3-2021-UST-Golden-Notes-Civil-Law

CIVIL LAW 2021 GOLDEN NOTES FACULTY OF CIVIL LAW UNIVERSITY OF SANTO TOMAS MANILA The UST GOLDEN NOTES is the annual student-edited bar review material of the University of Santo Tomas, Faculty of Civil Law. Communications regarding the Notes should be addressed to the Academics Committee of the Team: Bar-Ops. Address: Academics Committee UST Bar Operations Faculty of Civil Law University of Santo Tomas España, Manila 1008 Tel. No: (02) 731-4027 (02) 406-1611 loc. 8578 Academics Committee Faculty of Civil Law University of Santo Tomas España, Manila 1008 All rights reserved by the Academics Committee of the Faculty of Civil Law of the Pontifical and Royal University of Santo Tomas, the Catholic University of the Philippines. 2021 Edition. No portion of this material may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devises or in any other form, for distribution or sale, without a written permission. A copy of this material without the corresponding code either proceeds from an illegal source or is in possession of one who has no authority to dispose the same. Released in the Philippines, 2021. ACADEMIC YEAR 2020-2021 CIVIL LAW STUDENT COUNCIL LYODYCHIE Q. CAMARAO MARIA FRANCES FAYE R. GUTIERREZ STEPHEN FLOYD A. GOPEZ KRYSTAL GAYLE R. DIGAY NATHAN RAPHAEL D.L. AGUSTIN GIAN JUSTIN E. VERONA IRIS ABIGAIL C. PORAQUE PRESIDENT VICE PRESIDENT INTERNAL VICE PRESIDENT EXTERNAL SECRETARY TREASURER PUBLIC RELATIONS OFFICER CHIEF-OF-STAFF UST BAR-OPS KRIZA NIÑA B. MALALUAN ELISHA ELAINE D. BAYOT JOSEPHINE GRACE W. ANG MARINETTE M. SOBREVILLA SARAH ANGELA D. EVA REBECCA JOY M. MALITAO JEDIDIAH R. PADUA SABINA MARIA H. MABUTAS JOEMARI MATHEW R. AGARIN JOHN FREDERICK A. NOJARA KIER JOHN V. UY CHRISTINE JOYCE P. ANDRES ELOUISA ANN D.C. CARREON NICOLE MARIE A. CORTES PATRICIA MAE D. GUILLERMO GLENN MATTHEW C. MANLAPID CIARI T. MENDOZA MARYLOU RENZI M. OLOTEO LOUELLE JUDE B. QUE JAMES ROSS L. TAN CHAIRPERSON VICE-CHAIRPERSON INTERNAL VICE CHAIRPERSON EXTERNAL SECRETARY HEAD, PUBLIC RELATIONS OFFICER HEAD, FINANCE COMMITTEE HEAD, HOTEL ACCOMMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE HEAD, LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER ATTY. AL CONRAD B. ESPALDON ADVISER ACADEMICS COMMITTEE 2021 MARIA FRANCES FAYE R. GUTIERREZ NATHAN RAPHAEL D.L. AGUSTIN JOHN EDWARD F. FRONDA ANGEL ISAH M. ROMERO KIRBY ANNE C. RENIA KAREN ABBIE C. ASPIRAS JOSE CHRISTIAN ANTHONY I. PINZON MARIA FRANCES FAYE R. GUTIERREZ CIARI T. MENDOZA SECRETARY GENERAL ASST. SECRETARY GENERAL EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE LAYOUT ARTIST COVER DESIGN ARTIST CIVIL LAW COMMITTEE 2021 MARY JO S. REYES CIVIL LAW COMMITTEE HEAD MARIELLE E. RAMACOLA CARA ANGELA N. FLORES FLOREE FAYE F. PINZON MARY JO S. REYES ANTHONY LUIGI B. DE VERA ASST. HEAD, CREDIT/PROPERTY ASST. HEAD, PERSONS AND FAMILY RELATIONS/ OBLIGATIONS AND CONTRACTS ASST. HEAD, SUCCESSION/LTD ASST. HEAD, TORTS ASST. HEAD, SALES/PAT MEMBERS PIO VINCENT R. BUENCAMINO LAWRENCE JERICHO B. ORTIZ KRISTINE H. SERRANO KARA C. RAMOS ANGELA MAY S. ALFONSO ABIGAIL P. MANALOTO CLARISSE M. LIBAN CHRISTIAN JADE R. RABINO JESSAMINE DENISE W. VALDES CHANELLE MIKAELLA T. ISIDRO JOANNA A. PAZ LARRY MARK S. MORALES HEATHER MARIAN M. AMOROSO LANDREL M. MATAGA ATTY. KENNETH JAMES CARLO C. HIZON ATTY. KING JAMES CARLO C. HIZON ATTY. JOSHUA BARRIETA Advisers ACADEMICS COMMITTEE 2020 AYA DOMINIQUE S. CAPARAS MARIA FRANCES FAYE R. GUTIERREZ RUTH MAE G. SANVICTORES NICOLE G. AMANTE JAYSON GABRIEL R. SORIANO CARA ANGELA N. FLORES IANA CASSANDRA Y. ESMILE AYA DOMINIQUE S. CAPARAS CIARI T. MENDOZA SECRETARY GENERAL ASST. SECRETARY GENERAL EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE LAYOUT ARTIST COVER DESIGN ARTIST CIVIL LAW COMMITTEE 2020 FLOREE FAYE F. PINZON CIVIL LAW COMMITTEE HEAD MA. SELYNA V. ROÑO MARY JO S. REYES ASST. HEAD, CREDIT/PROPERTY ASST. HEAD, PERSONS AND FAMILY RELATIONS/ OBLIGATIONS AND CONTRACTS ASST. HEAD, SUCCESSION/LTD ASST. HEAD, TORTS ASST. HEAD, SALES/PAT FAITH MARIE A. FLORES KATELYN LEANDER FEBREA AREM R. MERCADO MEMBERS JOSE CHRISTIAN ANTHONY I. PINZON LAWRENCE MENDOZA HAIDEE AMABEL T. UY DANICE GO GAN JHEA VERONICA V. MENDOZA ANDREA D.G. GONZAGA ANGELICA RUIZ MARIE ANGELICA A. CORDOBA AIREI KIM P. GUANGA ARLEIGH SHAYNE A. CASTILLO JOANNAH KIMBERLY R. GAMBOA FRANZ G. PAROHINOG PATRICK PAREDES ATTY. KENNETH JAMES CARLO C. HIZON ATTY. KING JAMES CARLO C. HIZON ATTY. LOVERLY AMODO BARQUEZ ATTY. JOSHUA BARRIETA Advisers FACULTY OF CIVIL LAW UNIVERSITY OF SANTO TOMAS ACADEMIC OFFICIALS ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAÑO, O.P. DEAN REGENT ATTY. ARTHUR B. CAPILI FACULTY SECRETARY ATTY. ELGIN MICHAEL C. PEREZ LEGAL COUNSEL UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC JUDGE PHILIP A. AGUINALDO SWDB COORDINATOR LENY G. GADIANA, R.G.C. GUIDANCE COUNSELOR OUR DEEPEST APPRECIATION TO OUR MENTORS AND INSPIRATION JUSTICE OSWALDO AGCAOILI DEAN AUGUSTO K. ALIGADA (+) JUDGE PHILIP A. AGUINALDO ATTY. RUBEN F. BALANE ATTY. VINCENT Z. BOLIVAR ATTY. ENRIQUE DELA V. CRUZ, JR. ATTY. AMADO PAOLO C. DIMAYUGA ATTY. IRVIN JOSEPH M. FABELLA ATTY. RAFAELITO M. GARAYBLAS (+) ATTY. RENE B. GOROSPE ATTY. JESUSA LAPUZ-GAUDIANO ATTY. ALDEN FRANCIS C. GONZALES JUDGE GEORGINA D. HIDALGO DEAN MARIA LIZA A. LOPEZ-ROSARIO ATTY. ANICIA C. MARQUEZ ASSOC. DEAN VIVIANA M. PAGUIRIGAN ATTY. BENIGNO G. PAR, JR. JUDGE MYRA B. QUIAMBAO ATTY. TEOFILO R. RAGADIO ATTY. MAURICIO C. ULEP ATTY. CARLA E. SANTAMARIA-SEÑA ATTY. RIGOR PASCUAL JUDGE KATLYN ANNE AGUILAR-BILGERA For being our guideposts in understanding the intricate sphere of Civil Law. – Academics Committee 2021 DISCLAIMER THE RISK OF USE OF THIS BAR REVIEW MATERIAL SHALL BE BORNE BY THE USER TABLE OF CONTENTS PART I -GENERAL PRINCIPLES I. Effect and Application of Laws (Civil Code)............................................................................................................ 1 Conflict of Laws (Private International Law) ............................................................................................ 12 II. Human Relations (Arts. 19-22, Civil Code) ........................................................................................................ 32 PERSONS AND FAMILY RELATIONS I. Persons and Personality (Civil Code) ................................................................................................................... 37 II. Marriage (Family Code) .......................................................................................................................................... 42 III. Legal Separation (Family Code)........................................................................................................................... 80 IV. Rights and Obligations Between Husband and Wife (Family Code) .......................................................... 89 V. Property Relations of the Spouses (Family Code) ............................................................................................ 94 VI. The Family (Family Code).................................................................................................................................... 115 A. The family as an institution ..................................................................................................................... 115 B. The family home ......................................................................................................................................... 116 VII. Paternity and Filiation (Family Code) ............................................................................................................ 119 VIII. Adoption ................................................................................................................................................................ 132 A. Domestic Adoption Act of 1998 (R.A. No. 8552)................................................................................. 132 1. When allowed........................................................................................................................................... 133 2. Who can adopt ......................................................................................................................................... 133 3. Adoptee ...................................................................................................................................................... 134 4. Effects of domestic adoption ................................................................................................................ 135 5. Grounds for rescission of the adoption ............................................................................................. 135 6. Effects of rescission of adoption ......................................................................................................... 136 B. Inter-Country Adoption Act of 1995 (R.A. No. 8043) ........................................................................ 137 1. When allowed........................................................................................................................................... 137 2. Who can adopt ......................................................................................................................................... 137 3. Adoptee ...................................................................................................................................................... 138 C. Distinction between domestic adoption and inter-country adoption ......................................... 140 IX. Support (Family Code) ......................................................................................................................................... 143 X. Parental Authority (Family Code) ...................................................................................................................... 149 Child Abuse Law (R.A. No. 7610), specifically Sec. 10 (c). .................................................................... 154 XI. Retroactivity of the Family Code (Art. 256) .................................................................................................... 158 XII. Funerals (Arts. 305-310, Civil Code) ............................................................................................................... 159 XIII. Use of Surnames .................................................................................................................................................. 160 A. Use of surname by a child ......................................................................................................................... 160 B. Use of surname by a married woman ................................................................................................... 161 C. Valid grounds for change of name .......................................................................................................... 161 D. Middle names .............................................................................................................................................. 163 XIV. Absence .................................................................................................................................................................. 165 A. Declaration of absence (Art. 384, Civil Code) ..................................................................................... 166 B. Presumption of Death ............................................................................................................................... 166 PART II - PROPERTY I. Characteristics .......................................................................................................................................................... 171 II. Classification ............................................................................................................................................................ 171 III. Ownership ............................................................................................................................................................... 181 IV. Hidden Treasure .................................................................................................................................................... 193 V. Accession ................................................................................................................................................................... 194 VI. Quieting of Title...................................................................................................................................................... 215 VII. Co-ownership ........................................................................................................................................................ 218 VIII. Possession ............................................................................................................................................................. 229 IX. Usufruct .................................................................................................................................................................... 248 X. Easement ................................................................................................................................................................... 261 XI. Nuisance ................................................................................................................................................................... 280 XII. Modes of Acquiring Ownership ........................................................................................................................ 283 XIII. Donation ................................................................................................................................................................ 286 PART III - PRESCRIPTION I. Definition .................................................................................................................................................................... 297 II. Acqusitive Prescription ......................................................................................................................................... 300 III. Extinctive Prescription ........................................................................................................................................ 303 IV. Instances when prescription is not allowed .................................................................................................. 303 V. Prescription or limitation of actions ................................................................................................................. 304 PART IV - SUCCESSION I. General provisions ................................................................................................................................................... 306 II. Testamentary Succession ..................................................................................................................................... 310 A. Wills ............................................................................................................................................................. 310 B. Non-delegability of will-making .......................................................................................................... 311 C. Testamentary capacity and intent ...................................................................................................... 313 D. Soundness of mind .................................................................................................................................. 314 E. Formal validity of wills........................................................................................................................... 314 F. Governing law as to substantive validity .......................................................................................... 315 G. Notarial wills ............................................................................................................................................. 315 H. Special rules for handicapped testators ............................................................................................ 318 I. Substantial compliance .......................................................................................................................... 319 J. Witnesses ................................................................................................................................................... 319 K. Holographic wills ..................................................................................................................................... 319 L. Requirements in case of alterations ................................................................................................... 320 M. Joint wills ................................................................................................................................................... 322 N. Codicils........................................................................................................................................................ 323 O. Incorporation by reference................................................................................................................... 324 P. Revocation of wills .................................................................................................................................. 324 Q. Republication and revival of wills....................................................................................................... 327 R. Probate requirement .............................................................................................................................. 327 S. Institution of heirs ................................................................................................................................... 328 T. Preterition ................................................................................................................................................. 332 U. Predecease, incapacity, and repudiation .......................................................................................... 334 V. Right of Representation ......................................................................................................................... 335 W. Substitution of heirs................................................................................................................................ 336 X. Legitime ...................................................................................................................................................... 337 Y. Collation .................................................................................................................................................... 343 Z. Compulsory Heirs .................................................................................................................................... 344 AA. Reserva Troncal ....................................................................................................................................... 347 BB. Disinheritance .......................................................................................................................................... 350 CC. Legacies and Devises .............................................................................................................................. 354 III. Legal/ intestate succession ................................................................................................................................. 356 A. General provisions .................................................................................................................................. 356 B. Order of intestate succession ............................................................................................................... 356 C. Right of representation .......................................................................................................................... 360 D. Iron curtain rule ....................................................................................................................................... 361 IV. Provisions common to testate and intestate succession ............................................................................ 361 A. Right of accretion ..................................................................................................................................... 361 B. Capacity to succeed by will or intestacy ............................................................................................ 362 1. Persons incapable of succeeding ..................................................................................................... 363 2. Relative incapacity to succeed.......................................................................................................... 363 V. Acceptance and repudiation of the inheritance ............................................................................................. 365 VI. Partition and distribution of estate .................................................................................................................. 366 PART V - OBLIGATIONS I. Definition, Elements ................................................................................................................................................ 368 II. Sources of Obligations ........................................................................................................................................... 370 III. Nature and Effect of Obligations ........................................................................................................................ 375 IV. Kinds of Obligations .............................................................................................................................................. 393 A. Pure and Conditional .............................................................................................................................. 393 B. Obligations with a Period ...................................................................................................................... 397 C. Alternative Obligations .......................................................................................................................... 399 D. Joint and Solidary Obligations ............................................................................................................. 401 E. Divisible and Indivisible Obligations ................................................................................................. 407 F. Obligations with a Penal Clause ........................................................................................................... 408 V. Extinguishment of Obligation .............................................................................................................................. 409 A. Payment or Performance ...................................................................................................................... 410 B. Loss of the Thing Due .............................................................................................................................. 420 C. Condonation or Remission .................................................................................................................... 422 D. Confusion or Merger of Rights ............................................................................................................. 423 E. Compensation ........................................................................................................................................... 424 F. Novation ..................................................................................................................................................... 430 PART VI - CONTRACTS I. Essential Requisites ................................................................................................................................................. 445 II. Objects, Cause and Form of Contracts ............................................................................................................... 455 III. Reformation of Instruments ............................................................................................................................... 461 IX. Interpretation of Contracts ................................................................................................................................. 463 V. Rescissible Contracts.............................................................................................................................................. 467 VI. Voidable Contracts ................................................................................................................................................ 471 VII. Unenforceable Contracts .................................................................................................................................... 474 VIII. Void and Inexistent Contracts ......................................................................................................................... 475 PART VII- NATURAL OBLIGATIONS I. Natural Obigations…………………………………………………………………………………………………………………...476 II. Estoppel………………………………………………………………………………………………………………………………… 476 PART VIII - SALES I. General Principles .................................................................................................................................................... 478 II. Nature and Form of Contract ............................................................................................................................... 479 III. Capacity to Buy or Sell .......................................................................................................................................... 488 IV. Obligations of the Vendor .................................................................................................................................... 496 V. Obligations of the Vendee ..................................................................................................................................... 496 VI. Effects of the Contract when the Thing Sold has been Lost ........................................................................ 509 VII. Remedies of the Parties ...................................................................................................................................... 511 A. Installment Sales Law or Recto Law ................................................................................................... 511 B. Realty Installment Buyer Act or Maceda Law .................................................................................. 514 VIII. Extinguishment of Sale ...................................................................................................................................... 528 IX. Assignment of Credits ........................................................................................................................................... 534 PART IX - TRUST I. Classification of Trust.............................................................................................................................................. 546 II. Kinds of Trust ........................................................................................................................................................... 546 A. Express Trust ............................................................................................................................................ 547 B. Implied Trust ............................................................................................................................................ 548 PART X - PARTNERSHIP I. Contract of Partnership .......................................................................................................................................... 551 II. Rights and Obligations of Partnership .............................................................................................................. 565 III. Rights and Obligations of Partners Among Themselves............................................................................. 565 IV. Obligations of Partnership/Partners to Third Person ................................................................................ 571 V. Dissolution and Winding Up ................................................................................................................................ 574 VI. Limited Partnership .............................................................................................................................................. 580 PART XI - AGENCY I. Nature, Form, and Kinds of Agency ..................................................................................................................... 587 II. Obligations of the Agent ........................................................................................................................................ 595 III. Obligations of the Principal ................................................................................................................................ 604 IV. Modes of Extinguishment of Agency ................................................................................................................. 605 PART XII - LEASE I. General Principles .................................................................................................................................................... 610 II. Rights and Obligations of the Lessor and the Lessee .................................................................................... 619 III. Remedies ................................................................................................................................................................. 622 PART XIII - CREDIT TRANSACTIONS I. General Principles .................................................................................................................................................... 630 II. Loan ............................................................................................................................................................................ 