damages, but
With his father's assistance. Although Mamirapal is already
emancipated, his emancipation is not perfect or plenary' in
character. Under the law, he cannot borrow money or alien-
463
ate or encumber real property without the consent o f his
father. Neither can he sue or be sued without the assistance
of his father. It is obvious that only Nos. (2) and (4 ) fall
within the purview of these exceptions.
(N o te — The above answer is based upon Art. 399 of the
Civil Code).
Answer - The C.C. provides that an emancipated
minor cannot borrow money, alienate or encumber real pro­
perty without the consent o f his parent or guardian. Neither
can he sue or be sued without the assistance of his parent or
guardian. Therefore, the answer to questions:
1)
2)
3 )'
4)
Yes, he can legally do it alone;
No, because donation is a form of alienation;
Yes, as property is movable;
He needs the assistance of his father.
Question No. 3:
After a whirlwind courtship of two weeks, Marikit;
starry-eyed and captivated, got married to Mr. Masanting.
Soon after the honeymoon, however, Marikit discovers that
Masanting was not the knight in shining armor she thought
she married. She received official information that Masanting
had been dishonorably discharged from the army for de­
sertion. She also learned that Masanting had a string of liaisons
with all kinds of women during his army career. What infu­
riated Marikit was that Masanting had concealed all of these
from her and, in fact, had woven tales of gallantry on the
battlefield and of deep religious conviction which made him
lead a pure life. Promptly upon discovering the truth about
Masanting and within the first year o f their marriage, Marikit
sues to annul the marriage on grounds of deception and
fraud. Will her action prosper? Explain.
Answer:
Her action for annulment will not prosper.
464
The fraud and deceit do not constitute fraud as a
ground for annulment of a marriage. The C.C. provides that
no other misrepresentation or deceit as to character, rank,
fortune or chastity other than those enumerated shall consti­
tute fraud as well as a ground for annulment of marriage.
Answer — Marikit’s action will not prosper. According
to the Civil Code, any of the following shall constitute fraud
which will entitle a contracting party to ask for the annul­
ment o f the contract of marriage:
(1)
(2 )
(3 )
misrepresentation as to the identity of the con­
tracting parties;
non-disclosure of the previous conviction of the
other party of a crime involving moral turpitude,
and the penalty imposed was imprisonment for
two years or more;
concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man
other than her husband.
No other misrepresentation with respect to character,
rank, fortune or chastity shall entitle a contracting party to
ask for the annulment of the marriage.
It is clear that the misrepresentation employed by
Masanting are merely deceptions with respect to character
and chastity. Therefore, there is no ground for Marikit’s
asking for the annulment ofher marriage to.Masanting.
(N ote — The above answer is based on Art. 86 of the
Civil Code.)
Question No. 4:
Mrs. Napintas, five months pregnant, had to undergo an
emergency appendectomy but, in the course of the surgery,
through the negligence o f the surgeon, she suffered an
abortion.
465
Mr. Napintas, as father, filed a suit for damages against
the bungling surgeon for the loss of the child. Will the suit
prosper? Is it possible for Mr. Napintas to get damages of
some sort? Explain.
Answer:
The action for damages for loss of the child (fetus) will
not prosper because as held by the Court in the case of Geluz
v. C.A., the foetus is not a person. But moral damages may
be recovered for mental anguish for loss of parental expect­
ancy. Perhaps, even exemplary damages may be recovered.
Answer — It would be possible for Mr. Napintas to claim
moral damiages for whatever hurt feelings and remorse he
may have felt by reason of the loss of the child which was a
result o f the negligent act of the doctor.
The act of negligence would be the basis for damages
that he may claim.
As for the child per se, no damages may be claimed on
behalf of the cliild or for the death of the child as civil per­
sonality begins from the moment of birth. Here, the child
was never bom.
Answer — The suit instituted, by Mr. Napintas wili not
prosper. The basis of the suit is the loss or death of the child.
True, damages may be awarded for death caused by a crime
or a quasi-delict. However, in the instant case, the unborn
child never died because it never acquired a juridical person­
ality.
The law expressly limits the provisional personality of a conccived child by imposing the condition that the child should
be subsequently borri alive. Here, the child was not alive
when separated from its mother’s womb.
Although Mr. Napintas cannot recover damages from
the bungling surgeon for the loss or death of the unborn
466
child, it is submitted that ho can recover actual damages,
moral damages, exemplary damages, and attorney’s fees,
but the basis will be ■the quasi-delict committed by the
surgeon.
(N ote - The first paragraph- of the above answer is
based upon the case of Geluz vs. CA, 2 SCRA 801, and upon
Art-. 40 and 41 of the Civil Code in relation to Art. 2206 of
the same Code, while the second paragraph is based upon the
law on quasi^delicts and the law on damages;)
Question No. 5:
Mahinhin lost her diamond ring when the bus she was
riding .on was help up by a band of brigands who divested
the passengers o f all their money and valuables. The ring
found its way to the Pasanglaan pawnshop, where one of the
robbers had pawned it. The pawnshop, in due time, fore­
closed the pledge and sold the ring at public auction to Mayaman, the highest bidder.
Three years after the loss, Mahinhin was able to trace
the ring to Mayaman and demanded that the latter give the
ring back to her. Mayaman refused, saying that he had
acquired the ring in good faith.
Who was the better right to the ring? Explain.
Answer:
Mahinhin, the owner, still has a better right to the ring.
She had been unlawfully deprived of the ring, therefore, not
even an innocent purchaser in a pawnshop can claim a better
right. However, Mayaman has to be reimbursed.
Answer — Art. 559 will apply as the owner was unlaw­
fully'deprived on her right and may recovei" it even from an
innocent purchaser. However, as the buyer bought it in a
public sale, Mahinhin is duty bound to reimburse the price
paid before she can recover the ring.
467
Answer — Mahinhin has the better right to the ring, but
he must reimburse Mayanian ’the price paid by the latter
in acquiring said ring at the public auction sale.
True, Mayaman acquired the ring in good faith. His pos­
session, therefore, is. equivalent to a title. But then, Mahinhin
was unduly deprived of the ring. Under the law, one who has
lost any movable or who has been unduly deprived thereof
can recover the movable even -from a possessor in good faith.
The only exception the law allows is when the possessor had
acquired the movable in good faith at a public sale. In such
case, the owner cannot obtain its return without reimbursing
the price paid therefor. As held in so many notable decisions,
even the common law principle (that were one of two in­
nocent persons must suffer by fraud perpetrated by another,
the law imposes the loss upon the party who, by misplaced
confidence has enabled the fraud to be committed) cannot
be applied in a case which is covered by an express pro­
vision of the Civil Code. Between a common law principle
and a statutory provision, the latter must prevail.
(N o te — The above answer is based on Art. 559 of the
Civil Code and on a long line of decisions of the Supreme
Court.)
Question No. 6:
Magaling, Malugod and Masanting are co-owners in equal
shares, pro indiviso, o f a 9,000 square meter residential lot
in Quezon City. Magaling needs money badly and sold a
specified 3,000 square meter portion o f the lot, describing
in the deed the metes and bounds of the part sold. When, the
buyer demanded the portion sold to him, Malugod and Ma­
santing argued that under no circumstances whatsoever may
any part o f the lot be sold without the consent of the two
other co-owners. Is their contention correct? Explain.
Answer:
A co-owner can always sell his share in the co-ownership
without the consent of the other coowners. However, the
sale is limited to the ideal share or pro-indiviso share of the
vendor, subject to partition later on. The sale of Magaling
would, therefore, only pertain to 1/3 share o f the property
and the buyer cannot demand a specific portion of the lot.
Answer — Under Art. 493, a co-owner may sell his
undivided interest in the thing owned in common, without.
the consent of her co-owners. However, what was sold here
was a determinate portion of the land, which cannot be sold
by a co-owner until the property is partitioned..
Answer - I would like to qualify my answer. If by “part
o f the lot,” Malugod and Masanting refer to a specific portion
■ o f the property owned in common, then they are correct.
The buyer cannot now demand for the delivery of the pro­
perty sold by Magaling to him. However, if by, “part of the
lot” , Malugod and Masanting refer to the undivided or pro
indiviso share of Magaling, then they are not correct; Under
the law, each co-owner may alienate his “part,” but the
effect with respect to the co-owners shall be limited to the
portion which may be alloted to him in the division upon the
termination of the coownership.
(N ote — The above answer is based upon Art. 493 of
the Civil Code. We recommend that an answer declaring that
Malugod and Masanting are correct using Art. 493 as reason
should also be considered correct.)
Answer — The sale is valid (Clarin vs. Rulona 127 SCRA
512). The Supreme Court has ruled that sale of a definite
portion is valid (Per J. Gutierrez).
Question No. 7:
Mr. Magabun and Mr. Ortelano each delivered 1,000
kilos of palay to Mr. Kono for milling. Magabun’s rice was
Milagrosa quality and was worth three times more per kilo
than the rice of Ortelano. Before Mr. Kono could mill the
rice, an accidental fire broke out in the mill. Kono was able
to save one half of the rice of both Magabun and Ortelano
469
but in the confusion, the rice ended up mixed and com­
mingled. What are the respective rights of Magabun and Orte­
lano over thejmxlure? Explain.
Answer:
Magabun, owner of the Milagrosa rice., shall own 3/4 in­
terest of the mixture, while Ortelano, the owner of the
regular rice shall own 1/4 interest in the mixture. This is
because the Milagrosa rice was worth three times more than
the ordinary rice.
Answer - This is a case of commixtion under C.C. Botli
Magabun and Ortelano will be owners of the rice saved, in
the proportion of 3:1.
Answer — Magabun and Ortelano shall each acquire
a right proportional to the part be ongjng to him, bearing in
mind the value of the things mixed.
We have here a perfect example of what the law calls
commixtion effected by chance. That means that each shall
be considered as having acted in good faith. Since the rice
belonging to Magabun is worth three times more-per kilo
than the rice belonging to Ortelano, therefore, the mixture
will be divided between the twain the proportion of three is
to one. Magabun shall be entitled to three-fourths (3/4) of
the mixture, while Ortelano shall be entitled to one-fourth
(1/4).
(N o te — The above answer is based upon Alt. 47^ of the
Civil Code.)
Question No. 8:
Mr. Magaling obtained a judgment against Mr.
in the amount of P500,000.00. A writ of execution
pursuant to which various personal properties of
were levied upon by the sheriff. An auction sale
duled.
Mayaman
was issued
Mayaman
was sche­
Before the appointed day of the auction, Mayaman
delivered to the sheriff a cashier’s check of Far East Bank in
the amount of P200,000.00 and enough cash to cover the
remainder of the total amount due. Magaling refused to
accept the check and asked the sheriff to procced with the
auction sale.
Did Magaling have the right to refuse the payment of
part of the obligation with a cashier’s check? Explain.
A tiswer:
Magaling did not have the right to refuse the payment
of part of the obligation with a cashier’s check.
The Central Bank Act provides that a check which has
been cleared and credited to the account of the creditor shall
be equivalent to a delivery to the creditor in cash in an
amount equal to the amount credited to his account.
Analyzing the above provision, it is clear that the
cashier’s check of Far East Bank, a reputable bank, and
credited to the account of Mayaman has legal tender power.
Therefore, there was no basis for Magaling in refusing pay­
ment of the obligation.
(N o te : — Thfe above answer is based on Art. 1249 of the
Civil Code. The exception in New Pacific Timber and Supply
Co. vs. Seneris, 101 SCRA 686, refers to '‘Certified Check”
because the reason given in that case was based on Sec. 63
of the Central Bank Act. However, a contrary answer that
“Cashier’s Check” is payment in cash may be considered
correct because the above case confused cashier’s check with
certified check — hence examinee should be given benefit
of doubt.)
Answer - It is well settled that a cashier’s check is as
good as cash. The law, however, provides that a creditor may
refuse payment if it is other than legal tender.
471
Although the creditor has the right to refuse; the pay­
ment in the form of the check, he cannot do so without any
justifiable reason. Under the Chapter on Human Relations ,
in the Civil Code, a person, in the exercise of his rights, must
act with justice x x x. Therefore, although technically the
creditor can refuse the check, he could be made liable if he
refused the cashier’s check for no good reason or in bad faith.
Answer — Although a cashier’s check may be as good
as cash, still it is not legal tender, and the sheriff may refuse
to accept die check, as it does not produce the effect o f pay­
ment until cashed.
Question No. 9:
On due date, Mayutang, finding himself unable to pay
Makaragdag his P500,OOO.iJO obligation, proposed in a letter
to Makaragdag that he would deed over to Makaragdag his
Mercedes Benz car, “ to be applied to the amount which I
owe you.” The following week, Mayutang sent the car to
Makaragdag with, the proper deed of conveyance. It was
accepted.
Was the arrangement a valid way of settling the ob­
ligation? Explain.
After the delivery of the car would Makaragdag have
any further claim against Mayutang if the value of the car is
found to be less than the P500,000.00 obligation? Explain.
Answer:
The general rule according to commentators (Castan and
Manresa) is that dation extinguishes in full the obligationthe exception is a contrary agreement because then it be­
comes assignment of rights — hence valid only up to the
value.
Answer — The arrangement was a valid way of settling
the obligation. The law provides that payment for an ob-
472
ligation may be made by delivery of other property.
Answer — The creditor can claim the deficiency be­
cause the debt shall only be extinguished up to extent of the
value of the property given to him, since the agreement was
that the car was ’’to be applied “ to the amount owed.
Answer - Yes, the arrangement was a valid way of
settling the obligation. Under the Civil Code, there are several
special forms of payment which will have all of the effects of
a valid payment. One of them is dation in payment ( dacion
ei) pago). It is defined as the transmission of the ownership
of a thing by the debtor to the creditor as the accepted equi­
valent o f the performance o f an obligation, According to
the Civil Code, the law on sales shall govern the transaction.
Thus, in the instant problem, the Mercedes Benz car is con­
sidered the object of the contract of sale, while the debt
of P500.000 is considered the purchase price.
If the value of the car is found to be less than the
P500,000.00 obligation, would Makaragdag have any further
monetary claim against Mayutang? Normally, dacion en pago
has the effect of extinguishing the obligation to the extent o f
the value of the thing delivered either as agreed up cm or as
may be proved, unless the silence of the parties signifies that
they consider the delivery o f the thing as the equivalent of
the performance o f the obligation. It must be observed,
however, that Makaragdag accepted the delivery o f the car
without any protest or objection. The entire obligation,
therefore, is deemed fully complied with.
(N ote: The above answer is based upon Arts. 1245 and
1235 of the Civil Code and upon Lopez vs. CA, 114 SCRA
671.)
Answer — The arrangement is a valid way of settling
the obligation which is known as “ dacion en pago.” As to
whether the delivery of the car was in “full satisfaction” of
the debt or to be merely “applied” to the whole indebted­
ness is another question. The interpretation of their agree­
ment would depend on the difference between the value of
473
the car and P500,000.00. If the difference is very great, the
intention of the .parties would be that the car is not in “ full
satisfaction” of the debt.
Question No. 10:
The Betis Furniture Co. undertook to' deliver to Mr.
Bagongkasal specified pieces of living room, dining room and
bedroom furniture, all made of narra, for a price stated in the
contract. The agreement had a penal clause that any violation
of the contract would entitle the aggrieved party to damages
in the amount of P100,000.00. The furniture delivered by
Betis was made, not of narra, but of inferior wood.
In a suit to recover damages, Bagongkasal was able to
prove that the actual damages he sustained amounted to
P200,000.00. He demanded that amount plus the P100,000.00
penalty or a total of P300,000.00. Betis, however, countered
that if it were liable for damages at all, the maximum award
should not exceed P100,000.00 as stated in the penal clause
of the contract.
Whose claim would you sustain? Why?
Answer:
I would sustain the claim of Betis. A penal clause is
supposed to answer for damages without the introduction of
proof as to actual damages. It is to be noted that the penal
clause has been freely agreed upon between the parties pre­
cisely with the intention of doing away with having to
present proof of damages.
Answer — I shall sustain the claim of the defendant
Betis. Furniture Go, The Civil Code is explicit. According to
said Code, in obligations wfth a penal clause, the penalty shall
substitute the indemnity for damages and the payment of
-interests in case of non-compliance. There are only three
exceptions to this rule. They Eire: first, when there is a
stipulation to the contrary: second, when the creditor is com­
474
to sue the debtor because of the latter’s refusal to pay
the agreed penalty; and third, when the debtor is guilty of
fraud. It is clear that thfe instant case does not fall within the
purview of any o f the three exceptions. Therefore, the award
in favor of the plaintiff should be for P I 00,000.00 only.
p e lle d
Answer _ f shall not sustain the claim of Betis Fur­
niture Co. The Civil Code is explicit. According to said Code,
in obligations with a penal clause, the penalty shall substitute
the indemnity: for damages and ‘the payment of interests
in case o f non-compliance. There are three exceptions to this
rule. They are: first, when there is a stipulation to the con­
trary; second, when the creditor is compelled to sue the
debtor because of the latter’s refusal to pay the agreed
penalty; and third, when the debtor is guilty of fraud. It is
clear that the instant case falls within the purview of the
third exception. The furniture delivered, by Betis was made.
not of narra, but of inferior wood. That indicates that the
debtor committed fraud in performing its obligation. There­
fore. the award in favor of the plaintiff should be for
P200,000.00 actual damages plus the PI 00,000 penalty.
Answer — Under the doctrine of G.A. Machineries, Inc.
vs. Yaptinchay, 126 SCRA 78 (ponente J. Gutierrez) there is
breach o f contract not breach of warranty. The breach is
fraudulent. Under the doctrine-of Mariano PamintUan vs.
CA, SCRA 556, since debtor is guilty of fraud — “The proyen
damages supersede the stipulated damages (penalty)” citing
Art. i 226 Civil Code of flie Philippines).
Answer
Here there is a breach o f warranty and Betis
Furniture Co. must know the difference between “narra”
and other kinds o f wood. Therefore, in delivering the fur­
niture made of inferior quality, it undoubtedly acted frau­
dulently, and under the C.C. the buyer in this case would
be entitled to be reimbursed the difference in value of the
furniture and the price 'he pa i'd (P200.000) and damages
(p e n a lt y - P I 00,000).
475
Question No. 11:
By means of a public instrument, Mr. Nagbibili sold his
mango plantation to Abenturero effective immediately. The
document stipulated, however, that delivery would be
effected six months from the execution of the deed o f sale.
When the said period arrived, Abenturero demanded delivery
in writing but Nagbibili dilly-dallied. It was not until a month
afterwards that Nagbibili finally gave the land to Abenturero.
In the three weeks before delivery, Nagbibili sold and delivered
the entire produce of the mango plantation to Mr. Commerciante for P200,000.00. Commerciante knew nothing of the
contract between Nagbibili and Abenturero. Abenturero now
seeks to recover from Commerciante either the full value of
the mangoes or a similar amount and quality of the mangoes
sold.
Does Abenturero have this right against Commerciante?
Explain;
Answer:
Abenturero does not have any right, whether personal
or real, to procedd against Commerciante.
In obligations to give, the creditor has a right to the
thing which is the object of the obligation and to the fruits
thereof when the obligation to deliver arises. The obligation
to deliver arises from the moment of the perfection of the
contract. In sales, once the contract is perfected, the vendor
is bound to deliver the thing sold and the fruits, unless there
is a stipulation to the contrary. In the instant problem, there
is a stipulation that delivery will be effected six months
from the execution of the deed of sale. Instead o f delivering
the mango plantation and the fruits o f Abenturero in accord­
ance with the agreement, Nagbibili breached the contract
by delaying the delivery of the plantation beyond the period
agreed upon and by selling the fruits to Commerciante. How­
ever, since there was still no delivery of the plantation and
the. fruits, it is obvious that the only right which Abenturero
476
)
had acquired was a personal right enforceable against Nagbi­
bili, not a real right enforceable against the whole world.
Ergo, he can' now proceed against Nagbibili for i'ndemnifi, cation for damages. He cannot proceed against Commerciante
who was not even aware of the existence of the contract
between Nagbibili and Abenturero.
(N o te — The above answer is based upon Arts. 1164 and
1537 of the Civil Code and upon decided cases.)
Answer — Although the buyer is entitled to the fruits of
the land from the time of perfection of the contract, still he
did not acquire a real right over the fruits until they are deli­
vered to him. Therefore, Abenturero has no right of action
against Commerciante.
Answer — The seller is supposed to deliver to the buyer
the thing sold as well as the fruits and accessions that accrue
from the moment of perfection. Abenturero is entitled to
the fruits of the mango plantation from the time of the
execution o f the public instrument which provided that the
sale was to be effective immediately. Delivery may be either
actual or constructive. The execution of public instrument
is one of the modes of constructive delivery.
Question No. 12:
Carlos, legitimate son of Jaime and Maria, was legally
adopted by Josefa. Both Jaime and Maria died soon after the
adoption. Carlos, himself died in 1986. His survivors are
Josefa, his legitimate maternal grandparents Daniel and Rosa,
his wife Fe and his acknowledged natural son, Gerardo.
How should the estate o f Carlos worth. P800,000.00 be
apportioned among the above survivors? Explain.
Answer:
The estate o f Carlos worth P800,000 should be appor­
tioned as follows:
1. Josefa — one-half, or P400,000.00;
477
2. Fe — one-fourth, or P200,000.00; and
3. Gerardo - one-fourth, or P200,000.00.
As a rule, the adopter cannot inherit from the adopted
child by intestate succession. If the adopted child dies in­
testate, leaving no child or descendant, his parents and rela­
tives by consanguinity and not by adoption shall be his legal
heirs. There is, however, an exception to his rule. According
to the law, if the parents by nature of the adopted child are
both dead, the adopter takes place o f such parents in the line
o f succession, whether testate or intestate. Therefore, in the
instant problem, Josefa shall take place of Jaime and Maria.
The grandparents Daniel and Rosa are therefore excluded.
Consequently, applying the rules of intestacy, Josefa shall
be entitled to one-half (1/2) of the estate by substitution;
Fe shall be entitled to one-fourth (1/4) as surviving spouse;
and Gerardo shall be entitled to one-fourth (1/4) as illegiti­
mate child.
(N o te : The above answer is based upon Arts. 984 and
100 Civil Code and upon Art. 39, No. (4), P.D. 603).
Answer — Under P.D. 603, the adopter takes place of
the parents by nature if the latter are dead, both as a com­
pulsory and a legal heir. Therefore, as the adopted is survived
by his wife, an acknowledged son arid his maternal grand­
parents, adopter inherits in the same way as a legitimate
parent, and they will share as follows:
Josefa
1/2
Fe (w ife)—
1/4
Gerardo(acknowledged natural child)
1/4
Question No. 13:
Mr.. Burnside, a citizen of the State of California but
domiciled in the Philippines, made a will in Manila providing
that his estate should be distributed in accordance with
478
Philippine law. At the time of his death, Burnside’s estate
consisted of bank accounts in various Philippine banks.
Is the testamentary provision valid? Explain.
What law would govern if Burnside had not made such
a testamentary provision. Explain.
Answer:
The testamentary provision is not valid. According to
the Civil Code, there are four aspects of succession which are
governed by the national law o f the decedent if he is a
foreigner. They are: flrsj, the order of succession; second, the
amount of successional rights; third, the intrinsic validity of
testamentary provisions; and fourth, the capacity to succeed.
It is obvious that the proviso in Burnside’s will providing
that his estate shall be distributed in accordance with Philip­
pine Law is contrary to the explicit mandate of the Civil
Code, Therefore, it is void.
If Bumside had not made the above-stated testamentary
provision, applying the doctrine of single renvoi, the law of
the Philippines shall be applied. Under the law of the Phil­
ippines, the national law of Bumside shall goVem. That
means the law of C alifornia. Now, what does the law o f Cali­
fornia say? According to the conflicts-rule-law of California,
the internal law of Burnside’s domicile shall govern and not
the law of California. So, the case is referred back (renvoi)
to the internal law of the Philippines. The law o f the Phil­
ippines shall, therefore^ be applied in the distribution of
Burnside’s estate.
(N ote: The answer to the first question is based upon
Arts. 16, par. 2, and 1039 of the Civil Code and upon Beilis
vs. Beilis, 20 SCRA 358. The answer to the second question
is based upon Art. 16, par. 2, of the Civil Code and upon
Aznar vs. Christensen-^Garcia, 7 SCRA 95.)
Answer — The validity of the testamentary provision
479
would depend on whether the law of California allows such
choice.
If Burnside had not made such testamentary provision,
Philippine law would govern, as in the case of Aznar, it was
found that California adopts the domiciliary theory. As the
decedent is domiciled in the Philippines, the.Philippine law
on succession will apply.
Answer — The laws of the country of which a person is
a citizen shall govern the intrinsic Validity of his will — as
to the order of succession and amounts to be distributed to
his heirs. The testamentary provision is therefore invalid.
However, the provision shall be given effect not by reason of
its validity but because of Philippine laws which have to
govern property situated in the Philippines,
Because his estate consisted only of bank apcounts in
Philippine banks* Philippine law should still govern.
Question No:. 14:
Busalsal executed a will in his handwriting, signed
by him at the end of each page on the left marginal space of
every page except the last page. The document bore no dateHowever, below Busal sal’s every signature, were the sig­
natures o f two witnesses, who later testified that the will was
executed in their presence on January 1, 1985, New Year’s
Day, and that Busalsal was in full possession of his faculties
at that time and even explained to them details of the will he
was writing down.
Is the will formally valid?
Explain.
Answer:
The will is not valid either as a notarial will or a holo­
graphic will. It is not«valid as a notarial will because this
requires 3 attesting witnesses. Neither is it a valid holographic
will because the will must be entirely written, dated and
480
signed in the handwriting of the testator. The fact that the
witnesses testified as the date of execution did not cure the
defect.
Answer - The will is not formally valid. Whether we
consider the will in the instant problem as a notarial will or
as a holographic will, it cannot be considered as a valid will.
If we consider it as a notarial'will, it is not be valid because
there are only two instrumental witnesses. Under the law on
notarial or ordinary wills, the will should have been subs­
cribed to and attested by three or more credible Witnesses.
Therefore, it is void. If we consider it as a holographic will,
it is not also valid because it is not dated. Under the law on
holographic wills, the will should have been entirely Written,
dated and signed by the hand of the testator himself. There­
fore, it is' void.
(N o te : The above answer is based upon Arts. 805 and
810 of the Civil Code and upon decided cases:.)
Answer — The C.C. provides that a holographic will
must be entirely in the handwriting of the testator, signed
and dated by him. It need not be witnessed. Hence lacking
the date, it cannot be allowed to probate. The law does not
alow extrinsic evidence to supply the omission.
Question No. 15:
Sumakay, a passenger on a bus owned and operated by
Kanlungan Bus Company suffered serious injuries when the
vehicle went out o f control and rammed ari electric post.
Tsuper, the bus driver, was, at the time of the accident, doing
100 kilometers per hour in a school zone and hit the post
because he was trying to avoid hitting school children cros­
sing the street.