631 III. Pledge ....................................................................................................................................................................... 644 IV. Commodatum.......................................................................................................................................................... 654 V. Mutuum ...................................................................................................................................................................... 661 VI. Deposit ...................................................................................................................................................................... 672 VII. Real Mortgage ........................................................................................................................................................ 680 VIII. Personal Property Security Act ....................................................................................................................... 695 IX. Antichresis ............................................................................................................................................................... 703 X. Guaranty and Suretyship....................................................................................................................................... 708 PART XIV - LAND TITLES AND DEEDS I. General Principles .................................................................................................................................................... 715 A. Regalian doctrine ..................................................................................................................................... 715 B. Torrens system of registration ............................................................................................................ 716 II. Original Registration ............................................................................................................................................. 718 A. Who may apply for registration........................................................................................................... 718 B. Acquisitions of title by law .................................................................................................................... 723 C. Patents under the Public Land Act ...................................................................................................... 724 D. Land patents.............................................................................................................................................. 724 E. Reclamation .............................................................................................................................................. 728 F. Registration process and requirements............................................................................................ 734 G. Application ................................................................................................................................................ 734 H. Publication................................................................................................................................................. 736 I. Opposition ................................................................................................................................................. 738 J. Evidence required in land registration ............................................................................................. 740 K. Judgment and decree of registration ................................................................................................. 746 L. Writ of possession ................................................................................................................................... 749 M. Decree of confirmation and registration .......................................................................................... 750 N. Review of decree of registration ......................................................................................................... 752 1. Motion for new trial .............................................................................................................................. 753 2. 3. 4. 5. 6. 7. Motion for reconsideration ................................................................................................................ 753 Appeal....................................................................................................................................................... 754 Petition for relief from judgment ..................................................................................................... 754 Petition for annulment of judgment ................................................................................................ 754 Claim against the assurance fund ..................................................................................................... 755 Petition for review of decree of registration ................................................................................. 757 Purchaser in good faith and for value .............................................................................. 757 8. Reversion................................................................................................................................................. 763 9. Reconveyance ......................................................................................................................................... 763 10. Quieting of title ...................................................................................................................................... 764 O. Cadastral land registration ..................................................................................................................... 765 III. Certificate of Title .................................................................................................................................................. 765 A. Classification of lands ............................................................................................................................. 771 B. Citizenship requirement ........................................................................................................................ 771 IV. Subsequent registration ...................................................................................................................................... 774 A. Voluntary dealings .................................................................................................................................. 774 B. Involuntary dealings ............................................................................................................................... 778 V. Dealings with unregistered lands ....................................................................................................................... 781 VI. Non-registrable properties ................................................................................................................................. 782 PART XV - TORTS AND DAMAGES Book I - Torts/Quasi - Delicts I. General Principles .................................................................................................................................................... 786 II. Quasi – delict ............................................................................................................................................................ 788 III. The Tortfeasor........................................................................................................................................................ 791 IV. Special Liability in Particular Activities .......................................................................................................... 794 V. Strict Liability ........................................................................................................................................................... 806 VI. Classification of Torts ........................................................................................................................................... 809 VII. Negligent Torts...................................................................................................................................................... 813 VIII. Standard of Care .................................................................................................................................................. 816 IX. Torts Concepts and Doctrines ............................................................................................................................ 820 A. Res Ipsa Loquitur ............................................................................................................................. 820 B. Doctrine of Last Clear Chance ....................................................................................................... 821 C. Damnum Absque Injuria ................................................................................................................ 822 D. Presumption of Regularity ............................................................................................................ 823 E. Double Recovery............................................................................................................................... 823 Book II - Damages I. General Principles .................................................................................................................................................... 824 II. Actual and Compensatory Damages .................................................................................................................. 826 III. Attorney’s Fees and Expenses of Litigation .................................................................................................... 830 IV. Moral Damages ....................................................................................................................................................... 834 V. Nominal Damages ................................................................................................................................................... 839 VI. Temperate or Moderate Damages .................................................................................................................... 840 VI. Liquidated Damages ............................................................................................................................................. 842 VII. Exemplary or Corrective Damages .................................................................................................................. 842 VIII. Damages in case of Death ................................................................................................................................. 844 General Principles legislature may make the law effective immediately upon approval, or on any other date without its previous publication. GENERAL PRINCIPLES EFFECT AND APPLICATION OF LAWS Publication requirement Law Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day (15) period shall be shortened or extended. (Umali v. Estanislao, G.R. No. 104037, May 29, 1992; Tañada v. Tuvera, G.R. No. L-63915, December 29, 1986) Aquinas defined law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” (Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003) Effectivity of laws Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the law. TheI mere mention of the number of the presidential decree, the title of such decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. =(Tañada v. Tuvera, G.R. No. L-63915, December 29, 1986) Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. [(New Civil Code (NCC), Art. 2, as amended by EO 200)] 0= Effectivity: It depends on whether or not it has provided a specific date for its effectivity: 1. 2. If date is specified – Upon the lapse of the said period following its complete must publication and not before. publication be completed If no date is specified – 15-day period, which may either be on the 15th or on the 16th day depending on the language used by the Congress in fixing the effectivity date of the statute. (Rabuya, 2009) a. b. 3. 4. Indispensability of publication GR: All laws are required to be published in full. NOTE: The reason for this rule is that the basic constitutional requirement of due process must be satisfied. (Rabuya, 2009) Without such notice and publication, there would be no basis for the application of the maxim ignoratia legis non excusat. (Rabuya, 2009) 15th day - If the law declares that it shall become effective “15 days after its publication.” 16th day - If the law declares that it shall be effective “after 15 days following its publication.” XPNs to the Publication Requirement: (ORLI) 1. 2. If the law provides for immediate effectivity or upon approval – It is effective immediately after its complete publication and not after signing by the President. If the law is voluminous– Reckoning shall begin from the release of the last of the series. 3. 4. Municipal Ordinances (governed by the Local Government Code); Rules and regulations which are internal in nature; Letters of Instruction issued by administrative supervisors on internal rules and guidelines; Interpretative regulations regulating only the personnel of administrative agency. XPNs to the XPNs: (DEP) “Unless it is otherwise provided” provision on effectivity of law Administrative rules require publication: This clause refers to the date of effectivity and not to the requirement of publication itself. The requirement of publication may not be omitted in any event. This clause does not mean that the 1. I 2. 1 and regulations that The purpose of which is to implement or enforce existing laws pursuant to a valid Delegation; Penal in nature; and Civil Law 3. If it diminishes Existing rights of certain individuals. DOJ Circular No. 95-001 ineffective because it was not published? NOTE: Circulars issued by the monetary board are required to be published if they are meant not merely to interpret but to “fill in details” of the Central Bank Act. As a rule, circulars which prescribe a penalty for violations should be published before becoming effective. However, circulars which are mere statements of general policies as to how the law should be construed do not need publication in the Official Gazette for their publication. A: NO. OMB-DOJ Circular No. 95-001 is merely an internal circular between the two offices which outlines the authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigations. It does not contain any penal provision nor prescribe a mandatory act or prohibit any under pain of penalty. It does not regulate the conduct of persons or the public, in general. It need not be published. (Honasan, II v. The Panel of Investigating Prosecutors of the DOJ, G.R. No. 159747, June 15, 2004) Where to publish 1. 2. Q: The Sangguniang Bayan of Hagonoy, Bulacan enacted an ordinance which increased the stall rentals of the market vendors in Hagonoy. Art. 3 of the said ordinance provided that it shall take effect upon approval. The ordinance was posted from November 4 to 25, 1996. Official Gazette; or Newspaper of general circulation in the Philippines. Newspaper of general circulation For a newspaper to be considered of general circulation: 1. 2. 3. 4. In the last week of November 1997, petitioners were personally given copies and were informed that it shall be enforced in January 1998. It must be published within the court’s jurisdiction; It must be published at regular intervals for disseminating local news and general information; It has a bona fide subscription list of paying subscribers; and It is not devoted to the interest or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. (Alvarez v. People, G.R. No. 192591, June 29, 2011) The petitioners contended that the subject ordinance was not published as required by law. Did the ordinance comply with the rule of publication? A: YES. An ordinance which increased the stall rentals of the market vendors has complied with the publication requirement when the same was posted in 3 conspicuous places. (Sec. 188, Local Government Code; Hagonoy v. Municipality, G.R. No. 137621, February 6, 2002) Q: Honasan questions the authority and jurisdiction of the DOJ panel of prosecutors to conduct a preliminary investigation and to eventually file charges against him, claiming that since he is a senator with a salary grade of 31, it is the Office of the Ombudsman, not the DOJ, that has authority and jurisdiction to conduct the preliminary investigation. NOTE: Within ten (10) days after their approval, certified true copies of all provincial, city, and municipal tax ordinances or revenue measures shall be published in full for three (3) consecutive days in a newspaper of local circulation: Provided, however, that in provinces, cities and municipalities where there are no newspapers of local circulation, the same may be posted in at least two (2) conspicuous and publicly accessible places. (Sec. 188, Local Government Code) DOJ claims that it has concurrent jurisdiction, invoking an OMB-DOJ Joint Circular which outlines the authority and responsibilities among prosecutors of the DOJ and the Office of the Ombudsman in the conduct of preliminary investigations. Exceptions to the publication requirement Honasan counters that said circular is ineffective as it was never published. Is OMBUNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 1. 2 An interpretative regulation; General Principles 2. 3. A regulation that is merely internal in nature; and A letter of instruction issued by an administrative agency concerning rules or guidelines to be followed by subordinates in the performance of their duties. (Association of Southern Tagalog Electric Cooperatives, Inc. v. Energy Regulatory Board, G.R. No. 192117, September 18, 2012) 4. 5. Q: Judge Ferdinand Villanueva was appointed as a presiding judge of MTC, Compostela-New Bataan. The following year, Judge Villanueva applied as Presiding Judge in several Regional Trial Courts. Administrative Order No. SOSPEC 89-08-01 issued by Philippine International Trading Corporation regulating applications for importation from the People’s Republic of China. Corporate Compensation Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees. (Ulep, 2006) Q: “A” alleges violation of his right to due process considering that he is summoned to attend the Senate hearings without being apprised not only of his rights therein through the publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. The Judicial and Bar Council (JBC) then informed him that he was not included in the list. The JBC’s decision upheld its longstanding policy of opening the chance for promotion to second-level courts to those judges who have served in their current positions for at least five years. Senate invoked the provisions of R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet. Did the publication of the assailed Rules of Procedure through the Senate’s website satisfy the due process requirement of the law? Judge Villanueva then directly went to Court to assail the said policy on the ground it is unconstitutional; it violates the procedural due process for lack of publication. Did the JBC violate the procedural due process for not publishing the questioned policy? A: NO. R.A. 8792 – Electronic Commerce Act of 2000 considers an electronic data message or an electronic document as a functional equivalent of a written document only for evidentiary purposes. It does not make the internet a medium for publishing laws, rules or regulations. (Garcillano v. The House of Representatives Committee on Public Information, Public Order and Safety, National Defense and Security, Information and Communications Technology and Suffrage and Electoral Reforms, G.R. No. 170338, December 23, 2008) A: YES. The petition was dismissed but the SC directed the JBC to comply with the publication requirement of the assailed policy. According to SC, it is but a natural consequence that potential applicants be informed of the requirements to the judicial positions, so that they would be able to prepare for and comply with them. (Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 07, 2015) Examples of administrative issuances which were not given force and effect for lack of publication IGNORANCE OF THE LAW Presumption of knowledge of laws 1. 2. 3. Rules and regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee regarding the accreditation of hospitals, media clinics and laboratories. Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mining companies. Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hongkong. GR: Everyone is conclusively presumed to know the law. Hence, ignorance of the law excuses no one from compliance therewith. (NCC, Art. 3) This conclusive presumption presupposes that the law has been published. Without such notice and publication, there would be no basis for the application of the maxim ignoratia legis non excusat. (Rabuya, 2009) 3 Civil Law XPNs: 1. Mistake upon a doubtful or difficult question of law may be the basis of good faith. [NCC, Art. 526 (3)] 2. Payment by reason of a mistake in the construction or application of a doubtful or difficult question of law may come within the scope of the preceding article. (NCC, Art. 2155) 3. In order that fraud may make a contract voidable, it should be serious and should not have been employed by both contracting parties. Incidental fraud only obliges the person employing it to pay damages. (NCC, Art. 1344) October 11, 2010; See case of Del Socorro v. Brinkman G.R. No. 193707 December 10, 2014) Mistake of fact vs. Mistake of law BASIS Want of knowledge pertains to NOTE: The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith. (Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700, March 8, 2016) Laws covered Nature of Mistake The laws referred to under Art. 3 of the NCC are those of the Philippine Laws and it applies to all kinds of domestic laws, whether civil or penal, substantive or remedial. However, the article is limited to mandatory and prohibitory laws. It does not include those which are merely permissive. (Rabuya, 2006) Defense Non-applicability to foreign laws When some facts which really exist are unknown or some fact is supposed to exist which really does not exist. Good faith is an excuse. MISTAKE OF LAW Want of knowledge or acquaintance with the laws of the land insofar as they apply to the act, relation, duty, or matter under consideration. Occurs when a person having full knowledge of the facts come to an erroneous conclusion as to its legal effects. Not excusable, even if in good faith. Q: Eduardo was married to Ruby. He then met Tina and proposed marriage, assuring her that he was single. They got married and lived together. Tina, upon learning that Eduardo had been previously married, charged Eduardo for bigamy for which he was convicted. Eduardo testified that he declared he was “single” because he believed in good faith that his first wife was already dead, having not heard from her for 20 years, and that he did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Is Eduardo liable for the crime of bigamy? Ignorance of a foreign law is a mistake of fact. There is no presumption of knowledge of foreign laws. It must be alleged and proved as a matter of fact; otherwise, the doctrine of processual presumption will apply. Doctrine of Processual Presumption Also known as Presumed-identity approach; where a foreign law is not pleaded, or even if pleaded, is not proved, the presumption is that the foreign law is the same as Philippine Laws. In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. The foreign law is treated as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only domestic or forum law. (ATCI Overseas Corporation, et al. v. Echin, G.R. No. 178551, UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES MISTAKE OF FACT Want of knowledge of some fact or facts constituting or relating to the subject matter on hand. A: YES. Eduardo is presumed to have acted with malice or evil intent when he married Tina. Mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Eduardo has the burden to prove that 4 General Principles when he married Tina, he has a well-grounded belief that his first wife was already dead. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Art. 349 of the RPC, in relation to Art. 41 of the FC. Such judicial declaration constitutes proof that Eduardo acted in good faith, and would negate criminal intent on his part when he married the private complainant. (Manuel v. People, G.R. No. 165842, November 29, 2005) A: NO. The Supreme Court held that the document is not sufficient to prove the Chinese marriage between Cheong Boo and Tan Dit. Gee only presented a document in Chinese stating the alleged marriage ceremony but there is no competent testimony as to what the laws of China in the Province of Amoy concerning marriage were in 1895. Therefore, there is lacking proof so clear, strong and unequivocal as to produce a moral conviction of the existence of the alleged prior Chinese marriage. Q: Complainants who were connected with the Daily Informer (a widely circulated newspaper in Western Visayas) were charged before the MTC by Judge Pamonag of the crime of libel. Respondent judge conducted a preliminary investigation and thereafter issued warrants for the arrest of the complainants. Complainants filed an administrative case against the judge for gross ignorance of the law. They contended that the judge neither has authority to conduct a preliminary investigation nor to issue warrants for their arrest. The judge said that it was his first libel case and that he issued the warrants in good faith. Is the respondent guilty of gross ignorance of the law? Ignorance of a foreign law is not ignorance of the law but of fact because such foreign law must be first alleged and proved as a matter of fact, there being no judicial notice of said foreign law. Thus, the Chinese marriage was not adequately proved. (Estate of Boo v. Gee, G.R. No. 18081, March 3, 1922) RETROACTIVITY OF LAWS Laws shall have no retroactive effect, unless the contrary is provided. (NCC, Art. 4) Retroactive law A legislative act that looks backward or contemplates the past, affecting acts or facts that existed before the act come into effect. (Black’s Law Dictionary, 2009) A: YES. Judges are expected more than just cursory acquaintance with statutes and procedural rules. They must know the law and apply them properly in good faith. The provisions of Art. 360 of the RPC on the persons authorized to conduct preliminary investigation in libel cases is elementary. Not to know it constitutes gross ignorance of the law. (Miaque v. Judge Pamonag, A.M. No. MTJ-02-1412, March 28, 2003) Retroactive effect of laws GR: Laws shall have no retroactive effect (lex prospicit, non respicit). XPNs: (TINCREEP) 1. 2. 3. 4. 5. Q: Cheong Boo, a native of China died intestate in Zamboanga. He left a property worth P100,000. The estate of the deceased was claimed on one hand by Gee, who alleged that he was a legitimate child by a marriage contracted by Boo with Tan Dit in China in 1895. The estate was claimed, on the other hand, by Mora Adong who alleged that she had been lawfully married to Boo in 1896. Gee introduced in evidence a document in Chinese stating the marriage ceremony that took place in Amoy, China. Is the document presented by Gee sufficient enough to prove the Chinese marriage of Cheong Boo and Tan Dit? Tax laws; Interpretative statutes; Laws creating New substantive rights; Curative statutes; Remedial/procedural; NOTE: Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and to that extent. (Mun. Gov’t of Coron v. Carino, G.R. No. 65894, September 24, 1987) 6. 7. 5 Emergency laws; When Expressly provided; Civil Law 8. Penal laws favorable to the accused provided, the accused is not a habitual delinquent. new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereon. (Rabuya, 2009) XPNs to the XPNs: Lex prospicit, non respicit If the application of the retroactive law: 1. Impairs obligation of contracts; 2. Is in the nature of ex post facto law or a bill of attainder, 3. Divests vested rights; or 4. Is constitutionally forbidden. (Black’s Law Dictionary, 2009) The maxim means, “the law looks forward not backward”. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional. (Chavez v. PEA, G.R. No. 133250, May 6, 2003) NOTE: In case prospectively. apply Retroactivity clause of the Family Code (2005, 2010 BAR) Q: Accused-appellant Belen Mejares was adjudged guilty of the crime of qualified theft of cash and jewelry amounting to P1,056,308.00. Meanwhile, on August 29, 2017, the President signed into law R.A. No. 10951 that sought to help indigent prisoners and individuals accused of committing petty crimes. It also increased the baseline amounts and values of property and damage to make them commensurate to the penalties meted on the offenses committed in relation to them. Should the penalties under the new law benefit Mejares? The Family Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. (FC, Art. 256) of doubt, laws MANDATORY AND PROHIBITORY LAWS Mandatory law A law or a provision in a statute is said to be mandatory when disobedience to it, or want of exact compliance with it, will make the act done under the statute absolutely void. (Black’s Law Dictionary, 2009) A: YES. R.A. No. 10951 has since come into effect during the pendency of this case. It likewise specifically stipulates that its provisions shall have retroactive effect. Section 100 adds that this retroactivity applies not only to persons accused of crimes but have yet to be meted their final sentence, but also to those already "serving sentence by final judgment." This retroactivity is in keeping with the principle already contained in Article 22 of the RPC that “penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony.” Prohibitory law A law or a provision in a statute is said to be prohibitory when it forbids a certain action. (Black’s Law Dictionary, 2009) Permissive law A law or a provision in a statute is said to be permissive or directory when it allows certain acts but does not command them. (Black’s Law Dictionary, 2009) Given these circumstances, it is proper for this Court to adjust the penalty to be imposed on accused-appellant. (People v. Mejares, G.R. No. 225735, January 10, 2018, as penned By J. Leonen) Violation of Mandatory or Prohibitory Laws GR: Acts executed against the provisions of mandatory or prohibitory laws shall be void. (NCC, Art. 5) Non-retroactivity of laws vis-à-vis judicial decisions XPNs: When the law: Judicial decisions have no retroactive effect. When a doctrine of the Supreme Court is overruled and a different view is adopted, the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 1. Itself authorizes its validity (e.g. lotto, sweepstakes); 6 General Principles 2. Makes the act valid but punishes the violator (e.g. Marriage solemnized by a person not authorized to do so); 3. Makes the act merely voidable; 4. Declares the nullity of an act but recognizes its effects as legally existing (e.g. Child born after the annulment of marriage is considered legitimate). equal protection of laws, freedom of contract, trial by jury). (Pineda, 2009) a. Rights of personality or human rights; b. Family rights; and c. Patrimonial rights: i. Real rights; ii. Personal rights. (Rabuya, 2009) WAIVER OF RIGHTS Rights which cannot be waived Waiver 1. 