In a suit for damages aeainst the bus company for the
driver’s gross negligence, Kartlungan interposed the defenses
that all its drivers were under strict injunction to observe
1 speed limits in their particular routes and that in any event.
481
the driver should first have been sued, held liable, and found
insolvent before Kanlungan could be proceeded against.
Are the bus company’s defenses tenable? Explain.
Answer:
I beg to qualify my answer. As far as the first defense
(that the drivers of the bus company were under strict
injunction to observe speed limits In their particular routes) is
concerned, it is submitted that said defense is untenable. This
is clearly stated by the Civil Code itself. In this jurisdiction,
we have never adhered to the principle of respondent super­
ior. We adhere instead to the principle that there is always an
implied duty on the part of a common carrier to carry a
passenger safely to his place o f destination.
Anent the second defense, if the civil action for
damages is impliedly instituted in the criminal action itself,
then, the defense is tenable. Under the principle of subsidiary
liability of employers, it is essential that there must be a
finding that the driver is insolvent before the bus company
can be proceeded against. However, if the civil action for
damages is separated from the criminal action, then, the
defense is untenable. Under the Civil Code, the liability of
the bus company is always directed and primary.
(N o te : The above answer is based upon Art. 1759 of
the Civil Code, upon Arts. 100 to 103 of the Revised Penal
Code, and upon Maranan vs. Perez, 20 SCRA 412.)
Answer — The bus company, if sued based on culpa
contractual, cannot raise the defense of diligence in the
supervision of its employees. The mere fact that there was a
breach o f the contract of carriage makes the company liable
for damages.
If the bus company was sued based on culpa aquiliana,
it cannot raise the defense that the driver should have been
first sued, held liable, and found insolvent before it could
482
be proceeded against because the company is a joint tort­
feasor. The company, therefore, has a primary liability, be
cause ofcu.ja aquiliana and not a subsidiary one.
Subsidiary liability on the part of the bus company only
results if there is an action based on culpa criminal against the
driver. If the latter is he}d liable but is insolvent, then the bus
company may raise the defense that is only subsidiarily
liable For the damages.
Answer - Liability of the Bus Company is contractual.
Due supervision of driver by the Bus Company, as well, as
violations of instructions, is not a defense. (Art. 17.59 Civil
Code of the Philippines) Liability of the Bus Company is
direct and primary — hence the Bus driver need not be im­
pleaded first.
Answer — The cause of action of the passenger against
the bus company is based on the contract of transportation.
Here such defenses a e not available to the bus company as it
is hound to exercise extraordinary diligence in the transport
of its passengers. The driver is not a party to the contract
of transportation and need not be joined in the same action.
The driver may be criminally charged.
Question No. 16:
Mr. Matunod lent Mr. Maganaka the amount of
P100,000.00. As security of the payment of said amount,
Maganaka delivered to Matunod two rings in pledge. When
Maganaka failed to pay, Matunod foreclosed, and had the
rings sold at auction. The proceeds of the sale, after deduct­
ing expenses,amounted to only P70,000.00.
(a) May Matunod demand the deficiency from Maganaka? Explain.
(b) Assume that the proceeds, after deducting ex­
penses, had come up to P I50,000.00. Would Matunod have
been entitled to the excess? Explain.
483
(c)
Suppose the rings, instead o f being pledged, had
been mortgaged to Matunod, would Matunod have been
entitled to the deficiency if the sale’s proceeds were less than
the indebtedness or to the excess, if the proceeds were
more? Explain.
'
Answer:
The C.C. on pledge provides that the foreclosure o f the
pledge extinguishes the principal obligation, whether the pro­
ceeds o f the sale are more, or less than the obligation. Hence,
a)
Matunod cannot recover the deficiency,
b)
Matunod is entitled to keep the excess, unless
there is a stipulation to the contrary. .
c)
If it is a chattel mortgage, Matunod can still re­
cover the deficiency as there is no prohibition in
the Chattel Mortgage Law similar to pledge and the
excess, if any should be returned to the mortgagor
(Maganaka).
Question N o ' 17:
Mayroon, Magari and Kilalanin Sr. are co-owners in
equal shares o f a piece o f land; Kilalanin Sr. sold his un­
divided interest to his son Kilalanin Jr. A week later, May­
roon and Magari served notice on Kilalanin Jr. o f their
intention to redeem the portion sold. However, Kilalanin Jr.
refusied to allow redemption jarguing that being the son of
Kilalanin Sr., he was not a third person in contemplation o f
law with respect to redemption by co-owners.
Is the refusal by Kilalanin Jr. justified? Explain,
Answer:
The son is still a stranger, and under the C.C. when a
share o f a co-owner is sold to a third person, the other co-
484
•"’•B
owners may exercise the right of legal redemption.
A third person is defined by the court in one case as
“ one who is not a co-owner.”
Answer - No. He is a 3rd person in contemplation of
law. The law considers as a 3rd person any purchaser who is
not one o f the co-owners. The fact that he is the son of the
vendor - co-owner does not make him a co-owner as in fact
the son had acquired the interest o f his father by purchase.
Answer ■
— Yes. the son is not a third person (Villanueva
vs. Florendo, 139 SCRA 329).
Question No. 18:
Mapusok sold his lot to Masugid under a pacto de retro
sale. The lot was registered under the Torrens system but the
pacto de retro sale was not registered. Subsequently, Masigla
obtained a money judgment against Mapusok. Pursuant to
a writ oi execution, the lot was attached, the attachment
being annotated on the certificate of title. The purchaser at
the public auction was Masigla himself. When Masigla sought
to register his title, Masugid opposed the registration on the
ground o f the prior pact de retro sale to him.
Who as between Masugid and Masigla has the better
right to the land? Explain.
Answer:
Under the doctrine of Campillo vs. CA. 129 SCRA 5.13,
Masigla has a better right because at the time of attachment
and sale at public auction, the property was still registered in
name of Mapusok — hence the rule on Torrens Titled land
and Art: 1544 Civil Code of the Philippines (double sale)
will apply.
Answer — Masigla has a better right because he is an in­
nocent purchaser for value. He cannot be required to go
485
beyond or outside of the four comers of the certificate of
title presented to him.
Answer — Although the Torrens system requires regist­
ration o f conveyances and other instruments affecting
registered lands as the “ operative act” to convey and affect
the property, and if not registered, the contract is binding
only as between the parties, still the purchaser at an exe­
cution sale under the Rules o f Court merely acquires the
rights of the judgment debtor in the property, and “steps
into the shoes” o f the judgment debtor (Mapusok). There­
fore, Masugid is entitled to the land as a vendee a retro iand
Masigla (purchaser) merely acquired Mapusok’s (judgment
debtor) right to redeem the land under the pacto de retro
sale, from-Masugid.
Question No. 19:
Through fraud, Manukso was able to obtain in his name
a transfer certificate of title over a piece of land belonging
to his ward, Kamusmusan. Subsequently, Manukso donated
the property to Hinandugan, who, completely unaware of
Manukso’s prior fraudulent conduct, obtained a Torrens
Title in his name.
Five years after the registration in Hinandugan*s name,
Kamusmusan filed an action for reconveyance. Will the
action prosper? Explain.
Answer:
The Torrens system protects only an innocent purchaser
for value who relies on the certificate of title of the vendor.
Hinandugan is not a purchase but a mere donee. Hence the
real owner Kamusmusan can recover the land from Hinan­
dugan on the ground of constructive trust, which the court
ruled prescribes in 10 years.
486
Answer — The rule o f Constructive Trust will not apply
if the property is in the hands o f a third person who got the
property for value and in good faith. Since under our law,
love and affection are sufficient consideration, it falls under
the term “value” because under our law “value” is not
limited to material consideration. Hence, Hernandez is a
third person within the meaning o f the law. The action will
not prosper.
Answer — No. The conclusive presumption o f owner­
ship covered by a Torrens title, cannot be defeated except
if such registration is obtained by fraud. But the fraud that
was perpetrated by the guardian is not the fraud that can
defeat the conclusiveness o f ownership under a Torrens tide.
Furthermore, the fact that the registration had subsisted for
five years strengthens the indefeasibility of the title of the
registrant.
The ward can perhaps go after his guardian for the
damage or loss caused to him, but not the person who
ohtained the Torrens title.
Question No. 20:
Makisig and Marikit, who are first cousins, are Filipino
citizens. They had a romantic affair and begot a child
Maganda, in the Philippines. They decided to migrate to the
Republic of Helios where marriages between first cousins are
allowed. They got married there. Subsequently, they drew
up a joint affidavit recognizing and legitimizing Maganda.
Years later, they returned to the Philippines. They never lost
their Philippine citizenship. What is the status of the marriage
between Makisig and Marikit? What is Maganda’s status?
Explain.
Answer:
The marriage is void. Filipino citizens are bound by the
laws of the Philippines with regard to their capacity to marry,
regardless o f where the marriage is celebrated. This is an
487
incestuous marriage which under Philippine laws is void from
the very beginning.
The child is an illegitimate child other than natural, or
spurious.
Answer — The marriage between first cousins is void
even if valid in the place where celebrated. Philippine law
follows the citizen even if abroad, and such marriage is con­
sidered incestuous under Philippine law.
The child cannot be ligitimated because she Is not a
natural child as,her parents suffered from a legal impediment
to marry each other at the time of her conception. She is
an illegitimate child, who is not a natural child.
488
1985 BAR EXAMINATION
Question No. 1
A ) Although far from reality, everyone is conclu­
sively presumed to know the law pursuant to Article 3
of the New Civil Code which states that “ignorance of
the law excuses no one from compliance therewith.”
Discuss the underlying philosophy behind said pro
vision.
B ) Among the restrictions on capacity to act a w
minority, insanity, deaf-mutism, prodigality and civil initerdiction, all of which do not exempt the incapacitated
person from “Certain obligations.”
Explain and discuss the said rule and illustrate its
application by specific, examples.
Answers:
A)
1. The philosophy of the law is founded upon
public policy. The rule excludes ignorance as an excuse
for not complying with the; law. Acts contrary to law
should not have the same effects as when done conform­
ably with the law merely because of ignorance.
2. The philosophy of the law is founded upon public
policy. The rule excludes ignorance as an excuse for not
complying with the law. Acts contrary to law should
not have the same effects as when done conformably
with the law merely because of ignorance. It is based on
necessity and expediency.
3. ignorance of the law does not excuse compliance
with the law of the land (Art. 3, Civil Code) whether
civil or penal and whether substantive or remedial. This
principle is founded not only on expediency and public
489
policy but on necessity; otherwise, an easy shelter from
a disregard of the law may easily and conveniently be
available.
4.
Ignorance of the law does not excuse compliance
with the law of the land (Art. 3, Civil Code) whether
civil or penal and whether substantial or remedial (Peo­
ple vs. Malvar, 21 SCRA 1119). Thi3 principle is found­
ed not only on expediency and ptiblic policy but on neces­
sity (see Zulueta vs. Zulueta, 1 Phil. 256); otherwise
an easy shelter from a disregard of the law may easily
and conveniently be available.
B)
1. Such incapacitated person is not exempt from
all obligations except those arising from contracts. In
other words, he is liable if the obligation arises from
law, from delicts, from Q u a si -delicts.
2. The general rule may be illustrated as follows:
An incapacitated person is not exempt from civil liability
except those arising from contracts; so he can be liable for
a c,rime committed by him. He may not be oriminally liable
but he is a civilly liable. One may be insane but does not
exempt him from his legal obligation to support his family.
3. A minor under 15 may commit a crime. He might
have committed it without discernment and therefore
would be free or exempt from the civil liability. With
regard to property relations, a 5-year-old child may in­
herit property and the fact that the new owner of the
property is-. incapacitated does not exempt the property
and himself from the burden of easement.
4. The rule is based upon lack of voluntariness of
the act due to physical or mental defects, and upon the
necessity of protection by the State because of disabilities;
Despite incapacity, a minor may be liable for crime. An
insane person must recognize legal easements on his pro­
perty. A person civilly interdicted may be liable for quasi­
delict.
490
5. Minority, insanity, deaf-mutism, prodigality and
civil interdiction are mere restrictions on capacity to act
and do not necessarily exempt the incapacitated person
from certain obligations. Among such obligations are those
arising from his. acts or from property relations. Accordingly,
a minor may be estopped by his misrepresentations; and an
infant may be held civilly liable fear his tortious conduct,
a rule that is more preferable than to let the guiltless victim
suffer the loss.
6. Minority, insianity, deaf-mutism, prodigality and
civil interdictions are mere restrictions on capaicity to
act and do not necessarily exempt the incapacitated par­
son from certain obligations. Among such obligations are
those .arising from his acts or from property relations
(Arts. 38-39, Civil Code). Accordingly, a minor may be
estopped by his misrepresentation (Mercado vs. Espiritu,
37 Phil. 215); and an infant may be held iiable for his
tortious conduct, a rule that is preferable than to let the
guiltless victim suffer the loss (See Magtibay vs. Tiangco,
74 Phil. 576).
Question No. 2
A and B were married on January 1, 1980, Two
weeks later, on their way home from honeymoon, the
car A was driving turned turtle. A died instantly while
B was unharmed. A month thereafter, B had illicit re­
lations with C. On October 15, 1980, B gave birth to X.
In X 's birth certificate, B declared that X's father is C,
Resolve the issue of X ’s paternity with reasons.
Answers:
1. X is presumed to be the legitimate child of A
because X was born after 180 days from the celebration
of the marriage and within 300 days after the dissolu­
tion of the marriage due to the death of A. The declara­
tion of B (the mother) has no legal effect.
2. A child born after 180 days following the celebra­
tion of a marriage, and before 300 days following its
491
dissolution,, or the separation of the spouses, is quasiconclusively presumed to be legitimate. Against this pre­
sumption, no evidence shall be admitted other than that
of the physical impossibility of the husband having access
to his wife within the first 120 days (period of concep­
tion) of the 300 days which preceded the birth of the
child. (Macadangdang vs. Court of Appeals, L-40542, 12
Sept. 1980).. This physical impossibility may be caused
by—
1) The impotence of the husband;
2) The fact of the husband and wife living separate­
ly in such a way that access was not possible; or
3) The serious illness of the husband.
(A rt. 255, Civil Code).
None of the above exclusionary instances are shown. Ac­
cordingly. X must be considered a legitimate child of A
and B.
Question No. 3
A t the time of the dissolution of -the marriage by
the death of (the husband) A, he and his wife, B, were
possessed of the following properties:
1) A house and lot 1/3 of the price of which A paid
before his marriage, 1/3 during the marriage from his
salary, and the balance also during the marriage from
money B received in payment of a loan obtained from
her while still, single ; and
2) A n apartment house constructed on a parcel of
lot donated to B prior to the marriage.
Who owns the foregoing properties and what obliga­
tions, if any, does the owner have for the improvements
introduced thereon? Discuss.
Answer:
1)
1. The house and lot ia a separate property of
A subject to reimbursement of 1/3 of the price to the
conjugal partnership and another ’/j to his wife B.
492
2. If the sale was made before the marriage and
there is no reservation of the ownership then the pro­
perty is capital of the husband but he must reimburse
the conjugal partnership for 1/3 of the price and wife
another 1/3 of the price.
3. If there is a reservation of ownership and the
ownership will transfer after the full payment of the
price, then the property is 1/3 carrital, 1/3 conjugal and
1/3 paraphernal.
4. I f it was acquired during the marriage, then the
property is 1/3 separate, 1/3 conjugal and 1/3 parapher­
nal.
5. Inasmuch as the property was acquired and 1/3
of the price was paid out of exclusive property, 1/3 from
the conjugal property, and 1/3 from the exclusive pro­
perty of B, then each will own the property proportion­
ately— 1/3 to A, 1/3 to the conjugal partnership and 1/3
to B.
6. The house and lot is exclusive in nature, but A
shall reimburse the conjugal partnership of gains for
the 1/3 price paid during the marriage which came from
conjugal funds (salary of A ) and B for the 1/3 balance
which was sourced from her paraphernal (see Art. 148,
in relation to Art. 153, Civil Code; Lorenzo vs. Nicolas,
91 Phil. 686).
2)
1. The apartment house is owned by the conju­
gal partnership subject to reimbursement to B for the
value of the land, improvements made on separate pro­
perty from advancements of the conjugal partnership or
the industry of either spouse belong to the conjugal part­
nership.
2. I f the house was constructed at the expense of
the conjugal funds, the land become automatically con­
jugal property but the payment of the price could be
made after the liquidation.
3. I f the house was constructed before the donation,
then the house and lot are paraphernal.
4. The apartment house is conjugal if it waa cons­
tructed during the marriage utilizing conjugal funds. In
493
event* the lot shall also be considered conjugal and
B sh a ll be considered a creditor of the partnership for
the value of the lot payable upon liquidation of the con­
jugal partnership (Art. 158, Civil Code; Calimlim-Canullas vs. J-udge Fortun) under other circumstances, or,
where the above conditions do not concur, said pieces of
property may be or remain exclusive in nature.
thi3
Question No. I
A ) Aside from the foregoing assets, A and B in the
preceding question had these obligations outstanding at
the time of A ’s death—
1) A debt contracted by B for the repair of
the house and apartment building above referred
to; and
2) A shortage in A ’s account as cashier of the
firm where he was employed.Against whom are these obligations chargeable?
Score your reasons.
B ) H is fortune having been wiped out by business
reverses, A demands support from C, the descendant of
A ’s deceased illegitimate son.
Is C bound to give support to A? Discuss.
Answer's: ■
A)
1. With respect to the house since it is a sepa­
rate property of the husband, minor repairs are to be
shouldered by the eonjugaJ partnership but major re­
pairs are for the account of the owner (husband A ) .
W ith respect to the apartment building, which is conju­
gal, then the major and minor repairs are for the account
of the conjugal partnership.
2) The debt i3 chargeable against the conjugal part­
nership since it redounds to the benefit of the partner­
ship
3) The debt contracted by B for the repair of the
house is an exclusive obligation of the husband A, but
the repair cost on the apartment house being conjugal
494
in nature, although contracted by B, the debt shall be borne
by ;the conjugal partnership (Art. 161, Civil Code).
2) 1. I f this shortage is a civil liability and the
obligation is cjntracted by A in his employment as cashier
from which he derives the support of the family then
the shortage is chargeable against the conjugal partner­
ship. But if A was convicted and ordered to pay the
shortage, it is chargeable against his separate property.
2. I f the shortage was incurred due to fraud or crime,
it is chargeable against the separate property of A. But,
if A acted in good faith, the shortage is chargeable
against the conjugal partnership, since the obligation was
incurred in the exercise of his profession, which redounds
to the benefit of the family.
3) Fines and pecuniary indemnities imposed upon
the spouses shall not be charged to the conjugal .partner­
ship; if, however, the spouse liable therefor has no suffi­
cient exclusive property, said obligation may be enforced
against the partnership assets after the responsibilities
mentioned in Art. 161 would have been covered, but at
the time of .the liquidation of the partnership, the said
spouse shall be charged for such payment (A rt. 161, Civil
Code).
B)
1. Yes, C is bound to give support to A since
the descendants of acknowledged natural children and
natural children by legal fiction are obliged to support
their grandparents. The exception arises in case o f des­
cendants of illegitimate children who are not natural
who do not have to support their grandparents.
2. No, C is not bound to give support to A since des­
cendants of illegatimate children who are not natural do
not have to support their grandparents.
3. No, because in the case of illegitimate children
the support is only between-the two— between the parent
and child. In case however, the illegitimate is an acknowl­
edged natural child or a natural child by legal fiction,
then, C is bound to support A.
4. W e must distinguish whether the illegitimate is an
acknowledged natural son or a natural son by legal fiction
495
or a spurious son. C is not bound to support A if the
illegitimate son is spurious. In the other two cases, C
is bound to support A.
5.
A parent may demand support from his acknowl­
edged natural children and the legitimate or illegitimate
of the latter. But if the illegitimate child is not natural,
the descendants of the latter may not be obligated to sup­
port said parent. (A rt. 291, in relation to Art. 287, Civil
Code). Accordingly, the right of A to demand support
from C would depend on whether or not B is a natural
or non-natural child of A.
Question No. 5
'
A is the owner of a four-story building which ad­
joins a three^-story house owned by B. A story of the two
buildings has a height of 3 meters. In 1950, A opened
in the dividing wall of the edifices two windows each
measuring one meter square, the first in the'fourth story
of his building close to the ceiling, and the second in the
third story, the window directly overlooking a small open
terrace in the third floor of B’s house In 1981, B demand­
ed the closure of the two (2 ) windows,
As A ’s counsel, what legal advice will you extend
to him and the reasons in support thereof?
Answ ers :
1. W e have to qualify as to which window, the first
window or the second window. W ith regard to the first
window on the fourth floor, the action will prosper be­
cause A has not acquired any legal easement of light
and view. He did not maiie any notarial demand and the
window opens through a wall belonging exclusively to A,
not a party wall. On the other hand, with respect to
the second window, the wall is a party wall and it has
been existing there for 30 years, therefore A has already
acquired a legal easement.
2. A s regards the easement Of light and view, open­
ing of windows which violate the provisions of the Civil
Code with respect to distances to the boundary line do
not give rise to prescription by express provision o f law.
3. The dividing wall appears to be owned by A ex­
clusively. Accordingly, Art. 670 will apply. I f it were
not a party wall, Art. 669 would apply.
I f it is a party wall, since the dividing wall is evi­
dently the common party wall of these two edifices, the
easement of light and view has been acquired by pre­
scription after the lapse of 31 years from the opening
through the party wall.
4. A s counsel for A , I would advise him to resist
tbe demand of B on the ground that A has an easement
in regard to these openings, it appearing that A had
continuous use thereof that lasted for over 30 years.
5. The dividing wall appears to be owned by A.
Art. 670 provides that “ No windows, apertures, balco­
nies, or other similar projections which afford a direct
view upon or towards an adjoining land or tenement can
be made, without leaving a distance of two meters Between
the wall in which they are made and such continguous
property. Neither can side or oblique view;s upon or to­
wards such conterminous property be had, unless there
be a distance of sixty centimeters. The nonobservance of
these distances does not give rise to preseription".
Art. 669 states that "when the distances in Article
670 are not observed, the owner of a wall which is not
a party wall, adjoining a tenement or piece of Iand be­
longing to another, can make in it openings' to admit
light at the height of the ceiling joints or immediately
under the ceiling, and of the size of thirty centimeters
square, and, in every case, with an iron grating imbed­
ded in the wall and with a wire screen,”
6. Since the dividing wall is evidently the commor
wall (party wall) of the two adjoining edifices, the ease­
ment of fight and view has been acquired by prescription
after the lapse of 31 years from the opening through the
party ■wall (A rt. 668, Civil C ode). Nevertheless, the owner
of the tenement or property adjoining the wall in which
497
the openings are made can close them should he acquire
part-ownership thereof, if there is no stipulation to the
contrary.
7.
As A's legal counsel, I would advise him to resist
B’s demand as the action to close the openings has already
prescribed although the easement itself of light and view
has not been acquired by prescription.
Question No. 6
As a token of affection arid esteem for his friend, B,
A donated to him by means of a public document his lot
at No. 2 Dart, Paco, Manila. In the same instrument, he
also donated to B an apartment of the Towers Condomi­
nium, Makati, in consideration of his services as manager
of Aps business during his long illness. B accepted the
two donations in a separate public instrument executed
on the same day A died but sent to him a day later. B
thereafter demanded the delivery of the lot and apart­
ment donated to him but A ’s heirs objected on the ground
that the donations were void because the donor did not
come to know of the acceptance prior to his death.
Discuss the validity of the questioned donations.
Answ er:
1.
The donation of the lot is out of pure liberality
and therefore governed by the provisions of donation
wherein it is required that the donor must be notified
o f the acceptance, during his lifetime. There is, here, no
valid acceptance, hence the donation of the lot is not
valid.
The donation of the apartment to B is an onerous
or remuneratory donation governed by general provisions
on contract. There is no need of knowledge of the accept­
ance by the other party because the services have already
been rendered. The donation of the apartment being in
consideration of services is an onerous donation governed
by the rules on Contracts which requires knowledge of
the acceptance.
498
2. The donation o f the lot is not valid because not
properly accepted since the donor died before knowing
of the acceptance.
3. The donation of the lot (A rt. 726) cannot be said
to have been validly perfected. The donation is perfected
from the moment the donor knows of the acceptance (A rt.
734) which the law requires must be made during the life­
time of the donor and o f the donee (A rt. 746). Since the
donor never came to know of the acceptance, the conten­
tion of the heirs of A that the donation did not become
operative is well-taken.
The same is true as regards the apartment unit.
4. The donation of the lo.t (A rt. 726) cannot be'said
to- have -validly perfected. The donation is perfected from
the moment the donor knows of the acceptance (A rt. 734)
which the law requires must be made during the lifetime
o f the donor and of the donee (A rt. 746). Since the donor
never came to know of the acceptance, the contention of
the heirs of A that the donation did not become operative
is well-taken.
As regards the apartment unit, the “ donation” there­
fore may be interpreted as dacion en pago (A rt.-1245) on
the assumption that the services rendered, to the “ donor”
constituted a demandable debt (A rt. 726). Hence, the do­
nation is valid.
5. Considering the management of A ’s business during:
his long illness, the donations are in contemplation of
death, and therefore void.
Question No. 7
A fte r one week of torrential rains, a portion of A ’s
plantation, with an area of one (1 ) hectare and planted to
100 coconut trees, was eroded, while to B ’s farm, on the
other bank of the same river, a tract of land, also one (1 )
hectare in area, on which stood 50 coconut trees, was add­
ed* An equal number of trees, thair roots exposed, were
found lying on the ground in B’s property. Seven months
499
later, A, alleging that the one-hectare lot and 100 coconut
trees were his, demanded their return but B, who had pre­
viously token possession of them, refused, claiming that
the land was formed by alluvion and, therefore, belongs
to him and that A has lost his right to the coconut trees
because he did not lay claim to them in due time. A there­
upon sued B fo r the recovery of the land and the coconuts.
W ill the action prosper? State the legal basis of your
answer.
Answers:
1. The one hectare land and the fift y coconut trees
still standing thereon, i f identifiable as the same property
detached from A ’a plantation can be recovered by A since
the two-year period of prescription of the action has not
yet lapsed.
The 50 uprooted coconut trees and the coconuts c * n
do longer be claimed by A since the claim has already pre­
scribed, such claim having been made beyond the period
of six months.
2. A can recover the land and the standing coconut
trees provided he prove three things :
a . a known portion o f land
b. that it was detached by the current of the river
c. that he recover the land within 2 years.
This is a case of avulsion and not alluvion.
3. There is no alluvion because the addition to B's
land was not gradual and imperceptible. There is no avul­
sion because the detachment of the land was not due to the
action of the •current of1the river but due to torrential
rains.
However, A may recover land and standing trees- if
he can identify the same due to the principle o f unjust en­
richment because he was damaged and B was enriched
without just cause due to fortuitous event. As regards to
uprooted trees, A's action is lost because he did not claim
them within 6 months.