2. 3. It is a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed. NOTE: This is especially so if the waiver is intended to prejudice creditors. Hence, if an heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. (NCC, Art. 1052; Albano, 2013) The voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it. (Cruz & Co., Inc. v. HR Construction Corp., G.R. No. 187521, March 14, 2012) NOTE: If a candidate for mayor agrees to split his term of office with the vice-mayor to prevent the latter from running against him, the contract is void by reason of public policy. (Albano, 2013) Waiver of rights NOTE: Waivers can be express or implied, however, it cannot be presumed. It must be clearly and convincingly shown, either by express stipulation or acts admitting no other reasonable explanation. GR: Rights may be waived. XPNs: 1. If waiver is: a. Contrary to law, public order, public policy, morals or good customs; b. Prejudicial to a third person with a right recognized by law. (e.g. If A owes B P10M, B cannot waive the loan if B owes C and B has no other assets). Right It is a legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act. (Pineda, 2009) Kinds of rights 1. 2. 3. Right to live and right to future support. Right to personality and family rights. Right to future inheritance. 2. Natural Rights – Those which grow out of the nature of man and depend upon personality (e.g. right to life, liberty, privacy, and good reputation); Political Rights – Consist in the power to participate, directly or indirectly, in the establishment or administration of government (e.g. right of suffrage, right to hold public office, right of petition); and Civil Rights – Those that pertain to a person by virtue of his citizenship in a state or community (e.g. property rights, marriage, If the right is: a. A natural right, such as right to life; b. Inchoate, such as future inheritance. A person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden 7 Civil Law by law, and does not contravene public policy. (Cruz & Co., Inc. v. HR Construction Corp., G.R. No. 187521, March 14, 2012) Pension and Gratuity Management Center (PGMC) of the Armed Forces of the Philippines, G.R. No. 189516, June 08, 2016, as penned by J. Leonen) Requisites of a valid waiver 1. 2. 3. 4. 5. REPEAL OF LAWS Waiving party must actually have the right he is renouncing; He must have full capacity to make the waiver; Waiver must be clear and unequivocal; Waiver must not be contrary to law, public order, public morals, etc.; and When formalities are required, they must be complied with. It is the abrogation of an existing law by a legislative act. (Black’s Law Dictionary, 2009) Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. (Art. 7, 1st par.) Ways of repealing laws Q: Edna filed an action for support against Colonel Otamias. A deed of assignment was executed by Otamias where he waived 50% of his pension benefits in favor of Edna and his children. The RTC issued a notice of garnishment to AFP Pension and Gratuity Management Center and ordered the automatic deduction of support from the pension benefits of Colonel Otamias. The CA annulled the order of the RTC and cited PD No. 1638 which provides for the exemption of the monthly pension of retired military personnel from execution and attachment. Did Colonel Otamias validly waive the exemption granted by PD no. 1638 upon the execution of the deed of assignment? 1. 2. Requisites of an implied repeal 1. The laws cover the same subject matter; and 2. The latter is repugnant to the earlier. (Rabuya, 2009) NOTE: Implied repeals are NOT to be favored because they rest only on the presumption that because the old and the new laws are incompatible with each other, there is an intention to repeal the old. (Rabuya, 2009) A: YES. Under Article 6 of the Civil Code, rights may be waived, unless the waiver is contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. When Colonel Otamias executed the Deed of Assignment, he effectively waived his right to claim that his retirement benefits are exempt from execution. The right to receive retirement benefits belongs to Colonel Otamias. His decision to waive a portion of his retirement benefits does not infringe on the right of third persons, but even protects the right of his family to receive support. The Deed of Assignment executed by Colonel Otamias was not contrary to law; it was in accordance with the provisions on support in the Family Code. Hence, there was no reason for the AFP PGMC not to recognize its validity. (Edna MabugayOtamias, Jeffren M. Otamias and Minor Jemwel M. Otamias, represented by their Mother Edna Mabugay Otamias v. Republic of the Philippines, represented by Col. Virgilio O. Domingo, in his capacity as the Commanding Officer of the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Express - If the law expressly provides for such; Implied - If the provisions of the subsequent law are incompatible or inconsistent with those of the previous law, provided, it is impossible to reconcile the two laws. Q: Sunrise executed an undertaking to construct a city road at its own expense, subject to reimbursement through tax credits. The trial court issued a writ of preliminary injunction to enjoin persons from obstructing Sunrise Garden in proceeding with the construction of the city road. The Court of Appeals directed the Division Clerk of Court to issue the writ of preliminary injunction enjoining respondents, its agents or representatives from implementing the trial court’s amended writ of injunction. Sunrise Garden cited PD No. 1818 which prohibits a court from issuing preliminary injunction in any case involving an infrastructure project. When this case was filed, RA No. 8975 was already effective which provides for an express repeal of PD No. 1818. RA No. 8975 prohibits the issuance of preliminary injunction 8 General Principles against the government or any person to restrain the development of any national government project. Is the allegation of Sunrise acceptable? Conflict between general and special laws If the general law was enacted prior to the special law, the latter is considered the exception to the general law. If the general law was enacted after the special law, the special law remains. A: NO. PD No. 1818 has been repealed by RA No. 8975. The repealing clause of RA No. 8975 provides for an express repeal. The Supreme Court has held that implied repeals are not favored, and "the failure to add a specific repealing clause indicates that the intent was not to repeal any existing law." The express repeal of Presidential Decree No. 1818 clearly indicates Congress' intent to replace Presidential Decree No. 1818 with Republic Act No. 8975. The new law covers only national government infrastructure projects. This case involves a local government infrastructure project. Hence, Sunrise’s contention is untenable. (Sunrise Garden Corporation v. Court of Appeals And First Alliance Real Estate Development, Inc., G.R. No. 158836, September 30, 2015, as penned by J. Leonen) XPNs: 1. There is an express declaration; 2. There is a clear, necessary and irreconcilable conflict; or 3. The subsequent general law covers the whole subject and is clearly intended to replace the special law on the matter. (Rabuya, 2009) Self-lapsing laws Laws that provide for their limited application (e.g. House Rental Law, Annual Appropriations Act, Import Control Law). JUDICIAL DECISIONS Instances of implied repeal 1. 2. Judicial decisions applying or interpreting the law or the Constitution shall form a part of the legal system of the Philippines. (NCC, Art. 8) (1994 BAR) When the provisions in the two acts on the same subject matter are irreconcilably contradictory, in which case, the later act, to the extent of the conflict, constitutes an implied repeal of earlier one; and When the later act covers the whole subject of the earlier one and is clearly intended as a substitute; thus, it will operate to repeal the earlier law. (Carmelita Lledo v. Atty. Cesar V. Lledo, A.M. No. P-95-1167, February 9, 2010) Judicial decisions are evidence of what the laws mean. The judicial decisions form part of the law of the land as of the date of the enactment of said law. The Supreme Court’s interpretation merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect. However, the decisions referred to in Art. 8 of the NCC are only those enunciated by the SC. The decisions of subordinate courts are only persuasive in nature, and can have no mandatory effect. (Rabuya, 2009) Revival of repealed law BASIS Manner of Repeal Effect of Repeal EXPRESS REPEAL If the 1st law is expressly repealed by the 2nd law and the 2nd law is repealed by the 3rd law. IMPLIED REPEAL If the 1st law is repealed by implication by the 2nd law and the 2nd law is repealed by the 3rd law. The 1st law is NOT revived unless expressly provided so. The 1st law is revived unless otherwise provided. When a doctrine is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not prejudice parties who relied on the old doctrine. Doctrine of Stare Decisis It is adherence to judicial precedents. Once a question of law has been examined and decided, it should be deemed settled and closed to further argument. However, when in the light of changing conditions, a rule has ceased to be 9 Civil Law beneficial to the society, courts may depart from it. controversy If the law is silent or is obscure or insufficient with respect to a particular controversy, the judge shall apply the custom of the place, and in default thereof, the general principles of law and justice. Obiter Dictum An opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it. Such are not binding as precedent. (Rabuya, 2009) Customs which are contrary to law, public order, public policy shall not be countenanced. (NCC, Art. 11) DUTY TO RENDER JUDGMENT Customs Rendering of judgment by reason of silence of law Customs are rules of conduct, legally binding and obligatory, formed by repetition of acts uniformly observed as a social rule. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (NCC, Art. 9) (2003 BAR) Necessity of proving customs GR: A custom must be proved as a fact, according to the rules of evidence. (NCC, Art. 12) However, in criminal prosecutions, the judge must dismiss the case if a person is accused of a non-existent crime following the maxim “nullum crimen, nulla poena sine lege. (Rabuya, 2009) XPN: Courts may take judicial notice of a custom if there is already a decision rendered by the same court recognizing the custom. NOTE: This duty, however, is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. Requisites before such custom could be considered a source of right 1. Plurality of acts; 2. Uniformity of acts; 3. General practice by the great mass of the Guidelines on rendition of decisions under Art. 9 people of the country or community; 1. When there is no law exactly applicable to the point in controversy, the custom of the place shall be applied and in default thereof, the general principles of law; 2. Decisions of foreign courts; 3. Opinions of known authors and professors; 4. Applicable rules of statutory construction; 5. Principles formulated in analogous cases. 4. Continued practice for a long period of time; 5. General conviction that the practice is the proper rule of conduct; and 6. Conformity with law, morals or public policy. (Tolentino, 1987) Application of customs in civil cases In civil cases, customs may be applied by the courts in cases where the applicable law is: PRESUMPTION AND APPLICABILITY OF CUSTOM 1. 2. 3. Presumption in case of doubt in the interpretation of laws In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. (NCC, Art. 10) (2003 BAR) NOTE: Provided said customs are not contrary to law, public morals, etc. Non-applicability of customs in criminal cases In case of silence, obscurity or insufficiency of the law with respect to a particular UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Silent; Obscure; or Insufficient. 10 General Principles In criminal cases, customs cannot be applied because of the maxim nullum crimen nulla poena sine lege (There is neither crime nor punishment, without a law). January 31, 2008 to January 31, 2009. (Rabuya, 2009) 2. LEGAL PERIODS 3. 4. 5. Computation of period 1. Year – 12 calendar months. (CIR v. Primetown Property Group, Inc., G.R. No. 162155, August 28, 2007) 6. Month – 30 days, unless designated by their name, in which case, they shall be computed according to the number of days which they respectively have; Day – 24 hours; Nighttime – from sunset to sunrise; Week – 7 successive days regardless of which day it would start; Calendar week – Sunday to Saturday. NOTE: In the computation of period, the first day shall be excluded, and the last day included. NOTE: In the said case, the Supreme Court declared that the provision of Section 31, Chapter VII, Book I of the Administrative Code of 1987, being a more recent law, governs the computation of legal periods with respect to counting “a year.” If the last day falls on a Sunday or a legal holiday If the act to be performed within the period is: A Calendar Month is “a month designated in the calendar without regard to the number of days it may contain.” It is the “period of time running from the beginning of a certain numbered day of the next month, and if there is not sufficient number of days in the next month, then up to and including the last day of that month.” 1. Prescribed or allowed by: a. The Rules of Court; b. An order of the court; or c. Any other applicable statute. The last day will automatically be the next working day. Illustration: One calendar month from December 31, 2007 will be from January 1, 2008 to January 31, 2008; one calendar month from January 31, 2008 will be from February 1, 2008 until February 29, 2008. Hence, twelve calendar months from December 31, 2007 is December 31, 2008; while twelve calendar months from 2. 11 From a contractual relationship – The act will still become due despite the fact that the last day falls on a Sunday or a legal holiday. This is because obligations arising from contracts have the force of the law between the contracting parties. Civil Law the same, because they manifest a single concept of law, ultimately addressed to the same individual. CONFLICT OF LAWS GENERAL PRINCIPLES 2. Private International Law It is a part of the municipal law of a state which directs its courts and administrative agencies when confronted with a legal problem involving foreign element, as to whether or not they should apply the foreign law. Private Public International Law International Law As to nature Municipal in International in character character As to persons involved Private individuals Sovereign states and other entities possessed of international personality As to transactions involved Private transactions Transactions generally with private affect public interest; individuals or of interest only to sovereign states As to remedies and sanctions Resort to municipal Remedies may be tribunals peaceful or forcible Conflict of laws It is the inconsistency or difference between the laws of different states or countries, arising in the case of persons who have acquired rights, incurred obligations, injuries or damages, or made contracts, within the territory of two or more jurisdictions. (Black’s Law Dictionary, Fifth Edition) Functions of Private International Law 1. 2. 3. Prescribes conditions under which a court or agency is competent to entertain proceedings with foreign elements; Specifies the circumstances in which foreign judgment will be recognized as valid and binding in the forum; and Determines the particular system of law for each class of cases to ascertain the rights of the parties. (Paras, 1990) Sources of Philippine Conflict Rules 1. Family Code Articles 10, 21, 26, 35, 36, 37, 38, 80, 96, 184, and 187 2. Civil Code Articles 14, 15, 16, 17, 815, 816, 818, 819, 829, 1039, 1319, and 1753 3. Penal Code Article 2 4. Corporation Code Section 133 – Doing business without a license 5. Constitution Article IV and Article 5, Section 1 6. Rules of Court Rule 14 and 39, Section 48, Rule 131, Section 3 (n), 132, Section 35. Elements of Conflict of laws 1. Legal problem or case involving foreign element; Foreign element – a factual situation cutting across territorial lines, affected by diverse laws of two or more states. 2. Primary function is to determine whether the law or judgments of other state/s will govern and if so, the extent of its recognition or application in the forum. (Coquia, 2000) Territoriality Principle Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of international law and to treaty stipulations. (NCC, Article 14) Private International Law vs. Public International Law Two views 1. Monist school - Both subjects are essentially UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Dualist School - This school of thought differentiates private and public international law in the following manner: 12 Conflict of Laws Nationality principle determine whether to apply the internal law of the forum or apply the proper foreign law. Laws relating to family rights and duties or to the status, condition, and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (NCC, Article 15) Forum Non Conveniens It refers to the refusal to assume jurisdiction because it will prove inconvenient for the forum. Lex rei sitae It is a device akin to the rule against forum shopping. It is designated to frustrate illicit means for securing advantages and vexing litigants that would otherwise be possible if the venue of litigation (or dispute resolution) were left entirely to the whim of either party. (Saudi Arabian Airlines (Saudia) v. Rebesencio, G.R. No. 198587, January 14, 2015) Real property as well as personal property is subject to the law of the country where it is situated. (NCC, Article 16) Lex Loci Celebrationis 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. (NCC, Article 17) Elements: That the Philippine Court: 1. Is one to which the parties may conveniently resort to; 2. Is in a position to make an intelligent decision as to the law and the facts; and 3. Has or is likely to have power to enforce its decision. (Philippine National Construction Corp. v. Asiavest Merchant Bankers (M) Berhad, G.R. No. 172301, August 19, 2015) Lex Loci Contractus Law of the contract. 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, when forms and solemnities of the contract is performed in front of a Filipino diplomatic or consular office, Filipino solemnities will be used. (NCC, Art. 17) Grounds for dismissal of the case on the basis of forum non conveniens 1. Evidence and witnesses may not be readily available in the forum; 2. Court dockets of the forum are already clogged which would hamper the speedy administration of justice; 3. The matter can be better tried and decided in another forum; 4. To curb the evils of forum shopping; 5. The forum has no particular interest in the case, as when the parties are not citizens of the forum or are residents elsewhere; 6. Inadequacy of the local judicial machinery in effectuating the right sought to be enforced; or 7. Difficulty in ascertaining the foreign law applicable. JURISDICTION AND CHOICE OF LAW JURISDICTION GR: It is the right of a State to exercise authority over persons and things within its boundaries. Rules to follow when the court is confronted with a case involving a foreign element If the court is faced with a case involving a foreign element, it should first determine: 1. Whether it has jurisdiction over the case; 2. If it has no jurisdiction, it should be dismissed on that ground; 3. If it has jurisdiction, the court will determine whether it should assume jurisdiction or dismiss the case on the ground of forum nonconvenience; and 4. Once the court has determined it has jurisdiction over the case, it will next When can internal or domestic law be applied 1. Law of the forum expressly so provides in its conflicts rule; 2. Proper foreign law has not been properly pleaded and proved; or 13 Civil Law 3. Case involves any of the exceptions to the application of the foreign law. Q: Thousands of banana plantation workers filed a complaint against 11 corporations including Chiquita Brands. They claimed that they have been exposed to a certain pesticide which caused serious and permanent damage to their reproductive system. Before pre-trial, the parties entered into a compromise agreement which explicitly stated that the law which shall govern its interpretation is the laws of Texas, United States . On July 10, 2009, the RTC issued an Order directing the implementation of the Writ of Execution against Chiquita Brands and its subsidiaries and affiliates who are allegedly subsidiarily liable under the laws of Texas. Is the RTC correct in applying the laws of Texas? Instances: 1. When the foreign law, judgment or contract is: a. Contrary to sound and established policy of the forum b. Contrary to almost universally conceded principles of morality (contra bonus mores) c. Involves procedural matters d. Purely fiscal or administrative matters e. Involves real or personal property situated in the forum A: NO. Under the Compromise Agreement, the law that shall govern its interpretation is the law of Texas, United States. In this jurisdiction, however, courts are not authorized to take judicial notice of foreign laws. The laws of a foreign country must be properly pleaded and proved as facts. Otherwise, under the doctrine of processual presumption, foreign law shall be presumed to be the same as domestic law. Unfortunately, there is no evidence that Texan las had been proven as a fact. Hence, the RTC should have applied the Philippine law. (Chiquita Brands, et al. v. RTC of Davao City, G.R. No. 189102, June 7, 2017, as penned by J. Leonen) 2. When the application of the foreign law, judgment or contract: a. May work undeniable justice to the citizens/residents of the forum b. May work against vital interests & national security of the state of the forum Doctrine of Processual Presumption of law When the proper foreign law has not been properly proved, the court of the forum may presume that said foreign law is the same as the law of the forum that said court can now apply. It applies when the foreign law is not alleged or if alleged, it is not proved. Q: PNCC and Asiavest Holdings (M) Sdn. Bhd. (Asiavest Holdings) caused the incorporation of an associate company known as AsiavestCDCP Sdn. Bhd. (Asiavest CDCP), through which they entered into contracts to construct rural roads and bridges for the State of Pahang, Malaysia. In connection with this construction contract, PNCC obtained various guarantees and bonds from Asiavest Merchant Bankers (M) Berhad to guarantee the due performance of its obligations. The four contracts of guaranty stipulate that Asiavest Merchant Bankers (M) Berhad shall guarantee to the State of Pahang "the due performance by PNCC of its construction contracts . . . and the repayment of the temporary advances given to PNCC." These contracts were understood to be governed by the laws of Malaysia. There was failure to perform the obligations under the construction contract, prompting the State of Pahang to demand payment against Asiavest Merchant Bankers (M) Berhad's performance Where a foreign law is not pleaded or, even if pleaded, is not proved, the court of the forum may presume that the foreign law applicable to the case is the same as the local or domestic law. Foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved. A Philippine court may take judicial notice of a foreign law, as when the laws are already within its actual knowledge, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned claim otherwise. (PCIB v. Escolin, G.R Nos. L-27860 & 27896, September 30, 1975) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 14 Conflict of Laws bonds. It "entered into a compromise agreement with the State of Pahang by paying . . . the reduced amount of [Malaysian Ringgit (MYR)] 3,915,053.54." Consequently, the corporation demanded indemnity from PNCC by demanding the amount it paid to the State of Pahang. Asiavest Merchant Bankers (M) Berhad filed a Complaint for recovery of sum of money against PNCC before the Regional Trial Court of Pasig. It based its action on Malaysian laws. Specifically, it invoked Section 98 of the Malaysian Contracts Act of 1950 and Section 11 of the Malaysian Civil Law Act of 1956. The trial court declared PNCC in default for failure to file any responsive pleading, and allowed Asiavest Merchant Bankers (M) Berhad to present its evidence ex parte. PNCC submits that the trial court could have invoked the principle of forum non conveniens and refused to take cognizance of the case considering the difficulty in acquiring jurisdiction over the two Malaysian corporations and in determining PNCC's exact liability. Can the trial court assume jurisdiction on the ground of forum non conveniens? determination of whether to entertain a case is addressed to the sound discretion of the court, which must carefully consider the facts of the particular case. A mere invocation of the doctrine of forum non conveniens or an easy averment that foreign elements exist cannot operate to automatically divest a court of its jurisdiction. It is crucial for courts to determine first if facts were established such that special circumstances exist to warrant its desistance from assuming jurisdiction. PNCC is a domestic corporation with its main office in the Philippines. It is safe to assume that all of its pertinent documents in relation to its business would be available in its main office. Most of PNCC's officers and employees who were involved in the construction contract in Malaysia could most likely also be found in the Philippines. Thus, it is unexpected that a Philippine corporation would rather engage this civil suit before Malaysian courts. Our courts would be "better positioned to enforce the judgment and, ultimately, to dispense" in this case against PNCC. (Philippine National Construction Corporation V. Asiavest Merchant Bankers (M) Berhad, G.R. 172301, August 19, 2015, as penned J. Leonen) A: YES. PNCC argues that "in view of the compelling necessity to implead the two foreign corporations, the Trial Court should have refused to assume jurisdiction over the case on the ground of forum non conveniens, even if the Court might have acquired jurisdiction over the subject matter and over the person of the PNCC." We find that the trial court correctly assumed jurisdiction over the Complaint. "Forum non conveniens literally translates to 'the forum is inconvenient.'" This doctrine applies in conflicts of law cases. It gives courts the choice of not assuming jurisdiction when it appears that it is not the most convenient forum and the parties may seek redress in another one. It is a device "designed to frustrate illicit means for securing advantages and vexing litigants that would otherwise be possible if the venue of litigation (or dispute resolution) were left entirely to the whim of either party." On the other hand, courts may choose to assume jurisdiction subject to the following requisites: "(1) that the Philippine Court is one to which the parties may conveniently resort to; (2) that the Philippine Court is in a position to make an intelligent decision as to the law and the facts; and (3) that the Philippine Court has or is likely to have power to enforce its decision." The CHOICE OF LAW Important Questions that Problems Seeks to Answer Choice-of-Law 1. What legal system should control a given situation where some of the significant facts occurred in two or more states; and 2. To what extent should the chosen system regulate the situation. (Saudi Arabian Airlines v. CA, G.R. No. 122191, October 8, 1998) NOTE: Foreign law has no extraterritorial effect and any exception to this right must be traced to the consent of the nation. Theories on why the foreign law may be given effect 1. Theory of Comity - The application of foreign legal systems in cases involving foreign element is proper, otherwise, the non-application would constitute a disregard of foreign sovereignty or lack of comity towards other States. Comity is the recognition which one state allows 15 Civil Law within its territory to the legislative, executive, or judicial acts of another state, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws. (Agpalo. 2004) manner indicated in the provision. (Sempio-diy, 2004) Kinds of conflict rules 1. One-sided rule – indicates when the Philippine law will apply, Kinds: a. b. e.g., Article 15 and Art. 818 of the Civil Code only apply to Filipinos Comity based on reciprocity Comity based on the persuasiveness of the foreign judgment. 2. All-sided rule – indicates whether to apply the local law or the proper foreign law. 2. Theory of Vested Rights - Courts enforce not the foreign law or foreign judgment but the rights vested under such law or judgment. Thus, rights acquired in one country must be recognized and legally protected in other countries. The forum will not apply the foreign law but will simply recognize the right vested by said law. Characterization (Doctrine of Qualification or Classification) It is the process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule. (Saudi Arabian Airlines v. CA, G.R. No. 122191, October 8, 1998) 3. Theory of Local Law - This involves the appropriation of a foreign rule by the State of the forum and transforming it into a domestic rule. A foreign law is applied because our own law, by applying a similar rule, requires us to do so, as if the foreign law as become part of our internal or domestic law. Steps in characterization 1. The determination of facts involved; 2. The characterization of factual situation; 3. The determination of conflicts rule which is to be applied; 4. The characterization of the point of contact where the connecting factor; 5. The characterization of the problem as procedural or substantive; 6. The pleading and proving of the proper foreign law; and 7. The application of the proper foreign law to the problem. (Paras, 1990) 4. Theory of Harmony of Law - Identical or similar problems should be given identical and similar solutions, thus resulting in harmony of laws. The application of the same or similar solution prevents the bad practice of forum shopping. Q: A (Iraqi government) granted B (Domestic corp.) a service contract for the construction of a building in Iraq. The bond was guaranteed by C (Domestic corp.). When it was ascertained that B will not be able to finish the project in the scheduled agreement, C paid the bond for the failure of B to complete such building. When C was claiming reimbursement, B refused to pay. Thus, a case was filed. Should Philippine law govern in determining B's default? 5. Theory of Justice - Choice of law should be determined by considerations of justice and social expediency and should not be the result of mechanical application of the rule or principle of selection. CHARACTERIZATION CONFLICT RULES These are a provision found in our own law which governs a factual situation possessed of a foreign element. It is usually expressed in the form of an abstract proposition that a given legal question is governed by the law of a particular country (which may be an internal law or the proper foreign law), to be ascertained in the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES A: YES. It must be noted that the service contract between SOB and VPECI contains no express choice of the law that would govern it. In the United States and Europe, the two rules that now seem to have emerged as "kings of the hill" are: (1) the parties may choose the governing 16 Conflict of Laws law; and (2) in the absence of such a choice, the applicable law is that of the State that "has the most significant relationship to the transaction and the parties." Another authority proposed that all matters relating to the time, place, and manner of performance and valid excuses for non-performance are determined by the law of the place of performance or lex loci solutionis, which is useful because it is undoubtedly always connected to the contract in a significant way. G.R. No. 112573, February 9, 1995) DOMICILE AND CITIZENSHIP CITIZENSHIP Personal law The law which attaches to a person wherever he may go and generally governs his status, capacity, condition, family relations, and the consequences of his actuations. (Sempio-Diy, 2004) In this case, the laws of Iraq bear substantial connection to the transaction, since one of the parties is the Iraqi Government and the place of performance is in Iraq. Hence, the issue of whether respondent VPECI defaulted in its obligations may be determined by the laws of Iraq. However, since that foreign law was not properly pleaded or proved, the presumption of identity or similarity, otherwise known as the processual presumption, comes into play. Where foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours. (Philippine Export and Foreign Loan Guarantee Corporation v. V.P. Eusebio Construction, Inc. Et Al, G.R. No. 140047, July 13, 2004) Theories of personal law 1. The Nationality Theory or Personal Theory – the status and capacity of a person is determined by the law of his nationality or national law. (Sempio-Diy, 2004) NOTE: The Philippines Nationality Theory. follows the 2. Domiciliary Theory or Territorial Theory – the status and capacity of a person is determined by the law of his domicile. (Ibid.) Q: A, a foreign corporation, won a collection case in Japan against B, a domestic corporation doing business in Japan. A filed a suit for enforcement of the judgment in the RTC of Manila. B assails the judgment on the ground that the Japanese court did not validly acquire jurisdiction over B’s person since B was served with summons in the Philippines and not in Japan. Is B correct? 3. Situs or eclectic theory – the particular place or situs of an event or transaction is generally the controlling law. (Ibid.) Problems in applying the nationality principle in dual or multiple citizenship It arises from the concurrent application of jus soli and jus sanguinis at birth or from a refusal of certain States to accept a full application of the doctrine of expatriation, from marriage, or from a formal and voluntary act. A: NO. It is settled that matters of remedy and procedure such as those relating to the service of process upon a defendant are governed by the lex fori or the internal law of the forum. In this case, it is the procedural law of Japan where the judgment was rendered that determines the validity of the extraterritorial service of process on B. As to what this law is a question of fact, not of law. It may not be taken judicial notice of and must be pleaded and proved like any other fact. B did not present evidence as to what that Japanese procedural law is and to show that under it, the assailed extraterritorial service is invalid. Accordingly, the presumption of validity and regularity of the service of summons and the decision thereafter rendered by the Japanese court must stand. (Northwest Orient Airlines, Inc. v. Court of Appeals and C.F. Sharp & Company Inc., 1. In matters of status, a person is usually considered by the forum as exclusively its own national. His additional foreign nationality is disregarded. 2. In case litigation arises in a third country, the law most consistently applied is that of the country of which the person is not only a national but where he also has his domicile or habitual residence, or in the absence thereof, his residence. Theory of effective nationality A third state shall recognize exclusively in its territory either the nationality of the country of 17 Civil Law which one is habitually and principally a resident, or the nationality of the country with which in the circumstances one appears to be in act most closely connected. (Hague Convention on Conflict Nationality Lawes, Art. 5) position under Sec.40 of the LGC. But, COMELEC en banc reversed the said decision. It found that Manzano acquired US citizenship by operation of the US Constitution. He was also a natural born Filipino Citizen by operation of 1935 Constitution, as his father and mother were Filipinos at the time of his birth. At the age of 6 his parents brought him in the country and registered him as an alien, but this however did not result in the loss of his Phil. Citizenship, as he did not renounce his Phil. Citizenship and did not take an oath of allegiance to the US. At the age of Majority, Manzano registered himself as a voter and voted in the elections of 1992, 1995 and 1998, which effectively renounced his US Citizenship under American Law. Is Dual citizenship a ground for disqualification? Q: On February 8, 1961, Lau Yuen Yeung applied for a passport visa to enter the Philippines as a non-immigrant. She stated that she desired to take a pleasure trip to visit her great grand uncle. On the date of her arrival, Asher Cheng filed a bond of P1,000 to undertake that Lau would depart the Philippines on or before the expiration of her authorized period of stay or within the period as in the discretion of the Commission of Immigration might properly allow. After repeated extensions, Lau was allowed to stay in the country until February 13, 1962. On January 25, 1962, she contracted a marriage with Moy Ya Lim Yao, a Filipino citizen. As an alien woman, may Lau be considered as a citizen of the Philippines by virtue of her marriage to a Filipino? A: NO. Dual citizenship is different from dual allegiance. The phrase “dual citizenship” in RA 7160 must be understood as referring to “dual allegiance”, and persons with dual citizenship do not fall under this disqualification. Dual Citizenship is involuntary, it arises out of circumstances like birth or marriage, while dual allegiance is a result of a person’s volition. It is a situation wherein a person simultaneously owes, by some positive act, loyalty to 2 or more states. A: YES. An alien woman may be deemed a citizen of the Philippines by virtue of her marriage to a Filipino citizen only if she possesses all the qualifications and none of the disqualifications specified in the law, because these are the explicit requisites provided by law for an alien to be naturalized. Section 15 of the Revised Naturalization Law (Commonwealth Act No. 473) provides that “Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines.” Section 15 was obviously to accord to an alien woman, by reason of her marriage to a Filipino, a privilege not similarly granted to other aliens. (Moy Ya Lim Yao “Alias” Edilberto Aguinaldo Lim And Lau Yuen Yeung v. Commissioner of Immigration, G.R. No. L-21289 October 4, 1971) Also, Manzano upon filing his certificate for candidacy has elected Phil, Citizenship thus terminating his dual citizenship. Particularly, he made these statements: “I am a Filipino citizen…. Natural born. I am not a permanent resident of, or immigrant to, a foreign country. I am eligible for the office I seek to be elected…I will support the Constitution of the Philippines and will maintain true faith and allegiance thereto…”. Such statement was sufficient to revoke his American citizenship. (Mercado v. Manzano & COMELEC, G.R. No. 135083 May 26, 1999) Q: Teodoro Cruz was born in San Clemente, Tarlac, to Filipino parents making him a natural-born citizen of the Philippines. However, respondent Cruz was enlisted in the United States Marine Corps and, without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a consequence, he lost his Filipino Citizenship by his naturalization as a U.S. citizen in connection with his service in the U.S. Marine Corps. Thereafter, respondent Cruz reacquired his Philippine Q: Ernesto S. Mercado and Eduardo Manzano were candidates for vice mayor of the City of Makati. Manzano won the elections, however his proclamation was suspended because a certain Ernesto Mamaril filed a petition for his disqualification and alleged that Manzano was not a citizen of the Philippines but of the US. COMELEC 2nd Division granted the petition and cancelled the certificate of candidacy on the grounds that dual citizens are disqualified from running any elective UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 18 Conflict of Laws citizenship through repatriation under Republic Act No. 2630. He ran for and was elected as the Representative of the Second District of Pangasinan in the 1998 elections. He won over Antonio Bengson III, who was then running for reelection. Subsequently, Bengson filed a case with House of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to become a member of the House of Representatives since he is not a naturalborn citizen as required under Article VI, Section 6 of the Constitution. The HRET dismissed the petition for quo warranto and declared respondent Cruz was duly elected as a Representative. The HRET also denied Bengson’s motion for reconsideration. Can Cruz, a natural-born Filipino who became an American citizen, still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship? on their spouses and children? A: The following are the effects: 1. Filipino citizens who marry aliens retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced it. (1987 Constitution, Art. IV, Sec. 4) 2. Sec. 15 of the Revised Naturalization Law provides that a foreign woman who marries a Filipino citizen becomes a Filipino citizen provided she possesses all the qualifications and none of the disqualifications for naturalization. Sec. 15 was obviously to accord to an alien woman, by reason of her marriage to a Filipino, a privilege not similarly granted to other aliens. On the other hand, a foreign man who marries a Filipino citizen does not acquire Philippine citizenship. But under Sec. 3 of the same law, in such a case, the residence requirement for naturalization will be reduced from 10 to 5 years. Under Sec. 1(2), Art. IV of the Constitution, the children of an alien and a Filipino citizen are citizens of the Philippines. (Moy Ya Lim Yao “Alias” Edilberto Aguinaldo Lim and Lau Yuen Yeung v. Commissioner of Immigration, G.R. No. L-21289, October 4, 1971) A: YES. Cruz can still be considered a naturalborn Filipino upon his reacquisition of Philippine citizenship. He may have lost his Filipino citizenship when he rendered service in the Armed Forces of the United States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630, Section 1, which provides: ”Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and registering the same with Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship”. Cruz upon taking the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Mangatarem, Pangasinan in accordance with the aforecited provision, is deemed to have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father. It bears stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine citizenship. (Bengson v. HRET and Cruz, G.R. No. 142840. May 7, 2001) DOMICILE It is the place to which a person has a settled connection for certain legal purposes, either because his home is there or because that is the place assigned to him by law. Domiciliary Domicili or Territorial Theory/Lex The individual’s private rights, condition, status, and capacity are determined by the law of his domicile. It is adopted mostly by common law countries with population consisting of different nationalities. Their unity may be achieved by adopting the law of their domicile. Basic Fundamental principles of domicile 1. No person shall be without a domicile. 2. A person cannot have two simultaneous domiciles. 3. Every natural person, as long as he is free and sui juris, may change his domicile at his pleasure. 4. A domicile once acquired is retained unless a new one is gained. Q: What are the effects of marriages of: 1) a citizen to an alien; and 2) an alien to a citizen 19 Civil Law 5. The presumption is in favor of continuance of domicile, the burden of proof is on the one who alleges that change of domicile has taken place. 6. To acquire a fresh domicile, residence and intention must concur; to retain an existing domicile, either residence there or intention to remain must be present; to abandon a domicile, residence in a new place and intention to abandon the old place must concur. (Gallego v. Verra, G.R. No. L-48641, November 24, 1941) birth. If the child is legitimated RULES DETERMINING ONE’S CONSTRUCTIVE DOMICILE MINORS 1. If legitimate, the domicile of both parents. Essential requisites needed in order to acquire a domicile of choice 1. 2. 3. 4. In case of disagreement, that of the father, unless there is a judicial order to the contrary. Capacity; Actual physical presence in the place chosen; Freedom of choice; and Provable intent that it should be one’s fixed and permanent place of abode – one’s home – hat is, there should be “animus manendi” (intent to remain) or: “animus nonrevertendi” (intent not to return to the original abode). 2. If illegitimate, the domicile of the mother. 3. In case of absence or death of either parent, the domicile of the present parent. Even in the case of remarriage of the surviving parent, still his/her domicile determines the constructive domicile of the minor child. Legal classifications of domicile 1. Domicile of origin – the domicile of a person’s parents at the time of birth. 4. If the child is adopted, the domicile of choice of the adopter is the child’s constructive domicile. INSANES, IDIOTS, IMBECILES The law assigns their domicile to them: 2. Constructive domicile – domicile established by law after birth in case of persons under legal disability, regardless of their intention or voluntary act. 1. If they are below the age of majority, the rules on minors apply to them. 2. If they are of age and have guardians, they follow the domicile of choice of their guardians. 3. If they are of age and have no guardians, their constructive domicile is their domicile of choice before they became insane. 1. The constructive domicile of the wife is the domicile of both spouses, unless the law allows the wife to have a If the marriage separate domicile for is valid valid and compelling reasons. 2. If there is legal separation between the spouses, the wife can have her own domicile Rules in determining the domicile of a person A minor follows the domicile of his parents. (Imelda Romualdez-Marcos v. Comelec, G.R. No. 119976, September 18, 1995) If the child is legitimate If the child is illegitimate His domicile of origin is that of his parents at the time of his birth. If parents are separated, the domicile of the custodial parent. His domicile of origin is that of the mother at the time of his UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES The domicile of his father at the time of his birth controls. 20 Conflict of Laws of choice. 3. If there is a separation de facto, the wife can also have a separate domicile. Apply the same rules when the marriage is valid. If the marriage However, after is voidable annulment, the wife can freely select her own domicile of choice. The wife can have a If the marriage domicile separate from is void the husband. OTHER PERSONS His domicile is the one he Convict or had possessed prior to his prisoner incarceration. Their domicile is their Soldiers domicile before their enlistment. Their domicile is the one Public officials they had before they were or employees assigned elsewhere, abroad unless they voluntarily (diplomats, adopt their place of etc.) employment as their permanent residence. MARRIED WOMEN 1. The constructive domicile of the wife is the domicile of both spouses, unless the law allows the wife to have a separate domicile for valid and compelling reasons. If the marriage 2. If there is legal is valid separation between the spouses, the wife can have her own domicile of choice. 3. If there is a separation de facto, the wife can also have a separate domicile. Apply the same rules when the marriage is valid. If the marriage However, after is voidable annulment, the wife can freely select her own domicile of choice. The wife can have a If the marriage domicile separate from is void the husband. OTHER PERSONS Convict prisoner or Soldiers Public officials or employees abroad (diplomats, etc.) His domicile is the one he had possessed prior to his incarceration. Their domicile is their domicile before their enlistment. Their domicile is the one they had before they were assigned elsewhere, unless they voluntarily adopt their place of employment as their permanent residence. Q: Does leasing a condominium unit show an intention to establish not just a residence but a domicile of choice? A: NO. While a lease contract may be indicative of the petitioner’s intention to reside in a place, it does not engender the kind of permanency required to prove abandonment of one’s original domicile. (Agapito Aquino V. COMELEC, Move Makati, Mateo Bedon and Juanito Icaro, G.R. No. 120265, September 18, 1995) There are three requisites to acquire a new domicile: (1) Residence or bodily presence in a new locality; (2) An intention to remain there; and (3) An intention to abandon the old domicile. To successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. (PoeLlamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700, March 8, 2016) Q: On January 26, 2010, Enrico Echiverri filed a petition to exclude Luis Asistio from the permanent list of voters of Caloocan City. Echiverri alleged that Asistio is not a resident of Caloocan City, specifically not of 123 Interior P. Zamora St., Barangay 15, Caloocan City, the address stated in his Certificate of Candidacy for Mayor in 2010 elections. According to him, he found out that the Asistio’s address is non-existent. In defense, 21 Civil Law Asistio alleged that he is a resident of No. 116, P. Zamaro St., Caloocan City, and a registered voter of Precinct No. 1811A because he mistakenly relied on the address stated in the contract of lease with Angelina dela Torre Tengco. Should Asistio be excluded from the permanent list of voters of Caloocan city for failure to comply with the residency required by law? 1. 2. A: NO. Residency requirements for a voter are: one, a least one-year residence in the Philippines; and two, at least, six months in the place where the person intends to two. Residence, as used in the law pre-scribing the qualifications for suffrage and for elective office, is doctrinally settled to mean domicile, importing not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention inferable from a person’s acts, activities, and utterances. GR: Under Article 26 of the Family Code, all marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, is also valid in the Philippines. XPN: If the marriage is void under Philippine law, the marriage is void even if it is valid in the country where the marriage was solemnized, viz: Domicile denotes a fixed permanent residence where, when absent for business or pleasure, or for like reasons, one intends to return. In the consideration of circumstances obtaining in each particular case, three rules must be borne in mind, namely: (1) that a person must have a residence or domicile somewhere; (2) once established, it remains until a new one is acquired; and (3) that a person can have but one residence or domicile at a time. 1. Those contracted by any party below 18 years of age even with the consent of parents or guardians; [FC, Art. 35 (1)] 2. Those bigamous or polygamous marriages not falling under Art. 41, FC; [FC, Art. 35 (4)] 3. Those contracted through mistake of one contracting party as to the identity of the other; [FC, Art. 35 (5)] 4. Those subsequent marriages that are void under Art. 53, FC; [FC, Art. 35 (6)] 5. Marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage; (FC, Art. 36) 6. Incestuous marriage; (FC, Art. 37) and 7. Void ab initio marriages or reasons of public policy. (FC, Art. 38) Asistio has always been a resident of Caloocan city for more than 72 years. Asistio served in public office of Caloocan City in 1992, 1995, 1998, 2004 and 2007. In all of these occasions, Asistio cast his vote in the same city. Taking these circumstances, it cannot be denied that Asistio has qualified, and continues to qualify, as a voter of Caloocan city. There is no showing that he has established, or that he had consciously and voluntarily abandoned his residence in Caloocan City. Thus, he should remain in the list of permanent voters of Caloocan city. (Luis Asistio v. Hon. Thelma Canlas Trinidad-Pe Aguirre, G.R. No. 191124, April 27, 2010) Effect of laws, judgments promulgated or conventions agreed upon in a foreign country on Philippine prohibitive laws GR: Prohibitive laws concerning persons, their acts, or property and laws which have for their object public order, public policy or good customs are not rendered ineffective by laws, judgments promulgated or conventions agreed upon in a foreign country. FAMILY LAW AND PERSONAL CAPACITY XPN: Art. 26 par. 2 of the Family Code (FC), on mixed marriages where the foreigner obtained a divorce decree abroad and was thereby Applicable Civil Code Provisions UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (NCC, Art. 15) All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37, and 38. (FC, Art. 26) 22 Conflict of Laws capacitated to remarry. National Statistics Office, G.R. No. 213198, July 01, 2019, as penned by J. Leonen) Even though divorce is not recognized in the Philippines as a mode of terminating marriage, still the marriage is terminated by virtue of a judgment of divorce and issuance of a divorce decree by a foreign court. Q: Rhodora Tanaka, a Filipino wife married to Seiichi Tanaka, a Japanese national filed a Petition for Judicial Determination and Declaration of Capacity to Marry with the Regional Trial Court in order to judicially recognize her divorce against her husband. She presented a “Certificate of Acceptance of the Report of Divorce” she obtained from Japan, which was issued by the Mayor of Fukaya City, Japan, which was duly authenticated by the Philippine Consul in Japan. Is the “Certificate of Acceptance of the Report of Divorce” sufficient to prove that she and her husband have legally divorced and capacitated her to marry? Q: Genevieve, a Filipino citizen, and Tetsushi Toyo (Tetsushi), a Japanese citizen, were married in Quezon City. After 19 years of marriage, the two filed a Notification of Divorce by Agreement, which the Mayor of Konohana-ku, Osaka City, Japan received and was later recorded in Tetsushi's family register as certified by the Mayor of Toyonaka City. Genevieve filed before the Regional Trial Court a Petition for judicial recognition of foreign divorce and declaration of capacity to remarry. In support of her Petition, Genevieve submitted a copy of their (1) Divorce Certificate, (2) Tetsushi's Family Register, (3) the Certificate of Acceptance of the Notification of Divorce, and (4) an English translation of the Civil Code of Japan. The RTC rendered a Judgment denying Genevieve's Petition noting that the copy of the Civil Code of Japan and its English translation submitted by Genevieve were not duly authenticated by the Philippine Consul in Japan, the Japanese Consul in Manila, or the Department of Foreign Affairs. Are the copy of the Japan Civil Code and its English translation sufficient to prove Japan's law on divorce, requiring no further authentication by the Philippine Consul in Japan, the Japanese Consul in Manila, or the Department of Foreign Affairs? A: YES. Under Article 26 of the Family Code, 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 have capacity to remarry under Philippine law. The Certificate of Acceptance of the Report of Divorce was accompanied by an Authentication issued by Consul of the Embassy of the Philippines in Tokyo, Japan. Considering that the Certificate of Acceptance of the Report of Divorce was duly authenticated, the divorce was validly obtained according to foreign spouse’s law. Here, the national law of the foreign spouse states that the matrimonial relationship is terminated by divorce. The Certificate of Acceptance of the Report of Divorce does not state any qualifications that would restrict the remarriage of any of the parties. There can be no other interpretation than that the divorce procured by them completely terminates their marital tie. (Rhodora Ilumin Racho, a.k.a. "Rhodora Racho Tanaka," v. Seiichi Tanaka, Local Civil Registrar of Las Piñas city, and the Administrator and Civil Registrar General of the National Statistics Office, G.R. No. 199515, June 25, 2018, as penned by J. Leonen) A: NO. The English translation submitted by petitioner was published by Eibun-Horei-Sha, Inc., a private company in Japan engaged in publishing English translation of Japanese laws, which came to be known as the EHS Law Bulletin Series. However, these translations are "not advertised as a source of official translations of Japanese laws;" rather, it is in the KANPO or the Official Gazette where all official laws and regulations are published, albeit in Japanese. Accordingly, the English translation submitted by petitioner is not an official publication exempted from the requirement of authentication. (Genevieve Rosal Arreza, A.K.A. "Genevieve Arreza Toyo," v. Tetsushi Toyo, Local Civil Registrar of Quezon City, and the Administrator and Civil Registrar General of the Requirements for the application of par. 2 of Art. 26 of the Family Code 1. It must be a case of mixed marriage (one party is Filipino and the other is an alien); 2. The divorce must be obtained by the alien spouse and not by the Filipino spouse; and 23 Civil Law NOTE: Whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife. the spouses GR: The personal relations of the spouses are governed by the national law of the husband. Effects of change of nationalities of the spouses – governing law (NCC, Art. 15). Divorces obtained abroad by Filipino citizens may now be validly recognized in the Philippines but only in cases of mixed marriages involving a Filipino and a Foreigner. (Republic of the Philippines V. Marelyn Tanedo Manalo, G.R. No. 221029, April 24, 2018)) XPN: Change of nationalities of the spouses — governing law. (NCC, Art. 15) Effects: 3. The divorce obtained by the alien spouse must capacitate him or her to remarry. (Rabuya, 2009) Law that governs the validity of marriage in case of mixed marriages Marriage between Filipino foreigner ABROAD a and Marriage between a Filipino and a foreigner in the PHILIPPINES Alien woman who marries a Filipino husband If the marriage is valid under the law of one of the spouses while void under the law of the other, the validity of the marriage should be upheld, unless the marriage is universally incestuous or highly immoral (the same rule as to foreigners who get married abroad). If the spouses have the same nationality but they acquire a new nationality by their common act – their new national law will govern their personal relations. 2. If the husband alone changes his nationality after the marriage – The law of the last common nationality of the spouses would govern. 3. If the spouses retain their different nationalities after the marriage – National law of both spouses should govern. CONTRACTS The extrinsic or formal validity – is governed by lex loci celebrationis or lex loci contractus. (NCC, Art. 17) Lex loci contractus The national law of the Filipino – Philippine law should be followed – otherwise the country’s public policy would be violated. It means “the law of the contract;” the law that governs the intrinsic validity of a contract. It may be determined either through; 1. Ipso facto becomes a Filipino citizen if she does not suffer under any disqualification for naturalization as a Filipino citizen. 2. Lex voluntatis or the law specifically stipulated by the parties in their contract; or Lex intentionis or the law intended by the parties in the absence of an express stipulation. Law that governs the validity of contracts Personal relations: National law of the husband shall govern (GR). Contract Barter, Law that governs the personal relations of UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 1. 