500
4.
The provisions on avulsion, rather than alluvion
apply. Accordingly, the action fo r the recovery o f the land
will still prosper. The law allows the owner of the segre­
gated Iand to remove the same within two years from the
time avulsion takes place (A rt. 459). A, however, had lost
his right to. recover the coconut trees which can only be
claimed within 3ix months (A rt. 460).
Question No. 8
In a w ill executed in 1970, A instituted-his two (2 )
legitimate brothers, B and C, as sole heirs to all the pro­
perties he then owned. B died in 1975, survived by his legi­
timate daughter, D, while A died last, year, leaving an
estate, 1/2 of which was acquired after the execution of his
will.
'
Who will succeed A, how much and by what right will
the heir or each of the heirs, if more than one, inherit?
Reason out your answer.
Answ er:
1. Regarding 1/2 acquired after the execution of the
will it w ill be inherited by both D and C, C in his own
right and D by right of representation because this V2 is
inherited by intestate succession. With regard to the %
already owned at the time of the execution of the will, C
alone will get the property by right of institution and ac­
cretion.
2. The half of the property existing at the time o f the
execution of the will should go to C, the portion pertaining
to him in his own right and the portion pertaining to B
by right of accretion.
The other half acquired after the execution of the
will passes by intestacy, equally to C in his own right and
to D in representation of B.
3. The whole estate will go to the second brother C by
right o f accretion and B gets nothing.
4. W ith respect to the will as made by the testator B
is a voluntary heir. He transmits no right to his heir D,
501
therefore his share in the will 'goes to the other heir by
right of accretion. As to the properties which are not
covered by the will, intestate succession will follow and
therefore the legal heirs will be the brother and the niece
to inherit equally.
5.
The 1970 will appears to nave only covered the pro­
perty which the testator had at the time of its execution.
Accordingly, the half which was acquired by him after the
execution of the will would be governed by the law on in­
testacy. As regards the other half, disposed under the will,
the property should go to C by right of accretion consider­
ing that the institution in favor o f B and C was proindiviso (A rt. 1015). The other half, acquired after the
execution of the will, will be distributed in intestacy and
assuming that the only legal heirs are those named in the
problem, such portion shall be equally divided between C
(legitimate brother of the deceased) and D (niece of the
deceased) by right of representation (A rt. 1005).
Question No. 9
A ) Among the properties in the estate of A, who
died intestate and without issue, were a farm, which came
from his father, B, and a house, which he acquired from
C, B’s father. In the partition o f A ’s inheritance, the
house was alloted to B and the farm to D, A ’s' mother.
Upon the death of B and D, who were simultaneously
killed in a car aooident, the farm was claimed by C and X,
a child of B and D born after A ’s death* while the house
was claimed also by C and X and Y , D’s child by a prior
marriage.
Decide the conflicting claims over the farm and the
house in controversy with reasons,
B ) By a letter written before his death, the deceased
distributed and partitioned among his three (3) legiti­
mate sons, A, B, and C, his property in such manner that
A received 17/24 thereof, B, 1/6 and C, Vs. The letter not
having been made in accordance with the formalities re­
502
quired for th e. execution of wills, B and C claimed that
their father died intestate and his inheritance should be
divided equally among his children.
Decide their claims and distribute the estate among
A, B and C stating the reasons in support of your dis­
position.
C)
A, a baohelor, named his brother, B as heir if his
sister, S, dies within 10 years after A's death. B dited 2
years after A ’s death while S died 1 year lat^r. A ’s estate'
is claimed by ‘B’s only child and S’s 6 children.
Who are entitled to it and how much will each re­
ceive? Discuss,
Answ efs :
A)
1. As regards the house, this property was ac­
quired by A from his grandfather C and was transmitted
by A to B, his father. There is no reserva troncal because
there is no change of line. Hence, X alone is entitled to
inherit the house.
W ith respect to the farm, the farm originally came
from B, the father of A, and from A it went to his mother
D. There is a change of line from the paternal to the ma­
ternal line. The farm is. reservable property and must be
acquired by relatives within the third degree of the pr.epositus and belonging to the paternal line.
Regarding the sharing, there are two theories. In the
“ delayed intestacy doctrine,” the preferences in the rules
o f intestate succession must be observed. The second
theory is to the effect that relatives in the same degree
inherit in equal shares without distinction as to the direct
or collateral line. Under the first theory, the “ delayed in­
testacy theory,” C alone w ill inherit the farm because in
intestacy, the direct line excludes the collateral line.
Hence, C, the grandfather, should exclude X, the brother
o f A. Under the second theory, which allows no distinction
as to direct or collateral line, C and X w ill inherit the farm
503
in equal shares since they are both 2nd degree relatives
of A, both belonging to the paternal line. In any case Y
does not inherit, since Y is not & reservatario.
2. With respect to the house, the property was in­
herited by B who belongs to the paternal line. There will
be no reason for making the property reservable because
there is no danger of the property going to another line.
Hence, when B died, C and X belonging to the same line
from which the property came will inherit it equally.
With respect to the house, not being reservable, the iieir
of B will be X alone as the descendant excludes the as­
cendant. With respect to the farm being reservable in
character, C and X belonging to the same line from which
the property Came will inherit equally.
3. With respect to the farm it will go to X and Y.
W!ith respect to the house, it will go to X as the lone child
and legal heir of B.
4. There is no reserva and the properties m il go by
intestate succession, the farm going to X and the house
going to C, since there is no showing that the properties
were received by B and D by operation of law as the
question merely says that they were “ alloted” in the par­
tition, and by the praepositus A by gratuitous title as the
question merely says that the farm “ came” from his fa ­
ther B and a house which he “ acquired” from C, B*s
father without stating whether it “ came” or was “ ac­
quired” by gratuitous title.
5. In the event that both farm and house were ac­
quired by gratuitous title and were inherited by B and
D by operation of law, there is in both cases reserva
because reserva can exist although the properties come
from the same line. Hence, the farm will go to C because
the direct line excludes the collateral line. As regards
the house, there is also reserva although it came from
the same line and w ill also go to C for the same reason.
6. The farm should be awarded to X, the legitimate
child of B, who is preferred over C, the surviving parent
504
of B. The farm is not reservable property having origin­
ally come from a line to which B likewise belongs (B ;
in fact, was the donor of the property). The house shall
be awarded to C as the preferred revervatario. The re­
quires of reserva troncal concurred in the case of the
house since the property was acquired by gratuitous title
by B from C, a paternal ascendant, and upon the death
of A (praepositus) the same property went by operation
of Law to D (reservista), his mother. Both X and C are
reservatarios since they belong to the line where the
property originally came from and related within three
degrees from the praepositus but since C belongs to the
direct line of A and X being only a collateral relative, C
would be preferred over X.
B)
' 1. Under Art. 1080 of the Civil Code, a person
may partition his property by an act inter vibos or by
will. Under our present law, there is no need fo r the
owner of the property to make a valid will. However,
the partition in ter vivos made by him must not prejudice
the legitimes. In this particular case, the partition pre­
judices the legitime o f C because actually each one should
get 1/6, or 1/3 of 1/2, of his estate or 4/24. The partition
made here is 17/24 which is 1/24 in excess of what he
ought to get, therefore, the final distribution should be:
A = 1 6 / 2 4 which includes the whole
1/2 plus 1/3 o f the other half
B = is entitled only to 4/24 and
C = 4/24
2. Since the letter was not made in accordance with
the formalities required for the execution of wills, the
father died intestate. Hence, A, B and C will divide the
inheritance equally.
3. Despite the fact that a will is no longer required
for the execution of a partition inter vivos within the
meaning of the law, nevertheless, the different formal­
ities which are necessary in order to convey property
must still be complied with. Hence, A, B and C will divide
the inheritance equally.
505
4. B and C are correct, While it is very true that
the letter of the deceased did not comply with the for­
malities required for the execution o f the wills, neverthe­
less, under the law, a partition inter vivos may be effect­
ed provided, of course, that there will be compliance with
all of the formalities required for ordinary conveyance
of properties such as when real properties are involved.
In other words, the partition that was effected by means
of a letter does hot state that all of the formalities pre­
scribed for ordinary conveyances of properties are com­
plied with.
5. This is not a partition because partition presup­
poses a division/separation of a property. This is meiely
assigning an aliquot portion of the-, property. Therefore,
it is not a real partition jcontemplated under Article 1080.
It should fellow the requirements of a will, and because
it does not comply with the requirements of the will, in­
testate succession will follow.
G. A shall be entitled to 4/6, B to 1/6 and C to 1/6
of the estate. Under Art. 108.0 of the Civil Code, a person
may partition Jhis estate during his lifetime. Unlike that
which obtained during the regime of the old Civil Code,
the present Code would appear to permit a person to
distribute his estate during his lifetime without having
to execute a will. A conflict of views among Civil Law
commentators arises only where the participants in the
partition, or some of them, are voluntary Heirs. Since
those who were given entitlement under the partition
were all legitimate children, and there being no one ap­
parently preterited the partition can take effect but with­
out prejudice to their respective legitimes. The share
given to C is less than his legitime for which reason that
share must be increased to 1/6 of the estate.
C)
1. The estate of A will be distributed in intes­
tacy among the 6 children of S and the child of B. The
condition embodied by A was ineffective because B died
ahead of. S. Hence, the condition was not fulfilled while
B was alive. Intestate succession for B- and S will be
determined as to the rights existing on A ’s death, hence,
506
one-half will go to the children of S and the other half
to the child o f B.
2. Only the. 6 children of S will get the property be­
cause the heir died before the fulfillment of the condi­
tion.
3. From the wording of the facts in the case, it would
appear that S is the heir and that if S died within 10
years after A ’s death, then B gets it, not the children
of S. I f S died after B, the children of S get it.
4. In a conditional institution, such as what has
arisen in the problem, the instituted heir must survive
not only the testator but likewise the fulfillment of the
condition in the will (A rt. 1034). Since B did not sur­
vive that condition, the institution in his favor could not
be operative. The estate, therefore, assuming that there
are no other relatives other than those named in the
problem, would be the child of B and the six children
o f S, who would get it in equal shares (per capita), each
receiving 1/7 o f the estate (Art. 975).
Question No. 10:
A ) A bought a parcel of land from B, adjoining
that of C’s. By mistake, A took possession of C’s land,
thinking it was sold to him. He then possessed it openly,
peacefully, continuously and in the concept of owner for
10 years. When C discovered that A was' possessing hia
land, C demanded its return and upon A ’s refusal, brought
an action for its recovery.
W ill the action prosper? Discuss.
B ) A constituted in 1980 a real estate mortgage oh
his lot and a chattel mortgage on his car to secure the
payment o f a debt of P200,000.00 which he then owed to B,
as well as other loans he may receive from him in the
future. A paid his debt of P 206 ,000.00 but not the loan
of P30,000.00 which he obtained in 1982.
May B foreclose both mortgages to satisfy A ’s un­
paid obligation to him? Reasons.
507
C)
An Englishman, who had resided in the Philip­
pines for a long time, executed a w ill in France, dispos­
ing of his real and personal properties in the Philippines.
What law governs the validity o f his will? Discuss.
Answers:
A ) 1. The action will prosper. A is not a possessor
in good faith of the land of C because A has no title or
mode of acquisition with respect to the land of C, What
A bought was the land of B. A cannot claim acquisition
of ownership by ordinary prescription of 10 years.
2) It depends whether it is under the Code of Civil
Procedure or under the New Civil Code. Under the Code
of Civil Procedure, A has acquired the land by prescrip­
tion. Under the New Civil Code, there is no prescription
because there is no just title,
3) The action, absent the possible application of
laches, can prosper. The possession by A was without a
just title; such possession can thus only ripen into own­
ership by acquisitive prescription after 30 years of open,
peaceful and continuous possession in the concept of an
owner (A rt. 11-37 and Art. 1129, in relation to Art. 1127)
B ) 1. With regard to the real estate mortgage, B
can foreclose the same because it includes future loans.
But with regard to the chattel mortgage, B cannot fore­
close because of the affidavit of good faith which requires
that it be a just and valid debt, and, therefore, the chat­
tel mortgage can not cover futurie loans.
2.
The mortgage is indivisible and therefore it ans­
wers for both debts;. Therefore, both mortgages .can be
foreclosed.
C) 1. With respect to the intrinsic validity of the
will, it is English law in force at the time of his death.
That rule is absolute without any exception. With respect
however to the extrinsic or formal validity of the will,
it is the law of England or of France or of the Philippines
jn force at the time of the execution of the will.
2.
Article 16— Real property as well as personal pro­
perty is subject to the law of the country where it is
508
■r- f .7^ r ,>
situated. However, the order of succession, the amount
of successional rights and the intrinsic validity of the
testamentary provisions shall be regulated by the national
law of th e .person whose succession is under considera­
tion, whatever may be the nature of the property and
regardless of the country wherein said property may be
found.
3. Article 16 and Article i039 provide as follows:
“ Art. 16. Real property as well as personal pro­
perty is subject to the law of the country where it
is situated.
“ However, intestate and testamentary succes­
sions, both with respect to the order of succession
and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person
whose succession is under consideration, whatever
may be the nature of the property and regardless of
the country wherein said property may be found.”
“ Art. 1039. Capacity to succeed is governed by
the law o f the nation of the decedent.”
4. The extrinsic validity of a will of an alien is gov­
erned by the law of the place where the will is executed,
where he resides, where he is a national or by the Civil
Code (Arts. 17 and 816). The intrinsic validity of the will,
however, shall be governed by the law of England since
the nationality law governs (A rt. 16, Civil Code).
Question N o. 11
A,
a Filipino, 18 years of age, married and residing
in a foreign country, having run out, of money, borrowed
P50,000.00 from B and to secure its payment, executed a
real mortgage on a house and lot owned by him in Manila.
Under the law of the country where he resides, he is
deemed to be of age and the real estate mortgage is valid.
The loan not having been paid on maturity, B brought aa
509
action in Manila to foreclose the mortgage and recover
what is due him.
a) May the real estate mortgage be foreclosed? Rea­
sons.
b) May B recover the loan of P50,000.00 due him as
an unsecured debt and have the mortgaged property levied
upon and sold for the satisfaction thereof? Discuss.
Answers:
(a ) and (b )
1. Since A is 18 years of age arid is a minor in our
country, his real property is governed by our law, and
therefore, the mortgage is voidable and can be enforced
subject to the defense of minority. The law provides that
an emancipated minor cannot borrow money. By analogy
with the ruling in the case of a conveyance of conjugal
real property by the husband without the consent of the
w ife that held that conveyance void, the mortgage is like­
wise void.
2. Laws relating to family rights and duties or to the
status, condition and legal capacity of persons are binding
upon the citizens of the Philippines even though living
abroad.
A is a minor emancipated by marriage. Hence, he
cannot borrow money or alienate or encumber real pror
perty without the consent of his father, mother or guar­
dian. The real estate mortgage cannot be foreclosed and
there can be no recovery because both contracts were not
validly executed.
3. The law provides that an emancipated minor cannot
borrow money or alienate or encumber real property with­
out the consent of his father or mother, or guardian (A rt.
399). Applying by analogy the ruling in the case of-con­
veyance of conjugal real property by the husband without
the wife's consent that held that conveyance void (Garcia
vs. Court of Appeals), the loan and the real estate mort­
gage contracted by A should be declared void. The real
estate mortgage may not thus be foreclosed.
For the reason addressed above, the rules on void con­
tracts would apply that .may generally negate recovery by
either party thereunder (A rt. 1412, Civil Code).
4.
The loan is merely voidable under Art. 1390 being
a contract, where one is incapable of giving consent. Until
annulled, the loan, as well as the real estate mortgage are
binding between the parties.
When a contract is voidable because of such incapa­
city, the incapacitated is “ not obliged to make any resti­
tution except insofar as he has benefited by the thing or price
received by him” (Art. 1399, Civil Code).
Question No. 12
A,
agreed to build a house for B on the condition that
it shall be completed within 6 months from January 1,
1980, that work shall begin when B pays A F30.000.00, and
that A shall pay a penalty of P200.00 for each day o f delay
in the fulfillment of the contract. A finished the construc­
tion of the house on August 31, 1980, and turned it over
the same day to B who demanded payment of the penalty
of SP200.00 for every day of delay in its completion. A re­
fused to pay, alleging the delay was caused by B who gave
him the first payment only on March 1. B's answer was
that he had the money ready since January 1 but it was
not until March 1, after calling A, that he went to his
house to get it.
a) Rula on the respective contentions of both parties.
b) Was there delay in the completion of the house?
State your reasons.
Answers:
(a ) and (b )
1.
B was bound to pay A the amoant of P30,000 only
upon demand for such payment by A. Hence, there was no
default on the part of B who was ready to comply with the
obligation. Since the agreement was that the house was to
be completed within 6 months from Jan. 1, 1980 and the
building was not completed within the specified time, the
builder is liable for the penalty according to the terms of
the agreement.
2. Even though there is a penalty, that is dependenton the fact whether time is of the essence of the contract
or not. The mere fixing of the date is not considered neces­
sarily to mean that time is of the essence. The date is only
for maturity. Generally, time is not of the essence.
3. Although B had the money, he never informed the
other party. So the other party did not get to know that
he had the money. Therefore, B was not in default. A is
not entitled to collect penalty.
4. I would rule in favor of B, since the payment of
•P30,000.00 does not appear to be a condition foi' the. com­
pletion of the house within six months from January 1,
1980. But, assuming otherwise, there was no-default in the
payment of the P30,000.00 since there was no demand
made for the payment thereof (A rt. 1169). In addition,
unless otherwise expressed in the agreement, payment
shall be made at the domicile of the obligor (Art. 1251).
There was a delay in the completion of the house; ac­
cordingly, the payment of P200.00 for each day of delay
could be sought since this penalty is not unconscionable
considering the total value of the contract.
Question No. 13
A ) A sold to B a piano for P10,000.00, payable in
monthly installments of P I,000.00 each. A fter paying the
first installment, B resold the piano to C who paid P2,000.00, leaving a balance of P8,000.00. Thereafter, X sued.
B for the value of services rendered to him and had the
credit of F8,000.00, due B from C garnished. A thereupon
filed a third-party claim with the sheriff for P20,000.00,
representing the balance of the price of the piano still un­
paid, and a loan of P l l , 000.00 he gave B.
Discuss who between A or X should prevail.
B ) A bought a house and lot in a subdivision, subject
to the condition, annotated on the certificate of title, that
512
they shall be used fo r residential purposes only. Ten years
later, A sold the property to B who converted it into a
restaurant. The owner demanded its closure but B refused,
alleging' (1 ) that although he subsequently came to know
the title issued to him bears such an annotation, he was
unaware o f it at the time of the sale as the seller did not
tell him so and the deed o f sale in his favor makes no men­
tion of it; (2 ) that his lot has been re-classified by or­
dinance as commercial; and (3) that it has in fact become
commercial because of its proximity to some stores and a
shopping center in an adjoining subdivision.
Rule on the validity of said defenses.
C)
While A was abroad, the manager of his factory
suddenly, died and B and C, A ’s friends, took over its man­
agement, without his knowledge. However, since they
were businessmen themselves, they had to entrust most of
their duties to X and as a result, the factory suffered con­
siderable loss.
A re they liable for said losses? I f they are, why
and what is the nature of their liability?
Answers-.
-
'
A)
1. This is a question of priority between the
vendor’s lien and the garnishment order. Concurrences
and preferences of credits are not applicable for the sim­
ple reason that there is no special proceeding to convene
■the creditors, but since both are preferred in the sense
that one is the vendor and the other has a garnishment
order, it is a question of who is preferred between the
two. Therefore, the vendor’s lien of A is superior because
the sale occurred before. The moment he sold the piano,
there already arose the vendor’s lien.
2.
The right of X should prevail over that of A. The
problem relates to the efficacy of the garnishment order
on B ’s receivables from the sale and not on the piano it­
self. Accordingly, the unpaid seller’s lien which is a lien
on the piano as the object of A ’s sale, not being really
513
involved in the garnishment order, will not allow A to
question said garnishment order.
B.
1. There are now 3 decisions of the Interme­
diate Appellate Court. The first decision was incorporated
in 1984 in the Silverio case. The facts are identical. There
was a legitimate, exercise of the police power. The sti­
pulation in the contract of sale which was properly an­
notated at the back of the title w ill have to give way to
that legitimate exercise of the police power o f the State.
Besides (under Art, 11266 of th e New Civil Code),
we have here an obligation which cannot be complied
with because of a legal impossibility by reason of that
ordinance. The classification supersedes the annotation.
2. Fulfillment of the obligation is prevented by a
law and therefore no longer tenable. Since continuing
with the house as residential is. no longer possible, the
annotation is no longer valid.
3i The owner has dominion over his property, but he
i3 bound by fa ir restrictions on the title since he is
charged with constructive notice o f such restrictions.
4. The contention that B was unaware, at the time
of the sale, of the encumbrance in the certificate of title
is not valid since the annotation on the certificate is
constructive notice to him.
5. The contention that the property became commer­
cial because of its proximity to some stores and a shop­
ping center.is not sufficient legal justification for a breach
of the agreement.
C)
1. B and C are solidarily liable for the losses.,
They are so bound under the law on negotiorum gestio
and must comply with the duties of a geator in good
faith.
r2. B and C are only jointly liable because the assump­
tion of the negotiorum gestio wad not to avoid an immi­
nent danger.
3. The law on negotiorum gestio which should apply,
renders an officious manager, who delegates to another
514
person all or some of his duties, liable for the acts o f the
delegate. The nature o f their liability is solidary. ( Art. 2146).
Question No. H
A)
Within one year from the issuance of the decree
of registration and certificate pf title in A ’s name, B
brought an action for their annulment in the Regional
Trial Court on the ground that A obtained them thru
fraud. In his answer to the complaint, A -alleged that the
court had no jurisdiction over the case and averred,
by way o f counterclaim, that he has just discovered that
B succeeded 3 years ago in registering in his name, by
false and fraudulent representations, another parcel of
land owned and possessed by A . He, therefore, prayed
that B’s action be dismissed and that he be ordered to
transfer his title to him ( A ) . The trial court dismissed
both the complaint and counterclaim.
Comment on the legality o f the order o f dismissal.
B ) A fte r finding on a bus an envelope containing
two Torrens certificates of title in A's name, B posing as
A and forgin g his signature, sold the two parcels of land
described in the Titles to X who bought them in good
faith a.nd for value and to whom transfer certificates
were issued in his name. He then conveyed one parcel to
Y , a bonafide purchaser for value, while the other was
levied upon to satisfy the judgment against X.
Who has a better right to the aforementioned par­
cels o f land, A, Y , or the judgment creditor? Discuss.
C ) The register of deeds refused to record a deed
of sale executed in favor of a Filipino woman on the
ground that she is an alien because her husband is an
alien and although she secured an absolute divorce from
him abroad, the divorce is void since our law, which
governs her status, does not recognize absolute divorce.
Rule on the legality of the register o f deeds’ refusal
to register.
515
A nsw ers:
A)
1. Under Section 32, P.D. 1529, a person who
owns a piece of land or any interest therein that was
fraudulently registered in another’s name is given the
right to file a petition to review or reopen the decree of
registration not later than one year from the date o f
entry thereof. This remedy will not lie, however, if title
to the land has been transferred to an innocent purchaser
for value.
The case at hand is denominated as an action for
annulment of both the decree and the title, based on fraud.
I f we treat this case as an ordinary civil action that was
filed with the RTC in the latter’s capacity as a court pf
general jurisdiction, I believe that the Court acted correctly
in dismissing it, because the proper remedy of the aggrieved
party would be a petition for review of the decree which
must be filed with the RTC, in its capacity as a land regist­
ration court. The reason for this is that the case, in essence,
petition for review, a mere continuation of the original
proceedings, over which the RTC sitting as a land regist­
ration court has exclusive jurisdiction. So, the RTC acted
correctly in dismissing the action for lack of jurisdiction.
On the other hand, if the case was filed with the RTC
in its Capacity as a land registration court, I believe the
dismissal was in error, because in that capacity it has
in fact exclusive jurisdiction to hear and decide what
in essence is a petitiop for review of the decree. I think
mere error in nomenclature of the pleading should not
be a ground for dismissal.
But as a land registration court, the RTC acted-cor­
rectly in dismissing the counterclaim of B because in
that capacity it enjoys only special and limited jurisdic­
tion and, therefore, it can not take cognizance thereof.
The counterclaim for reconveyance of another parcel of
land ia an action in personam which falls properly within
the -competence of ordinary civil courts.
516
2. I f the action were brought under the same land
registration proceedings that issued the decree, in which
event the Regional Trial Court would be acting' as a land
registration court with special and limited jurisdiction—
a. the dismissal of the complaint is error, for the
Regional Trial Court, as a land registration court,
has jurisdiction thereover;
b. the dismissal of the counterclaim is proper, be­
cause the same is in the nature of a permissive
counterclaim, which is essentially an independent
ordinary civil action, over which the Regional
Trial Court, acting as a land registration court,
has no jurisdiction.
3. I f the action were merely an ordinary civil ac­
tion—
a. the dismissal of the complaint is proper, because
jurisdiction to annul a decree, brought within one
(1 ) year from its issuance, properly belongs to
the Regional Trial Court which issued the decree,
acting as a land registration court;
b. the dismissal of the counterclaim is error, because
the Regional Trial Court, as a court of general
jurisdiction, has jurisdiction thereover, and since
the counterclaim is in the nature of a permissive
counterclaim, it can proceed independently and
regardless of the dismissal of the complaint.
4. A s to the complaint, since it is brought fo r annul­
ment o f the certificate of title on the ground of fraud, a
petition fo r review should be filed in the same registra­
tion proceeding within one year from the issuance of the
decree on the ground o f extrinsic fraud.
Since it is brought within one year, dismissal o f the
action is not proper provided the petitioner proves extrin­
sic fraud. With regard to the counterclaim, this should
not be dismissed because it is a permissive counterclaim.
5. The counterclaim was validly dismissed, since it
should have been brought in a separate action. The action
517
for annulment was not validly dismissed, having been
brought within the one-year period provided in P.D. 1529.
It is, of course, understood that the action was filed in
the Regional Trial Court which granted the decree of
registration, since the facts in the question do not state
otherwise.
G. The Regional Trial Court has no jurisdiction over
the action for annulment. Within one year from the is­
suance of the decree of registration, the proper remedy
would be an action for a review of the decree by the Court
In its capacity as a Land Registration Court. The order,
therefore, of dismissal of the complaint was correctly is­
sued by the Court.
The counterclaim, however, should not have been dis­
missed, since it partook of the nature of an action for
reconveyance which can be considered by the RTC.
B)
1. I believe A retains ownership of both parcels
of land. A forged deed of sale is an absolute nullity and,
therefore, conyeys no title. A deed of sale executed by
an impostor has no legal force and effect. Registration
of the deed and the consequent registration and issuance
of a transfer certificate of title, even to an innocent pur­
chaser, w ill not cure the infirmity.
f t is also an established rule that a forged deed can
be the root of a good title. This can happen where title
has been registered in the name of the forger and he
later transfers or mortgages the same to an innocent third
party fjor value. In this case, the third party who relied
on what appears in the certificate of title should be pro­
tected. (Duran vs. Gaspar vs. I AC, Tangco, GR No. L64159, Sept. 10, 1985.
However, in the instant case, no title was ever trans­
ferred or registered in the name, of the forger. The rule
discussed above does not apply. Therefore, A never lost
his right and can recover the land from Y and the judg­
ment creditor.
2.
Y has a better right than A over the parcel o f land
he bought from X in good faith and for value, because
518
Y bought the land from the registered owner X, and
therefore Y is a purchaser for value and in good faith,
whose title is protected by P.D. 1529.
3. A has a better right than the judgment creditor
over the parcel of land still registered in the name of
X, because X is not a purchaser for value and in good
faith, as defined in P.D. 1529, having bought the land
not from the registered owner A but from forger B, such
that X has no title thereto and the levy on execution
thereon to satisfy a judgment creditor of X has no force
and effect against A.
4. Y, should be protected because he is a purchaser
in good faith as he bought it from X who has a transfer
certificate of title in his name. This is in consonance
with the ‘ ‘chain of title” doctrine.
With - respect to the creditor who sought to levy the
judgment against X who was the buyer from the forger,
the creditor stands in the same shoes as X who did not
acquire a better right than hit> vendor because he did not
buy it from the registered owner but from a forger B.
Therefore, A is entitled to the other parcel over the judg­
ment creditor.
C)
1. I believe the Register of Deeds erred in re­
fusing to register the same for the reason stated in the
question.
When all the formal requisites for registration are
presented, it is the duty o f the RD to effect the registra­
tion. And this duty is clearly ministerial and mandatory
in character. The main purpose of registration is mere­
ly to give notice to the public, either actually or construc­
tively. In one case, the Supreme Court ruled that suspect­
ed invalidity of the contract is not a valid ground to re­
fuse registration.
In the instant case, unlike in Krivenko where vendee
was admittedly an alien, the. vendee is a Filipino. The
only reason the RD refused to register is because she
was married to an alien. Aside from the fact that they
519
have divorced, it is not even certain or clear that she lost
her Filipino citizenship by reason alone of her marriage.
This depends upon the laws of her husband’s country.
The question whether she lost Filipino citizenship, under
these facts, should be decided after registration,
2. The refusal to register by the Register of Deeds
is improper, because under the 1973 Constitution, a Filipind woman who marries an alien remains a Filipino
citizen; however, the certificate o f title that would be
issued in favor of this Filipino woman should expressly
state that the subject land is her exclusive paraphernal
property, fo r without such statement the land would be
considered conjugal property, over which the alien hus­
band is entitled to a share of 1/2 pro indiviso, in which
event there would be a violation o f the Constitution as
1/2 o f the subject land would in effect be owned by an
alien.
3. It depends when the Filipino woman acquired the
property.
Under the 1935 Constitution, a woman follows the
citizenship of the husband provided she is qualified. There­
fore, she followed the citizenship o f her husband. She is
an alien and therefore the sale to her is not valid.
But i f it was under the 1973 Constitution, the F ili­
pino w ife does not follow the nationality of the husband.
Therefore, the sale is perfectly valid.
4. It is ministerial i f the defect does not appear on
the face o f the document, but i f it appears on the face
o f the document, then, he can refuse.
5. It is not within the authority pf the Register of
Deeds to question citizenship. As long as the documents
are in order, it is hi3 ministerial duty to record the deed.
What the Register of Deeds could have done was to refer
the' queston to the Land Registration Commissioner “ en
consulta
*
6. The refusal by the Register o f Deeds to record
the sale is not warranted. The marriage o f the Filipino
520
woman to a foreigner does not result in her loss of Phil­
ippine citizenship. The matter o f her subsequent divorce,
whether valid or invalid, is immaterial.
Question No. 15
A ) Gn September 1, 1982, A sold to B 50 heads o f
cattle fo r P150,000.00 and 60 heads o f carabao fo r the
same price, the cattle to be loaded in Davao City on
December 1, 1982, on the SS “ Argus” and delivered
upon her arrival in Manila 5 days later while the carabao
were be loaded in the same city and shipped on December
15 and delivered likewise to B upon her arrival in Ma­
nila 5 days later. Because of the breakdown of his cargo
truck, A was able to ship the cattle and the carabaos only
on December 15. On her way to Manila, the SS “ Argus”
ran into a storm and all the animals were thrown into
the sea to prevent her from sinking. B, who paid one
half o f the price upon the execution of the contract, de­
manded its return while A sought from B the full pay­
ment of the price.
Decide the controversy, giving the reasons fo r your
decision.
B ) A leased to B a fishpond for 5 years. During
the second year of the lea.se, he received only 1/2 o f the
usual harvest from the fishpond as he could visit and
supervise it only occasionally due to the presence o f
armed men who were extorting money from him and
other fishpond operators by threats to their lives.
May B demand the reduction of the rent for the sec­
ond year and the extension of the lease for one year on
the ground that the lessor failed to comply with his
obligation to maintain the lessee in the peaceful and ade­
quate enjoyment of the lease?
Answers-.
A)
1. The obligation of A to deliver the cattle or
carabao is a generic obligation, therefore, it is not ex­
tinguished by loss, so the seller is liable. However, the
521
question of damages will depend on who is at fault. Since,
however, there is nothing stated here as to whether the
price is fo r a lump sum or for each cattle, the problem
here is. on the partial payment. And the partial payment
of one-half is a demand. I f the one-half payment is equi­
valent to the value of 1/2, it is a demand for one-half
and, therefore, when A delayed the delivery of the cattle,
he is "in mora” and will be liable for damages.
2.
The question with respect to the sale is whether
ownership passed to the buyer at the time of the loss.
.The place of delivery and the sale is Manila., The things
sold were destroyed on the way to Manila. The ownership
did not pass to the buyer and therefore the buyer is not
yet answerable for the payment of the price. B can de­
mand therefore, its return. Aside from that there was a
delay on the part of the vendor and being in delay, he
bears the loss through fortuitous event.
8. The heads of cattle and carabaos are to be con­
sidered specific, so this refers to the sale of specific things,
and when they were lost, the obligation was extinguished
because of fortuitous event.
4. Res perit creditori applies. The risk, therefore,
would lie with the buyer from the perfection of the con­
tract until the delivery of the thing sold. Accordingly,
the. buyer must pay to the seller the remaining unpaid
price of the goods.
5. The seller is liable to the buyer for the loss of
the cattle because the delivery to the carrier was late.
The buyer is liable for the loss of the carabaos since
delivery to the carrier is equivalent to delivery to the
buyer. The buyer bears the loss and is liable under the
principle of " res perit domino” when the subject matter
is lost through fortuitous event.
B> 1. The reduction of rental only' applies to ex­
traordinary fortuitous events. This is trespass in fact,
not trespass in law. With regard to the extension o f lease,
in the case of Victorias Milling Co., fortuitous event does
not extend the lease anymore.
522
2. The law authorizes a reduction of the rent when­
ever, among other cases, there is a loss of fruits due to
extraordinary and unforeseen fortuitous event, such as
fire, war, pestilence, unusual floods or other calamities
(A rt. 1680). The presence of armed men who extort mo­
ney and threaten fishpond operators, in my view, is not
included in the intendment of the law. Neither will be
the extension of the lease for one year be demanded (see
Gandoy vs. Tapucar, 75 Phil. 3 i).
3. B cannot demand a reduction o f the rent and ex­
tension of the lease. The warranty of the lessor refers to
his own acts and not to the acts of third persons who
are beyond his control. The maintenance o f the lessee in
the peaceful and adequate enjoyment of the lease refers
to the eitjoyment of his rights over the property as lessee,
and not to personal physical disturbance or bodily threat.
523
1984 BAR EXAMINATION
Question No. 1
Spouses Fedro and Maria decided to separate, and
to voluntarily dissolve their conjugal partnership. Hence,
they executed a public document wherein they declared
that they had no debts, that they were voluntarily dissolv­
ing their conjugal partnership, and that each of them
would thereafter be free to acquire or dispose of any pro­
perty independently of the other. Thereafter, they lived
apart.
Pedro engaged in business which unfortunately failed.
On the other hand, Maria continued to be gainfully em­
ployed and was able to acquire properties through her own
efforts.
The creditors of Pedro obtained a judgment against
the latter- which they could not satisfy because Pedro was
insolvent.
Could the creditors of Pedro obtain satisfaction of
the judgment out o f the properties of Maria? Explain.
Answer:
A.
Furnished by the Office o f Jus tice Plana
Yes, Under Act. 190, the separation of properties be-^
tween spouses, during the marriage shall not take place
save in virtue of a judicial order. Not having been sub­
mitted to the court fo r approval, the agreement to dissolve
the conjugal partnership is void and cannot have any
legal effects. The properties acquired by Maria, being con­
jugal in character, would therefore be answerable for the
debts incurred by Pedro in business.
524
B.
Comments and Suggested Answer
We agree with the answer of the Bar Examiner. How­
ever, we suggest that the following should also be accepted
a s a correct answer:
Yes, the creditors can obtain satisfaction of the judg­
ment out of the properties of Maria.
It is obvious that the properties of Maria are con­
jugal because they were acquired through her own effort
or industry (A rt. 153, No. (2 ), Civil Code). It is also ob-.
vious that the obligations of Pedro are conjugal obliga­
tions because they have benefited his family (A rt. 161,
No. (1 ), Civil Code),. Therefore, creditors of Pedro can
procecd after the properties acquired by Maria,
But how about the agreement between Pedro and
Maria to separate and dissolve their conjugal partnership
voluntarily? This agreement is void because it was never
approved by a competent court. Consequently, it cannot
produce any affect.
Question N o. 2
In 1974, Alfredo married Alicia, then only 16 years
old, without the consent of the latter’s parents. A fter the
birth of their only child, Aliee, they separated.
In 1976, Alfredo married Benita with whom he begot
one child, Benedicta. Again, the union was not successful
and the couple eventually separated.
In 1978, Alfredo married for the.third time. His new
bride, Consuelo, bore him one child, Connie.
Unknown to Alfi;edo, his first wife, Alicia, died in
1977.
Discuss the validity of each, of the three marriages of
Alfredo and the status of each of his children.
Ansioe'r:
A.
Fur-niched by Office of Justice Pla/na
The marriage of Alfredo to Alicia is voidable, but at
the instance only of Alicia who was only 16 years old at
525
the time (A rt. 85, par. 1). Alfredo cannot ask for the an­
nulment of this marriage. The child Alice is legitimate
(A rt. 89).
The marriage of Alfredo to Benita is void, for being
bigamoys (A rt. 80, par. 4 ). The child Benedicta is a na­
tural child by legal fiction (A rt, 89).
The marriage of Alfredo to Consuelo is valid, since
there was no pre-existing marriage, in view of the disso­
lution of the marriage to Alicia upon the latter's death,
coupled with the fact that the marriage to Benita is void.
The child Connie is legitimate.
B.
Comments and Suggested Answer
W e agree with the answer of the Bar Examiner. How­
ever, we suggest that the following should also be accepted
aa a*correct answer:
The marriage of Alfredo to Alicia is voidable because
of lack of parental consent (A rt. 85, No. (1 ), Civil Code).
Hence, it is Valid and binding until it is annulled by a
competent court. The child Alice is, therefore, legitimate
since the marriage of Alfredo and Alicia was never an­
nulled.
The marriage of Alfredo to Benita is void because
Alfredo married Benita when his marriage to Alicia was
still subsisting in the sense that it has not yet been an­
nulled. Consequently, the marriage is bigamous, and there­
fore, void {A r t. 8Q, No. (4 ), Civil Code . Hence, the child
Benedicta is a natursl child by legal fiction (Art* 89, Civil
Code).
The marriage of Alfredo to Consuelo is valid because
there was no longer any legal impediment to said marriage
when it was celebrated. Alicia was already dead and, of
course, Alfredo’s marriage to Benita is void. The child
Connie is, therefore, legitimate.
Question No. 8
Spouses Mario and Lorna and their five-year old child
Max, were living with Lorna'a mother in Manila. Mario
was offered an attractive job in Baguio City and wanted
to relocate his family. Lorna, however, refused to go with
him. Accepting the offer, Mario left alone for Baguio City
and started working, where he did well.
A fter six months,.Lorna filed a case against Mario
for support for Max and herself. Mario answered that he
was willing to support them in his house in Baguio City.
He asked the court to award to him the custody of his son
should Lorna refuse to live in Baguio City.
What are the rights and obligations of Mario and
Lorna under the circumstances? Explain.
Answ er:
A.
Furnished by Office of Justice Plana
Mario has thg right to fix the residence of the family
(Art. 110). Having chosen to live and work in Baguio,
Mario is deemed to have selected that place as the loca­
tion of the family residence. The husband and w ife are
obliged to live together and render mutual help and sup­
port (Art. 109). However, Lorna cannot be forced to
live with Mario by court order ( Arroyo vs. Yasquez de
Arroyo, 42 Phil. 54). The person obliged to give support
may, at his option, fulfill his obligation either by paying
the allowance fixed, or by receiving and maintaining in
hia house the person who has a right to receive support
(A rt. 299). Hence, should Lorna refuse to live in Baguio,
Mario’s obligation to give support will be discharged.
In all questions regarding the care and custody of
Max, his welfare shall be the paramount consideration (Art
8, Child and Youth Welfare Code). However,' even if
Mario is not awarded the custody of Max, he will still be
required to give support.
B.
Comments and Suggested Answer
We agree with the answer of the Bar Examiner.
Question No. 4
A entered into a twenty-year lease contract with B
for the use of B’s warehouse in connection with his ( A ’s)
527
b u s i n e s s . A fter ten years, A ’s business had so prospered
that he needed to move to a larger placei Upon learning
o f A s intention to transfer his business elsewhere, B
offered tp terminate the lease contract, as the rental rate
for the warehouse had by then tripled the stipulated ren­
tal. A, whose relationship with B had soured over the
years, refused the offer so as to prevent B from leasing
the premises to another party. A padlocked the warehouse
after he had transferred his business to another place,
although he continued paying B the stinulated rental.
Under the circumstances, does B have any cause of
action against A ? Explain,
Answer:
A.
Furnished by Office of Justice Plana
B can file an action for damages and other relief,
including a declaration o f the termination of the lease
contract, against B for abuse o f rights under Article 19,
which provides that every person must, in the exercise
of his rights and in tha performance of his duties, act
with justice, give everyone hia due, and observe honesty
and good faith.
B.
Comments and Suggested Answer
We agree with the answer of the Bar Examiner.
However, we suggest that the following should also be
accepted as a correct answer:
First Alternative Answ er: B can file an action
against A for damages, including a declaration of the
termination of the lease contract. The act of A is not
only willful but also contrary to morals, good customs and
public policy (Arts. 21, 2219, No. (10), Civil Code).
Second Alternative Answ er: B can file an action
against A for ejectment. A 's act constitutes a violation
of one o f the essential conditions of the contract o f lease
to use the thing leased fo r the purpose intended (A rt.
1673, No. (3 ), Civil Code).
528
Question No. 5
Believing that a piece of land belonged to him, A
erected thereon a building, using materials belonging to
C. B, the owner of the land, was aware of the construc­
tion being made by A, but did not do anything'to stop
it.
What are the rights of A, B and C with respect to
the building and as against each other?
A n sioer:
A.
Furnished, by Office of Justice Plana
B,
regardless of his good or bad faith, becomes the
owner of the building (A rt. 445 and 448). However, A,
a builder in good faith, will be entitled to reimbursement
of his necessary and useful expenses, with a right to re­
tain the same until paid. He may also remove the cons­
truction, since B, the •landowner, acted in bad faith in
not stopping the construction (A rt. 454, 447). C, the
owner of the materials shall have the right to reimburse­
ment. C may also remove them but only if he can do so
without injury to the work (A rt. 447).
B.
Comments and Suggested Answer
W e suggest that the following should be accepted
as a correct answer:
A can choose between (1). reimbursement by B of
the value of the building plus damages, or (2 ) removal
of the materials, with or without injury to the building,
plus damages. It must be observed that B is in bad faith.
According to the law (A rt. 454, Civil Code), when the
landowner acted in bad faith and the builder acted in
good faith, the provision, of Art. 447 of the Civil Code
shall apply.
The rights of B, owner of the land, will depend upon
the option selected by A. I f A decides to demand reim­
bursement of the building plus damages, of course, B
becomes the owner of the building. I f A decides to remove
the materials regardless of whether or not there is in-
529
jury to the building, plus damages, B does not become
the owner of the building.
In the case of C, owner of the materials, assuming
that he was in good faith, obviously, he can proceed
against A for the value of his materials and against B
for damages. I f A cannot pay him the value of his mate­
rials, he (C ) can then proceed against B for the value
of said materials (A rt. 455, Civil Code). In other words,
B will then be liable not only fo r the value of C’s mate­
rials but also for damages.
Questioh No. 6
Brothers A, B and C are co-owners of a two-'storey
building which they inherited from their deceased parents.
A, the eldest, requested B and C to contribute for the
repair of the roof which was already leaking and for the
renovation of the first floor of the building so that the
same could be rented out. B and C refused.
Nevertheless, A had the repair and renovation done
at his own expenses. Consequently, the brothers were
'able to lease out the first floor and generate rental in­
come.
What are the right of A, B and C with respect to the
expenditures made by A and the subsequent rental in­
come? Explain.
Answer-.
A.
Furnished by Office of Justice Plana
The repairs of the building are a necessary expense
for its preservation. Hence, A can proceed to incur the
expenses for such repairs even without the consent of
the co-owners (A rt. 489). H® can recover the proportion­
ate. share of the others in these expenses.
Since B and C; who constitute the majority in in­
terest in the co-ownership, refused to have the renova­
tion of the ground floor made, A, had no authority to
undertake the renovation (Art. 492). Since be proceeded
to do so anyway, he must bear the costs thereof withoat
530
right to reimbursement. The co-owners would be entitled
to the rentals in proportior to their interest in the coownership.
B.
Comments and Suggested Answer:
We agree with the answer of the Bar Examiner.
Question. N o. 7
On January 1, 1978, A sold a typewriter to B. It
turned out, however that A had stolen the typewriter
from G.
In February, 1982, when C discovered that his type­
writer was in B’s possession, he immediately filed an
action against B to recover it.
W ill the action prosper?
Answer:
A.
Furnished by Office of Justice Plana
No. W hile the sale of the typewriter by A to B is
void, B has acquired ownership of the typewriter because
of the lapse of 4 years. He had possession of the type­
writer in good faith with just title for the period fixed
by law. Ownership of movables prescribes through unin­
terrupted possession for 4 years in good faith,
B.
Comments and Suggested Answers
W e agree with the answer of the Bar Examiner.
Question N o. 8
Spouses Guillermo and Pacita had three sons, name­
ly, A , B and C. Beset by quarrels, their marriage broke
up. Guillermo left for and obtained a divorce in the
United States, where he subsequently married Juana, by
whom he had a son, D. Guillermo later died in the United
States without even knowing that C had died earlier,
leaving a wife, E, and a legitimate son, F.
State the shares, if any, of the following in the estate
of Guillermo: A, B, D, E, F, Pacita and Juana.
531
Answers:
A.
Furnished by Office of Justice Plana
The legitimate sons are entitled to one (1 ) share
each, together with the surviving spouse, Pacita. Since
divorce is not recognized, Juana, the second wife, is not
an heir and gets nothing. D is. a spurious child and will
get 2/5 of the share of a legitimate son. C having pre­
deceased Guillermo, F, the legitimate son of C, will inhe­
rit by right of representation. E the w ife of C, has no
right of representation and will get. nothing. Hence, the
estate will be divided as follows:
A — 5/22
B — 5/22
F — 5/22
Pacita — 5/22
D — 2/22
B.
Comments and Suggested Answer
We suggest, that the following should be accepted as
a correct answer:
A shall be entitled to the share of a legitimate child.
B shall also be entitled to the share of a legitimate
child.
D,
being a natural child by legal fiction, shall be
entitled to one-half (1/2) of the share of A or B. It must
be observed, that Guillermo’s marriage to Juana is void
from the point of view o f Philippine Law since the decree
of absolute divorce obtained by him against Pacita is not
recognized as a valid decree (see Arts. 15, 71, 80, No.
(4 ).
E shall not participate in the inheritance because
she is not a legal heir of Guillermo.
Pacita however, shall be entitled to the same share as
A or B, being the surviving spouse of Guillermo (A rt.
999, Civil Code).
F, the legitimate son of C, will inherit by right of
representation.
Juana shall not participate in the inheritance because
she is not a legal heir o f Guillermo.
532
Hence, the proportionate shares of A, B, F, Pacita,
and D in the inheritance will be: (2 for A, 2 for B; 2 for
F, 2 fo r Pacita, and 1 for F or (2 :2 :2 :2 :1 ).
A 's share will be 2/9 of the estate;
B’s share will be 2/9 of the estate;
F ’s share will be 2/9 of the estate ;
Pacita’s share will be 2/9 of the estate; and
D’s share will be 1/9 of the estate.
Question No. 9
A had two song, one legitimate (B ) and the other
illegitimate (C ), who both died in a car accident. A t the
time of the accident, B was not married but had an ille­
gitimate son, D. C also had an illegitimate son, E. Upon
learning -of the death of his sons, A suffered a. heart at­
tack and died.
Gan D and E inherit from A ? Explain,
Answ er:
A.
Furnished by Office of Jtistice Plana
D,
cannot inherit. The illegitimate child cannot in­
herit from the legitimate relatives of his father or mother.
(A rt. 992).
E can inherit. The rights of illegitimate children are
transmitted upon their death to their descendants, legiti­
mate or illegitimate. (Art. 990).
B.
Continents and Suggested Answer
W e agree with the answer of the Bar Examiner.
Question No. 10
A had two legitimate children, namely, B and G.
He made a will, instituting C and a friend, D, as his
heirs and giving a P10.000 legacy to E, his former driver.
He, however, expressly disinherited B without specifying
the reason therefor.
Assuming that A ’s net estate is worth ?100,000 upon
his death, how will it be distributed?
533
Answer-:
A. Furnished by Office of Justice Plana
The disinheritance of B is invalid, because there is
no specification o f the cause therefor. However, the ins­
titution of the heirs will only be partially annulled inso­
far as it may prejudice his legitime (Art. 918). The
legacies and other testamentary dispositions remain valid
insofar as it will not impair his legitime. B therefore geta
his legitime which is 1/4 of the estate, or P25,000.00. The
legacy o f P I 0,000.00 to E will be paid. The balance of
the estate of P65,000.00 w ill be divided equally between
the instituted heirs, C and P .
1
B.
Comments and Suggested Answer
We suggest that the following should be accepted as
a correct answer:
The disinheritance of B is defective or imperfect
because there is no specification of the cause in the will
as required by law. However, the institution of heirs will
only be partially annulled insofar as it may prejudice
his legitime (A rt. 918, Civil Code). Therefore B willstill be entitled to his legitime which is 1/2 of 1/2 of
P100,000, or P25,000. The legacies, however, are valid bo
long as they are not inofficious (Ib id .) It is obvious, that
the legacy of P10,000 given, to E is not inofficious: because
it can easily be contained in the free portion of P50,000.
Therefore, E will be entitled to such legacy; Since A had
instituted as heir? his child C and his friend D as heirs
without designation o f shares, therefore, applying the view
of Manresa, which has been adopted by commentators in
this country, Tolentino among them (6 Manresa 98-99; 3
Tolentino 161; Art, 846, Civil Code), the legitime of C,
which is 1/2 of 1/2 of P100,000, or P25,00Q, must first
be separated and allotted to him because the testator
cannot deprive him of not. Then, th e, remainder of
P40.000 which is the disposable free portion, will be
divided equally between C and D, the two instituted
heirs.
534
Consequently, the estate of P100,000.00 will be dis­
tributed as follows:
B — ?25,000 as compulsory h eir;
C — ■P25.000 as compulsory h eir;
P20,000 as voluntary heir ;
D — P2Q,000 as voluntary heir;
E — P10,000 as legatee,
Question No. 11
A,
B and C solidarity promised to pay D the amount
o f P3,000.00. Unfortunately, C became insolvent.
What recourse does D have against A and B? What
are the rights of A and B a3 against each other?
Answer
A.
Furnished by Office of Justice Plana
D may sue either A or B, or both, and recover the
whole amount of P3,000.00 (A rt. 1207) from either or
both of . them. Either party paying the entire amount may
recover the amount of Pl>500.00 from the other party.
(A rt. 1217).
B.
Comments and Suggested Answer
We agree with the answer of the Bar Examiner.
However, i f the bar candidate will answer the problem
by invoicing the provisions of Arts. 1216 and 1217 of the
Civil Code instead of Arts. 1207 and 1217, it is recom­
mended that the answer should be considered a correct
answer.
Question No. 12
A sold to B a parcel of land with the right to re­
purchase the same within three years. A tendered the
repurchase o f price to B within the prescribed period,
but B refused to accept it. A then brought an action in
court fo r specific performance.
B contends that since A did not deposit the money
in court within the stipulated period fo r repurchase and
535
the period has now lapsed, A can no longer repurchase
the property. Is this contention correct? Explain.
Answer :
A.
Furnished by Office of Justice Plana
No. Consignation is not necessary to compel B to
make the resale if he refused to accept the repurchase
price tendered. The provisions of consignation refer only
to obligations. They are not applicable to the l’ight o f re­
purchase which is not an obligation but a right exercise
able purely at the option o f A.
B.
Comments and Suggested Answer
We agree with the answer o f the Bar Examiner.
However, i f the bar candidate will attack the problem by
holding that there was no default or mora of A because
o f the previous tender o f payment which was refused by
B without any justifiable cause, and consequently, A can
still repurchase the property, it is recommended that said
answer should be properly credited.
Question No. IS
A obtained from B a loan payable within a year. As
security fo r its repayment, A mortgaged his uninsured
house.
Three months after the loan was given, A ’ s house
was gutted by an accidental fire. Thereupon, B demanded
immediate payment from A, who refused to pay contend­
ing that the loan was fo r a one-year period.
Is A ’s contention valid? Explain.
A nsw er:
A.
Furnished by Office o f Justice Plana
No. Under Art. 1198, the debtor shall lose every
right to make use of a period when the securities disap­
pear through a fortuitous event. A has to give satisfactory
substitute collateral.
B,
Comments and Suggested Answer
W e agree with the answer o f the Bar Examiner.
536
Question No. 1U
For value received, Pedro promised to deliver to
Juan on or before August 15, 1984 a Mercedes Benz with
Plate No. 123 which he (Pedro) had just brought home
from Germany, as well as a 1984 18" Sony television set.
Unfortunately, before the scheduled delivery date, the
Mercedes Benz and the television set which Pedro had
intended to deliver to Juan were destroyed by an acci­
dental fire.
Has the obligation of Pedro been extinguished? Ex­
plain.