24 Extrinsic validity Capacity of parties Intrin sic validit y Lex situs Lex situs Lex Conflict of Laws sale, donation Lease of property: creates real rights Lease of property: does not create real rights Pledge, chattel mortgage, real estate mortgage, antichresis Contract of loan: mutuum Contract of loan: commodat um situs Lex situs Lex loci celebration is Lex situs Lex loci celebration is Lex situs Lex situs Personal law of the parties Lex situs Personal law of the parties Lex situs (render services) parties Liability for loss, destruction, deterioration of goods in transit: law of destination of goods. (NCC, Art. 1753) Lex situs If COGSA applies, limitation on liability applies, unless the shipper declares value of goods and inserts such declaration in the bill of lading. Lex volunt atis or lex loci intenti onis Contract for transportation (Warsaw Convention) air 1. The liability of the airline in case of death, injury to passengers, or loss or damage to cargo is governed by Warsaw Convention. Lex situs 2. If there was malice, gross negligence, or bad faith, or improper discrimination, carrier is liable for damages beyond those limited by Warsaw Convention. Lex loci volunt atis or lex loci intenti onis NOTE: If contracts involve encumbrances of property, real or personal, apply lex situs. If personal contracts, law on contracts will apply. Lex situs SUCCESSION Applicable Civil Code provisions 1. Lease of service, agency, guaranty, suretyship NOTE: Agency to alienate or encumber real property is governed by lex situs Lex loci celebration is Contract of transporta tion or carriage Lex loci celebration is Personal law of parties Personal law of the Lex loci volunt atis or lex loci intenti onis Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, 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 (NCC, Art. 16). Lex loci volunt atis NOTE: Capacity to succeed is governed by the national law of the decedent. (NCC, Art. 1039) 25 Civil Law 2. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (NCC, Art. 816) 2. The testator has his domicile in the foreign country and not in the Philippines; 3. The will has been admitted to probate in such country; 4. The fact that the foreign tribunal is a probate court; and 5. The laws of a foreign country on procedure and allowance of wills. (Suntay v. Suntay, G.R. No. 132524, December 29, 1998) NOTE: Proof that the will conforms to the laws mentioned is imperative. (Salud Teodoro Vda. De Perez v. Hon. Tolete, G.R. No. 76714, June 2, 1994) 3. RENVOI A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (NCC, Art. 817) A procedure whereby a jural matter presented is referred by the conflict of laws rules of the forum to a foreign state, the conflict of laws rules of which in turn refers the matter back to the law of the forum (remission) or a third state (transmission). (Coquia, 2000) Thus, it is clear that renvoi can arise only from conflict of rules and not from internal rules. NOTE: Probate is an adjudication that the last will and testament of a person was executed with all the formalities required by law. It does not pass upon the validity of the provisions of the will. The disallowance of a will being essentially procedural in character, the law of the forum will govern the procedural matters. However, the court will look into the law of the foreign state where the suit was made as to whether the extrinsic requirements in the execution of the will have been complied with. Q: What will the Court do, if it is confronted with a case with a “Renvoi” Problem? 4. A: 1. Reject the renvoi – If the conflict rules of the forum refer later the case to the law of another state, it is deemed to mean only the internal law of that state. Thus, the court will apply the foreign law. (Paras, 1990) 2. Accept the renvoi – If the conflict rules of the forum refer the case to the law of another state, it is deemed to include the totality of the foreign law (internal law and conflict of law rules). Thus, the court will recognize the referral back and apply the local law. (Ibid.) 3. Follow the Theory of Desistance – also referred to as “Mutual Disclaimer of Jurisdiction Theory.” The forum court upon reference to another state’s law sees that such law is limited in application to its own nationals domiciled in its territory and has no provision for application to nationals domiciled outside of the territory. Hence the local court will apply the local law. Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (NCC, Art. 819) Q: How can a will executed abroad be made effective in the Philippines? A: A will made in a foreign country may be probated in the Philippines after sufficient proof is presented showing that the will was duly executed in the manner required by law and that the testator had capacity at the same time he executed the will. NOTE: This has the same result as the acceptance of the Renvoi Doctrine but the process used by the forum court is to desist applying the foreign law. (Ibid.) Evidence necessary for the allowance of wills which have been probated outside the Philippines 4. 1. Due execution of the will in accordance with the foreign laws; UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 26 Make use of the Foreign Court Theory – Forum a court assumes the same position that the foreign court would take if the case is litigated in the foreign state. Conflict of Laws Double renvoi should governed by the law of Texas. What law should be applied in the case at bar? It is that which occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. (Sempio-diy, 2004) A: The Supreme Court remanded the case back to the lower court. Both parties failed to adduce proof as to the law of Texas. Further, the Supreme Court held that for what the Texas law is on the matter, is a question of fact to be resolved by the evidence that would be presented in the probate court. The Supreme Court, however, emphasized that Texas law at the time of Linnie’s death is the law applicable. As to whether the law of Texas refers the matter back to Philippine laws must be proven by evidence presented before the court. (Philippine Commercial and Industrial Bank v. Hon. Venicio Escolin, G.R. Nos. L-27860 and L-27896 March 29, 1974) Transmission It is the process of applying the law of a foreign state through the law of a second foreign state. Not the same as renvoi. Renvoi involves two laws while transmission involves three laws. (Paras, 1990) Renvoi vs. Transmission Renvoi Transmission Deals with 2 countries Deals with 3 or more countries Deals with “referring back” Deals with “referring across” or “transmitting” Q: On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a naturalized United States (U.S.) citizen, died single and childless. In the last will and testament she executed in California, she designated her brother, Sergio C. Palaganas (Sergio), as the executor of her will for she had left properties in the Philippines and in the U.S. Respondent Ernesto C. Palaganas (Ernesto), another brother of Ruperta, filed with the RTC a petition for the probate of Ruperta’s will and for his appointment as special administrator of her estate. Q: Linnie Hodges, an American citizen from Texas, made a will in 1952. In 1957, she died while domiciled in Iloilo, Philippines. In her will, she left her entire estate in favor of her husband, Charles Hodges. It also states that should her husband later die, the entire estate shall be turned over to her brother and sister. A certain Avelina Magno, a trusted employee of the Hodges, was appointed as the estate’s administratrix. When Charles died in 1962, his lawyer, Atty. Gellada filed a motion before the probate court (Linnie’s estate) that Magno be temporarily appointed as the administratrix of Charles’ estate. According to Atty. Gellada, Charles left a will but the same cannot be presently presented. The court granted the motion. When Charles’ will was later found, a petition for probate was filed for the said will. Magno opposed the said petition contending that Charles should turn over the properties to Linnie’s brother and sister as provided in Linnie’s will. The probate court dismissed the opposition. However, petitioners Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta, opposed the petition on the ground that Ruperta’s will should not be probated in the Philippines but in the U.S. where she executed it. The RTC issued an order: (a) admitting to probate Ruperta’s last will; (b) appointing re-spondent Ernesto as special administrator at the request of Sergio, the U.S.-based executor designated in the will; and (c) issuing the Letters of Special Administration to Ernesto. CA affirmed. Can a will executed by a foreigner abroad be probated in the Philippines although it has not been previously probated and allowed in the country where it was executed? Thereafter, the Philippine Commercial and Industrial Bank was appointed as administrator of Charles’ estate. However, Magno refused to turn over the properties. According to Magno, Linnie was a citizen of Texas, USA at the time of her death. Thus, successional rights as to Linnie’s estate A: YES. The law does not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the countries of their execution. A foreign will can be given legal effects in our jurisdiction. The 27 Civil Law Civil Code states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his country. (Palaganas v. Palaganas, G.R. No. 169144, January 26, 2011) extra-territoriality is Art. 2 of the RPC. Q: May a Filipino convicted of a crime abroad serve his sentence in the Philippines? A: NO. Under the territoriality principle, a crime is punishable only in the territorial jurisdiction where it was committed. Allowing a Filipino convicted abroad to serve sentence in the Philippines will be tantamount to recognizing and enforcing a foreign judgment which is penal in nature. REVOCATION OF WILLS Rules if a person dies testate 1. If revocation takes place in the Philippines, whether the testator is domiciled in the Philippines or in some other country, it is valid if in accordance with Philippine laws. 2. If revocation takes place outside the Philippines by a testator domiciled in the Philippines, it is valid when it is in accordance with the laws of the Philippines. 3. Revocation done outside the Philippines, by a testator who does not have his domicile in this country, is valid when it is done according to the: a. b. Protective Theory Any state whose national interests are adversely affected by the crime may protect itself by prosecuting and punishing the offender. The Philippines adheres to this theory to a limited extent. States claim extraterritorial criminal jurisdiction to punish crimes committed abroad which are prejudicial to their national security or vital interests, even where the offenses are perpetrated by non-nationals. Jurisdiction is vested in the state whose national interests are injured or national security compromised. Universality Principle Law of the place where the will was made; or Law of the place where the testator had his domicile at the time of revocation. A state has extraterritorial jurisdiction over all crimes regardless of where they are committed or who committed them, whether nationals or non-nationals. This is, however, generally forbidden under international law. Jurisdiction is vested with the state which has custody of offender who committed universal crimes such as piracy, genocide, etc. Rule if a person dies intestate Follow lex nationali or the law of the nationality of the decedent. Bigamy is punishable only when committed in the Philippines CRIMES Our penal laws apply to all crimes committed within Philippine territory. Consequently, crimes committed outside the territory of the Philippines are not within the jurisdiction of Philippine authorities to prosecute, subject only to certain exceptions. Because of this principle, a criminal case for bigamy cannot be filed against a Filipino who contracted a second or bigamous marriages abroad. Territoriality Principle Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippines, subject to the principles of international law and treaty stipulations. (NCC, Article 14) Extra-territoriality TORTS Penal statutes may find application even outside the territorial jurisdiction of an enacting state pursuant to treaty obligations and general principles of international law. An example of UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES GR: Lex loci delicti comissior the law of the place where the tort was committed will govern. 28 Conflict of Laws Reason: The state where the social disturbance occurred has the primary duty to redress the wrong and determine the effects of the injury; to compensate the victim for the damage or injury suffered. local court, rendering the foreign judgment and seeking its enforcement by the sheriff on accordance with the Rules of Court. Obligation Theory The tortuous act gives rise to an obligation, which is transitory and follows the person committing the tortuous act and may be enforced wherever he may be found. (Coquia, 2000) Requisites for recognition or enforcement of a foreign judgment 1. The defendant has been given reasonable notice and opportunity to be heard; 2. There is adequate proof of foreign judgment; 3. The foreign judgment must have disposed of the controversy on the merits and must be res judicata, i.e., judgment on the merits is final, issued by a foreign court having jurisdiction over the subject matter and parties, and there was identity of parties, subject matter, and the cause of action; 4. It must not be barred by prescription both in the state where it was promulgated and the where it is sought to be enforced; 5. State where the foreign judgment was obtained allows recognition or enforcement of Philippine judgments; 6. If the foreign judgment is for a sum of money, it must be fixed; 7. Foreign judgment must not be contrary to the public policy or good morals of the country where it is to be enforced; 8. Judgment must not have been obtained by fraud, collusion, mistake of fact or law; and 9. It must be a judgment in civil or commercial matters, including questions of status, not on a criminal, revenue, or administrative matter. Philippine conflict rules on tort problems If the tort law of the Philippines embodies a social or economic policy, then the law of the forum on torts shall be applied. If the Philippines has no concern or interest in the application of the internal law, and the other State have an interest, apply the law of such State. NOTE: The state where an injury has occurred has interest in compensating the injured party, while the state where the tortfeasor acted has an interest in regulating the conduct of persons found in its territory. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT Recognition of foreign judgment The defendant or the respondent is presenting the foreign judgment merely as a defense, on the basis of res judicata. Invokes merely as sense of justice. Needs no proceeding or action but implies that the same has already been filed against the defendant who is invoking the foreign judgment. Recognition is a passive effect of foreign judgment. Enforcement of foreign judgment The plaintiff or petitioner wants the court to positively carry out and make effective the foreign judgment. Implies an act of sovereignty Requires a separate action brought precisely to make the foreign judgment effective NOTE: For Philippine courts to recognize foreign judgment to the status of a marriage where one of the parties is a citizen of a foreign country, the petitioner only needs to prove the foreign judgment as fact under the Rules of Court. Petitioner may prove the Japanese Family Court judgment through (1) an official publication or (2) a certification or copy attested by the officer who has custody of the judgment. If the office which has custody is in a foreign country such as Japan, the certification may be made by the proper diplomatic or consular officer of the Philippine foreign service in Japan and authenticated by the seal of office. (Fujiki v. Marinay, G.R. No. 196049, June 26, 2013) Enforcement is an active recognition and implementation of the foreign judgment from the Effects of a judgment or final order of a 29 Civil Law foreign tribunal or court in case the judgment is being sought in Philippine Courts appointed liquidators, which was an internal affair that required no prior recognition in a separate action. There was no enforcement of a foreign judgment when one of the appointed liquidators terminated the legal services of private respondent Picazo Law Office and engaged in its stead petitioner Quasha Law Office to be the duly authorized counsel of petitioner LIRL. 1. In a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and 2. In a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. What is involved is the prerogative of petitioner LIRL, through its duly authorized representative -- which, in this case, is its appointed liquidators -- to terminate and engage the services of a counsel, which is an internal affair that requires no prior recognition in a separate action. (Quasha Ancheta Pea et al v. the Special Sixth Division of the Court of Appeals, GR No. 182013, December 4, 2009) NOTE: In either case, the judgment or final order may be repelled by evidence of want of jurisdiction, want of notice to a party, collusion, raud or clear mistake of law or fact. (ROC, Rule 39, Sec. 48) Q: The Special Sixth Division of the Court of Appeals refused to recognize the Entry of Appearance of Quasha Law Office as the new counsel of Legend International Resorts, Limited (LIRL). It said that the appointment of LIRL’s joint and several liquidators were made pursuant to an Order of the Hong Kong Court. Since it was a foreign judgment, Philippine Courts could not take judicial notice thereof as the final orders of foreign tribunals could only be enforced in the Philippines after appropriate proceedings. Q: Gerbert, a naturalized Canadian citizen, married Daisylyn, a Filipino, but subsequently left for Canada due to work and other professional commitments. When he returned to the Philippines, he discovered that Daisylyn was already romantically involved with another man. Hurt and disappointed, Gerbert returned to Canada and filed a petition for divorce which was eventually granted. Two years later, he had fallen in love with another Filipina and wished to marry her. He then went to the civil registry to register the divorce decree of his marriage certificate with Daisylyn. The CA concluded that Picazo Law Office was the only counsel entitled to represent and file pleadings for and on behalf of petitioner LIRL. Quasha Law Office and LIRL then filed a special civil action for Certiorari under Rule 65 seeking to reverse and set aside on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction of the Special Sixth Division of the CA. Did the special CA Division gravely abuse its discretion in considering the Orders of the Hong Kong Court appointing liquidators for LIRL involved enforcement and recognition of a foreign judgment? However, despite the registration, an official of NSO informed Gerbert that the former marriage still subsists under the Philippine law until there has been a judicial recognition of the Canadian divorce by a competent judicial court in view of NSO Circular No. 4, series of 1982. Consequently, he filed a petition for judicial recognition of foreign divorce and/or declaration of dissolution of marriage with the RTC. RTC denied the same and concluded that Gerbert was not the proper party to institute the action for judicial recognition of the foreign divorce decree as he is a naturalized Canadian citizen. It ruled that only the Filipino spouse can avail of the remedy, under the second paragraph of Article 26 of the Family Code. A. NO. It has already been settled in the aforesaid two Decisions that the Orders of the Hong Kong Court appointing liquidators for petitioner LIRL did not involve the enforcement of a foreign judgment. The act of terminating the legal services of private respondent Picazo Law Office and engaging in its place petitioner Quasha Law Office was a mere exercise of petitioner LIRLs prerogative, through its UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Does the second paragraph of Article 26 of the Family Code extend to aliens the right to 30 Conflict of Laws petition for the recognition of a foreign divorce decree? A: YES. While the general rule is that the alien spouse can claim no right under the second paragraph of Article 26 of the Family Code as the substantive right it establishes is in favor of the Filipino spouse, the foreign divorce decree is presumptive evidence of a right that clothes the party with legal interest to petition for its recognition in this jurisdiction. Divorce obtained by an alien abroad may be recognized in the Philippines, provided the divorce is valid according to his or her national law. The foreign divorce decree itself, after its authenticity and conformity with the alien’s national law have been duly proven according to our rules of evidence, serves as a presumptive evidence of right in favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules of Court which provides for the effect of foreign judgments. Ruling with regard to the annotation of decree on marriage certificate While the law requires the entry of the divorce decree in the civil registry, the law and the submission of the decree by themselves do not ipso facto authorize the decree’s registration. The law should be read in relation with the requirement of a judicial recognition of the foreign judgment before it can be given res judicata effect. In the context of the present case, no judicial order as yet exists recognizing the foreign divorce decree. Thus, the Pasig City Civil Registry Office acted totally out of turn and without authority of law when it annotated the Canadian divorce decree on Gerbert and Daisylyn’s marriage certificate, on the strength alone of the foreign decree presented by Gerbert. For being contrary to law, the registration of the foreign divorce decree without the requisite judicial recognition is patently void and cannot produce any legal effect. (Corpuz v. Sto. Tomas and the Solicitor General, G.R. No. 186571, August 11, 2010) 31 Civil Law Article 19, 20 and 21 in the enforcement and sanctions of abuse of right HUMAN RELATIONS Abuse of right (2006 BAR) While Art. 19 lays down the rule of conduct for the government of human relations, it does not provide a remedy. (Rabuya, 2006) A right, though by itself legal because recognized or granted by law as such, may become the source of some illegality. When a right is exercised in a manner which does not conform to the norms enshrined in Art. 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Generally, an action for damages under either Art. 20 or Art. 21 of the NCC would be proper. Art. 21 deals with acts contra bonus mores or contrary to good morals and presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation. Under Arts. 19 and 21, the act must be intentional. (Rabuya, 2006) This principle is based upon the famous maxim suum jus summa injuria (the abuse of a right is the greatest possible wrong). (Arlegui v. CA, G.R. No. 126437, March 6, 2002) Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction. Article 21 on the other hand, speaks of act which is legal but is contrary to morals, good custom, public order or public policy and is done with intent to injure. Rationale: The exercise of a right ends when the right disappears, and it disappears when it is abused, especially to the prejudice of others. It cannot be said that a person exercises a right when he unnecessarily prejudices another or offends morals or good customs. (Pineda, 2009) Sanction for abuse of right under Article 20 of the NCC Generally, laws provide for their own sanctions and methods of enforcement thereof. Article 20 applies only in cases where the law does not provide for its own sanctions. Elements of abuse of right: (L-B-P-A) 1. There is a Legal right or duty; 2. Such duty is exercised in Bad faith; 3. It is for the sole intent of Prejudicing or injuring another; 4. The Absence of good faith is essential to abuse of right. (Rabuya, 2009) In view of the general sanction provided for under Art. 20, a person however does not have an absolute right to be indemnified, it is essential that some right of his be impaired. Without such, he is not entitled to indemnification. (Pineda, 2009) Principle of Damnum Absque Injuria It means damage without injury. One who merely exercises one’s rights does no actionable injury and cannot be held liable for damages. (Amonoy v. Gutierrez), G.R. No. 140420, February 15, 2001) Contra Bonus Mores (1996, 1998, 2006, 2009 Bar) 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 the damage. (NCC, Art. 21) It fills countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they suffered material and moral damages. (Tolentino, 1987) Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. (Panteleon v. American Express, G.R. No. 174269, August 25, 2010) Elements of an action under Art. 21: There can be damage without injury in instances which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone (Ibid.) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 1. There is an act which is legal; 2. Such act is contrary to morals, good customs, public order or policy; and 32 Human Relations 3. It is done with intent to injure. liability but later reneged on his promise. (Buñag, Jr. v. CA, G.R. No. 101749, July 10, 1992) Civil liability for moral negligence A breach of promise to marry per se is not an actionable wrong. But where a man's promise to marry is the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that the promise was only a deceptive device to inveigle her to obtain her consent to the sexual act, could justify the award of damages pursuant to Art. 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. (Gashem Shookat Baksh v. CA, G.R. No. 97336, February 19, 1993) There is no civil liability for moral negligence. A person is required to act with prudence towards others, but not with charity; the law imposes diligence and not altruism. Hence, the failure to make sacrifices or egoism does not constitute a source of liability. (Tolentino, 1987) Illustration: A person who fails to render assistance to a drowning person or to the victim of an accident, cannot be held liable for damages. (3 Colin & Capitant 826) While a person can be absolved from criminal liability because his negligence was not proven beyond reasonable doubt, he can still be held civilly liable if his negligence was established by preponderance of evidence. The failure of the evidence to prove negligence with moral certainty does not negate (and is in fact compatible with) a ruling that there was preponderant evidence of such negligence. And that is sufficient to hold him civilly liable. (Dominguez v. People, G.R. No. 167546, July 17, 2009) Q: Soledad a high school teacher used to go around together with Francisco who was almost ten (10) years younger than her. Eventually, intimacy developed between them after Soledad became an underwriter in Cebu. One evening, they had sexual intercourse in Francisco’s cabin on board M/V Escaño, to which he was then attached as apprentice pilot. After a few months, Soledad advised Francisco that she was pregnant, whereupon he promised to marry her. Later their child was born. However, subsequently, Francisco married another woman. Soledad filed a complaint for moral damages for alleged breach of promise to marry. May moral damages be recovered for breach of promise to marry. Breach of promise to marry GR: A breach of promise to marry per se is not an actionable wrong. There is no provision in the NCC authorizing an action for breach of promise to marry. XPN: When the act constitutes one where damages pursuant to Art. 21 of the NCC may be recovered and is not a mere breach of promise to marry, such as: A: NO. It is the clear and manifest intent of our law-making body not to sanction actions for breach of promise to marry. Francisco is not morally guilty of seduction, not only because he was approximately 10 years younger, and a mere apprentice pilot when he became intimate with the 36-year old complainant, who is a highly enlightened former high school teacher and a life insurance agent but, also, because, the Court of First Instance found that, complainant “surrendered herself” to Francisco because, “overwhelmed by her love” for him, she “wanted to bind” “by having a fruit of their engagement even before they had the benefit of clergy. (Hermosisima v. CA, G.R. No. L-14628, September 1. Where the woman is a victim of moral seduction. (Gashem Shookat Baksh v. CA, G.R. No. 97336, February 19, 1993) 2. Where one formally sets a wedding and go through and spend for all the preparations and publicity, only to walk out of it when the matrimony was about to be solemnized. (Wassmer v. Velez, G.R. No. L-20089, December 26, 1964) 3. Where the woman is a victim of abduction and rape, and thereafter the accused promised to marry her to avoid criminal 33 Civil Law 30, 1960) vehicle. NOTE: To constitute seduction there must be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction. The underlying reason is that the service vehicle was precisely used in the employer's business; any personal benefit obtained by the employee from its use is merely incidental. Mekeni may not enrich itself by charging Locsin for the use of its vehicle which is otherwise absolutely necessary to the full and effective promotion of its business. (Locsin v. Mekeni Food Corporation, G.R. No. 192105, 09 December 2001) Prohibition against Unjust Enrichment No one shall unjustly enrich himself at the expense of another. (Pacific Merchandising Corp. v. Consolacion Insurance and Surety Co., Inc., G.R. No. L-30204, October 29, 1976) Q: Ludolfo owns a construction company. One day, Carlos visited Ludolfo in his office wherein, he invited Ludolfo to advance ₱2,000,000.00 for a subcontract of a ₱50,000,000.00 river-dredging project in Guinobatan. He guaranteed Ludolfo that Ludolfo’s construction company will be subcontracted by the lowest bidder of the project. Ludolfo accepted the proposal. Ludolfo requested his bank to release ₱3,000,000.00 to a certain Grace delos Santos. Carlos then obtained the money from Grace. After four days, ₱1,800,000.00 was returned to Ludolfo. Carlos then collected ₱ 800,000.00 balance. However, after deducting Carlos’ personal loans Ludolfo issued a check worth ₱ 481,800.00 which was accepted by Carlos. NOTE: The article applies