Answer:
A.
Furnished by Office of Justice Plana
The obligation to deliver the Mercedes-Benz is an
obligation to deliver a determinate thing, because the
particular car to be delivered had been designated. The
obligation to deliver that particular car was therefore
extinguished by the occurence of the fire, a fortuitous
event.
On the other hand, the obligation to deliver the tele­
vision set is an obligation to deliver a generic thing. The
particular television set to be delivered has not been deter­
mined. Only the kind of television set to be delivered was
agreed upon. Pedro is therefore still obligated to deliver
a television set of the kind and quality agreed upon, since
generic obligations are never extinguished by fortuitous
events.
B.
Comments and Suggested Answer
We agree with the answer of the Bar Examiner.
Question No. 15
On June 13, 1982, A sold to B in a public instrument
a parcel of land for P50,000. Simultaneously, B granted
A an option to buy the same property for P60,000.00 with­
in one year. On June 13, 1983, B allowed A an extension
of the option to buy for another vear, this time at the
537
price of P72.000. All the while, A has remained in pos­
session of the land.
In May, 1984, A filed an action for the reformation
of the deed of sale into a real estate mortgage, alleging
that the land covered thereby was given only as a security
for the repayment of a loan.
Under the circumstances,
Why?
will
the action prevail?
Answ er:
A,
Furnished by the Office of justice Plana
The option was granted on the same date that the
sale was executed. The repurchase price increased at a
rate of 20% a year, which could be equivalent to inte.rest
at the rate of 20% a year. Moreover, tho seller remained
in possession of the premises. All of these are indications
that the real transaction between the parties is a loan,
not a sale. In case 6f doubt, under Article 1603, a contract
purporting to be a sale with right of repurchase shall be
construed as an equitable mortgage. The instrument should
therefore be reformed.
B.
Comments and Suggested Ansvjer
We agree with the answer of the Bar Examiner.
Question No. 16
A bought a truck from B payable in installment
secured by a chattel mortgage executed by A on the truck.
As additional security, A ’3 brother, C, executed a real
estate mortgage in favor of B.
A defaulted in the payment of several installments.
Consequently, B filed an action for replevin, repossessed
the truck, and foreclosed the chattel mortgage.
Can B proceed against the other 'properties of A and
the real estate mortgage executed by C to recover the de­
ficiency, if any, after the chattel mortgage foreclosure
sale? Explain.
538
Answer :
A.
Furnished by the Office of Justice Plana.
No. Under Art. 1484, in a contract of sale of personal
property the price of which is payable in installments, if
the seller elects to foreclose after buyer defaults, he shall
have no further action against the purchaser to recover
any unpaid balance. Since the principal obligation is ex­
tinguished, the mortgage executed by C as security there­
for w ill also necessarily be released. (A rt. 2086)..
B.
Comments and Suggested Afrisiver
We agree with the answer of the Bar Examiner.
Question. No. 17
On January 1, 1983, A borrowed P10,000 from B pay­
able on December 1, 1983. As security therefor, A pledged
his car to B with an agreement that B could use it. On
June 30,' 1983, A offered to pay the loan in full and aslced
for the return of his car.
Can A compel B to accept’the payment and to return
the car? Why?
Answer'
A.
>
Furnished by Office of Justice Plwna
No.. Under the agreement with A, B is authorized to
use the car. The creditor may use the thing pledged with
the consent of the owner (A rt. 2104). A period for the
payment of the obligation was also stipulated. Under Artiele 1196,. it i3 presumed that whenever a period is designated, it is presumed to have been established for the
benefit of both the creditors and the debtor. Hence, A can­
not prepay the loan and demand the return of the pledged
property until the term had arrived.
B.
Contents and Suggested Answer
We agree with the answer of the Bar Examiner.
Question No. 18
More than one year had elapsed since the issuance of
the filial deeree of registration when A discovered that his
land had been fraudulently registered in the name of his
539
caretaker B.
What right of action, if any, does A have and against
whom? Explain.
Answer'.
A. Furnished by Office o f Justice Plana
The only remedy of A is to bring an action for re­
conveyance against B, or' for damages if the property has
passed into the hands of an innocent purchaser for value.
Such a complaint would not seek a review of the decree or
the reopening o f the registration case which is already in­
controvertible, but be for the enforcement o f a trust. Sec­
tion 96 of PD No. 1529 provides that nothing in the A ct
shall be construed to deprive any party of any action
which he may have against any person for loss or damage
or deprivation of land or any interest therein. It may alsd
he stated that an action by A against B to compel him to
convey the property held in B’s name to A as the benefi­
ciary, does not prescribe. (Caladiao, et. al. vs. Bias, 119
Phil 969).
B.
Comments and. Suggested Answer
W e suggest that the following should be accepted as
correct answer:
Answer No, 1 : The only remedy of A is to bring an
action for reconveyance against B, or for damages i f the
property has passed to an innocent purchaser for value
(Sec. 96, PD 1529). Such an action would not seek a re­
view.-of "the-decree-or the reopening o f the registration case
which is already incontrovertible. Instead, it will be an
action fo r the enforcement of a trust. However, A must
institute the action within ten years to be counted from the
discovery of the fraud. The fraud is deemed to have been
discovered at the moment B set up a title in himself ad­
verse to the title of A.
( N o te : The doctrine that the action shall prescribe
and that the period of prescription is ten years is
supported by: Buencamino vs. Matias, 16 SORA 849;
Araneta vs. Perez, 17 SCRA 643; Pascual vs.
540
Meneses,-20 SCRA 219; Julio vs. Dalandan, 21 SCRA
543; Cuaycong vs. Cuaycong, 21 SCRA 11-92.; Fabian
vs. Fabian, 22 SCRA 231; Bueno vs. Reyes, 27 SCRA
1179; Dela Cerna vs. Dela Cerna 72 SCRA 515;
Jaramil vs. CA, 78 SCRA 420; Duque vs. Domingo,
80 SCRA 654; Nacalaban vs. CA, 80 SCRA 428).
Answer No< 2: The only remedy of A is to bring an
action fo r reconveyance based on the implied or construc­
tive trust recognized in the Civil Code (A rt. 1456, Civil
Code) According to the Civil Code, if property is acquired
through mistake or fraud., the person obtaining it is, by
force of law, considered a trustee for the benefit of the
person from whom the property cornea. It is, however,
well-settled that the action shall prescribe after ten years
from the discovery of the fraud. It is also well-settled that
the fraud is deemed to have been discovered at the moment
the trustee set up a title in himself adverse to the title o f
the beneficiary.
Question No. 19
A had a piece of land which was registered under the
Torrens system. He sold it to B, but the sale was not re­
gistered. Subsequently, C, a creditor of A, obtained an
attachment on the property, which was duly registered
with the Registry of Deeds. B thereafter attempted to re­
gister the sale in his favor. The Register of Deeds was will­
ing to do so and issue a transfer certificate of title to B,,
subject however, to the condition that the attachment in
iavor of C would be .inscribed on the new certificate of
title. B objected, contending that at the time of the attach­
ment of the property, A was no longer the owner thereof
and therefore had no more interest therein which cbuid
be attached.
Is B’s posture valid? Explain.
Answ er:
A.
Furnished by Office of Justice Plana,
No. Section 51 of the Property Registration Decree
provides that the execution of a deed shall not take ef fect
541
as a conveyance, or bind the land, except as between the
parties. The act of registration shall be the operative act
to convey or affect the land as far as third parties are con­
cerned. Hence, since C 'has secured a lien by attachment
prior to registration, the rights acquired by B under the
deed shall be subject to the rights of G and cannot be en­
forced until after the rights of C have been fully satisfied.
B.
Comments and Suggested Answer
We agree with the answer of the Bar Examiner.
Question No. 20
A, a foreigner, married B, a Filipino, and settled in
the Philippnes. They begot a Son, C. Under the laws of A ’s
country, the system of complete separation of property is
followed, and the husband can freely dispose of his pro­
perties without restriction.
During the marriage, A bought a large number of
shares o f Philex Mining Company out of his salary as a
World Bank consultant.
Upon A ’s death, it was found that he left a will leav­
ing all his Philex shares — the only property acquired
during his marriage — exclusively to his brother D, total­
ly omitting B and C. B and C, therefore, opposed the will
on the ground o f the preterition of C, among others. Add­
itionally, B claimed that Vi! of the Philex shares of stock
should pertain to her as her conjugal share.
Is the will valid? I f you were the judge, how would
you rule on the issues raised by B and C?
Answ er:
A.
Furnished by Office of Justice Plana
Under Article 16 of the Civil Code, in testamentary
succession, the intrinsic validity of testamentary shall be
regulated by the national law of A ’s country. Thus, since
the laws of A ’s country allow him to freely dispose of his
. property, the testamentary dispositions in favor of his
brother would be valid even though he totally omits his
w ife and son. B, is also not entitled to one-half of the
542
Philex shares. Under Art. 124, the law of the husband’s
country shall govern their property relations, which, in
this case, was the system of complete separation of pro­
perty. Since the Philsx shares were acquired by A out o f
his salary, the shares belonged exclusively to him.
B.
Comments and Suggested Answer
We agree with the answer of the Bar Examiner. How­
ever, if the bar candidate will hold that the w ill is valid
on the ground that the questions of preterition and intrin­
sic validity of testamentary provisions are questions which
a probate court cannot determine, and then, he finally re­
solves the issues of preterition a.nd intrinsic validity of
testamentary provisions correctly, said answers should be
considered a correct answer.
543
1983 BAR EXAMINATION
Question. No. 1
A fter an altercation with B, A hit B’s car with a
piece of wood, breaking the windshield. When G came
along and tried to pacify A, the latter stabbed the
former., causing injuries which would have been fatal were
it not for timely medical attention.
A was charged with frustrated homicide and malicious
mischief. Two separate civil actions for damages were
also filed against him, one by B and the. other by C.
A moved for the suspension of the civil actions until
after the termination of the criminal cases.
Resolve with reasons.
Answer
It should be denied in so far as the civil action for
damages arising from B’s injuries is concerned. In cases
of physical injuries, which have been held to include ho­
micide, whether consummated or frustrated, a civil action
for damages, entirely separate and distinct from the
criminal action may be brought by the injured party and
shall proceed independently of the criminal proceeding.
It should, however, be sustained as to the civil action
to recover indemnity for the damage to the taxi, it not
being one- of the cases specified in the Code in which an
indapendent civil action may be maintained. For this rea­
son, it must be held in abeyance until the termination of.
the criminal action.
Question No. 2
The wife, A, left her husband, B, taking along their
2-year old son, and demanded separate maintenance for
544
herself and their child. B refused, alleging that A aban­
doned him without cause (a claim she denies), that his
income is small and inadequate for his own support and
that of his w ife and child, if they lived apart from him,
and prayed that his w ife and child return to the conjugal
home where he would support Ithem and that, if she is
not willing to do so, to surrender to him the custody.of
their son, she being unfit to take care of him.
(a ) May A be compelled to live with B again? Why?
Is the existence of a just cause fo,r her abandon­
ment of the conjugal home decisive of this ques­
tion? Why?
(b ) A re A and the child entitled to separate main­
tenance even if B’s income is small? Why?
Answer
(Exam iner’s Answer)
(a ) A cannot be compelled, irrespective of whether
she left the conjugal home with or without a just cause.
The law has not prescribed a remedy by which the w ife
may be forced to live with her husband again.
(b ) I f A abandoned B for, a just cause, she may de­
mand separate maintenance; otherwise, she cannot. The
child must be supported regardless of where he is and
of the amount o f the father’s income. I f A is entitled to
support, she too has a right to it irrespective o f how
much the husband earns. Whether big or small, he must
share it with his wife and child.
( Committee's
Answer)
(a ) A cannot be compelled to live with B again. The
reason is that the obligation of cohabitation is a purely
personal obligation, an obligation to do. In this type of
obligation, there can be no such thing as an action for
specific performance. To compel the w ife to return to
545
the conjugal home would constitute an infringement of
her liberty. This is well-settled.
The existence of a just cause for A ’s abandonment of
the conjugal home is not decisive of the question of whe­
ther or not A can be compelled to live again with B. The
existence of a just cause for A ’s abandonment is material
only when it comes to the. question of whether or not
a wife can be compelled to comply with h'is obligation of
cohabitation.
(N ote: The above answer is based on Arts. 109, 178 no.
1, Civil Code and-on decided cases.)
Q u estio n No. 3
Out of the illicit relations between A, a married man*
and Bj an unmarried woman, a child, C, was born two
months before the death of A ’s wife. A month after his
w ife’s death, A married B.
What is C’s status? Why?
A nsw er
C is a spurious child, its parents being incapable of
marrying each other at the time of its conception. Their
subsequent marriage cannot, therefore, legitimize C.
Q u estio n No. 4
A, a squatter who is sought to be evicted by the Iand^
owner, B,. seeks reimbursement from the latter for the
improvements he made on the property, while B demands
the value of all the fruits A gathered from the land dur­
ing his occupancy thereof.
Is A entitled to the indemnity he prays for ? Is he
bound to pay for the fruits he received? Why?
Answer
( Examiner’s Answer)
As a possessor in bad faith, A may recover only the
neeessary expenses he may have incurred while in pos­
546
session and reimbursement for useful improvements in­
troduced by him if the owner chooses to retain them and
he must pay him the value of all the fruits he received.
{Com m ittees Answer)
A is entitled to reimbursement for ail expenses
curred by him for necessary improvements, Under
law, this is the only right to which a possessor in
faith (builder in bad faith ) is entitled as against
legitimate owner or possessor,
in­
the
bad
the
(N ote: The above answer is based on Arts. 546, par. 1
and 452, Civil Code. W e submit most respectfully
t-hat A is not entitled to reimbursement for use­
ful expenses. I f B chooses to retain the useful im­
provements, Arts. 449 and 451, Civil Code, are
directly applicable. The second paragraph of Art.
546, Civil Code is applicable only to a possessor
in good faith.)
Yes, A is bound to pay for the fruits received and those
which B could have received minus necessary expenses and
expenses for the production, gathering and preservation of
the fruits; This is expressly ordained by the law,
(N o te : The above answer is based on Arts. 549, 546, par. 1
and 442, Civil Code)
Question No. 5
To secure the payment to B of a loan, A, the owner of
a lot, executed a chattel mortgage on the building he
erected thereon as well as on some newly bought machine­
ry stored therein. Thereafter, a judgment was rendered
against A in favor of C who had the building and machine­
ry levied upon to satisfy the judgment.
Is the chattel mortgage binding on C? Explain.
547
Answer
It is, in so far as the machinery is concerned but void
as to the building. The machinery is movable property as it
does not appear that A introduced it in the building in con­
nection with any industry or works being carried on there­
in, while the building is immovable property and conse­
quently cannot be the subject of a chattel mortgage.
Q u estio n No. 6
Three of four brothers, the sole heirs of their deceased
parents, agreed to convert a ricefield in the estate into a
subdivision and spend the money, also left by their pa­
rents, for developing the subdivision. The fourth son dis­
agreed and brought a suit to enjoin his brothers from pro­
ceeding with the subdivision and spending the money they
inherited for its development.
Will the action prosper? Why?
A nsw er
It will, in so fa r as it seeks to stop the conversion of
the ricefield into a subdivision, for this is an alteration
which requires the consent o f all the co-owners. But i f the
refusal o f the plaintiff is clearly prejudicial to the common
interest, the alteration may be allowed.
It will also prosper in so far as it prays that the mo­
ney of the estate be not diverted to the development of
the subdivision. The expenditure is not a mere act o f ad­
ministration but of dominion which requires the consent
of all.
With respect to the lease, the action will succeed i f it
created a real right; otherwise, it w ill fail.
Q u estio n No. 7
The deceased, A left a gross estate worth P360.000
and debts amounting to P60j000. He was survived by his
548
widow, three legitimate children, an acknowledged natu­
ral child and. an adulterous child. In his will, he bequeathed
P6.000 to a friend, leaving the-remainder of his estate
to his widow and children, legitimate as well as illegiti­
mate.
Divide A ’s estate among the persons entitled thereto.
Give reasons fo r your division.
A nsw er
The net estate is worth P300,000.00
(.gross estate) — P60,000.00 (debts)]
[P360,000.00
Each of the legitimate children will receive P50,000.00
as legitime.
The widow will receive the same amount as legitime.
The legitime of the acknowledged natural child is
of that of each legitimate child or P25,000.00
The share of the spurious child is 4/5 of that of the
acknowledged natural child or P20,000.00.
In addition, the legitimate children, the widow, the
acknowledged natural child, and the adulterous child will
each receive P8,166.66 % as their share of the remainder
of the free portion, after deducting therefrom the legitinies
of the surviving spouse, the illegitimate children and the
legacy.
The legatee, will get P6,000.00.
Explanation:
Since the legitime of the legitimate children, which is
y2 of the estate, cannot be impaired, only the free portion,
the other half of A ’s property, is available for the satis­
faction of the shares of the other distributees. From that
part must first be taken the legitimes of the surviving
spouse and o f the illegitimate children which total P95,000.00. To the remainder o f the free portion, or P55,000.00
is likewise chargeable the legacy. The remainder of the
free portion will then be P49,000.00 which shall be divided
equally, among the children, legitimate as well as illegiti­
mate and the widow, it having been left to them without
any designation of the shares.
Q u e stio n JSo. 8
On A ’s death last year, his, nearest of kin were a legi­
timate daughter born in 1945 and a spurious son born and
recognized by A in 1949.
May the daughter oppose her brother’s claim to their
father’s estate on the ground that it would: impair her
right under the old Civil Code to succeed him to the ex­
clusion of spurious children? Why?
Answer
No. The rights to the succession are transmitted only
from the moment of the death of the decedent. Since A died
last year when, the old Civil Code was nO longer in force,
she. did not acquire the right granted by it to exclude her
hrother from A's inheritance. Her right thereto is gov­
erned by the new Civil Code, the statute in force at the
time of the opening of the succession of A, under which
spurious children inherit together with legitimate descend­
ants.
Q u e stio n No. 9
A, a spurious child, died intestate survived by B, the
brother of his deceased mother, and C, his. mother’3 legi­
timate granddaughter.
May B and C inherit from A ? Reasons.
A nsw er
B cannot because uncles have no right to inherit from
their illegitimate nephews. C cannot succeed either be­
cause legitimate relatives have no right to inherit from an
illegitimate child and vice versa.
550
Question No. 10
A bound himself to deliver to B a 21-inch 1983 model
T V set, and the 13 cubic feet White Westinghouse refrige­
rator, with Motor No. WERT-385, which B saw in A ’s
store, and to repair B's piano. A did none of these things.
May the court compel A to deliver the T V set and the
refrigerator and repair the piano? Why? I f not, what, re­
lief may the court grant B? Why?
Answer
( Examiner’s. Answer)
Yes, in so far as his obligation to deliver' the Wesiinghouse, refrigerator is concerned, the thing to be given
being determinate, but no in so far as the 2 other obliga­
tions are concerned, one being an obligation to give an
indeterminate thing, and the other being an obligation to
do. In these 2 cases, the court shall order the obligations
to be performed at A ’s expense.
{Com m ittee's Answ er)
As far as the refrigerator is concerned, the Court may
compel A to deliver the refrigerator to B. The obligation
to give is a determinate obligation to give. Under the law,
in this type of obligation, the principal right of the cre­
ditor against the debtor is to compel the debtor to make
the delivery.
(N ote: The above answer is based on Art. 1165, par. 1,
Civil Code)
As far as the TV set is concerned, the Court may com­
pel A to deliver although not specifically. The obligation
of A is a generic obligation to give. Under the law^ in this
type of obligation, once all of the circumstances of the
obligation have been taken into consideration, the Court
may compel A to deliver to B a T V set which must be
neither of superior nor inferior quality.
551
(N ote: The above answer is based on Art. 1246, Civil
Code.)
As far as the repair of the piano is concerned, the
court cannot compel A to repair said piano. The obliga­
tion here is a purely personal obligation, ah obligation to
do. Under the law, in this type of obligation to compel A
to repair the piano of B would constitute an infringement
of A ’s liberty.
(N ote: Th'e above answer is based by implication on Art.
1165, Civil Code.)
Anent the T V set, if the debtor refuses or is unable
to comply with his obligation to deliver a 21 inch T V set
which must be neither of superior nor inferior quality, B
may ask the court to order the performance of the oblig­
ation at the expense of A. Additionally, he can ask for
damages.
Anent the repair of the piano. B may also ask the
court to order the performance of the obligation at the
expense of A.
(The above answers are based on Arts. 1165, par. 2
and 1170, Civil Code.)
Q u e stio n No. 11
Cite three instances where a person is made civilly
liable fo r failure to comply with his obligations although
he was prevented from doing so by a fortuitous event.
A nsw er
(a )
When the loss is due to the debtors’s fault.
(b )
When the debtor has incurred in delay,
(c )
When he has promised to deliver the same thing
to 2 or more different persons who do not have
the same interest,
(d )
When it is expressly stipulated,
552
(e )
When the law expressly provides so,
(f)
When the nature of the obligation .requires the
assumption of risk, and
(g )
When the thing to be delivered is indeterminate,
the loss of a thing of the same kind, even if due
to a fortuitous event, does not extinguish the
obligation.
Q u e stio n No. 12
A and B sold 1,000 sacks o'f rice to X and Y and, on
X ’s request, delivered them to him. X resold the rice,
without turning over any part of it or its price to Y.
May Y compel A and B to deliver what he bought? I f
so, to what extent?
A nsw er
Yes, Y may compel A to deliver 250 sacks of rice and
B the same quantity, the obligation being joint, not soli­
dary.
Q u e stio n No. 13
A owes B P20.000 which became due and payable last
October 1, 1983. Oh that date, A offered B P10,000 the
only money he then had, but B refused to accept the pay­
ment. A thereafter met C, B’s 22-year old son, to whom
he gave the P10,000 with the request that he turn the mo­
ney over to B. The money was stolen while in C’s posses­
sion.
Was B justified in refusing to accept the payment of
A ? May he still recover the full amount of his debt of
P20.000? Why?
A nsw er
Yes, the creditor cannot be compelled to receive par­
tial payments of the obligation due him, there being no
stipulation to the contrary.
553
B may still demand full payment of the sum due him.
The payment to his son, who does not appear to have been
authorized to receive it, is invalid, the creditor not hav­
ing received any benefit therefrom.
Q u e stio n No. 14
A fte r leasing his restaurant to B, A leased the ad­
joining room to C knowing fully well that C was going to
put up another restaurant, which he did.
Is A liable to B for the damage he may have suffered
as a result of the opening of C’s restaurant? Why?
A nsw er
(Exam inees Answer)
No. A has not obligated himself not to allow the esta­
blishment of another restaurant adjoining that leased to
B nor is there any law which imposes such an obligation
upon him. On the contrary, the Civil Code (A rt. 1656)
permits the lessor of a business to continue engaging in
the same kind of business to which the thing leased is
devoted unless there is a stipulation to the contrary. I f
the lessor is not forbidden, with less reason should a
stronger, not a party to the lease be prohibited.
( Committee’s Answer)
In addition to the answer of the Bar Examiner, the
following answer, we believe, also be considered correct:
A is liable to B for the damages he may have suf­
fered as a result of the opening of C’s restaurant. In the
exercise of his rights and the performance of his obliga­
tions, A did hot observe honesty and good faith. A is,
therefore, liable for damages.
(N ote: The above answer is based on Art. 19, Civil Code.
I f the bar candidate invokes Art. 21 of the Civil
Code, the Committee respectfully recommends that
the answer should be considered correct.)
554
Question No. 15
On October 15, 1983. goods were loaded on a vessel
owned by a common carrier for transportation from Ma­
nila to Cebu under a bill of lading which provided that
the carrier would not be responsible for loss arising from
theft or robbery. The goods were stolen while the vessel
was docked in Manila.
Sued for damages, the common carrier invoked the
cited stipulation to avoid liability for the loss of the cargo.
Additionally, the carrier, which is a corporation, argued
that it could not be held liable because it had done all
it could to prevent the loss by exercising the utmost dili­
gence ift the- selection and supervision of its employees.
How valid are these defenses?
A nsw er
The defenses are not valid.
Common carriers cannot escape liability by stipula­
tion in the bill of lading relieving them for responsibility
fo r the acts o f thieves or robbers who do not act with
grave or irresistible threat or force.
Common carriers are similarly forbidden from ex­
empting themselves from liability for the acts or omis­
sions of its employees by stipulations to that effect in
the bill of lading.
Q u estio n No. 16
A borrowed B’s truck. During a fire which broke out
in A ’s garage, he had time to save only one vehicle and
he saved his car instead of the. truck. Is he liable for
the loss of B’s truck? Why?
Answer
Yes. The bailee in a commodatum is liable for the
loss of the thing loaned even if thru a fortuitous event
555
where, being able to save it or his own thing, he chose to
8ave the latter.
Q u estio n No. 17
In 1930, A sold a piece of land to B and delivered
nis certificate. of title thereto. B occupied the land but
did not have A ’s title cancelled and a new one issued
in his name. Upon B’s death in 1950, the land passed
to his. son, C, who continued in possession thereof.
In 1970, A ’s two sons, X and Y , secured the cancella­
tion of the title of their father who had died, and the
issuance of two titles, one in X ’s name, covering 1/2 of
the land, and the other in Y ’s name, embracing the
Other half. X thereafter sold his part to Z, who was un­
aware o f the antecedents.
Is C bound to deliver to Z the portion sold to the
latter by X, and to Y the part embraced in Y ’s title?
A nsw er
'
C must deliver the portion sold to Z, he being a buyer
in good faith but n ot‘the part embraced in Y ’s title, he
having lost the right to recover it by laches.
Q u estio n No. 18
A filed in the regional trial court an application for
registration (confirmation of title) o f a parcel of land
in his name. B filed a motion to dismiss A ’s application
on the ground that the court has no jurisdiction to enter­
tain it, the land having already been registered in his
name after the grant to him of a homestead patent.
Should the motion to dismiss be granted? Why?
Answ er
The motion should be granted. Since a patent and a
certificate of title to the land have already been issued,
it has become registered property, the title thereto is
indefeasible and is no longer subject to the jurisdiction
556
of a Court of First Instance acting as a land registra­
tion court.
Q u e stio n No. 19:
A, a Filipino woman, and B, an American, were mar­
ried and initially lived in Manila. They later established
their domicile in Texas, of which state B is a citizen,
and there obtained an absolute divorce in accordance
with the laws of Texas. A afterwards returned to the
Philippines and rrlarried a Filipino.
Evaluate the validity of the divorce and the subse­
quent marriage of A, citing reasons.
A nsw er '
B will succeed. The divorce granted in Texas can­
not be recognized in the Philippines, in so fa r as A is
concerned. She is a Filipino and is bound by local law
which does not sanction an absolute divorce. B, there­
fore, remains to be her husband notwithstanding the di­
vorce.
However, the contrary view is not without legal basis.
B y adopting the principle of nationality in Art. 15, under
which one’s personal law is the law of his. nation, the
Civil Code accepts, that an alien woman married to a
Filipino may validly obtain a divorce abroad in accord­
ance with her national law. By recognizing the validity
of such a divorce, it in effect admits its effectiveness
in respect of both spouses. No other solution is possible
except the contrary one which, as the problem above
posed shows, leaves one party married to a man or woman
who has ceased to be a spouse and gives rise to bizarre
social problems as well as intricate legal questions.
*
*
*
*
The Committee hereby submit their answers to the
questions in Political Law. In addition, they submit their
following comments on some of the answers of the ex­
aminer.
557
1982 BAR EXAMINATION
Q u e stio n N o. 1
“ S” , the son of “ A ” , married “ D” , the daughter of
“ X ” . “ X ” is a sister of “ A ". “ S” and “ D” begot a
daughter “ C” . In 1979, while “ D” was still living, ,!S”
married “ M ” , and during their coverture, a child “ E ”
was born.
What is the legal status —
(a ) o f the marriage of “ S” to “ M” ?
(b ) o f “ C” , the child of “ S” and “ D ” ?
(c ) of “ E” , the child of “ S” and “ M ” ? Reasons.
Answer
(a ) The marriage of “ S” to “ M” is valid. The reason
is obvious. The previous marriage of “ S” to “ D” is void
from thie very beginning. Consequently, there is no legal
impediment to the marriage of “ S” to “ M” .
I t must be observed that “ X ” , the mother of “ D” ,
is a sister of “ A ” , the father of "S ” . Hence, “ S” and “ D”
are first cousins. They are, therefore, collateral relatives
within the fourth degree. Under the Civil Code, their
marriage is incestuous, and as a consequence, void from
the very beginning. No judicial declaration of nullity is
necessary in order that it is void. Hence, “ S” was free
to marry “ M” despite his previous marriage to his first
cousin “ D "
(b ) “ C” , the child of “ S” and “ D ” , is a natural child
by legal fiction. According to the Civil Code, children con­
ceived or bom of marriage which are void from the be-
ginning shall have the same status, rights and obligations
as acknowledged natural children and are called natural
children by legal fiction. Since as stated above, the mar­
riage of “ S” and “ D” is void, it is clear that “ C” is a
natural child by legal fiction.
(c )
“ E ” is a legitimate child. As we have stated
above, the marriage of “ S” and “ M” is valid. As a con­
sequence, their child “ E ” is a legitimate child.
(N o te : The answer to (a ) is based on Art. 81, Civil
Code; the answer to (b ) is based on Art. 89, Civil Code;
while the answer to (c ) necessarily follows from the
answer to ( a ). )
Q u estio n No. 2
“ A ” and “ B” , man and woman not related to each
other, both single and of age, had an illicit relation. A
child “ C” was born out of that relation. Subsequently
“ A ’’ married “ X ” . Notwithstanding the marriage, “ A ”
and “ B” continued their illicit relation, and two years
later, another child “ D” was born to them. A fter the death
of “ X ” . “ A " married “ B” .
(a ) What is the legal status of the children “ C” and
*'D” ?
(b ) A fte r the marriage, “ A ” and “ B” recognized “ C”
and “ D” . What effect has such recognition on
the legal status of “ C” and “ D” ? Reasons.
Answer
(a )
“ C” is a natural child, while, while “ D” is an
illegitimate child not natural (spurious child).
According to the Civil Code, children born outside
wedlock of parents, who, at the time of the conception
of the former, were not disqualified by any impediment
to marry each other are natural. It is clear that “ C” falls
559
within the purview of this definition. However, in the case
o f “ D ” , it is different. Since he was conceived at a time
when his father “ A ” was already married to “ X ” , he i s
clearly an adulterous child. He is, therefore, an illegiti­
mate child not natural (spurious child).
( N o te : The above answer is based on Arts, 269 and
287 o f the Civil Code. The Committee respectfully
recommends that if the bar candidate attacks the
problem from the point of view o f the two requisites
which must be present in order that child shall be
considered as a natural child, it should be considered
a correct answer.)
(b )
“ C” is now promoted to the category of a legi­
timated child. “ D” , on the other- hand, is still an ille­
gitimate child not natural (spurious child).
A ll of the requisites of legitimation are present i n
the case o f “ C” . In the first place, he is a natural child;
in the second place* there was a .subsequent marriage o f
the parents to each other ; and in the third place, he w a s
recognized by both of his parents as their child after the
celebration of their marriage. Consequently, he is now a
legitimated child.
However* in the case of “ D” , being a spurious, and
not a natural, child, he can never be legitimated. Conse­
quently, he is still an illegitimate child not natural
(spurious ch ild ).
(N o te : The above answer is based on Arts. 269, 270
and 271 o f the Civil Code.)
Q u e stio n N o. 2
“ H ” , the husband, during the marriage to his second
wife, donated a parcel of land to “ A*’, a son of the second
w ife by her first marriage. (Assume that the formalities
required by law had been complied w ith). A fte r the death
o f the husband donor, his brother, “ B” , his nearest living
560
relative, brought an action to annul the donation. W ill
the action prosper? Reason.
Answer
Yes, the action will prosper. According to the Civil
Code, a donation during the marriage by one o f the
spouses to the children whom the other spouse had by
another marriage, or to persons of whom the other spouse
is a presumptive heir at the time of the donation is void­
able at the instance of the donor’s heirs after his death.
Since the problem says that “ B” , a brother of the dece­
dent donor, is the nearest living relative of said donor,
it is clear that he can now institute the action for annul­
ment!
( N o te : The above answer is based on Art. 134 of
the Civil Code.)
Q u estio n No. 4
(A )
troncal?
What is the reason or rationale for reserva
(B ) May the reservor (reservista dispose of the re­
servable property—
(1) By acts inter vivos?
(2) By acts mortis, causa? Reasons.
A nsw er
(A )
The reason or rationale fo r reserva troncal is
evident: it is to reserve certain property in favor of
certain relatives. Hence, its name reserva lineal or tron­
cal. It seeks to prevent persons outside a family from
securing, by some special accident of life, property that
would otherwise remained therein. Its principal aim is to
maintain as absolutely as is possible, with respect to the
property to which it refers, a separation between the
561
paternal and maternal lines, so that property of one line
may not pass to the other, or through them to strangers.
(N o te : The above answer is lifted from 6 San­
chez Roman 1015 and 14 Scaevola 213.)
(B )
(1 ) The reservista may dispose of the reservable
property by acts in ter vivos. This is logical because he
acquires the ownership of the reservable property upon
the death o f the descendant-propositus subject to the re­
solutory condition that there must exist at the time of
his death relatives of the descendant who are within the
third degree and who belong to the line from which the
property came. He can, therefore, alienate or encumber
the property i f he so desires, but he will only alienate or
encumber what he has and nothing more. As a con­
sequence, the acquirer w ill only receive a limited and
revocable title. Therefore, after the death of the re­
servista, the reservatarios may then rescind the aliena­
tion or encumbrance, because the resolutory condition to
which the reserva is subject has already been fulfilled.
(N o te : The above answer is based on Edroso vs.
Sablan, 25 Phil. 295 and Lunsod vs. Ortega, 46 Phil.
664. I t is also based on comments of recognized com­
mentators.)
(2 ) The reservista cannot dispose of the reservable
property by acts m ortis causa. The reason is crystal clear.
Upon the death o f said ascendant-reservista, reservable
property does not belong to his or her estate. Because
the resolutory condition, to which the reserva is subject
has already been fulfilled, therefore, the reservatarios or
reservees nearest the descendant- propositus have already
become automatically and by operation of law owners o f
the reservable property.
(N o te : The above answer is based on Cano vs.
Director of Lands (105 Phil. 1) and on Gonzales vs.
Legarda (M ay 19, 1981). The Committee respect­
562
fully recommends that if the bar candidate will sup­
port his answer by saying that the reservista. is merely
a usufructuary as stated by Mr. Justice Aquino in
Gonzales vs. Legarda, the answer should be properly
credited.)
Q u e stio n No. 5
The husband was granted a decree of legal separa­
tion on the ground of adultery on the part of the wife.
May the w ife inherit from the husband —
(a ) By intestate succession?
(b ) By will? Reasons.
A nsw er
<_a) The wife, in the instant case cannot inherit from
her husband by intestate succession. According to the
Civil Code, the offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate suc­
cession.
(b )
It depends. I f the will was executed prior to the
legal separation, it is clear that- in effect the w ife cannot
inherit from her husband. According to the Civil Code,
provisions in favor of the offending spouse made in the
will of the innocent one shall be revoked by operation of
law. However, if the will was executed subsequent to the
legal separation, undoubtedly, the w ife will then be able
to inherit from her husband. The reason is obvious. There
is a tacit or implied pardon.
(N o te : The above, answers are based on No. 4 of
Art. 106 of the Civil. The last part regarding tacit
pardon — is based on Art. 1033 by analogy.)
Q n e stio n No. 6
Nora, the 18-year old daughter of Mr. and Mrs.
G am a eloped with her first cousin, Rene, to Hongkong
563
where they got married. Upon their return to the Philip­
pines a month later, they set up residence in Quezon City.
Mr. and Mrs. Garcia lost no time in filing with the proper
court a petition for a w rit of habeas corpus to reg'ain
custody of Nora. Nora opposes said petition contending
that her marirage to Rene has emancipated her from the
authority of her parents-petitioners. Is the contention of
Nora legally tenable? Reasons.
A nsw er
The contention of Nora is legally untenable. .The
reason is crystal clear. Her marriage to Rene in Hongkong
has not emancipated her from the parental authority of
her parents for the simple reason that said marriage is
not valid in the Philippines. According to the Civil Code,
marriages performed outside the Philippines in accord­
ance with the laws in force in the country where they
were performed, and valid there as such, shall also be
valid in this country, except bigamous, polygamous, or
incestuous marriages as determined by Philippine law.
The instant case falls within the purview o f the general
rule. The marriage of 'Nora and Rene is incestuous as
determined by Philippine law. According to the Civil Code,
marriages between collateral relatives within the fourth
civil degree are incestuous, and therefore, void ab initio.
Nora and Rene are first cousins. Therefore, they are col­
lateral relatives within the fourth civil degree. Hence,
their marriage is incestuous, and therefore, void ab initio.
(N o te : The above answer is based on Art. 71 of
the Civil Code. The committee respectfully recom­
mends that an answer based on Art. 15 of the Code,
arriving at the same conclusions, should also be con­
sidered correct.)
Q uestion No. 7
“ A ” built a house on his residential lot up to the
boundary line. In the presence of “ B” , the adjoining
564
owner, “ A ” opened windows with a direct view over the
lot o f “ B” . Twelve (12) years later, “ B” built a house
on his own lot also right up to the boundary line “ A ”
brought an action against “ B” to enjoin the latter from
building a house up to the boundary line, alleging that “ B”
cannot build less than three (3 ) meters from the boundary
line (a ) as he had acquired an easement of light and view
by prescription; and. (6 ) the action of “ B” , if any, had
already prescribed. Decide with reasons.
Answer
(a ) I shall decide against the contention of “ A ’'
that he has already acquired an easement of light and
view by prescription after ten years. There are two rea­
son? fo r this. In the first place, there was no formal pro­
hibition as required by law, This should have been done
by means o f an instrument acknowledged before a notary
public wherein he should have prohibited “ B” from obs­
tructing his light and view. He did hot. In the second
place, he did not observe by legal requirement that there
should be a distance o f at least two meters between the
windows, since the view is direct, and “ B’s” lot. According,
to the Civil Code, non-observance of this distance does
not give rise to prescription.
(N o te : The above answer is based on Arts 668 and
670 o f the Civil Code. and on Cortes vs. Yutivo, 2
Phil. 24; Fabie vs. Lichauco, 11 Phil. 14; Cid vs^
Javier, 108 Phil. 850).
(b ) However, I agree with the contention of “ A ”
that “ B’s” right o f action to compel “ A ” to close the
windows has already prescribed. The period of prescrip­
tion fo r such action is ten years to be counted from the
time that the windows were constructed. Nevertheless,
this will not help “ A ” very much. Since he has not acquired
an easement of light and view, nobody can prevent “ B”
from obstructing “ A ’s” light and view either by cons­
tructing his own house up to thci boundary line or by
constructing a wall at the boundary line contiguous to
the windows of “ A ” .
(N o te : The above answer is based on Art. 670 of
the Civil Code and on Sternberg vs. Soriano, 41
Phil. 210.)
Q u e stio n No, 8
“ A ” , residing in Manila, and having the capacity to
enter into a contract and dispose Of his properties, donated
a parcel of land to “ B” , a resident of Davao. The deed of
donation was sent to “ B” in Davao. One year later, “ B”
accepted and notified the donor. In the meantime, the
donor became insane, and was still insane at the time
he received the. notice of acceptance, (Assume that all
other formalities of the donation and acceptance had been
complied w ith ). The donor died a few days later, without
having recovered his sanity. The heirs refused to deliver
the land to “ B” on the ground that the donation had nqt
been perfected for lack of capacity of the donor at the
time he received the notice of acceptance. Decide with
reasons.
A nsw er
There are two views.
According to one view, the donation is binding. The
exponents of this view maintain that there is only one
moment which must be considered in order to determine
the donor’s capacity to make the donation and that is
Mthe time of the making Of the donation’’ in accordance
with the literal tenor o f Art. 737 o f the Civil Code. Ac­
cording to them, when the law speaks o f the making of
the donation, it can only refer to that precise moment
when the donor manifests his offer to make the donation
to the donee. And besides, even if the donor becomes
insane subsequently, the acceptance can always be con­
veyed to his legal representative.
566
According to another view, the donation is not bind­
ing for the following reasons:
(1 ) Art. 737 of the Civil Code declares that the
donor’s capacity shall be determined as of the time of
the making o f the donation. Correlating this with Art.
734 which declares that a donation is perfected from the
moment the donor knows of the acceptance by the donee,
it is clear that when the law speaks of the making o f a
donation, it refers not only to that moment when the
donor manif est to the donee his offer to make the donation
but also to that more decisive moment — the moment of
perfection of the contract — the moment the donor knows
of the acceptance by the donee.
(2 ) Furthermore, i f the donation in the instant case
is binding, by parity of reasoning, a donation made by
one who dies subsequent to his offer to make a donation
would also be binding. Such a situation would, o f course,
be juridically absurb. This is clear from Art, 1323 o f the
Civil Code Which declares that an offer becomes ineffec­
tive upon the death, civil interdiction, insanity, or insol­
vency of either party before acceptance is conveyed.
We believe that the latter view is more logical. Con­
sequently, the contention of the heirs of “ A ” is correct.
(N o te : The above answer is based on the opinions
o f commentators on the New Civil Code.)
Q u estio n No. 9
Classify the following donations, stating your reasons
fo r the classification:
(a ) “ I hereby donate ta ‘A ’ mortis causa a parcel of
land (here follows the description) on the con­
dition that this donation shall be deemed re­
voked i f he fails to build a house on the land
567
worth at least P50.000.00 within two (2 ) years
from date hereof.”
(b ) “ In consideration of the services rendered to me
for which he refused to accept my remuneration,
I hereby donate to “ A ” the following parcel of
land (description follow s)” .
(c ) “ I hereby donate to “ A ” the following parcels
of land (description follows) with the obligation
on his part to defray the expenses fo r my sub­
sistence during my lifetime, and the burial ex­
penses after my dealth.”
A nsw er
(a ) This donation is a conditional donation inter
vivos. It is clear that the donor in the instant case has
imposed upon the donee a burden or charge whose value
is less than the value of the thing given. According to the
Civil Code, such a donation inter vivos is conditional. True,
the donor designated the donation as a donation mortis
causa, bat this is not controlling. It merely indicates when
the delivery to the donee shall be effected. The condition
imposed by the donor, on the other hand, indicates that
the donation is immediately operative. Hence, it is intervivos in character. The same is also true with the speci­
fication that the donation w ill be deemed revoKed i f the
donee does not comply with the condition. This indicates
that the donation is inter vivos in character.
(b ) This donation is clearly a remuneratory dona­
tion inter vivos because it is given by a person to another
on account of the services rendered by the latter to the
former, provided that they do not constitute a demandable
debt. According to the Civil Code, such a donation is a
remuneratory donation infer vivos.
(c ) F irst Answer: This donation is an onerous do­
nation inter vivos. The obligation o f the donee to defray
568
the expenses fo r the donor is subsistence during his entire
lifetim e and the burial expenses indicates that such
obligation is the consideration for the donation and vice
versa. The properties donated are the consideration fo r
the obligation.
Second Answer: This donation is a conditional do­
nation, in ter vivos. It is clear that the obligation imposed
upon the donee is merely a charge or burden whose value
is less than the value of the thing given. According to
the Civil Code, such a donation is a conditional donation
in ter vivos.
(N o te : The answer to (a ) is based on Art. 726 of
the Civil Code and oh decision of the Supreme Court
such as Laureta vs. Mata, 46 Phil. 668, Concepcion
vs.. Concepcion, 91 Phii. 823; Cuevas vs. Cuevas, 98
Phil. 68, Zapahta vs. Posadas, 52 Phil. 557, and Puig
vs. Penaflorida, 15 SC R A 876.
The answer to (b ) is based on Art. 726 of the
C ivil Code.
The two answers to (c ) are based on Arts. 733
and 726 o f the Civil Code respectively. The Committee
respectfully recommends that both answers should
be considered correct.)
Q u e stio n N o. 10
“ H ” and “ W ” are husband and wife. They have
neither descendants or ascendants. “ H ” died and while
the conjugal partnership was under judicial administra­
tion and pending liquidation, “ W ” donated all her share
in her husband’s estate to a friend “ F ” . “ W ” died while
the proceieding fo r the settlement of the conjugal part­
nership was pending. The collateral heirs of “ W ” and the
■administrator of the estate brought an action against
the donee, “ F ” , to set aside the donation on the ground
that it is void, as it is a donation of future property.
Decide with reasons.
Answer
The contention of the collateral heirs of “ W ” and
the administrator of the estate that the donation made
by “ W ” to her friend “ F ” is void because the donation
is a donation of future property is untenable. The reason
is crystal clear. According to the Civil Code, by future
property is understood anything which the donor cannot
dispose of at the time o f the donation. Obviously, “ W ’s”
share in her husband’s estate does not fall within the
purview of the definition. Because of the principle that
successional rights are transmitted at the very moment
of the death of th e. decedent, it is evident that “ W ” had
a perfect right to donate her share in her husband” s
estate to her friend“ F ” .
(N o te : The above answer is based on Arts 777 and
751 of the Civil Code. The Committee recommends
most respectfully that if the bar candidate arrives
at the same conclusion by invoking the provisions of
Art. 493 of the Civil Code, he or she should be pro­
perly credited.)
Q u estio n No. 11
“ A ” courted “ B", a beautiful girl, 25 years old. Be­
cause of “ A ’s” persistence and repeated promises to marry
her, she submitted her body to him. A fte r “ A ” had satis­
fied his. lust, he became indifferent to the girl. Finally, he
refused to comply with his promise notwithstanding her
demands. “ B” filed an action against “ A ” , for. moral, tem­
perate and exemplary damages, alleging that she had
been seduced by defendant’s false promises to marry her,
• and that she suffered “ social humiliation, mental anguish,
besmirched reputation, wounded feelings and moral shock.
Is “ B’s” action tenable? Reason.
Answer
“ B’ s” action is tenable. It must be observed that “ A ’s”
acta are clearly wilful in character and, at the same time,
570
-■TTSJ
' -i
contrary to morals, good custom and public policy. Under
the Civil Code, she is entitled to moral, temperate and *
exemplary damages. Of course, it must be noted that
breach of promise to marry is not actionable. This is
well-settled. But then, it must also be noted that “ B’s’’
action is founded not on “ A ’s” breach o f his promise to
marry but on the tort or quasi-delict committed by Him.
It is clear that everything that he did, including his pro­
mise to marry “ B ” , were done precisely fo r one purpose
— to satisfy his lust. Under the Civil Code, such acts are
actionable.
(N o te : The above answer, is based on Art. 21 of
the Civil Code in relation to pertinent provision of the
Code under the law on damages. .The Committee
respectfully recommends that i f the bar candidate
bases his or her answer on Tanjaneo vs. Court of
Appeals, 18 SCRA 994, he or she should properly
be credited, provided that the conditions set forth
in said case are presented.)
Q u e stio n No. 12
The testator has three children “ A ” , “ B” , and “ C” ;
a w ife “ W ” ; a father “ F ” ; an acknowledged natural child
“ N ” ; and an adulterous child “ T ” . “ A ” ' is a handicapped
child, and the testator wants to leave to him as much of
his estate as he can legally do under the law. State the
specific aliquot parts of the estate that the testator can
leave “ A ” , “ B” , and ‘C” , as well as to his other afore­
mentioned relatives. State how you arrive at the result.
(Assume a net estate of P I,200,000.00 and that all of the
abovenamed relatives survived the testator.)
Answer
Under the law on legitime, the survivors shall be
entitled to the following legitime:
1. “ A ” , “ B” and “ C” -one-haif of the estate which
they shall divide in equal shares. Since the net
571
value of the estate is P I,200,000.00 each o f them
shall, therefore, be entitled to P20Q,000.00.
2. “ W ” — the same as each of the legitimate chil­
dren, or P200,000.00.
3 . “ F ” — none. “ F ” cannot participate in the suc­
cession because he is excluded by the legitimate
children o f the testator.
4. “ N ” — one-half of the legitime o f each o f the
legitimate children, or P100,000.00. 5. “ T ” — four-fifths of the legitimate of “ N ” or
two-fifths o f the legitime o f either “ A ” or “ B”
or “ C” , or P80,000.00
Thus, the disposable free portion is P220.000. I f
the testator so desires, he can leave this disposable
portion to his son “ A ” .
{N ote: The above answer is based on Art. 888,
892, 895, 897 and 898 of the Civil Code.)
Q u estio n No. 13
“ X ” ’ s only living relatives are his brothers " A ” and
“ B” . “ X ” executed a will providing as follows: “ I insti­
tute my brother “ A ” as my sole and universal h eir; and
I am disinheriting my brother “ B” because he refused
to support me when I had nothing.”
A fter “ X ” ’ s demise, is “ B”
inheritance on the ground that
ineffective because “ X ” had not
refused to support the testator?
entitled to share in the
the disinheritance was
proved that he in fact
Reason.
Answer
“ B” is not entitled to share in the inheritance not on
the ground that the disinheritance was ineffective because
“ X ” had not proved that he in fact refused to support the
572
testator. The reason is evident, " B ” is not a compulsory
heir. The law on disinheritance applied only to compul­
sory heirs, never to voluntary heirs or to legatees or
devisees. Consequently, even assuming that indeed " X ”
had not proved that “B " refused to support him, such
fact would not have only effect whatsoever. The act of
“X ” in disinheriting “B ” is clearly a surplusage*
(Note: The above answer is based on Arts. 915,
et. seq, of the Civil Code.)
Q u e stio n No. 1 4
“X ” died intestate, leaving two Sons " A ” and “B ” ;
two grandchildren “C” and “D ’\ tbe children of the de­
ceased daughter of “B ” ; and another grandchild “F ”,
the daughter of “A ”. Who will succeed to the estate of
“X ” and how will they divide the inheritance?
Answer
Among the survivors, only the following shall par­
ticipate in the division of the inheritance: “A ”, in his
own right; “B ”, in his own right; and “C” and “D ”, by
right of representation. “F ”, the daughter of “A ", can­
not participate because she is excluded by the latter apply­
ing the rule of proximity. Consequently, the inheritance
shall be divided as fo llo w s :.
“A ” — one-third (1/3) of the inheritance;
“ B ” — onerthird (1/3) of the inheritance;
“C” — one-half (V i) of one-third (1/3) of the in­
heritance by right of representation;
“D ” — one-half (V s) of one-third (1/3) of the in­
heritance by right of representation.
Q u estio n No. 1 5
“A ” Corporation, engaged in the sale of subdivision
residential lots, sold to “B ” a lot of 1,000 square meters.
573
The contract provides that the corporation should put up
an artesian well with tank, within a treasonable time from
the date thereof and sufficient for the needs of the buyers.
Five years thereafter, and no well and tank have been
put up by the corporation, “B ” sued the corporation for
specific performance. The corporation set up a defense
that no period having been fixed, the court should fix the
period. Decide with reason.
Answer
First Answer: The action for specific performance
should be dismissed on the ground that it is premature.
It is clear that the instant case falls within the purview
of obligations with a term or period which must be judi­
cially fixed. Thus, “B ”, instead of bringing an action for
specific performance, should bring an action asking the
court to determine the period within which “A " Corpora­
tion shall put up the artesian well with tank. Once the
court has fixed the period, once the court, let us say, has
declared that the period is six months, then that will be­
come a part of the covenant between the contracting
parties. It can no longer be changed by them. I f the Cor­
poration does not put up the artesian well with tank with­
in the period fixed by the court, “B ” can then bring an
action fo r specific performance.
Second Answer: Normally, before an action for
specific performance may be maintained by “B ” against
“ A ” Corporation, the former must first bring an action
against the latter asking the court to fix the duration of
the term or period to install the artesian well with tank.
However, an action combining such action with that of
an action for specific performance may be allowed if. it
can be shown that a separate action for specific per­
formance would be a mere formality because no additional
proofs other than the admitted facts will be presented and
would serve no purpose other than to delay. Here, there
is no obstacle to such course of action.
*
574
(Note: The above answers are baaed on Art.
1197 of the Civil Code and on decided cases. The
Committee respectfully recommends that either an­
swers should be considered correct.)
Q u estio n No. 1 6
The debtor owes his creditor several debts, all of
them due, to w it: (1 ) an unsecured debt; (2) a debt
secured with a mortgage of the debtor’s property; (3 ) a
debt bearing- interest ; (4 ) a debt in which the debtor is
solidarity liable with another.
Partial payment was made by the debtor. Assuming
that the debtor had not specified the debts to Which the
payment should be applied and, on the other hand, the
creditor had not specified in the receipt he issued the ap­
plication of payment, state the order in which the pay­
ment should be applied and your reasons therefor.
A nsw er
In this case, according to the Civil Code, the debt,
which is most onerous to the debtor, among those due,
shall be deemed satisfied.
Analyzing the four debts stated in the problem, the
most onerous is No. 4, the second most onerous is No. 2,
the third most onerous is No. 3, and the last onerous is
No. 1, Consequently, the payment should be applied in
that order.
(Note: The above answer is based on Art. 1254
of the Civil Code and on decided cases and' commen­
taries of recognized commentators.)
Q u estio n No. 17
" A ” and “B ” entered into a verbal contract whereby
" A ” agreed to sell to “B ” his only parcel of land for
f20,000.00, and “B ” agreed to buy at the aforementioned
575
price.. “B ” went to the bank, withdrew the necessary
amount, and returned to “A ” for the consummation of the
contract. “A ” however, had changed his mind and re­
fused to go through with the sale. Is the agreement valid?