only if: 1. Someone acquires or comes into possession of “something” which means delivery or acquisition of things”; and 2. Acquisition is undue and at the expense of another, which means without any just or legal ground. Q: Mekeni Food Corp. offered its employee Locsin a car plan. One-half of the cost of the vehicle is to be paid by Mekeni and the other half is to be deducted from Locsin’s salary. The car was an absolute necessity in Mekeni’s business operations. Locsin paid for his 50% share through monthly salary deductions. Subsequently, Locsin resigned. By then, a total of ₱112,500 had been deducted from his monthly salary and applied as part of his share in the car plan. The vehicle remained in the ownership and possession of Mekeni, and so Locsin sought reimbursement of his amortization payments on the vehicle and posits that if the amount is not reimbursed, unjust enrichment would result, as the vehicle remained in the possession and ownership of Mekeni. Should the amortization payments be refunded in favor of Locsin? The project to dredge the Masarawag and San Francisco Rivers in Guinobatan was subjected to public bidding. The project was awarded to the lowest bidder, Sunwest Construction and Development Corporation. However, the project was completed without Ludolfo’s construction company being subcontracted. Thus, Ludolfo demanded Carlos to return his ₱2,000,000.00 which Carlos did not do so. Carlos claimed that the principle of unjust enrichment does not apply in this situation. He further argued that Ludolfo paid him for a subcontract of a government project and as such the subcontract is void for being contrary to law, specifically, the Anti-Graft and Corrupt Practices Act, the Revised Penal Code, and Section 6 of Presidential Decree No. 1594. Also, according to Carlos, he followed up the project’s approval with the Central Office of the Department of Public Works and Highways as the parties agreed upon. He was, therefore, entitled to his representation expenses. Is Carlos liable to A: YES. The amortization payments must be refunded in favor of Locsin. In the absence of specific terms and conditions governing a car plan agreement between the employer and employee, the employer may not retain the installment payments made by the employee on the car plan and treat them as rents for the use of the service vehicle, in the event that the employee ceases his employment and is unable to complete the installment payments on the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 34 Human Relations return the ₱2,000,000.00 under the principle of unjust enrichment? However, in this case, Carlos never denied that he failed to fulfill his agreement with Ludolfo. Carlos, therefore, is retaining the ₱2,000,000.00 without just or legal ground. This cannot be done. Under Article 22 of the Civil Code of the Philippines, he must return the ₱2,000,000.00 to Ludolfo. (Carlos A. Loria v. Ludolfo P. Munoz, Jr., G.R. No. 187240, October 15, 2014, as penned by J. Leonen) A: YES. Carlos is liable to return ₱2,000,000.00 under the principle of unjust enrichment. Under Article 22 of the Civil Code of the Philippines, "every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him." There is unjust enrichment "when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience. The principle of unjust enrichment has two conditions. First, a person must have been benefited without a real or valid basis or justification. Second, the benefit was derived at another person’s expense or damage. In this case, Carlos received ₱2,000,000.00 from Ludolfo for a subcontract of a government project to dredge the Masarawag and San Francisco Rivers in Guinobatan, Albay. However, contrary to the parties’ agreement, Ludolfo was not subcontracted for the project. Nevertheless, Carlos retained the ₱2,000,000.00. Q: Tarcisius was hired as a project coordinator/manager of Your Own Home Development Corp. (YOHDC). Tarcisius received all 4 checks. However, instead of delivering them to Rosillas and Delos Reyes, the payees of the checks, Tarcisius and his wife, Iris, deposited the checks into their personal bank account with BPI and requested BPI to suspend its action on YOHDC’s claim and instructed it not to deduct the amount they deposited until they have clarified the matter. BPI denied this request, and sent Metrobank, the Drawee Bank, to reimburse the amounts of the checks, which was then credited to YOHDC. Hence, Tarcisius and his wife filed a Complaint for Damages against YOHDC on the ground of unjust enrichment. Is YOHDC liable for unjust enrichment? Thus, Carlos was unjustly enriched. He retained Ludolfo’s money without valid basis or justification. Under Article 22 of the Civil Code of the Philippines, Carlos must return the ₱2,000,000.00 to Ludolfo. Contrary to Carlos’ claim, Section 6 of the Presidential Decree No. 1594 does not prevent Ludolfo from recovering his money because it is premature to rule on the legality of the parties’ agreement since the subcontract did not push through. At any rate, even assuming that there was a subcontracting arrangement between Sunwest Construction and Development Corporation and Ludolfo, the Supreme Court has allowed recovery under a void subcontract as an exception to the in pari delicto doctrine. A: NO. Unjust enrichment has two (2) elements: a person benefited without a real or valid basis or justification, and the benefit was at another person's expense or damage. Here, Metrobank rightfully returned to YOHDC the amounts of the checks considering that Metrobank, as the drawee bank, is obligated to return the full amounts of the checks upon discovering that they were not paid to the correct payees. The amounts returned were not at the expense of Tarcisius and his wife considering that the amounts were not meant for them but for Rosillas and Delos Reyes. (Iris Rodriguez vs Your Own Home Development Corporation, G.R. No. 199451, August 15, 2018, as penned by J. Leonen) The Supreme Court discussed that in Gonzalo vs. Tarnate Jr., Tarnate, Jr. performed his obligations under the subcontract and the deed of assignment, this court ruled that he was entitled to the agreed fee. According to this court, Gonzalo "would be unjustly enriched at the expense of Tarnate if the latter was to be barred from recovering because of the rigid application of the doctrine of in pari delicto. Accion In Rem Verso It is an action for recovery of what has been paid or delivered without just cause or legal ground. If a person acquires or comes into possession of something at the expense of another without just or legal ground through an act or of performance by another or any other means has the obligation to return the same. (NCC, Art. 22) 35 Civil Law Accion in rem verso is considered merely an auxiliary action, available only when there is no other remedy on contract, quasi-contract, crime, and quasi-delict. Hence, if there is an obtainable action under any other institution of positive law, that action must be resorted to, and the principle of accion in rem verso will not lie. (Shinryo Philippines Company v. RRN Incorp. G.R. No. 172525, October 20, 2010) shall promulgate, and which shall not be in conflict with the provisions of this Code. (Article 36, NCC) Concept of a prejudicial question It is a question of a purely civil character but connected in such a manner to the crime on which the criminal case is based that it is determinative of the guilt or innocence of the accused. (De Leon vs. Mabanag, 70 Phil. 202) Requisites (E-L-W-A) 1. The defendant has been Enriched; 2. The plaintiff has suffered a Loss; 3. The enrichment of the defendant is Without just or legal ground; and 4. The plaintiff has no other Action based on contract, quasi-contract, crime or quasidelict. It is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessary be determined. (Rabuya, 2006) Accion in rem verso vs. Solutio Indebiti In accion in rem verso, it is not necessary that there should have been mistake in the payment unlike in solutio indebiti where mistake is an essential element. (Rabuya, 2006) NOTE: It is the issue in the civil action that is prejudicial to the continuation of the criminal action, and not vice-versa. (Rabuya, 2006) Accion in rem verso vs. Unjust Enrichment Elements An accion in rem verso is merely an auxiliary action available only when there is no other remedy on contract, quasi-contract, crime and quasi-delict, while unjust enrichment, wherein one is unjustly enriched at the expense of or from the efforts or obligations of others, may be availed of as a prerequisite for the enforcement of the doctrine of restitution. (Shinryo Philippines Company v. RRN Incorp. G.R. No. 172525, October 20, 2010) 1. 2. Suspension of Proceedings Liability without fault or negligence A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. The rule authorizes only the suspension of the criminal action and not its dismissal by reason of a prejudicial question. (Rabuya, 2006) Even when an act or event causing damage to another’s property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited. (NCC, Art. 23) PREJUDICIAL QUESTION UNDER ART. 36 OF THE NEW CIVIL CODE Prejudicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by the Rules of Court which the Supreme Court UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES The previously instituted civil action involves an issue similarly or intimately related to the issue raised in the subsequent criminal action; and The resolution of such issue determines whether or not the criminal action may proceed. 36 Human Relations its own personality, as a golf and country club, Capitol primarily exists for the utility and benefit of its members. While legal title in its properties is vested in Capitol, beneficial use redounds to its membership. Apart from this, proprietary interest in Capitol is secured through club shares. Thus, members and shareholders having rights to use and enjoy the subject property has a valid cause of action against Alvarado since they stood to be deprived of their rights. PERSONS Persons and Personality under the Civil Code A person is every physical or moral, real or juridical and legal being susceptible of rights and obligations or being the subject of legal relations. (Rabuya, 2006) Persons v. Things Also, in accordance with Article 46 of the Civil Code, Capitol is capacitated to incur obligations. This includes obligations voluntarily incurred through contracts, as well as encumbrances assumed or imposed as easements. It is in keeping with a contract entered into by Capitol and with easements in which Capitol was the subservient estate that respondents Ayala Land, Inc. and Ayala Hillside initiated the Complaint assailing the tax sale. With respect to Ayala Land, Inc., the allegations were not limited to its being a dominant estate to an easement of right of way but even included a claim of ownership to a smaller parcel. (Alvarado vs. Ayala Land Inc. et. al., G.R. 208426, September 20, 2017, as penned by J. Leonen) A person is the subject of legal relations, while a thing is the object of legal relations. Personality is the aptitude to be the subject, active or passive of juridical relations. One is a person, while one has personality. (Rabuya, 2006) KINDS OF PERSONS 1. Natural – Human beings and have physical existence. 2. Juridical – Artificial persons and product of legal fiction. Q: A parcel of land owned by Capitol Hills Golf and Country Club, Inc. was levied by the Quezon City Treasurer on account of unpaid real estate taxes. Alvarado was noted the highest bidder and was issued the Certificate of Sale of Delinquent property. A complaint against Alvarado et al. was filed before the QC RTC to question the validity of the tax sale. Plaintiffs are some members of the golf club, Ayala Hillside “association of lot owners residing in Ayala Hillside Estate, and Ayala Land Inc who has an agreement with Capitol Hills. Alvarado in his answer contends, among others, that plaintiffs failed to state a cause of action because they are not the registered owners of the auctioned property of Capitol Hills. Does the members of Capitol hills and Ayala Land, Inc. have a valid cause of action? Juridical capacity v. Capacity to act BASIS Definition Acquisition Loss In relation to the other A: YES. Members of the Capitol Hills club and Ayala Land Inc. have valid cause of action. Capitol is a juridical entity with its own, distinct personality. Consistent with Article 46 of the Civil Code, it may "acquire and possess property'' such as the lot put up for a tax delinquency sale. As owner, it exclusively enjoyed the entire bundle of rights associated with dominion over this parcel. Though having Limitation 37 JURIDICAL CAPACITY Fitness to be the subject of legal relations. (Art. 37) Inherent (coexists with the natural person). Only through death. Can exist without capacity to act. None. CAPACITY TO ACT Power to do acts with legal effect. (Art. 37) Through the fulfillment of specific legal activities. Through death and other causes. Cannot exist w/o juridical capacity. Art. 38 (restriction) Art. 39 (modification/ limitation), among others. Civil Law NOTE: A person is presumed to have capacity to act. (Standard Oil Co. v. Arenas, et al., G.R. No. L-5921, December 15, 1908) NOTE: The following are the effects of civil interdiction: 1. 2. Status 3. The status of a person is the legal condition or class to which one belongs in a society. (1 Viso 32, 2 Sanchez Roman 110) 4. Civil Personality They do not exempt the incapacitated person from certain obligations. It is merely the external manifestation of either juridical capacity or capacity to act. Consequently, it may be defined as the aptitude of being the subject of rights and obligations. (2 Sanchez Roman 114-147) Circumstances that modify or limit capacity to act (FC, Art. 39) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. RESTRICTIONS ON CAPACITY TO ACT Restrictions on capacity to act: (M-I-D-I-P-C) (NCC, Art. 38) 1. Minority - State of a person who is under the age of legal majority which is eighteen years of age; 2. Insanity – State of a person whose mental faculties are diseased; 3. Deprivation of parental or marital authority; Deprivation of the right to be the guardian of the person and property of a ward; Deprivation of his property by act inter vivos; and Deprivation of the right to manage one's properties. (Revised Penal Code, Art. 34) Insanity; Prodigality; Age; Imbecility; Deaf-Mute; Family Relations; Alienage; Trusteeship; Penalty; Insolvency; and Absence. Deaf-mute – Lacking sense of hearing and the inability to speak; The enumeration in Articles 38 and 39 is not exclusive. There are others spread throughout the code (e.g., a lawyer cannot buy property in litigation). [NCC, Art. 1491 (5)] NOTE: Only deaf-mutes who do not know how to write are declared by law incapable of giving consent. BIRTH Determination of personality 4. Imbecility – State of a person who while advanced in age has the mental capacity comparable to that of a child between two and seven years of age; 5. Prodigality – A spendthrift or squanderer; The Civil Code provides that birth determines personality, but the conceived child shall be considered born for all purposes that are favorable to it, provided it is born later with the conditions specified in Art. 41. (NCC, Art. 40) NOTE: Prodigality per se does not automatically modify or restrict a person’s capacity to act. There must be a declaration thereof and be placed under guardianship under the Rules on Special Proceeding. This provision has been superseded by Art. 5 of P.D. No. 603 (The Child and Youth Welfare Code), which declares that the civil personality of the child shall commence from the time of his conception, for all purposes favorable to him, subject to the requirements of Art. 41. Civil Interdiction – An accessory penalty imposed upon an accused who is sentenced to a principal penalty not lower than reclusion temporal. Acquisition of personality through birth 6. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES GR: Actual/Permanent Personality– Personality begins at birth, not at conception. 38 Human Relations XPN: Presumptive/Temporary – The law considers the conceived child as born (Conceptus pro nato habetur) 2. Juridical persons – by termination of existence Effect of death on civil personality The provisional personality of a conceived child (conceptus pro nato habetur) under Article 40, expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "Provided it be born later with the condition specified in the following article." (Geluz v. CA, G.R. No. L- 16439, 20 July 1961) Death extinguishes civil personality. However, the rights and obligations of the deceased are not necessarily extinguished by his death. (Pineda, 2009) Rules to apply in case there is doubt as to who died first “Born later in accordance with law” (1995, 1999, 2008 BAR) It depends on whether the parties are called to succeed each other. A fetus with an intra-uterine life of: 1. If successional rights are involved – Art. 43 of the NCC: Survivorship Rule, and Rule 131, Sec. 3(kk): Presumption of simultaneous deaths between persons called to succeed each other, applies. 2. If no successional rights are involved – Rule 131, Sec. 3 (jj) of the Rules of Court applies (Presumption of survivorship). 1. Less than 7 months – Must survive for at least 24 hours after its complete delivery from the maternal womb. 2. At least 7 months – If born alive it shall be considered born even if it dies within 24 hours after complete delivery. Complete delivery NOTE: Both are to be applied only in the absence of facts. It means the cutting of the umbilical cord from the mother’s womb. Q: Jaime, who is 65, and his son, 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. In the settlement of Jaime’s estate, can Wilma successfully claim that her late husband, Willy, had a hereditary share since he was much younger than his father and therefore, should be presumed to have survived longer? Provisional personality of a conceived child A conceived child, although as yet unborn, has a limited and provisional personality. Its personality is provisional because it depends upon the child being born alive later under certain conditions. Rights of the conceived child A: NO. Wilma cannot successfully claim that Willy had a hereditary share in his father’s estate. Since a conceived child has a provisional personality even while inside the mother’s womb, it is entitled to the following rights: (SAD) 1. 2. 3. The 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 son. Right to Support To be Acknowledged To receive Donations. (Rabuya, 2009) Q: 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? (1998 BAR) DEATH Civil personality ceases depending upon the classification of persons 1. Natural persons – by death 39 Civil Law A: YES. Wilma can invoke the presumption of survivorship and claim that one-half of the proceeds should belong to Willy’s estate, under Rule 131, Sec.3 (jj), par. 5, Rules of Court, as the dispute does not involve succession. mother. An unborn child shall be considered a person for purposes favorable to it provided it is born later in accordance with the NCC. There is no doubt that the designation of the unborn child as a beneficiary is favorable to the child. Under this presumption, the person between the ages of 15 and 60 is deemed to have survived one whose age was over 60 at the time of their deaths. The estate of Willy endowed with juridical personality stands in place and stead of Willy, as beneficiary. 2. If the baby was not alive when completely delivered from the mother’s womb, it was not born as a person, then the question of whom between two persons survived will not be an issue. The baby had an intrauterine life of more than 7 months; thus, it would be considered born if it was alive at the time of its complete delivery from the mother’s womb. We can gather from the facts that the baby was completely delivered. But whether or not it was alive has to be proven by evidence. 3. Since the baby did not acquire any right under the insurance contract, there is nothing for Prieto to inherit. Prieto is not married to Marian neither was he named as the beneficiary of the insurance. NOTE: The statutory rules in the determination of sequence of death do not absolutely apply in a case where indirect and/or inferential evidence surrounding the circumstances of the deaths exists. Where there are facts, known or knowable, from which a rational conclusion can be made, the presumption does not step in, and the rule of preponderance of evidence controls. It is the "particular circumstances from which survivorship can be inferred" that are required to be certain as tested by the rules of evidence. (Joaquin v. Navarro, G.R. No. L-5426, May 29, 1953) Domicile of juridical persons 1. Q: At the age of 18, Marian found out that she was pregnant. She insured her own life and named her unborn child as her sole beneficiary. When she was already due to give birth, she and her boyfriend Pietro, the father of her unborn child, were kidnapped in a resort in Bataan. The military gave chase and after one week, they were found in abandoned hut in Cavite. Marian and Pietro were hacked with bolos. Marian and the baby she delivered were both found dead, with the baby’s umbilical cord already cut. Pietro survived. 2. REPUBLIC ACT NO. 9262 (VAWC) In case a protection order is issued under R.A. 9262, Section 8, the respondent spouse has the obligation to do the following acts: SECTION 8. Protection Orders.- A protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief. The relief granted under a protection order serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. The protection orders that may be issued under this Act are the barangay protection order (BPO), temporary protection order (TPO) and a. Can Marian’s baby be the beneficiary of the insurance taken on the life of the mother? b. Between Marian and the baby, who is presumed to have died ahead? c. Will Prieto, as the surviving biological father of the baby, be entitled to claim the proceeds of the life insurance on the life of Marian? (2008 BAR) A: 1. YES. An unborn child may be designated as the beneficiary in the insurance policy of the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES The place fixed by the law creating or recognizing the juridical person; In the absence thereof, the place where their legal representation is established or where they exercise their principal functions. 40 Human Relations permanent protection order (PPO). The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; (a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act; (h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter; (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; (c) Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence; (i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; (j) Directing the DSWD or any appropriate agency to provide petitioner may need; and (d) Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; (k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. (e) Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. NOTE: Under Section 19, in cases of Legal Separation, it states that: In cases of legal separation, where violence as specified in this Act is alleged, Article 58 of the Family Code shall not apply. The court shall proceed on the main case and other incidents of the case as soon as possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period specified in this Act. (f) Granting a temporary or permanent custody of a child/children to the petitioner; (g) Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be 41 Civil Law contract THE FAMILY CODE c. Social institution MARRIAGE UNDER FAMILY CODE Governin g Law A special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by the Family Code. (Family Code, Art. 1) NATURE OF MARRIAGE Under the Constitution, “marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” (1987 Constitution, Art. XV, Sec. 2) Marriage is an institution in which the community is deeply interested. The State has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the State are largely dependent on it. It is in the interest and duty of each member of the community to prevent the bringing about of a condition that would shake its foundation and lead to its destruction. The incidents of the status are governed by law, not by will of the parties. (Beso v. Daguman, A.M. No. MTJ-99-1211, January 28, 2000) Marriage as a status As a status, the principle in contracts that the parties may, by mutual agreement, put an end to it, cannot certainly apply, for the consequences of the marriage as a rule are fixed by law. (Paras, 2016) Marriage v. Ordinary contract BASIS Nature MARRIAGE a. Special contract Law marriage on Law on contracts Right of the parties to stipulate GR: Not subject to stipulation XPN: Property relations in marriage settlements. Capacity to contract Legal capacity is required. Gender requirem ent Contracting parties must only be two persons of the opposite sexes. Dissolutio n by agreemen t Dissolved only by death or annulment, never by mutual agreement. The parties are free to stipulate subject to certain limitation. Minors may contract through their parents or guardians or in some instances, by themselves. Contracting parties may be two or more persons regardless of sex. Can be dissolved through express provision of the law, through expiration of the term for which the contract was entered into, or by mutual agreement by the parties concerned. Evidence of Marriage ORDINARY CONTRACT Merely contract The best documentary evidence of a marriage is the marriage contract. However, the failure to present it is not, however, proof that no marriage took place, as other evidence may be presented to prove marriage. (Balogbog v. CA, G.R No. 83598, March 7, 1997) a b. Sui generis UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 42 Marriage under the Family Code The following may be presented as proof of marriage: 1. 2. 3. 4. 2. Two females are incapable of entering into marriage. There is no constitutional protection of the rights of marriage between two persons of the same sex. (Jones v. Hallahan, 501 S.W.2d 588, November 9, 1973) testimony of a witness to the matrimony; the couple’s public and open cohabitation as husband and wife after the alleged wedlock; the birth and baptismal certificate of children born during such wedlock and the mention of such nuptial in subsequent documents. (Sarmiento v. CA, G.R. No. 96740, March 25, 1999) 3. Valid Void Voidable Other requirements needed for the validity of such marriage depending upon the age of the contracting party I. VALID MARRIAGES The requisites for a valid marriage are provided by law. The principle that the validity of a marriage is determined by the law effective at the time of the celebration of the marriage is further highlighted by the fact that, as a general rule, the nature of the marriage already celebrated cannot be changed by a subsequent amendment to the law. (Sta. Maria, 2010) 2. ADDITIONAL REQUIREMENTS 18 to 21 years old Parental consent and Marriage counseling 22 to 25 years old Parental advice and Marriage counseling It does not make the marriage void or voidable, it only affects the release of the marriage license to be postponed until (3) three months from the complete publication of the application. (FC, Art. 15) Legal capacity of the contracting parties who must be a male and a female; and Consent freely given in the presence of the solemnizing officer. (FC, Art. 2) Q: A complaint was filed against Judge Rojo for allegedly violating the Code of Judicial Conduct and for gross ignorance of the law. Rojo solemnized marriages without the required marriage license. He instead notarized affidavits of cohabitation and issued them to the contracting parties. He notarized these affidavits on the day of the parties’ marriage. Legal capacity of the parties to marry 1. AGE Absence of the additional requirement of parental advice ESSENTIAL REQUISITES OF A VALID MARRIAGE (1996, 2009, BAR) 1. Lack of legal impediment to marry The legal impediments which may affect legal capacity are those mentioned in Articles 37 and 38 of the Family Code. Thus, the contracting parties are not legally capacitated to marry each other. STATUS OF MARRIAGES I. II. III. Sex – between a male and a female Age – at least 18 years of age The attainment of the required minimum age for marriage should be reckoned, not on the date of filing of the application for issuance of a marriage license, but on the date of the marriage. Pursuant to Article 6 of the Family Code, parties may contract marriage on the date of the solemnization of the marriage, i.e., when they appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. (Rabuya, 2009) Was Judge Rojo’s notarization of affidavits of cohabitations proper? A: NO. Judge Rojo is guilty for violating the Code of Judicial Conduct and for gross ignorance of the law. As a solemnizing officer, the judge’s only duty involving the affidavit of cohabitation is to examine whether the parties have indeed lived 43 Civil Law together for at least five years without legal impediment to marry. The guidelines do not state that the judge can notarize the parties’ affidavit of cohabitation. Affidavits of cohabitation are documents not connected with the judge’s official function and duty to solemnize marriages. Notarizing affidavits of cohabitation is inconsistent with the duty to examine the parties’ requirements for marriage. If the solemnizing officer notarized the affidavit of cohabitation, he cannot objectively examine and review the affidavit’s statements before performing the marriage ceremony. (Rex M. Tupal v. Judge Remegio V. Rojo, A.M. NO. MTJ-141842, February 24, 2014, as penned by J. Leonen) 1. MARRIAGE CEREMONY That which takes place with the: 1. Personal appearance of the contracting parties before the solemnizing officer; NOTE: There is no marriage ceremony if what transpired was a mere private act of signing a marriage contract by the contracting parties, without the presence of the solemnizing officer. (Morigo v. People, G.R. No. 145226, February 6, 2004) 2. Their personal declaration that they shall take each other as husband and wife; and FORMAL REQUISITES OF A VALID MARRIAGE (C-A-L) (1996, 2009 BAR) 3. In the presence of not less than 2 witnesses of legal age. 1. 2. 