W ill an action by “B ” against “A ” for specific perfor­
mance prosper? Reason.
Answer
It must be observed that there are two questions in
the case at bar They are:
(1 ) Is the agreement valid? The answer is yes. It
is a time-honored rule that even a. verbal agreement to
sell land is valid so long as there is already an agreement
with respect to the object and the purchase price.
(2 ) W ill an action by “B ” against “A ” for specific
performance prosper ? The answer is no, unless it is ratified.
The reason is obvious. The agreement, being an agree­
ment of sale of real property, is covered by the Statute
of Frauds It cannot, therefore, be enforced by a court
action because it is not evidenced by any note or memorandurfl. or writing properly subscribed by the party
charged.
(Note: The above answer is based on No. 2 of
Art. 1203 of the Civil Code and on decided cases.)
Q u e stio n N o. 18
“A ”, “B ” and “C{' bought a parcel of land. Sub­
sequently, “A ” sold his share to “X ”.
(a ) W hat right, if any, do “B ” and “C” have with
respect to the sale? Reason.
(b ) May “B ” exercise the same right if “A ” had sold
his share to “C” instead of to “X ” ? Reason.
(c ) Assume that in question (a ) neither “B ” nor
" C " had exercised the right and later “B ” sold
576
his share to “Y ”, may “X ” exercise that right
referred to in question (a ) ? Reason.
Answer
(a )
“B ” and “C” may exercise the right of legal
redemption. In other words, they can be subrogated to all
of the rights of “X ” under the same terms and conditions
stipulated in the contract. Should the two desire to exer­
cise the right, they may only do so in proportion to their
respective shares in the thing owned in common.
■(b) No, “B ” cannot exercise the same right if “A ”
had sold his share to “C” instead of to “X ”. The reason
is obvious. “C” cannot be classified as a third person with­
in the meaning of the law.
(c)
Yes, “X ” may exercise the right of legal re­
demption. For all legal purposes, he has already become
a cp-owner. Being a co-owner, he is, therefore entitled
to all of the rights of a co-owner, including the right of
legal redemption.
(Note: The above answers are based on Arts.
1619 and 1620 of the Civil Code.)
Q u estio n No. 1 9
A B C Trading Co., a domestic corporation engaged
in the sale o f automobile spare parts, opened with “X ”
Bank letter of credit up to the extent of P450,000.00 for
a period of one year. To secure payment thereof, it
executed a chattel mortgage over its stock&-in-trade valued
at P500,000.00. On May i5, and June 15, 1981, Mr. “Y ” ,
president and general manager of A B C Trading drew
against this letter of credit by means of promissory notes
in the total amount of P430,000.00, payable within 30
days from the respective dates of the promissory notes
with interest o f 10%. Upon maturity of said notes, A B C
Trading failed to pay, but was able to negotiate for an
577
extension of six (6 ) months within which to pay said
amount, in return for the additional security posted by
Mr. “Y " consisting of a real estate mortgage over his
land in Manila. At the end of 6 months, A B C Trading
Co. failed to pay the amount due despite repeated de­
mands by “X ” Bank. “X ” Bank filed an action for fore­
closure of the chattel mortgage executed by A B C Trading.
A BC 'Trading opposed said action contending that the
chattel mortgage has been novated by the real estate mort­
gage executed by Mr. “Y ” in favor of “X ” Bank. Is the
contention of ABC Trading Co. tenable? Reasons.
Answer
The contention of A B C Trading Co. that the chattel
mortgage has been novated Toy the real estate mortgage
executed by Mr. “Y ” in favor of “ X " Bank is untenable.
WelL-settled is the rule that in order that there will be a
novation, there must be complete incompatibility between
the two obligations. And the test of incompatibility is sim­
ple. A ll that we have to ask is : Can the two obligations
stand together. I f they can* then there is no incompati­
bility. If there is no incompatibility, then there is no
novation. However * if they cannot stand together, then
there is incompatibility. I f there is incompatibility) then
there is a novation. Applying the test to the instant case,
it is clear that the two jobligations can stand together.
Therefore, there is no novation.
(N o te : The above answers is based on Arts.
1291(1) and 1292 of the Civil Code and on decided
cases, such as Bank of P .I. vs. Herridge, 47 Phil.
57; Yachatisti & Co. vs. Yvlo, 34 Phil. 978; Pascual
vs. Lacsamnna, 400 Phil. 3^1 ; La Tondena vs. A lto
Surety & Ins. Co., 101 Phil. 879.)
Q u estio n N o. 2 0
B y virtue of a written contract, “X ” rented an apart­
ment belonging to ‘Y ” on June 5, 1979, for a monthly
578
rental of P280.00. There was no stipulation with respect
to the. duration of the lease. In August 1980, desirous of
increasing his rental income, “Y ” devised a scheme to
eject “X*’ from said apartment by refusing to accept the
monthly rental paid by “X ” . Hence, “X ” deposited the
rental money with the P N B in the name of “Y ” giving
the latter notice of such deposit. A fter the lapse of 3
months, “Y ” filed a complaint against “X ” fo r ejectment
on the ground of non-payment of rent. A fter trial, the
court rendered judgment, dismissing " Y ” ’ s complaint, but
fixed the period of lease to one year. “X ” appealed from
that portion o f the decision fixing the period of lease.
Decide “X ” ’ s appeal -with reasons.
Answer
“X ” ’ s appeal is meritorious. True, arrears in pay­
ment of rent for three months at any one time is a ground
for ejectment under Sec. 5 (b ) of Batas Pambansa Big.
25, but then the law cqntinues; provided, .that in case of
refusal to accept payment of the rental agreed upon, the
lessee shall either deposit, by Way of consignation, the
amount, in court or in a bank in thz name of and with
notice to the lessor. “X ” , according to the facts, deposited
the amount in the P N B in the name of “Y ” giving the
latter notice of the deposit. Therefore, under the law,
the lease is still covered by the rental law (B.P. Big. 25).
“X " cannot be ejectedv The order of the court fixing the
period of the lease at one year is contrary to law.
(Note : The above answer is based on the rental
law — Batas Pambansa Big. 25.)
579
1981 BAR EXAMINATION
Q u estio n N o. 1
“S ”, a fourth year medical student, having failed to pay
rent for the room he occupied for three months, despite re­
peated demands of “O ”, the house owner, was warned that
unless he paid not later than 6:00 P.M. that day, he would be
locked out of the house. “S ” said that the money from the pro­
vince had not yet arrived and asked for an extension of ten
days, as the semester was ending and it was examination time.
“O ” refused.
When “S ” got back from school at 9:00 P.M., the house
was locked and all his clothes; toothbrush, etc., were outside
the house, but his books and notes were kept by “O ” until he
could pay his rent. “S” became angry and started banging the
door and called “O ” and his mother ugly names, which was
heard by the neighbors. “S ” was so Upset that he failed in the
examinations.
a) “S ” sued " O ” for damages. Can he recover? Rea­
sons.
b) Suppose that “O ” hired you as his lawyer, what
defense would you invoke for him, if any? Explain;
A nsw er
(a)
Yes, “S ” can recover damages. There is a clear abuse of
rights on the part of “O ”. He did not act with justice, he did
not give “S ’- his due and he did not observe honesty and good
faith. His act is also wilful thus causing injury to “S ” in a
manner that is contrary to morals, good customs and public
policy. “S ” had already explained to him that money from the
province was forthcoming. He, therefore, asked for an exten­
sion of ten days within which to pay his rent. He also ex­
plained that it was the end of the semester and it was exami­
nation time. Despite this explanation and plea, his room was
locked, his personal belongings were placed outside the house,
580
and worst of all, his books and notes were kept by “ O'" until he
could pay his rent. As a result, he failed in the examinations.
Under the Civil Code, “ O” is clearly liable for damages.
{Note: The above answer is based on Arts. 19 and 21 of the
Civil Code. The Committee, however, respectfully recom­
mends that if the bar candidate continues his answer by
discussing the damages recoverable, such as moral
damages under Art. 2219 and exemplary damages under
Art. 2219, and invokes recent decisions such as Manila
Gas Corp. vs, CA, Oct. 30, 1980; Grand Union Super­
market vs. Espino, Dec. 28, 1979, and others; he should
be properly credited.)
(b)
I would invoke as defenses the oral defamation com­
mitted by “ S” against both “ 0 ” and the latter’s mother, as well
as “ S’s” contributory fault.
It must be observed that “ S” , in anger, called “ O” and
his mother ugly names, which was heard by, the neighbors.
There is a clear case of oral defamation, at least, as far as “ O’s”
mother is concerned. She. is absolutely innocent.
It must also be observed that there was contributory fault
in the part of “ S” . He failed to pay his rent fo r three months
despite repeated demands of “ O ” . Under the law on quasi­
delicts and under the law on damages, the amount of damages
recoverable should be reduced.
(Note: The above answer is based on general principles of the
law on quasi-delicts as well as on Arts. 2179, 2214 and
other provisions of the Civil Code. Even the decisons in
Manila Gas Corporation (supra) and Grand Union Super­
market (supra) with respect to contributory fault or negli­
gence may be invoked.)
Question No. 2
“ D” donated P100,000.00 to the unborn child of his preg­
nant girlfriend, which she accepted. After six months of preg­
nancy, the foetus was born and baptized Angel. Angel died
twenty (20) hours after birth. “ D ” sought to recover the
P100.000.00.
Is “ D ” entitled to recover? Explain.
581
Answer
*‘D ” is entitled to recover the P100,000.00. The reason is
that there is no donee. The supposed donee never acquired any
civil personality. Consequently, the donation is void or inexistent.
According to the Civil Code, for civil purposes, the foetus
is considered bom if it is ailive at the time it is completely deli­
vered from the mother’s womb. However, if the foetus had an
intra-uterine life of less than seven months, it is not deemed
born if it dies within twenty-four hours after its complete deli­
very from the maternal Womb. The facts show that the foetus
in the instant case had an intra-uterine life of less than seven
months and that it died twenty hours after birth. Therefore,
the provisional or conditional civil personality which is ac­
corded to a conceived child under both the Civil Code and the
Child and Youth Welfare Code is not present here. In other
words, Angel has not acquired any civil personality. Therefore,
the donation by “ D ” never produced any legal effect. It is inexistent.
(Note: The above answer is based on Arts. 40 and 41 of the
Civil Code and on Art. 5 of PD 603.)
Q uestion No. 3
“ M ” , an unwed mother, gave her child for adoption to a
childless couple, “ B-C” , for which “ B-C” paid “ M ” P20,000.00.
In the civil register o f births, the father was listed as “ father
unknown.”
'
Two years later, after “ B-C” learned to love the child as
their own and adoption proceedings commenced with the re­
quired publication, “ F ” , father of the child appeared to op­
pose the adoption and to seek custody of the child. “ M ” sided
with “ B-C” claiming that “ F ” had abandoned her when he
learned that she was pregnant and declaring that she wanted
“ B-C” to keep the child.
a) Could “ F ” frustrate the adoption and custody of the
child? Explain.
b) Could “ B-C” recover the P20,000.00 they had paid
from either “ F ” or “ M ” ? Rteasons.
Answer
(a) “ F ” cannot frustrate the adoption and custody of the
child.
The Child and Youth Welfare Code, which is now the gov­
erning law on adoption, expressly states that the written con­
sent of the maternal parents is necessary. Correlated with per­
tinent provisions of both the Welfare Code and the Civil Code,
the words “ natural parents” can refer only to the parent or
parents with parental authority. Thus, if the child is spurious,
the one with parental authority would be the mother; if the
rhilH is natural, the one with parental authority would be the
parent who is the first to'recognize the child. In the instant
case, it is obvious that “ M ” , not “ F ” , has parental authority
over the child. Consequently, her written consent to the
adoption would be sufficient. Besides, “ F ” has clearly aban­
doned the child. Even on that score alone, he could not resist
, the adoption and custody of the child by “ B-C” .
(Note: The above answer is based on Art. 31 of PD 603 and on
Arts; 288 and 311, par. 2, of the Civil Code.)
(b) “ B-C” cannot recover the P20,000.00 which they had
paid to “ M ” from either “ F ” or “ M ” . The reason is obvious.
They bought the child from “ M ” ; th6 latter sold the child to
them. Under the law, “ M ” is criminally liable. The principle
of pari delicto (insofar as the money is concerned) is now appli­
cable. The law will not aid either party to an illegal agreement;,
it leaves them where they are.
(Note: The above answer is based on Art. 14-11 of the Civil Code
in relation to Art. 59 of the Child and Youth Welfare Code.)
Question No. 4:
Spouses, husband “ H ” and wife “ W ” , Filipinos, with a
child, decided that “ H ” , a doctor, would go to the U.S. to find
employment there and then “ W ” would join him. When in the
U.S., “ H ” wrote that to establish U.S. residence, he would
have to obtain a divorce, marry an American girl, and once
a U.S. resident, divorce his American wife and then remarry
“ W ” “ W ” agreed.
583
Four years later, “ H ” , now a U.S. resident and having
divorced his American wife, returns to the Philippines and
finds that his wife, “ W ” , has married a wealthy man in a cere­
mony celebrated in Hongkong and is happily living with him in
Manila.
a) Was the marriage and divorce obtained by “ H ” in
the U.S. valid?
b) Was the marriage of “ W ” in Hongkong valid?
c) Could “ H ” obtain custody of the child?
d) Could “ H ” charge “ W ” with bigamy or adultery?
Explain each of your answers?
A nsw er
(a)
pines.
Bolh divorce and marriage are not valid in the Philip­
The divorce is not valid for the following reasons:
(1) We adhere to the nationality theory. The Civil _
Code declares that laws relating to family rights and
duties, or the status, condition and legal capacity of per­
sons are binding upon citizens of the Philippines even
though living abroad. Divorce certainly affects the status
and condition of persons. Since absolute divorce is not re­
cognized in this country except among Muslims, therefore,
the decree of absolute divorce obtained by “ H ” is not valid
(2) It is well-settled that absolute divorce is contrary
to public policy. According to the Civil Code, this declara­
tion of public policy cannot be rendered ineffective by a
j udgment promulgated in a foreign country.
The marriage of “ H ” to an American woman is not also
valid. True, we adhere to the principle of locus regit actum—
a marriage valid where celebrated is also valid in the Philip­
pines. but excepted frond this rule are bigamous, polygamous
and incestuous marriages as determined by Philippine law.
Since the divorce obtained by “ H ” from “ W ” is not valid m
this country as stated above, the subsequent marriage to an
American woman is cliearly bigamous as determined by Philip­
pine law. Therefore, the marriage is not valid.
(Note: The above answers are based on Arts. 15, *17, par. 3,
and 71 of the Civil Code and on decided cases.)
584
(b) Using the same line of reasoning, “ W ’s” marriage to
another man in Hongkong is not also valid. Since the decree pf
absolute divorce obtained by her husband “ H ” in the U.S. is
not valid under Philippine law for the reasons stated above, her
marriage in Hongkong to another man is clearly bigamous as
determined by Philippine law. Therefore, it is not valid.
(Note: The above answer is based on Arts. 15 and 71 of the
Civil Code.)
(c) I f the child is under five years old, “ H ” cannot obtain
custody over him. According to the law, no child under five
years of age shall be separated from the mother unless the
court finds compelling reasons to do so. ^‘Compelling reasons”
refer to reasons of health rather than reasons of morality. How­
ever, if the child is already five years old or over, then it is the
best interest of the child that will be considered, taking into
account the respective resources and the social and moral sit­
uations of the contending parents.
(Note: The above answer is based on Art. 17, par. 3 PD 603
and on decided cases, notably Unson vs. Navarro, L-52242,
Nov. 17,1980.)
(d) “ H ” can charge “ W ” with adultery but not with
bigamy. Undoubtedly, all of the elements of adultery as
defined and punished in the Revised Penal Code are present. It
is different in the case of bigamy. Since the bigamy was
committed outside of our territorial jurisdiction, it is not
triable by our courts.
(Note: The above answer is based on the Revised Penal Code,
especially Art. 2 of said Code. See also, Salonga's Private
International Law and Paras’ Conflict of Laws.)
Q uestion No. 5
In *a partition between brothers o f inherited property,
brother “ A ” got the property north of the river. Brother “ B "
received the property south of the river. Without the
knowledge of the brothers, squatters had moved into the
property north of the river allotted to “ A ” . " A ” also learned
that “ B ” was about to sell his property.
585
a) “ A " wanted " B ” to join him in the ejectment case
against the squatters and share in litigation expenses.
“ B ” refused. Was “ B ’s” refusal valid? Why?
b) Could “ A ” prevent the sale by “ B ” of his portion
of the property? Reasons.
Answer
(a) “ B ’s” refusal is valid. The reason is obvious. There Was
already a partition* In the partition, brother “ A ” was awarded
the property north of the river, while brother “ B ” was awarded
the property south of the river. Consequently, the tie of coownership Or indivision was dissolved completely. Thus, the
problem of squatters in the portion allotted to “ A ” has become
his exclusive problem.
(Note: The above answer is based on general principles of coownership and partition. The Committee, however, res­
pectfully recommends that if the bar candidate invokes
Art. 501 of the Civil Code or the principle of warranty
among partitioners, it should be properly credited.).
(b) “ A ” cannot prevent the sale of “ B ” of the portion allot­
ted to him. That would constitute a violation of the jus disponendi or right of disposition of “ B ” . As a matter of fact, “ A ”
cannot evien avail of the right of legal redemption of adjacent
owners. Such right is not available because the two lands are
separated by a river.
(Note: The above answer is based on the general principles of
ownership (Art. 428, Civil Code) and'on Art. 1621, Civil
Code.)
Q uestion No. 6
“ A ” , owner of an agricultural land, which had no connection
with a public road, has been passing through a pathway across
the land of “ B ” with the latter’s tolerance for over twenty
years.
“ A ” subdivided his property into 20 residential lots and
sold them to different persons. “ B ” blocked the pathway and
refused to let the buyers pass.
a) Did “ A ” acquire an easement of right of way? Why?
586
b) Could B close the pathway and refuse to let the
lot buyers pass? Reason.
c) What are the rights of the lot buyers, if any?
Explain.
Answer
(a) Answer No. 1 — “ A ” did not acquire an easement of
right of way. According to the Civil Code, continuous and
appairent easements are acquired either by virtue of a title or
by prescription after ten years. Continuous non-apparent ease­
ments and discontinuous easements, whether apparent or not,
may be acquired only by virtue of a title. It is obvious that an
easement of right of way is discontinuous in character because
it is used only at intervals and its use requires the acts or
intervention of man. It is; also obvious that use by tolerance is
not equivalent to a title. Consequently, since “ A ” never
acquired any title from “ B ” and since the easement cannot be
acquired by prescription because of its discontinuous character,
“ A ” did not acquire any easement of right of way.
Answer No. 2 — “ A ” did not acquire an easement of right
of way. Obviously, he does not possess any title to pass through
the property of “ B ” . So, the only possible basis for the acquisi­
tion of the easement would be prescription after ten years.
In order that the easement can be acquired by prescription
after ten years, it is essential that it may be both continuous
and apparent at the same time. An easement of right of way is
discontinuous. Therefore, it cannot be acquired by prescription
after ten years,
(Note: The above answers are based on Arts. 620 and 622
of the Civil Code and on Cuayang vs. Benedicto vs. Benedicto,
37 Phil. 781, and Ronquillo vs. Roco, 103 Phil. 84. The
Committee, however, respectfully recommends that if the
bar candidate answers the problem by invoking Tolentino’s
opinion, that if the right of way is permanent and has an
apparent sign, there is no reason why it cannot be acquired
by prescription, it should be properly credited.)
(b) Yes, “ B ” could close the pathway and refuse to let the
buyers pass. The pathway belongs to him. Under the Civil Code,
every owner may enclose or fende his land or tenement by
means of walls, ditches, live or dead hedges, or by other means
without detriment to servitudes constituted thereon.
(Note: The above answer is based oil Art. 430 of the Civil Code.
The Committee again recommends that if the bar candidate
comes out with an answer in accordance with Tolentino’s
opinion (supra), it should be properly credited.)
(c)
The lot buyers can now demand for the establishment
of a legal or compulsory easement of right of way. Since their
lots are surrounded by other immovables without adequate
outlet to the public highway and this is riot imputable to their
own acts, they now have a perfect right to do so. However,
they must comply with two other requisites. They must pay to
“ B ” the proper indemnity. The right Of way must be at a.point
least prejudicial to the servient estate, and, insofar as con­
sistent with the rule, where the distance to the public highway
may be the shortest.
(Note: The above answer is based on Arts. 649 and 650 of the
Civil Code and on Locsin vs. Climaco, 26 SCRA 816).
Q uestion No. 7
A testator, a bachelor of 60, executed a Will bequeathing
a ricefield to the Church worth P10Q,000.00. The Will further
provided that “ all other assets owned by me after death shall
be equally divided among my two brothers “ A ” and “ B ” . The
testator subsequently married a young woman, begot a son,
and left another Will designating his wife and son as his heirs
in equal shares. The second Will did not expressly revoke the
first Will. He left an estate worth P300,000.00 (including the
ricefield).
a) Who is entitled to the ricefield? Reasons.
b) Who acquires the rest of the assets? Explain.
A nsw er
(a)
It must be observed that the testator left two wills. In
his first will, he bequeathed the ricefield to the Church and
instituted as heirs in equal shares his two brothers “ A ” and
“ B ” with respect to the rest of his estate. In his second will, he
588
instituted his wife and his son as heirs in equal shares. Undet
our law on revocation of wills, a wiU may be revoked by another
will. The revocation may be effected either expressly or impliodly.
Since there is no express revocation, is there an implied revoca­
tion in the instant case? It is undeniable that there is an implied
revocation if the testamentary dispositions found in the first
will are totally or partially incompatible with those found in
the second will. It is also undeniable that the incompatibility
must be absolute in character in the sense that the testamen­
tary dispositions cannot stand together. The real issue,
therefore, is whether the two testamentary dispositions found
in the first will can stand together with the single testamentary
disposition found in the second will.
There are two views.
According to one view, reading the two wills together
it is clear that the testatorial intention is that only the testator's
wife and son shall inherit. They are instituted as universal
heirs with respect to the hereditary estate in its totality.
Therefore, the second will in its totality cannot stand together
with the first will in its totality. Consequently, the incompati­
bility between the testamentary dispositions found in the first
will and those found in the second will is both total and absolute
in character. Hence, the first will is impliedly revoked by the
second will. The testator’s widow and his son are, therefor^,
entitled to the ricefield
According to a second view, only the institution of “ A ”
and “ B ” in the first will as heirs and that portion or part of the
bequest given to the Church Which will impair the legitime of
the testator’s soii and widow are revoked by the second will.
The reason is that it is only to that extent that there is absolute
incompatibility between the testamentary dispositions found
in the first will and, those found in the second will. Consequently,
the Church shall be entitled to the ricefield but only to the
extent that it does not encroach upon the legitime of the
testator’s son and widow.
(Note: The above answers are based on the law on revocation
of wills, such as Arts. 830, et. seq., Civil Code and on well
settled principles in American jurisprudence. The Committee
589
resp ectfu lly recom m ends t h a t w hether th e b a r can d id ate
will solve th e problem eith er in accordance w ith th e firs t
view o r in accordance w ith th e second view, it should be
co n sid ered as a co rrec t answ er.)
(b)
Suggested answer for those who adhere to the first
view stated above:
T h ere a re tw o view s w ith re g a rd to th e d is trib u tio n of th e
e n tire e s ta te , including th e ricefield.
A cco rd in g to one view, one-half (1/2) shall b e given to th e
te s ta to r 's w idow an d th e o th e r one-half (1/2) sh all be given to
th e te s ta to r 's son. T his division w ould be m ore in confirm ity
w ith th e te s ta to ria l in ten tio n .
A cco rd in g to an o th er view, firs t satisfy th e legitim e of th e
tw o heirs. T h e te s ta to r ’s w idow shall be en title d to one-fourth .
(1/4) o f P300,000, or P75.000, while th e te s ta to r ’s son shall be
e n title d to one-half, or P i 50,000. T he disposable free p o rtio n
sh all th e n be divided equally betw een the two. T his w ould be
m o re in co n fo rm ity w ith th e te s ta to ria l intention.
(N o te : T h e C om m ittee recom m ends t h a t either answ er should
b e considered correct.)
Suggested answer for those who adhere the second
view siatedabove:
T h e t e s ta to r ’s son shall b e e n title d to a legitim e of one-half
(1/2) of th e en tire estate, or P150.000; th e widow shall be entitled
to a legitim e of one-fourth on th e en tire e s ta te , or P75,'000.
T h a t m ean s th a t the b eq u e st in favor of th e C hurch is inofficious
to th e e x te n t of P25.000, considering t h a t th e value of th e
ricefield is P100,000. C onsequently, said b e q u e st or devise
sh o u ld be red u ced b y one-fourth (1/4). Therefore, th e C hurch
shall b e e n title d only to a n undivided sh are of th re e -fo u rth (3/4)
of th e ricefield.
Q u estio n N o, 8
“ B ” borrow ed from “ C " P I ,000.00 p ay ab le in one year.
W hen “ C ” w as in the province, “ C’s ” 17-year old son, borrow ed
P500.00 frorri “ B ” for his school tu itio n . H ow ever, th e son
590
spent it instead nightclubbing. When the debt to "C ” fell due,
“ B ” tendered only P500.00, claiming compensation on the
P500.00 borrowed by “ C’s" son.
a) Is there legal compensation? Why?
b) Suppose the minor son actually used the money for
school tuition, would the answer be different? Reasons.
Answer
(a) There is no legal compensation. Under the Civil Code,
in order that there will be a valid and effective compensation, it
is essential that there must be two parties, who in their own
right, are principal creditors and principal debtors of each
other. In the instant case, “ C” cannot be considered as a party
to the act of his 17-year old son in borrowing P500.00 from “ B ” .
Consequently, he did not become a principal debtor of “ B ” ;
neither did “ B ” become a principal creditor of “ C” . Therefore,
there can be no partial compensation of the P I,000.00 borrowed
by “ B ” from "C ” .
(Note: The above answer is based on Arts. 1278 and 1279,
No. (1), of the Civil Code and on decided cases.)
(b) There would be no difference in any answer. There will
still be no legal compensation. The fact that “ C’s” son actually
used the P500.00 for his school tuition did not make “ C”
a party to the contract between his son and “ B ” . Therefore,
“ C" is not the principal debtor of “ B " and “ B ” is not the
principal creditor of “ C” with respect to said amount.
(Note: The above answer is based on Arts. 1278 and 1279,
No. (1), Civil Code.)
Question No. 9
“ O” verbally leased his house and lot to ‘ ‘L ” for two years
at a monthly rental of P250.00 a month. After the first year,
“ O " demanded a rental of P500.00 claiming that due to the
energy crisis, with the sudden increase of the price of oil, which
no one expected, there was also a general increase in prices.
“ O” proved ail inflation rate of 100%. When “ L " refused to
vacate the house, ‘‘0 ” brought an action for ejectment. “ O”
denied that he had agreed to a lease for two years.
591
a) Can the lessee testify on a verbal contract of lease?
Reasons.
b) A s s uming that “ O ” admits the two-year contract,
is he justified in increasing the rental? Why?
Answer
(a) Yes, the lessee “ L ” may testify on the verbal contract
of lease. Well-settled is the rule that the Statute of Frauds by
virtue of which oral contracts (such as the contract in the
instant case) are unenforceable by court action is applicable
only to those contracts which have not been consummated
either totally or partially. The reason for this rule is obvious.
In effect, there is already a ratification of the contract by
acceptance of benefits. Here, “ L ” has been paying to “ O ” in
monthly rental of P250.00 for one year. The case is, therefore,
withdrawn from the coverage of the Statute of Frauds.
(Note: The above answer is based on Arts. 1403, No. 2 and
1405 of the Civil Code and on decided cases.)
(b) Yes, “ 0 ” is justified in increasing the monthly rental.
Since it is admitted that the contract of lease is for a definite
term or period of two years and since he has established an
inflation rate of 100%, it is crystal dear that the case is withdrawn
from the coverage of the new rental law.
(Note: The above answer is based on Batas Pambansa Big. 25.)
Q u estio n N o. 10
“ O ” , Owner of a copying machine, leased it to “ L ” at a
rental of P4,000.00 a month for a period of one year with option
on the part of “ L ” to buy the copying machine at the end of the
year for P80,000.00, to be paid by applying the rentals, so that
" L ” needs only to pay P32,000.00.
“ L ” failed to pay rentals for the 4th, 5th and 6th months
so that "O ” terminated the lease and repossessed the copying
machine, the sued “ L ” for the unpaid rental of three months,
or P12,000.00.
Is “ O V ’ suit legally tenable? Explain.
592
Answer
“ O’s” suit is legally untenable.
By express provisions of Art. 1485 of the Civil Code, the
preceding article (Art. 1484) shall be applied to contracts
purporting to be leases of personal property with option to
buy, when the lessor has deprived the lessee of the possession
or enjoyment of the thing. Consequently, applying Art. 1484,
upon taking possession of the copying machine, “ 0 ” has no
further action against “ L ” to recover the unpaid rents.
(Note: The above answer is based on the Recto Law (Arts. 1484,
No. 3, and 1485, Civil Code) and on U.S. Commercial Co.
vs. Halili, 93, Phil. 371.)
Q uestionNo.il
“ S” , an American resident of Manila, about to leave on a
vacation, sold his car to “ B ” for U.S. $2,000.00, the payment
to be made ten days after delivery to “ X ” , a third party deposi­
tary agreed upon, who shall deliver the car to “ B ” upon receipt
by “ X ” of the purchase price. It was stipulated that ownership
is retained by “ S” until delivery of the car to “ X ” . Five days
after delivery of the car to “ X ", it was destroyed in a fire which
gutted the house of “ X ” , without the fault of either “ X ”
or “ B ” .
a) Is buyer “ B ” still legally obligated to pay the
purchase price? Explain.
b) May seller “ S” demand payment in U.S. dollar?
Why?
Answer
(a)
Yes, buyer “ B ” is still legally obligated to pay the
purchase price. It must be observed that “ S” had already deli­
vered the car to “ X ” , the third party depositary or bailee. It
was agreed that ownership is retained by “ S” until delivery to
“ X ” . Therefore, in effect, there was already a transfer of the
right of ownership over the car to “ B ” . Consequently, “ B ”
shall assume the fortuitous loss of the car. As a matter of fact,
even if it was agreed that “ S” shall retain the ownership of the
593
car until the purchase price has been paid by “ B ” , the end
result will still be the same. Since eventually, the purpose is to
secure performance by the buyer of his obligation to pay the
purchase price, by express mandate of the law, the fortuitous
loss of the car shall be assumed by “ B ” .
(Note: The above answer is based on Art. 1504 of the Civil Code.)
(b)
The seller “ S” cannot demand payment in U.S. dollars.
According to the law, an agreement that payment shall be
made in currency other than Philippine currency is void
because it is contrary to public policy. That does not mean,
however, that “ S” cannot demand payment from “ B". He can
demand payment, but not in American dollars. Otherwise,
there would be unjust enrichment at the expense of another.
Payment, therefore, should be made in Philippine currency.
(Note: The above answer is based on. R.A. No. 529 and on
Ponce vs. CA, May 31,1979.)
Q uestion N o. 12
“ S” , a landowner of an urban lot covered by a Torrens title,
sold it to “ B ” . “ B ” saw that the land was occupied by lessees
who paid rent on a month to month basis. “ S” told “ B ” that
some lessees had been renting the parcels of land for twelve (12)
years, other for eight (8) years. Unknown to “ S” and “ B ” is
that the area had been declared as urban land reform area.
a) May “ S” terminate the lease contracts and eject
the lessees? Reasons
b) I f the lessees went to you for legal assistance, what
would be your advice? Explain briefly,
c) Does “ B ” have a right against “ S” in the event
he is unable to obtain possession? Why?
Answer
(a)
I t is respectfully submitted that there is a typographical
error here. The question should read — “ may “ B ” terminate
the lease contracts and eject the lessees? A t any rate, let us
answer both questions.
594
“ S” , of course, cannot because he has already sold the
property to “ B ” . He does not have the necessary legal personality
to do so. “ B” cannot because he was aware of the existence of
the lease contracts at the time when he bought the property
from “ S” . Under the law, this is one of the exceptions to the
rule that the purchaser of a piece of land which is under a lease
that is not recorded in the Registry of Property may terminate
the lease.
(Note: The above answer with respect to the revised question
is based on Art. 1676 of the Civil Code and on Divina Grada
Agro Commerdal vs. CA, April 21,1981.) The Committee,
however, respectfully recommends that if the bar candidate
answers the above question as is or in its revised form,
it should be considered correct.
(b) 1 would advice them to avail of the provisions of the
Civil Code which declares that the courts may fix a longer term
or period for the lease. Under the law on obligations in general
(Art. 1197, Civil Code) and under the law on lease (Art. 1687,
Civil Code which declare that the courts may fix a longer term
to fix Or extend the period of the lease is explicitly recognized.
(Note: The above doctrine was stated in Divina Gracia Agro
Commercial, April 21,1981.)
(c) “ B ” does not have any right against “ S” in the event
he is unable to obtain possession of the property. He was aware
of the existence of the lease contracts. He must, therefore,
assume the consequences of his act in buying the property.
(Note: The Committee respectfully recommends that if the
bar candidate comes out with a contrary answer and
supports his answer by saying that “ B ” would never have
bought the property had he known that the area had been
declared a land reform area, it should also be considered
a correct answer.)
Question No. 13
“ 0 ” , lot owner, contracted with “ B’ ’t builder, to build a
multi-story office building designed by -‘A ” , architect. “ A ”
was paid a fee to supervise the construction and execution of
595
his design. When completed, “ O” accepted the work and
occupied the building, but within one year, it collapsed in an
earthquake that destroyed only the building and not the
surrounding buildings. Construction was faulty. The building
cost P3,000,000.00, but reconstruction cost would reach
P10,000,000.00.
a) What are the rights of “ O ” agaiil3t “ A ” and “ B ” ?
Explain briefly.
b) Could “ O” demand reconstruction of the building?
On what ground? Amplify.
Answer
(a) “ O” can hold “ A ” and “ B " solidarity liable for damages.
This is clear from the Civil Code, which declares that the
contractor is liable for damages if within fifteen years from the
completion of the edifice or structure, the same should collapse
on account of defects in the construction. I f the engineer or
architect who drew up the plans and specifications of the
building supervises the construction, he shall be solidarity
liable with the contractor. Acceptance of the building, after
completion, does not imply waiver of the cause of action.
However, the action must be brought within ten years following
the collapse of the building.
(Note: The above answer is based on Art. 1723 of the Civil
Code. The Committee respectfully recommends that if the
bar candidate attacks the problem from the point of view
of fortuitous events (Art. 1174, Civil Code), he should be
properly credited.)
(b) “ O” can demand reconstruction of the building. The
obligation of both “ A ” and “ B ” is an obligation to do. Con­
sequently, Art, 1167 of the Civil Code is applicable. According
to this article, if a person obliged to do something does it in
contravention of the tenor of the obligation, the same shall be
executed at his cost. It is obvious that the builder “ B " and the
architect “ A ” performed their jobs in contravention of the
tenor of obligation. As a matter Of fact, had the building not
collapsed, under the same article, it may even be decreed that
what has been poorly done be undone. Consequently,. “ O” can
596
now demand for the reconstruction of the building by “A ” and
“ B ” or by another at their cost.
(Note: The above answer is based on Art. 1167 of the Civil Code
and on Manresa, Vol. 8, pp. 116-117.)
Question No. 14
“ A ” , “ B ” and “ C” formed a partnership under the following
terms and conditions:
(a) Participation: “ A ” 40% ;“ B ” -4 0 % ;
“ C”
20%.
(b) “ A ” ' arid “ B ” would supply the entire capital.
“ C” would contribute his management expertise and be
manager for the first five, years without compensation.
, (c) “ C” shall not be liable for losses.
The partnership became bankrupt.
1. Could “ A ” alone, opposed by “ B ” and “ C’\ have
“ C” removed as manager? Explain.
2. Could “ C” be personally held liable for debts of
the partnership not satisfied with the assets of the partner­
ship. Amplify.
Answer
(a) " A ” , alone, opposed by “ B ” and “ C” , cannot have “ C”
removed as manager of the partnership. According to the Civil
Code, the vote of the partners representing, the controlling
interest shall be necessary for such revocation of power. Under
the partnership agreement, it is crystal clear that the vote of
“ A ” does not represent the controlling interest.
(Note: The above answer is based on Art. 1800 of the Civil Code.
The Committee respectfully recommends that if the bar
candidate attacks the problem from the point of view of
the fact that “ C” was appointed manager in the articles of
partnership and arrives at the same conclusion, it should
be considered a correct answer.)
(b) Yes, “ C” can be held personally, although jointly,
liable for debts of the partnership not satisfied with the assets
of the partnership.
597
Under our partnership law, as among themselves, the
industrial partner is always excluded from any participation in
the losses in the absence of an agreement to the contrary.
Hence, the agreement that “ C” , the industrial partner, shall
not be liable for losses is valid. It merely affirms the law. The
rule that a stipulation which excludes one or more partners in
the profits or losses is void, is applicable only to capitalist
partners, not to industrial partners. However* as far as third
persons are concerned, the rule is different. An industrial
partner can be held personally liable. Of course, this is without
prejudice to his right to hold his co-partners proportionately
liable for what he paid to partnership creditors.
Thus, in the instant case, the liability of “ A ” , “ B ” and “ G”
is joint (pm rata) and subsidiary. The facts merely state that
their participation is: “ A — 40%; “ B ” — 40%; “ C’' — 20%.
Therefore, since by agreement “ C” is excluded from any partis
cipation iii the losses, the agreement that “ C’s” participation is
20% applies only to his participation in the profits. In the case
of “ A ” and “ B ” , the agreement applies to both profits and
losses. Despite the exclusion of “ C” in the losses, such
agreement is not applicable insofar as partnership creditors are
concerned. Consequently, the liability pf the three partners for
partnership debts shall also be: 40% for “ A ” , 40% for “ B '’; and
20% for “ C” . Hence, “ C” can now be compelled to pay 20% of
the partnership debts. After payment, he can then proceed
against his co-partners “ A ” and “ B ” for reimbursement of the
amount paid by him.
(Note: The above answer is based on Art. 1816 of the Civil Code
in relation to Arts. 1797 and 1799.)
Question No. 15
“ A ” , an official of a mining company, was appointed by
the company as its buying agent for the acquisition of mining
rights in a designated area for operation by the company.'
“ A ” proceeded to enter into contracts with the claim owners.
Claim owner “ B ” , an illiterate, was helped by “ A ” in locating
and perfecting his rights and for which “ A ” , by contract,
obtained a participation in the royalty paid by the company to
the-claim owner.
598
a) The mining company goes to you for advice as to
whether it is entitled to the royalty obtained by “ A " from
“ B ” . What would your advice be and why?
b) May “ B ” , the claim owner, question the royalty
obtained by “ A ” ? On what grounds? Explain.
Answer
(a) I would advice the mining company to withhold the
payment of the part of the royalty corresponding to “ A ” . This
is so because of the explicit mandate of the Civil Code. According
to the law: Every agent is bound to render an account of his
transactions arid to deliver to the principal whatever he may
have received by virtue of the agency, even though, it may not
be owing to the principal. It is crystal clear that the act of “ A ” ,
agent of the mining company, falls squarely within the purview
or coverage of this rule.
(Note: The above answer is based on Art. 1891 of the Civil Code.)
(b) “ B ” , the claim owner, may question the royalty obtained
by “ A ” on the ground that it is “ not owing to the principal.” It
must be observed that the obligation of the agent to deliver to
his principal anything which he has received by virtue of the
agency is followed by the phrase “ even though it may not be
owing to the principal.” This means that the action for recovery
by “ B ” on the ground of undue payment would be directed
against the mining company and not against the agent.
(Note: The above answer is based on Art. 1891 of the Civil Code
and on Manresa,'s opinion — Vol. 11, p. 512.)
Question No. 16
In a cadastral case, Lot No. 123 was claimed and applied
for by spouses “ 'S-T". The cadastral Court adjudicated the lot
in their favor, the claim having been uncontested. Three months
thereafter, the heirs of “ Z ” filed a petition for the review of the
registration decree alleging that they were the true owners and
were in actual legal possession. After hearing, the Court denied
the petition for review. No appeal was taken.
Two years later, the spouses “ S-T” filed a petition for the
issuance of a Writ of Possession in the cadastral proceedings.
599
Opposed by the heirs of “Z ”, the Court refused to issue the
Writ on the ground that the heirs of “Z ” were hot specifically
named as parties in the cadastral case so that said Writ cannot
issue as against them.
Are the spouses “ S-T” entitled to a Writ of Possession?
Explain.
A nsw er
The Spoused “ S-T” are entitled to a Writ Of Possession.
The heirs of “Z ” cannot be said to be strangers to the registra­
tion proceedings. A cadastral proceeding is a proceeding in rem
and against everybody, including the heirs of “ Z ” , who are
deemed included in the general order of default entered in the
case. Besides, said heirs filed a petition for the review Of the
decree of registration, thereby becoming a direct party in the
registration proceedings by their voluntary appearance. The
' fact that the spouses “ S-T’ ’ filed the instant petition two years
later is o f no moment. The right of the applicants or of a
subsequent purchaser to ask for the issuance of a writ of
possession never prescribes.
(Note: The above answer is based on Rodil vs. Benedicto,
L-28616, Jan, 22,1980.)
Q uestion No. 17
In a verified petition filed before the Court of First Instance,
sitting as a land registration Court, and under the summary
proceeding for amendment or alteration outlined in section 112
of the Land Registration Act, husband “ H ” , being the regis­
tered owner of three parcels Of land, sought to strike out the
words “ married to W ” appearing in the said titles, and to place
in lieu thereof the word “ single” on the ground that the phrase
“ married to W ” was entered by reason of clerical error or
oversight. Opposition was filed by “ W ” who alleged that she is
the legal Wife of “ H ” , and that the insertion of the phrase
“ married to W ” was not the result Of clerical error but was the
voluntary act of “ H ” .
May the Court of First Instance, sitting as a land registratioh Court, continue to take cognizance Of the case and resolve
the issue posed? Explain.
Answer
‘ The Court of First Instance, sitting as a Land Registration
Court, cannot continue to take cognizance of the case and
resolve the issue posed.
It is apparent that the Court, sitting as a land registration
court, cannot alter the description of the civil status of the
petitioner in the transfer.certificates of title in question. It will
have to receive evidence and determine the civil status of said
petitioner. This requires a full-dressed trial, tKus rendering the.
summary proceeding envisaged in Sec. 112 of Act 496 inadequate.
Therefore, the remedy of “ W ” against her husband “ H ” or
of “ H ” against his wife “ W ” would be to thresh Out the question
of their status in a separate and independent action filed for
that purpose.
(Note: The above answer is based On Martinez vs. Evangelista,
L-26399, Jan. 31,1981.)
However, the Committee respectfully recommends that a
contrary answer may also be considered as a correct answer.
Under Section 2 of P.D. No. 1529, the jurisdiction of a Court of
First Instance acting as a Land Registration Court has been
broadened.
Question No. 18
State whether the following statements are legally correct
or false. I f true, state the basis. I f false, state in what respect it
is false, and the reason therefor.
(a) In cases Of defamation, a civil action for civil liability
can be commenced and prosper even while a criminal case is
pending.
(b) A woman loses her citizenship when she marries a
foreigner and Under the national law of the husband she
automatically acquires his citizenship by marriage.
(c) The records of a person's birth, as kept by the Civil
Registrar, is a public record and may be inquired into by a
person interested.
601
:i
(d) To the owners of lands adjoining the sea belong the
accretion which they gradually receive from effects of the
current on the waters.
(e) A stipulation that the arbitrator’s aWard shall be final
is valid.
Answer
(a) True. The civil action for civil liability is an independent
civil action under the Civil Code. (Art. 33).
(b) False. Under the 1973 Constitution, a female citizen of
the Philippines who marries an alien shall retain her citizenship.
Consequently, she does not necessarily acquire her husband’s
nationality.
(c) False. According to the Child and Youth Welfare Code,
the records of a person's birth shall be kept strictly confidential
and no information relating thereto shall be issued except in
certain cases enumerated in the law. (See Art. 7).
(d) False. The principle of alluvium cannot be applied to
accretions due to the action of the current of the sea. It can be
applied only to accretions due to the action of the current of a
river, lake, creeks or torrent. (Art. 457, Civil Code)
(e) True. According to the Civil Code, any stipulation that
the arbitrator’s award or decision shall be final is. valid, without
prejudice to certain pertinent provisions on compromise
wherein the award may be revoked. (Art, 2044)
(Note: The Committee respectfully submits that an answer of
False may also be correct provided that the bar candidate
states the above-stated reason.)
602
1980 BAR EXAMINATION
Question No. I
(a )
“ A ” and “B '' were husband and wife. During
their marriage, they built a house on a lot exclusively
owned by “ B” , the wife, with funds earned by " A ” , the
husband. They had no children. Upon the death of “ B” ,
her relatives claimed the house and lot from “ A ” , the hus­
band. The husband refused.
Decide the controversy.
■(b) A w ife filed against her husband a complain,
for legal separation on the ground that the latter had a t
tempted on her life, with a prayer for support pendent*
lite. The husband opposed the grant of support on the
ground of a d u lte ry on the part of the wife. Over the hus­
band’s opposition, the Juvenile and Domestic Relations
Court granted support pendenie lite. The husband insti­
tuted certiorari proceedings before the Court of Appeals
seeking to annui the award.
Is the w ife entitled to support pendente lite?
Answer
(at “ A ” , the husband, is correct when he refused to
give the house and lot to the relatives of “ B’ ■;
The funds used in constructing the house, are con­
jugal. This is so because such funds were earned b y “ A ” .
Therefore, the house is conjugal. True, the lot upon which
the house is constructed is paraphernal. But then, accord­
ing to the Civil Code, it will also become conjugal upon
compliance with the condition that its value shall be re­
imbursed by the conjugal partnership to the wife. This
condition can be fulfilled only during the liquidation of
the conjugal partnership. This is well-settled. Assuming
603
then that this condition has been fulfilled, both house and
lot are conjugal in character. One-half (1/2) thereof be­
longs to “ A ” , while the other one-half (1/2) belongs to
the estate of “ B” .
To whom shall the estate of “ B” pass? Assuming
that “ B” died intestate and assuming further that the re­
latives of “ B” are brothers a,nd sisters and/or nephews
and nieces, one-half (1/2) thereof shall pass to “ A ” and
the other one-half (1/2) shall pass to such relatives in
accordance with the rules of intestacy. However, if such
relatives are not brothers arid sisters and/or nephews and
nieces, the entire estate shall pass to-“ A ” alone in accord­
ance with the rules of intestacy,
( N o t e : The above answer is based on Art. 158, par. 2,
Civil Code, and on the cases of Coingco vs. Flores,
84 Phil. 284 ; V da. de Padilla, vs. Paterno,, 113
Phil. 656.; and Maramba vs. Lozano, 20 SCRA
474).
(b )
Yes, the w ife is entitled to support 'pendente lite.
It is true that adultery of the w ife is a valid defense
against an action for support commenced by a wife against
her husband.- This is well-settled. However, the alleged
adultery must be established by competent evidence. The
mere allegation that the wife has committed adultery will
not bar her from the right to receive support pendente lite,
(N o te : The above answer is based oh Reyes vs. Jnes-Lucio/no,. 88 S C R A '803. A contrary answer may also
be correct provided that the bar candidate qua­
lifies his answer by assuming tha.t the .husband
was able to prove adultery of his wife. See Quin­
tana vs. Lerma, 24 Phil. 285; Sanchez vs. Zulueta,
68 Phil. ,110; Mangoma vs. Macadaeg, 90 PhiJ.
508).
Question No. II
(a )
“ C” , a Filipino, resident of the U.S., sent to his
father “ D ” in Manila $500.00 through “ X ” Bank which
604
had a branch in Manila. Due to mistake of the employees
of the Bank, “ D ” was paid $5,000.00 instead of $500.00.
Upon discovery of the mistake, the Bank demanded from
“ D” the return of the $4,500.00, “ D” refused and the Bank
sued him.
Is the Bank entitled to recover from “ D ” ?
(b )
“ E " and “ F ” , Filipino citizens, were married in
the Philippines. Later, they separated. “ E” , the husband,
went to San Francisco,,California, to live there permanent­
ly. He obtained a divorce in California from “ F ” On
grounds of desertion and mental cruelty. Thereafter, he
married “ G” , a Filipina, who did not know that “ E ” was
previously married. “ E ” and “ G” had two children “ H ”
and ‘T V They came back to the Philippines where “ E ”
died. .
Discuss (1 ) the validity of the divorce obtained by
‘“ E ” in California; (2 ) the validity of the marriage of
“ E ” to “ G” ; and (3) the legal status of “ H ” and “ I ” .
Answer
(a )
Y.es, the Bank is entitled to recover the $4,500
from “ D” . W e have in this case an example of a quasi­
contract of solutio indebiti which arises whenever a per­
son unduly delivers a thing through mistake to another
who has no right to demand it (A r il 215b, Civil Code). Its
requisites a re :
(1 ) There must be a payment or delivery made by
one person to another;
(2 ) The person who made the payment or delivery
was under no obligation to do so; and
(2 ) The person who made the payment or delivery
was under no obligation to do so; and
(3 ) The payment or delivery was made by reason of
mistake.
It is obvious that the above requisites are present in
the instant case.
605
(b )
1. The decree of absolute divorce obtained by
“ E ” in California is not valid in the Philippines for the
following reasons:
(a ) Absolute divorce is not recognized in the
Philippines, According to the Civil Code, laws re­
sulting to family rights and duties, or to the status,
condition, and legal capacity o f persons are binding
upon citizens of the Philippines, even though living
abroad (Art.. 15).
(b j Well-settled is the rule that absolute divorce
is contrary to public policy. According to the Civil
Code, this declaration of public policy cannot be ren­
dered megatory by the decree of absolute divorce ob­
tained by “ E ” in California (A rt. 17, par. S).
2.
The marriage o f “ E” to “ G” is not valid. It is
void from the very beginning by reason of a prior sub­
sisting marriage (A rt. 83, par. 1, Civil Code). From the
point of view of Philippine law, since the decree of abso­
lute divorce obtained by "E ” in California is not valid,
he is still married to ‘F ” .
3.. “ H ” and “ I ” are natural children by legal fiction.
The reason is that they are children bom of a marriage
which is void (A rt. 89, Civil Code).
Q u e stio n N o. I l l
(a ) Several families had erected their houses on the
river bank portion o f a lot owned by “ X ” . The construc­
tion o f the houses was with the knowledge and consent of
“ X ” , The latter did not collect rentals. About five years
later, “ X ” being in need o f the lot, demanded that the
families vacate. The latter refused contending that they
were not squatters considering that “ X ” had allbwed their
occupation and is, therefore, estopped from ejecting them.
1) A re th"e families “ squatters” ? 2) Do they have a
right to. continue in the occupation o f the land?
(b ) “ J” and his family lived in his house in Metro
Manila. Adjoining “ J’s” house was a vacant lot. M ERAL-
606
GO purchased this lot and built thereon a sub-station, which
reduced high voltage electricity to a current suitable fo r
distribution to its customers. The sub-station transfor­
mers made a lot of noise during all hours of the day and
night and made life miserable for “ J” and his family. “ J”
filed an action against M ERALCO to stop the operation
of the sub-station and for damages.
Decide the case.
A nsw er
(a ) (1 ) Whether they are possessors by tolerance or
squatters, will' not make any difference. Legally, they are
squatters. A squatter is one who settles on land, of another
without any legal authority. This definition contemplates a
right that' owes its source from the law, and which ac­
cordingly may be protected by and under the law. In the
instant case, it is clear that the families, settled down on
the land without any legal authority ( Puonavente vs. Melchor, 89 SCRA 222).
(2 )
They do not have a right, to continue in the occupa­
tion of the land. Their occupation by mere tolerance can
not give rise to a- right that the law should protect in
their favor as against the true legal owner. Besides, the
owner “ X ” is certainly not barred, under any known prin­
ciple of law, either by estoppel or waiver; to demand that
the law should protect in their favor as against the true
legal owner. (Ib id ).
(N ote:, The Committee respectfully recommends
that an answer based on the provisions of Arts. 449,
450 and 451 of the Civil Code should also be con­
sidered as correct. Objectively considered, the families
in the above problem are builders or possessors in bad
faith. They cannot assert any right as against the
legal owner.)
(b ) Meralco must take appropriate measures to reduce
to normal sound levels. A t the same time, it is also liable
to “J” and to the members of “ J’s” family for damages
607
plus attorney’s fees. That sound may constitute an action­
able nuisance is not settled ( Velasco vs. Manila Electric
Co., 40 SCRA 342). However, it must be a noise which
affects injuriously the health and comfort of ordinary peo­
ple to an unreasonable extent. The test, therefore, is wheth­
er the health and comfort of “ J" and the members of his
fam ily are so injuriously affected by the noise in question
so that they are subjected to a loss which goes beyond
reasonable limits. Applying this test, it is clear that Meralco has not taken the necessary precaution to reduce the
intensity level of the noise to normal or reasonable level.
Consequently, the noise constitutes an actionable nuisance.
Q u e stio n N o. IV
.(a ) “ K ” & Co. published in the newspaper an “ Invita­
tion To Bid” inviting, proposals to supply labor and mate­
rials fo r a construction project described in the invita­
tion. “ L ” , “ M ” , and “ N ” submitted bids. When the bids
were opened, it appeared that “ L ” submitted the lowest bid.
However, “ K ” & Co- awarded the contract “ N ” , the high­
est bidder, on the ground that he was the mo