3. No particular form of ceremony or religious rite for solemnization of the marriage is required by law. (FC, Art. 6) Marriage Ceremony; Authority of the solemnizing officer; Valid marriage License, except in a marriage of exceptional character. (FC, Art. 3) The declaration of consent need not be vocally expressed. It can be shown by other manifestations or signs of approval and consent. It is the agreement itself, and not the form in which it is couched, which constitutes the contract. (Sta. Maria, 2010) EFFECT OF ABSENCE OF REQUISITES Effect in the status of marriage (1995, 1996, 1999, 2008 BAR) Status of Marriage in case of: 1. 2. Common-law marriages are not recognized in the Philippines Absence of any of the essential requisites Void ab initio. (FC, Art. 4) A common-law marriage, otherwise referred to as a live-in relationship, is one where the man and the woman just live together as husband and wife without getting married. (Paras, 2016) This form of marriage is not recognized in the Philippines. Absence of any of the formal requisites – Void ab initio. (FC, Art. 4) XPNs: Valid even in the absence of formal requisite: a. b. 3. 4. Validity of marriage by proxy Marriages exempt from license requirement Either or both parties believed in good faith that the solemnizing officer had the proper authority [FC, Art. 35 (2)]. It depends on the place of celebration of the marriage: 1. Defect in any of the essential requisites – Voidable. (FC, Art. 4) Philippine laws prohibit marriages by proxy. Since the marriage is performed in the Philippines, Philippine laws shall apply following the principle of lex loci celebrationis. Irregularity in any of the formal requisites Valid, but the party responsible for such irregularity shall be civilly, criminally or administratively liable. (FC, Art. 4) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES If performed in the Philippines – No, it is not allowed, hence the marriage is void. 44 Marriage under the Family Code 2. If performed abroad – Whether it is allowed or not depends upon the law of the place where the marriage was celebrated (lex loci celebrationis). (FC, Art. 10) d. Mayors (LGC, Arts. 444 and 445) – including “Acting Mayor” As to marriages between Filipinos - all marriages solemnized outside the Philippines, in accordance with the laws enforced in said country where they are solemnized, and valid there as such, shall also be valid here in the country, except those prohibited under Art. 35 (1), (2), (4), (5), (6), 36, 37 and 38 (FC, Art. 26). NOTE: From the time of the effectivity of the Family Code (August 3, 1988) up to the time of the effectivity of the Local Government Code (January 1, 1992), mayors do not have the authority to solemnize marriage. 2. Marriages in articulo mortis: 2. SOLEMNIZING AUTHORITY a. Persons authorized to solemnize marriage (1994 1995, 1999 BAR) Provided the marriage is performed: i. The following are the persons authorized to solemnize marriage depending upon the circumstances: ii. 1. Under ordinary circumstances (FC, Art. 7): a. b. Military commander of a unit who is a commissioned officer – provided the marriage is performed (FC, Art. 32): Provided, it is within the court’s jurisdiction NOTE: Where a judge solemnized a marriage outside his court’s jurisdiction, this is a mere irregularity in the formal requisite, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability. (Rabuya, 2009) i. ii. iii. c. ii. Provided at least one of the parties belongs to such church or religious sect. The solemnizing officer in a marriage in articulo mortis after solemnizing such marriage shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths, that the marriage was performed in articulo mortis and that he took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage. (FC, Art. 29) NOTE: If any of the listed solemnizing officers fails to comply with any of the requisites mandated by law for them to validly solemnize a marriage, the marriage is generally void, based on the ground of an absence of a formal requisite (authority of solemnizing officer) Consul general, consul or vice-consul i. In absence of chaplain; Within zone of military operation; Between members of the armed forces or civilians. Duty of the solemnizing officer in a marriage in articulo mortis b. Priest, rabbi, imam or minister of any church/religious sector duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect During voyage, even during stopovers Between passengers or crew members. (FC, Art. 31) Such authority may be exercised not only while the ship is at sea or the plane is in flight but also during stopovers at ports of call. (Rabuya, 2018) Incumbent judiciary member – i. Ship captain or airplane chief – Provided both parties are Filipinos and marriage takes place abroad in the country where the consul holds office. 45 Civil Law XPN: Unless such marriage was contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so. (FC, Art. 35(a)) be solemnized by, among others, "any incumbent member of the judiciary within the court's jurisdiction." Art. 8, which is a directory provision, refers only to the venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing officer as provided in the preceding provision. If there is defect in such requirement, the same would not make the marriage void, but it merely subjects the officer to criminal, civil, or administrative responsibility. (Navarro v. Domagtoy, A.M. No. MTJ-96- 1088, July 19, 1996) Effect of solemnizing officer’s failure to execute an affidavit It will have no effect as to the validity of the marriage. The marriage will still be valid. The local civil registrar is given the original of the affidavit which takes the place of a marriage license. (Paras, 2016) NOTE: In case of a marriage solemnized by a mayor outside of his territorial jurisdiction, LGC is silent on the matter, hence the abovementioned case may be applied by analogy. Such affidavit is not an essential or formal requisite of marriage, the same with a Marriage Contract. The signing of the marriage contract and the affidavit is only required for the purpose of evidencing the act, not a requisite of marriage. It is the obligation of the solemnizing officer. It does not affect the validity of marriage. (De Loria v. Felix, G.R. No. L-9005, June 20, 1958) Exception to the rule requiring authority of the solemnizing officer The exception to the rule requiring authority of the solemnizing officer is when a marriage is contracted with either or both parties believing in good faith that the solemnizing officer had the authority to do so. [FC, Art. 35 (2)] Authorized venues of marriage GR: Must be solemnized publicly within the jurisdiction of the authority of the solemnizing officer: 1. 2. 3. 3. MARRIAGE LICENSE A marriage license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. Chambers of the judge or in open court; Church, chapel or temple; or, Office of the consul-general, consul or viceconsul. (FC, Art. 8) XPNs: 1. Marriage at the point of death; 2. Marriage in remote places; 3. Marriage at a house or place designated by both of the parties with the written request to the solemnizing officer to that effect. (FC, Art. 8) The requirement and issuance of marriage license is the State’s demonstration of its involvement and participation in every marriage. (Rabuya, 2018) What is required is the marriage license, not the marriage certificate. The latter is not an essential or formal requisite; thus, an oral solemnization is valid. In fact, a marriage may be proved by oral evidence. (Paras, 2016) NOTE: This provision is only directory, not mandatory. The requirement that the marriage be solemnized in a particular venue or a public place is not an essential requisite for the validity of the marriage. Validity of marriage license A marriage solemnized by a judge outside of his jurisdiction is valid The license shall be valid in any part of the Philippines for a period of 120 days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. (FC, Art. 20) Under Art. 3 of the FC, one of the formal requisites of marriage is the "authority of the solemnizing officer." Under Art. 7, marriage may UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 46 Marriage under the Family Code If the parties contracted marriage after the lapse of 120 days from the issuance of the marriage license, such marriage shall be considered void for lack of marriage license. 5. If previously married, how, when and where the previous marriage was dissolved or annulled; 6. Present residence and citizenship; 7. Degree of relationship of the contracting parties; 8. Full name, residence and citizenship of the father; 9. Full name, residence and citizenship of the mother; and 10. Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. (FC, Art. 11) NOTE: Issuance of a marriage license in a city or municipality, not the residence of either of the contracting parties, and the issuance of a marriage license despite the absence of the 10day period for publication are considered mere irregularities that DO NOT affect the validity of the marriage. An irregularity in any of the formal requisites of marriage does not affect its validity but the parties are civilly, criminally and administratively liable. (Alcantara v. Alcantara, G.R. No. 167746, August 28, 2007) FOREIGN NATIONAL Status of marriages celebrated during the suspension of the issuance of marriage license Additional requirement for foreign national applicants The status of the marriage if the parties get married within the said 3-month period depends: 1. 2. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. If the parties did not obtain a marriage license – the marriage shall be void for lack of marriage license. Stateless persons or refugees from other country shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (FC, Art. 21) If the parties were able to obtain a marriage license – the marriage shall be valid without prejudice to the actions that may be taken against the guilty party. Marriage without the required certificate of legal capacity to marry is valid Persons authorized to issue the marriage license Obtaining a marriage license in a place other than where either party habitually resides is a mere irregularity. The status of the marriage celebrated on the basis of a license issued without the required Certificate of Legal Capacity is valid as this is merely an irregularity in complying with a formal requirement of the law in procuring a marriage license, which will not affect the validity of the marriage. (Garcia v. Recio, G.R. No. 138322, October 2, 2001) Requirement in the application for marriage license EXCEPTIONS TO MARRIAGE LICENSE REQUIREMENT The marriage license is issued by the local civil registrar of the city or municipality where either contracting party habitually resides. (FC, Art. 9) Each of the contracting parties is required to file separately a sworn application for the issuance of marriage license, specifying the following: 1. 2. 3. 4. Marriages exempt from requirement (MARCO) 1. Full name of the contracting party; Place of birth; Age and date of birth; Civil status; 47 the license Marriages among Muslims or members of ethnic cultural communities – Provided they are solemnized in accordance with their customs, rites or practices (FC, Art. 33); Civil Law 2. 3. Marriages in Articulo mortis a. In case either or both of the contracting parties are at the point of death (FC, Art. 27); b. Solemnized by a ship captain or airplane pilot (FC, Art. 31); and c. Within zones of military operation. (FC, Art. 32) Marriages in Remote places. (FC, Art. 28) 3. Fact of absence of legal impediment must be present at the time of the marriage. 4. Parties must execute an Affidavit that they are living together as husband and wife for 5 years and that they do not have any impediment to marry. 5. Solemnizing officer must execute a Sworn statement that he had ascertained the qualifications of the parties and found no legal impediment to their marriage. (Manzano v. Sanchez, A.M. No. MTJ-001329, March 8, 2001) Remote Place - no means of transportation to enable the party to personally appear before the local civil registrar. (Rabuya, 2018) 4. Marriages between parties Cohabiting for at least 5 years and without legal impediment to marry each other (FC, Art. 34); and 5. Marriages solemnized Outside the Philippines where no marriage license is required by the country where it was solemnized. Q: Pepito was married to Teodulfa. Teodulfa was shot by him resulting in her death. After 1 year and 8 months, he married Norma without any marriage license. In lieu thereof, they executed an affidavit stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license. a. What is the status of their marriage? b. Would your answer be the same if Pepito was separated in fact from Teodulfa? Requisites for the 5-year cohabitation as an exception to the marriage license requirement (2002, 2008 BAR) A: a. The marriage is void for lack of marriage license. To be exempt from the license requirement under the 5-year cohabitation rule, the cohabitation should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract and is characterized by continuity, that is, unbroken, and exclusivity, meaning no third party was involved at any time within the 5 years. It should be a period of legal union had it not been for the absence of the marriage. In this case, Pepito and Norma are not exempt from the marriage license requirement because at the time of Pepito and Norma's marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day because from the time Pepito's first marriage was dissolved to the time of his marriage with Norma, only about twenty months had elapsed. The requisites are: 1. Living together as husband and wife at least 5 years before the marriage. The 5-year period must be characterized by: a. Exclusivity – the partners must live together exclusively, with no other partners, during the whole 5-year period. b. Continuity – such cohabitation was unbroken. NOTE: The period is counted from the date of celebration of marriage. It should be the years immediately before the day of the marriage. 2. No legal impediment to marry each other During the period of cohabitation. b. NOTE: The five-year period of cohabitation must have been a period of legal union had it not been for the absence of marriage. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 48 YES. The marriage is still void. Even if they were separated in fact, and thereafter both Pepito and Norma had started living with each other that has already lasted for five years, the fact remains that Pepito had a Marriage under the Family Code subsisting marriage at the time when he started cohabiting with Norma. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife". (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000) of Marriage Requisite Authorization by the state to celebrate marriage. Formal Best evidence of the existence of the marriage. Neither of EFFECT OF MARRIAGE CELEBRATED ABROAD AND FOREIGN DIVORCE Rules governing the validity of marriage (2002, 2004, 2006, 2009, 2010 BAR) 1. As to its extrinsic validity – Lex loci celebrationis NOTE: Locus regit actum (the act is governed by the law of the place where it is done) - is adhered to here in the Philippines as regards the extrinsic validity of marriage. Marriage license vs. Marriage certificate Nature nor Although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage took place. (Vda.De la Rosa v. Heirs of Vda. De Damian, G.R. No. 103028, October 10, 1997) MARRIAGE CERTIFICATE MARRIAGE CERTIFICATE essential formal requisite marriage. A: They are presumed to be married. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrimonio – always presume marriage. (Vda.De la Rosa v. Heirs of Vda. De Damian, G.R. No. 103028, October 10, 1997) A: NO, the marriage is void because there was no marriage license. Their marriage was not exempt from the requisite of a marriage license because Roderick and Faye have not been cohabiting for at least 5 continuous years before the celebration of their marriage. Their lovers’ trysts and brief visitations did not amount to “cohabitation.” MARRIAGE LICENSE of Q: Guillermo and Josefa lived together as husband and wife, but there is doubt as to whether they got married, since no record of the marriage existed in the civil registry but their relatives and friends maintained that the two in fact married each other and lived as husband and wife for more than half a century. Is Guillermo married to Josefa? Q: Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16 years old, they started living together as husband and wife without the benefit of marriage. When Faye reached 18 years of age, her parents forcibly took her back and arranged for her marriage to Brad. Although Faye lived with Brad after the marriage, Roderick continued to regularly visit Faye while Brad was away at work. During their marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad discovered her continued liaison with Roderick and in one of their heated arguments, Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a marriage license, claiming that they have been continuously cohabiting for more than 5 years. Was the marriage of Roderick and Faye valid? (2008 BAR) BASIS requisite marriage. 2. As to its intrinsic validity – Personal law NOTE: Personal law may either be the national law or the law of the place where the person is domiciled. If the person involved is a stateless person, domiciliary rule applies, otherwise, lex nationalii applies. 49 Civil Law The 1st paragraph of Article 26 of the Family Code (FC) on the validity of foreign marriages applies, however, only to Filipinos. Foreign marriages of foreigners or of a Filipino and a foreigner are governed by the Rules on Conflict of Laws. (Sempio-Diy, 1995) without a husband or wife. Divorces obtained abroad by Filipino citizens may now be validly recognized in the Philippines but only in cases of mixed marriages involving a Filipino and a Foreigner. (Republic of the Philippines V. Marelyn Tanedo Manalo, G.R. No. 221029, April 24, 2018) Marriages between Filipinos solemnized abroad in accordance with the law in force in said country 3. GR: Marriages between Filipinos solemnized outside the Philippines in accordance with the law of the foreign country where it is celebrated, if valid there, shall be valid here as such. Q: Suppose in a valid mixed marriage the foreign spouse obtained a divorce decree abroad and was capacitated to remarry. XPNs: It shall be void, even if it is valid in the foreign country where the marriage was celebrated, if any of the following circumstances are present: a. May the Filipino spouse remarry despite the fact that divorce is not valid in the Philippines? b. Will your answer be the same if it was a valid marriage between Filipinos? 1. Lack of legal capacity even with parental consent (e.g. party is below 18); 2. Incestuous; 3. Contracted through Mistake of one party as to the identity of the other; 4. Contracted following the annulment or declaration of nullity of a previous marriage but Before partition, etc.; 5. Bigamous or polygamous except as provided in Art. 41 FC on terminable bigamous marriages; 6. Void due to Psychological incapacity; 7. Void for reasons of Public policy. A: a. 2. The existence of the pertinent provision of the foreign marriage law. The celebration or performance of the marriage in accordance of said law. Requirements for the application of par. 2 of Art. 26 of the Family Code b. 1. 2. It must be a case of mixed marriage (one party is Filipino and the other is an alien); The divorce must be obtained by the alien spouse and not by the Filipino spouse; and NOTE: Whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES YES. The Filipino spouse may remarry. Divorce validly obtained abroad by the alien spouse capacitating him/her to remarry will likewise allow the Filipino spouse to remarry. (FC, Art. 26, 2nd par.) NOTE: Under the nationality principle embodied in Art. 16 of the NCC, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. Nevertheless, aliens may obtain divorces abroad which may be recognized in the Philippines, provided they are valid according to their national law. (Van Dorn v. Romillo, Jr., G.R. No. L- 68470, October 8, 1985) Requirements to prove a foreign marriage 1. The divorce obtained by the alien spouse must capacitate him or her to remarry. (Rabuya, 2018) 50 It depends. What is material in this case is the citizenship of the spouse who obtained a divorce decree abroad at the time the decree was obtained and not their citizenship at the time the marriage was celebrated. If the Filipino spouse was naturalized as a citizen of a foreign country before he/she obtains a divorce decree and was thereafter capacitated to remarry, the Filipino spouse will be capacitated to remarry. (Republic v. Orbecido, G.R. No. 154380, Marriage under the Family Code October 5, 2005) decree from the Japanese Court. Will the Filipino spouse be capacitated to remarry under Philippine law? Q: A Filipina was married to an American who obtained a divorce decree in the U.S. When the Filipina came back to the Philippines and started her business, the American followed suit and wanted to enforce his rights over the Filipina to the extent of claiming his rights to administer the properties of the woman, contending that they are still married. He also claimed hereditary rights. Is he correct? Why? A: YES. Divorces obtained abroad by Filipino citizens may now be validly recognized in the Philippines but only in cases of mixed marriages involving a Filipino and a Foreigner. Provided, of course, that the party petitioning for the recognition of such foreign divorce decree – presumably the Filipino citizen – must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. (Republic of the Philippines V. Marelyn Tanedo Manalo, G.R. No. 221029, April 24, 2018) A: NO. The divorce in the U.S. released the Filipina from the marriage. Thus, pursuant to American law, he is no longer the husband of the Filipina. He would therefore have no standing to sue the Filipina. (Van Dorn v. Romillo, Jr., G.R. No. L-68470, October 8, 1985) Q: If a foreigner who was divorced seeks to obtain a marriage license in the Philippines, what should he do? Burden of proof in recognition of foreign divorce A: The applicant for marriage license has to prove his legal capacity. If the marriage was dissolved by reason of divorce, he has to file a sworn statement as to how the marriage was dissolved (FC, Art. 11) and furnish the local civil registrar with the judgment (FC, Art. 13) and must register the same with the local civil registrar to bind third persons. (FC, Art. 52) The naturalization of one of the parties, as well as the divorce decree obtained by him or her, must be proven as a fact under our rules on evidence. The foreign law under which the divorce was obtained must likewise be proven as our courts cannot take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. (Garcia v. Recio, G.R. No. 138322, October 2, 2002) NOTE: Without the divorce decree and foreign law as part of the evidence, the Court cannot rule on the issue of whether petitioner has the personality to file the petition for declaration of nullity of marriage. After all, petitioner may have the personality to file the petition, but the divorce decree obtained was a limited divorce or a mensa et thoro or the foreign law may restrict remarriage even after the divorce decree becomes absolute. (Garcia v. Recio, G.R. No. 138322, October 2, 2002) However, if the Filipino spouse remained to be a citizen of the Philippines when he/she obtained a divorce decree abroad, such decree will not be recognized in the Philippines even if that spouse is subsequently naturalized as a citizen of a foreign country because at the time the spouse obtained the divorce decree, he/she was still a citizen of the Philippines and being naturalized afterwards does not cure this defect. (Republic v. Iyoy, G.R. No. 152577, September 21, 2005) Q: Luzviminda was married to Ryoji Morisono in Quezon City on December 8, 2009. Thereafter, they lived together in Japan for 1 year and 3 months but were not blessed with a child. During their married life, they would quarrel mainly due to Ryoji’s philandering ways, in addition to the fact that he was much older than Luzviminda. As such, the two of them submitted a “Divorce by Agreement” before the City Hall of Mizuho-ku in Nagoya, Japan, which was approved and duly recorded. In view of this, Luzviminda filed a petition for recognition of foreign divorce decree obtained by her and Ryoji As enunciated in the case of Republic vs. Manalo where the Supreme Court laid down a landmark ruling that allows Filipino Citizens to obtain a foreign divorce as long as such marriage is a mixed marriage involving a Filipino and a Foreigner. Q: A Filipino citizen was married to a Japanese national. She divorced her husband in Japan and was able to obtain a divorce 51 Civil Law before the RTC so that she could cancel the surname of her husband and be able to marry again. II. Marriages that are void ab initio (1993, 2004, 2005, 2006 BAR) The RTC denied Luzviminda’s petition, holding that while a divorce decree held that while a divorce obtained abroad by an alien spouse may be recognized in the Philippines – provided that such decree is valid according to the national law of the alien – the same does not find application when it was the Filipino spouse, i.e., petitioner, who procured the same. Invoking the nationality principle provided under Article 15 of the Civil Code, in relation to Article 26 (2) of the Family Code, the RTC opined that since petitioner is a Filipino citizen whose national laws do not allow divorce, the foreign divorce decree she herself obtained in Japan is not binding in the Philippines. Did the RTC correctly deny Luzviminda’s petition for recognition of divorce decree she procured? 1. Solemnized without License, except those marriages that are exempt from the license requirement; 2. Absence of any of the essential or formal requisites of marriage; 3. Solemnized by any person not legally Authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; 4. Contracted through Mistake of one of the contracting parties as to the identity of the other; 5. Bigamous or polygamous marriages not falling under Article 41 of the Family Code or those allowed under special laws such as the Muslim Code; 6. Marriages contracted by any party below 18 years of age even with the consent of parents or guardians; 7. Marriages contracted by any party, who at the time of the celebration of the marriage, was Psychologically incapacitated, even if such incapacity becomes manifest only after its solemnization (FC, Art. 36); 8. Incestuous Marriages (FC, Art. 37); 9. Marriages declared void because they are contrary to Public policy (FC, Art. 38); 10. Subsequent marriages which are void under Art. 53; 11. Marriages in jest; and A: NO. It had been ruled in Republic vs. Manalo that foreign divorce decrees obtained to nullify marriages between a Filipino and an alien citizen may already be recognized in this jurisdiction, regardless of who between the spouses initiated the divorce; provided, of course, that the party petitioning for the recognition of such foreign divorce decree – presumably the Filipino citizen – must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. A plain reading of the RTC ruling shows that the denial of Luzviminda's petition to have her foreign divorce decree recognized in this jurisdiction was anchored on the sole ground that she admittedly initiated the divorce proceedings which she, as a Filipino citizen, was not allowed to do. “Marriages in jest is a pretended one, legal in form but entered as a joke, with no real intentions of entering into the actual marriage status, and with a clear understanding that the parties would not be bound (Republic of the Philippines v. Albios, G.R. No. 198780, October 16, 2013); and In light of the doctrine laid down in Manalo, such ground relied upon by the RTC had been rendered nugatory. However, the Court cannot just order the grant of Luzviminda's petition for recognition of the foreign divorce decree, as Luzviminda has yet to prove the fact of her. "Divorce by Agreement" obtained in Nagoya City, Japan and its conformity with prevailing Japanese laws on divorce. Notably, the RTC did not rule on such issues. Since these are questions which require an examination of various factual matters, a remand to the court a quo is warranted. (Morisono v. Morisono, G.R. No. 226013, July 2, 2018) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES VOID MARRIAGES 12. Common-law marriages. 1. ABSENCE OF ANY ESSENTIAL OR FORMAL REQUISITES OF MARRIAGE Marriage between Filipinos who are of the same sex is VOID For a marriage to be valid, it must be between 52 Marriage under the Family Code persons of opposite sexes. b. Although gay marriages are definitely not covered within the purview of Article 2 of the Family Code, the emerging issue of transsexuals and intersexual gender identities have called the attention of the Supreme Court in the cases of Silverio v. Republic (G.R. No. 174689, October 22, 2007) and Republic v. Cagandahan (G.R. No. 166676, September 125, 2008), respectively. (Sta. Maria, 2010) YES. Although voidable marriage, their marriage could be ratified by free cohabitation. Under Article 45(1) of the Family Code, such marriage may be ratified by the cohabitation of the contracting parties (after attaining the age of twentyone) as husband and wife. Q: In case of a change in sex, can the person who has undergone said change be allowed to marry another of the same sex as he/she originally had? (2014 BAR) Q: Sidley and Sol were married with one (1) daughter, Solenn. Sedfrey and Sonia were another couple with one son, Sonny. Sol and Sedfrey both perished in the same plane accident. Sidley and Sonia met when the families of those who died sued the airlines and went through grief-counseling sessions. Years later, Sidney and Sonia got married. At that time, Solenn was four (4) years old and Sonny was five (5) years old. These two (2) were then brought up in the same household. Fifteen (15) years later, Solenn and Sonny developed romantic feelings towards each other, and eventually eloped. On their own and against their parents’ wishes, they procured a marriage license and got married in church. A: It depends upon the cause for the change in sex. 1. If the change is artificial – No, he/she cannot. The sex or gender at the time of birth shall be taken into account. He is still, in the eyes of the law, a man although because of the artificial intervention, he now has the physiological characteristics of a woman. (Silverio v. Republic, G.R. No. 174689, October 22, 2007) 2. a. Is the marriage of Solenn and Sonny valid, voidable or void? b. If the marriage is defective, can the marriage be ratified by the free cohabitation of the spouses? (2018 BAR) If the change is natural – He/she can. Ex. Hermaphrodite, Congenital Adrenal Hyperplasia Q: Jennifer was registered as a female in her Certificate of Live Birth. In her early years, she suffered from clitoral hypertrophy and was found out that her ovarian structures had minimized. She also alleged that she has no breasts or menstruation. She was diagnosed to have Congenital Adrenal Hyperplasia (CAH), a condition where persons thus afflicted possess secondary male characteristics because of too much secretion of androgen. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. What is Jennifer’s gender or sex? A: a. The marriage is voidable. Under Article 14 of the Family Code, if a party to the marriage is between the ages of eighteen and twentyone; the consent of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned, is an additional requirement. In the absence of such parental consent, the consent given by the party between the ages of eighteen and twenty-one is considered defective. Also, under Article 4 of the Family Code, a defect in the essential requisites of marriage renders the marriage voidable. In this case, Solenn and Sonny are nineteen and twenty years old respectively during the time of the celebration of their marriage. Thus, the absence of parental consent renders the marriage of Solenn and Sonny voidable. A: MALE. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason thinks of his/her sex. Jennifer here thinks of himself as a male and considering that his body produces high levels of androgen, there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons 53 Civil Law makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed. (Republic v. Jennifer Cagandahan, G.R. No. 166676, September 12, 2008) are below 18 years of age is VOID Q: Gallo has never been known as “Michael Soriano Gallo.” She has always been female. It was stated in her petition before the Regional Trial Court that her Certificate of Live Birth contained errors which should be corrected. For her, she was not changing the name that was given to her; she was merely correcting its entry. To accurately reflect these facts in her documents, Gallo prayed before the Regional Trial Court of Ilagan City, Isabela in for the correction of her name from "Michael" to "Michelle" and of her biological sex from "Male" to "Female" under Rule 108 of the Rules of Court. In addition, Gallo asked for the inclusion of her middle name, "Soriano;" her mother's middle name, "Angangan;" her father's middle name, "Balingao;" and her parent's marriage date, May 23, 1981, in her Certificate of Live Birth, as these were not recorded. Does Gallo’s petition involve substantive changes? Validity of the marriage if it is a mixed marriage where the Filipino is 18 years old but the foreigner is below 17 years of age Such marriage is void for lack of legal capacity even if the parents consented to such marriage. (Sempio-Dy, 1995) If the national law of the foreigner recognizes 17-year-old person to be capacitated to marry, then their marriage is valid, otherwise it is void. Effect of lack of authority of solemnizing officer GR: The marriage is void ab initio. XPNs: 1. Express- If either or both parties believed in good faith that the solemnizing officer had the legal authority to do so. (FC, Art. 35) 2. Implied - Article 10 in relation to Article 26 of the Family Code. If the marriage between a foreigner and a Filipino citizen abroad solemnized by a Philippine consul assigned in that country is recognized as valid in the host country, such marriage shall be considered as valid in the Philippines. (Sta. Maria, 2010) A: NO. Gallo is not filing the petition to change her current appellation. She is merely correcting the misspelling of her name. To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something with something else of the same kind or with something that serves as a substitute. Gallo is not attempting to replace her current appellation. She is merely correcting the misspelling of her given name. "Michelle" could easily be misspelled as "Michael," especially since the first four (4) letters of these two (2) names are exactly the same. The differences only pertain to an additional letter "a" in "Michael," and "le" at the end of "Michelle." "Michelle" and "Michael" may also be vocalized similarly, considering the possibility of different accents or intonations of different people. In any case, Gallo does not seek to be known by a different appellation. The lower courts have determined that she has been known as "Michelle" all throughout her life. She is merely seeking to correct her records to conform to her true given name. (Republic of the Philippines vs. Michelle Soriano Gallo, G.R. No. 207074, January 17, 2018, as penned by J. Leonen) Q: Judge Palaypayon solemnized marriages even without the requisite of marriage license. Thus, some couples were able to get married by the simple expedient of paying the marriage fees. As a consequence, their marriage contracts did not reflect any marriage license number. In addition, the judge did not sign their marriage contracts and did not indicate the date of the solemnization, the reason being that he allegedly had to wait for the marriage license to be submitted by the parties. Such marriage contracts were not filed with the Local Civil Registry. Are such marriages valid? A: NO. A valid marriage license is necessary for the validity of marriage, except in the cases provided for therein. The absence of any of the essential or formal requisites shall generally render the marriage void ab initio. (Cosca v. Palaypayon, A.M. No. MTJ-92-721, September 30, 1994) Marriage where one or both of the parties UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Mistake to render the marriage void 54 Marriage under the Family Code For marriage to be rendered void, the mistake in identity must be with reference to the actual physical identity of other party, not merely a mistake in the name, personal qualifications, character, social standing, etc. (Rabuya, 2018) obligations, from remaining in that sacred bond. Article 36, in classifying marriages contracted by a psychologically incapacitated person as a nullity, should be deemed as an implement of this constitutional protection of marriage. Given the avowed State interest in promoting marriage as the foundation of the family, which in turn serves as the foundation of the nation, there is a corresponding interest for the State to defend against marriages ill-equipped to promote family life. (Kalaw v. Fernandez, G.R. No. 166357, January 14, 2015) 2. PSYCHOLOGICAL INCAPACITY Psychological incapacity is “no less than a mental (not physical) incapacity that causes a party to be truly (cognitive) of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which include their mutual obligations to live together, observe love, respect, fidelity, and to render help and support”. (Republic of the Philippines v. Iyoy, G.R. No. 152577, September 21, 2005) Determination of psychological incapacity is left solely with the courts on a case- to-case basis Every court should approach the issue of nullity “not on the basis of a priori assumptions, predilections or generalizations, but according to its own facts” in recognition of the verity that no case would be on “all fours” with the next one in the field of psychological incapacity as a ground for the nullity of marriage; hence, every “trial judge must take pains in examining the factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court. Psychological incapacity does not refer to mental incapacity tantamount to insanity. (Paras, 2016) Clearly, the ground is restricted to psychological incapacity to “comply with the essential marital obligations”. (Sta. Maria, 2010) In such case, the spouse declared to be psychologically incapacitated cannot be held liable to pay moral damages to the other spouse based on Articles 2217 and 21 of the NCC, which connotes willfulness of the acts complained of, if the same acts constitutive of the psychological incapacity were to be made the basis for the award of moral damages. It is contradictory to characterize acts as a product of psychological incapacity, and hence beyond the control of the party because of an innate inability, while at the same time considering the same set of acts as willful. (Rabuya, 2018) By the very nature of Article 36 of the Family Code, courts, despite having the primary task and burden of decision- making, must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties. (Kalaw v. Fernandez, G.R. No. 166357, January 15, 2015) Requisites of Psychological Incapacity (1996, 1997, 2002, 2006 BAR) Constitutional provision on marriage vis-àvis validity of declarations of nullity of marriage based on psychological incapacity Q: Does the grant of the petition for the declaration of nullity of marriage based on Art. 36 of the FC destroy the constitutional mandate to protect the sanctity of marriage and promoting such marriage as a foundation of the family? A: NO. In dissolving marital bonds, the Court is not demolishing the foundation of families, but it is actually protecting the sanctity of marriage, because it refuses to allow a person afflicted with a psychological disorder, who cannot comply with or assume the essential marital 1. Juridical antecedence– Must be rooted in the history of the party antedating the marriage, although overt manifestations may arise only after such marriage. 2. Gravity – grave enough to bring about the disability of the party to assume the essential marital obligations. 3. Permanence or Incurability – must be incurable or, if curable, the cure should be beyond the means of the parties involved. Proof of Psychological Incapacity The root cause of psychological incapacity must 55 Civil Law be: 1. 2. 3. 4. 7. Medically or clinically identified; Alleged in the complaint; Sufficiently proven by experts; and Clearly explained in the decision. 8. NOTE: Expert evidence may be given by qualified psychiatrists and clinical psychologists. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. (Republic of the Philippines v. Court of Appeals and Molina, G.R. No. 108763, February 13, 1997; Danilo A. Aurelio v. Vide Ma. Corazon P. Aurelio, G.R. No. 175367, June 6, 2011) The physician’s examination is not required in establishing psychological incapacity as ground for declaration of nullity If the totality of evidence presented is enough to sustain a finding of psychological incapacity, physician’s examination of the person concerned need not be resorted to. (Marcos v. Marcos, G.R. No. 136490, October 19, 2000; Glenn Viñas v. Mary Grace Parel-Viñas, G.R. No. 208790, January 21, 2015) NOTE: In Republic v. Quintero-Hamano, the SC held that these guidelines may not be relaxed just because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The norms used for determining psychological incapacity should apply to any person regardless of nationality because the rules were formulated on the basis of studies of human behavior in general. (Rabuya, 2018) Guidelines set by the Court to aid it in its disposition of cases involving psychological incapacity In the landmark case of Republic of the Philippines v. Court of Appeals and Molina, the Supreme Court enumerated the following guidelines in invoking and proving psychological incapacity under Article 36 of the Family Code: 1. 2. 3. 4. 5. 6. In Marcos v. Marcos, the Supreme Court held categorically that psychological incapacity “may be established by the totality of evidence presented” and that “there is no requirement that the respondent should be examined by a physician or a psychologist as a condition sine qua non for such declaration.” (Marcos v. Marcos, G.R. No. 136490, October 19, 2000) Burden of proof to show the nullity of the marriage belongs to the plaintiff; The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision; The incapacity must be proven to be existing at “the time of the celebration” of the marriage; Such incapacity must also be shown to be medically or clinically permanent or incurable; Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage; The essential marital obligations must be those embraced by Arts. 68 up to 71 of the FC as regards the husband and wife, as well as Arts. 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES decision; Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts; The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. Instances where allegations of psychological incapacity were not sustained 1. Mere showing of irreconcilable differences and conflicting personalities. (CaratingSiayngco v. Siayngco, G.R. No. 158896, October 27, 2004) NOTE: Mere sexual infidelity or perversion, emotional immaturity and irresponsibility and the like, do not by themselves warrant a finding of psychological incapacity as the same may only be due to a person's refusal or unwillingness to assume the essential obligations of marriage. (Castillo v. Republic of the Philippines, G.R. No. 214064, February 56 Marriage under the Family Code 6, 2017) this case. Article 36 of the Family Code must not be so strictly and too literally read and applied given the intendment of the drafter to adopt its enacted version of “less specificity” obviously to enable “some resiliency in its application.” Despite having the primary task and burden of decision-making, courts must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties. The long-term effects of the respondent’s obsessive mahjong playing surely impacted her family life particularly on her very young children. Her willfully exposing her children to the culture of gambling on every occasion of her mahjong sessions was a very grave and serious act of subordinating their needs for parenting to the gratification of her own personal and escapist desires. The respondent revealed her wanton disregard for her children’s moral and mental development. This disregard violated her duty as a parent to safeguard and protect her children. (Kalaw v. Fernandez, G.R. No. 166357, January 14, 2015) It must be shown that these acts are manifestations of a disordered personality which would make respondent completely unable to discharge the essential obligations of a marital state, not merely youth, immaturity or sexual promiscuity. (Dedel v. CA, G.R. No. 151867, January 29, 2004) 2. Disagreements regarding money matters. (Tongol v. Tongol, G.R. No. 157610, October 19, 2007) 3. Mere abandonment. To constitute psychological incapacity, it must be shown that the unfaithfulness and abandonment are manifestations of a disordered personality that completely prevented the erring spouse from discharging the essential marital obligations. (Republic of the Philippines v. Cesar Enselan, G.R. No. 170022, January 9, 2013) 4. Sexual infidelity (Republic v. Dagdag, G.R No. 109975, February 9, 2001) 5. Living an adulterous life when specific evidence was shown that promiscuity as a trait already existing at the inception of marriage. (Baccay v. Baccay, G.R. No. 173138, December 1, 2010) Q: Was the Molina doctrine abandoned by the recent ruling in the abovementioned case of Kalaw vs. Fernandez (G.R. No. 166357, January 14, 2015)? Q: A and B were married. They have four (4) children. A, the husband, had an affair with C, who gave birth to a child. After 12 years of marriage, B left the conjugal home and her 4 children with A. Now, A started living with C. Nine years since the de facto separation from B, A filed a petition for declaration of nullity of marriage based on Article 36 of the Family Code. A psychologist and a canon law expert testified that B, was indeed psychologically incapacitated alleging that she may reflect a narcissistic personality disorder with her sexual infidelity, habitual mahjong playing, and her frequent night-out with friends. They based their diagnosis on an interview with the family relative of B and statements made by their own son. Is the marriage of A and B void on the ground of psychological incapacity? A: NO. The Court in this case merely recognized the unintended consequences of strictly applying the standards set in Molina. The resiliency with which the concept (of psychological incapacity) should be applied and the case-to-case basis by which the provision should be interpreted, as so intended by its framers, had, somehow, been rendered ineffectual by the imposition of a set of strict standards in Molina. In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. The unintended consequences of Molina have taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic social institutions. Far from what was intended by the Court, Molina has become a straight-jacket, forcing all sizes to fit into and be bound by it. A: YES. The Court held that B was indeed psychologically incapacitated as they relaxed the previously set forth guidelines with regard to In the abovementioned case, the Supreme Court is not suggesting the abandonment of Molina. It simply declares that there is a need to 57 Civil Law emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. behavior considered [as] deviant from persons who abide by established norms of conduct." As for Natividad, Dr. Zalsos also observed that she lacked the willful cooperation of being a wife and a mother to her two daughters. On February 10, 1999, the Office of the Solicitor General (OSG), representing petitioner Republic of the Philippines (Republic), filed an opposition to the complaint, contending that the acts committed by Natividad did not demonstrate psychological incapacity as contemplated by law, but are mere grounds for legal separation under the Family Code. Should the marriage be dissolved? Q: Rodolfo and Natividad were married. On December 28, 1998, Rodolfo filed a verified complaint for declaration of nullity of marriage before the RTC alleging that Natividad was psychologically incapacitated to comply with her essential marital obligations. In support of his complaint, Rodolfo testified, among others, that he first met Natividad when they were students at the Barangay High School of Sindangan, and he was forced to marry her barely three (3) months into their courtship in light of her accidental pregnancy. At the time of their marriage, he was 21 years old, while Natividad was 18 years of age. He had no stable job and merely worked in the gambling cockpits as "kristo" and "bangkero sa hantak." When he decided to join and train with the army, Natividad left their conjugal home and sold their house without his consent. Thereafter, Natividad moved to Dipolog City where she lived with a certain Engineer Terez (Terez), and bore him a child named Julie Ann Terez. A: NO. "Psychological incapacity," as a ground to nullify a marriage under Article 36 of the Family Code, should refer to no less than a mental – not merely physical – incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68of the Family Code, among others, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. The RTC, as affirmed by the CA, heavily relied on the psychiatric evaluation report of Dr. Zalsos which does not, however, explain in reasonable detail how Natividad’s condition could be characterized as grave, deeply-rooted, and incurable within the parameters of psychological incapacity jurisprudence. Aside from failing to disclose the types of psychological tests which she administered on Natividad, Dr. Zalsos failed to identify in her report the root cause of Natividad's condition and to show that it existed at the time of the parties' marriage. Neither was the gravity or seriousness of Natividad's behavior in relation to her failure to perform the essential marital obligations sufficiently described in Dr. Zalsos's report. After cohabiting with Terez, Natividad contracted a second marriage on January 11, 1991 with another man named Antonio Mondarez and has lived since then with the latter in Cagayan de Oro City. From the time Natividad abandoned them in 1972, Rodolfo was left to take care of Ma. Reynilda and Ma. Rizza and he exerted earnest efforts to save their marriage which, however, proved futile because of Natividad’s psychological incapacity that appeared to be incurable. For her part, Natividad failed to file her answer, as well as appear during trial, despite service of summons. Nonetheless, she informed the court that she submitted herself for psychiatric examination to Dr. Cheryl T. Zalsos (Dr. Zalsos) in response to Rodolfo’s claims. Rodolfo also underwent the same examination. To hark back to what has been earlier discussed, psychological incapacity refers only to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. In the final analysis, the Court does not perceive a disorder of this nature to exist in the present case. Thus, for these reasons, coupled too with the recognition that marriage is an inviolable social institution and the foundation of the family, the instant petition is hereby granted. (Republic v. Gracia, G.R. No. 171557, In her two-page psychiatric evaluation report, Dr. Zalsos stated that both Rodolfo and Natividad were psychologically incapacitated to comply with the essential marital obligations, finding that both parties suffered from "utter emotional immaturity [which] is unusual and unacceptable UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 58 Marriage under the Family Code February 12, 2014) petition for declaration of nullity of marriage citing his psychological incapacity to comply with his essential marital obligations. The clinical psychologist submitted a report and testified that Reghis suffered from Obsessive Compulsive Personality Disorder (OCPD). This gave him a strong obsession for whatever endeavour he chooses, such as his work, to the exclusion of other responsibilities and duties such as those pertaining to his roles as father and husband. Dr. Basilio surmised that Reghis’ OCPD was the root of the couple’s disagreements and that the same is incurable. The Office of the Solicitor General (OSG), representing the Republic, opposed the petition. Should the marriage be declared null and void? Q: Rachel worked as a domestic helper in Hong Kong to provide for the needs of Jose, the love of her life. Eventually, the couple got married and settled in a house they acquired. The married life ran smoothly up until Rachel filed a petition for declaration of nullity of marriage. Her petition anchored on the ground that Jose was psychologically incapacitated to fulfill his essential marital obligations. She alleged that Jose was a violent man who used to physically abuse her. She added that Jose was a drunkard and always had sexual relations with different women aside from Rachel. On his part, Jose simply denied all the allegations in the petition. Is Jose psychologically incapacitated? A: NO. The requirements for psychological incapacity do not concur. Reghis’ testimony shows that he was able to comply with his marital obligations which, therefore, negates the existence of a grave and serious psychological incapacity on his part. Reghis admitted that he and Olivia lived together as husband and wife under one roof for fourteen (14) years and both of them contributed in purchasing their own house. Reghis also fulfilled his duty to support and take care of his family. Moreover, the OCPD which Reghis allegedly suffered from was not shown to have juridical antecedence. No specific behavior or habits during his adolescent years were shown which would explain his behavior during his marriage with Olivia. Dr. Basilio simply concluded that Reghis’ disorder is incurable but failed to explain how she came to such conclusion. Based on the appreciation of the RTC, Dr. Basilio did not discuss the concept of OCPD, its classification, cause, symptoms, and cure, and failed to show how and to what extent the respondent exhibited this disorder in order to create a necessary inference that Reghis’ condition had no definite treatment or is incurable. A: NO. For psychological incapacity to exist, it should refer to no less than a mental and not merely physical incapacity that causes a party to be truly incognitive of the basic marital covenants as provided for under Article 68 of the Family Code. In other words, it must be a malady that is so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. Also, following the case of Republic vs Molina, the totality of evidence must show that psychological incapacity exists, and its gravity, juridical antecedence, and incurability must be duly established. Here, there is no sufficient evidence to prove that psychological incapacity exists. Absent sufficient evidence, Courts are compelled to uphold the indissolubility of the marital tie. (Del Rosario v. Del Rosario, G.R. No. 222541, February 15, 2017) Q: Reghis and Olivia were married and were blessed with two (2) children. However, the couple experienced a turbulent and tumultuous marriage, often having violent fights and jealous fits. Reghis could not forgive Olivia for dragging him into marriage and resented her condescending attitude towards him. They became even more estranged when Reghis secured a job as a medical representative and became engrossed in his career and focused on supporting his parents and siblings. As a result, he spent little time with his family, causing Olivia to complain that Reghis failed to be a real husband to her. In 1986, the couple parted ways. Reghis then filed a Article 36 of the Family Code must not be confused with a divorce law that cuts the marital bond at the time the grounds for divorce manifest themselves; rather, it must be limited to cases where there is a downright incapacity or inability to assume and fulfill the basic marital obligations, not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse. (Republic v. Romero II, G.R. No. 209180, February 26, 2016) 59 Civil Law Q: 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, if existing at the inception of marriage? (2002 BAR) formalized their marital union through civil rites. As months passed, the communication between Gina and Marjune became less frequent until it ceased altogether. Thus, Gina filed a petition to declare her marriage with Marjune null and void on the basis of the latter's psychological incapacity. A: The state of being of unsound mind, the concealment of drug addiction, habitual alcoholism, lesbianism or homosexuality may be indicia of psychological incapacity, depending on the degree of severity of the disorder. However, the concealment of drug addiction, habitual alcoholism, lesbianism or homosexuality is a ground of annulment of marriage. (Santos v. CA, G.R. No. 112019, January 4, 1995) During trial, Gina presented the findings of Professor Emma Astudillo-Sanchez (Prof. Sanchez), the psychologist who conducted a psychological examination of the parties. She concluded that Gina and Marjune's personality disorders "affected their behaviors even before they contracted marriage and, in the presence of situational factors, became more evident during the time they were together during the marriage. Is upholding the annulment based on the expert opinion of the psychologist sufficient proof of the presence of psychological incapacity? Q: Art. 36 of the FC 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. a. b. c. d. e. A: NO. The said report failed to show that these traits existed prior to Gina's marriage and that her alleged personality disorder is incurable or that the cure is beyond her means. There was simply no discernible explanation on the juridical antecedence or incurability of Gina's supposed condition. More significantly, the relation of such condition to Gina's inability to perform her essential marital obligations was not sufficiently shown. To reiterate, the psychological condition ought to pertain to personality disorders that are grave and serious such that the party would be incapable of carrying out the ordinary duties required in a marriage. Unfortunately, the Case Analysis Report fails to demonstrate this crucial point. In determining the existence of psychological incapacity, a clear and understandable causation between the party's condition and the party's inability to perform the essential marital covenants must be shown A psychological report that is essentially comprised of mere platitudes, however speckled with technical jargon, would not cut the marriage tie. (Republic v. Tecag, G.R. No. 229272, November 19, 2018) Nagger Gay or Lesbian Congenital sexual pervert Gambler Alcoholic (2006 BAR) A: B and C. They may serve as indicia of psychological incapacity, depending on the degree and severity of the disorder. (Santos v. CA, G.R. No. 112019, January 4, 1995) If the condition of homosexuality, lesbianism or sexual perversion, existing at the inception of the marriage, is of such a degree as to prevent any form of sexual intimacy, any of them may qualify as a ground for psychological incapacity. The law provides that the husband and wife are obliged to live together, observe mutual love, respect and fidelity. (FC, Art. 68) More than just showing the manifestations of incapacity, the petitioner must show that the respondent is incapacitated to comply with the essential marital obligations of marriage and that it is also essential that he must be shown to be incapable of doing so due to some psychological, not physical illness. (Republic v. Quintero- Hamano, G.R. No. 149498, May 20, 2004) Q: Petitioner Maria Teresa and respondent Rodolfo De La Fuente, Jr. first met when they were students at UST before they became sweethearts. While they were still sweethearts, petitioner already noticed that respondent was an introvert and was prone to jealousy. She also observed that Q: After living together as husband and wife for two (2) years, Gina and Marjune UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 60 Marriage under the Family Code respondent appeared to have no ambition in life and felt insecure of his siblings, who excelled in their studies and careers. In June 1994, they got married in Mandaluyong City and had two children. Respondent’s attitude worsened and they went on with their marital life. His jealousy was so severe that he once poked a gun at his own 15-year old cousin who was staying at their house because he suspected his cousin of being petitioner’s lover. Void marriages by reason of public policy (1999, 2007, 2008 BAR) Marriages between: 1. 2. 3. NOTE: The prohibition under Nos. 2 and 3 applies even after the termination of the marriage, which is the very source of the relationship by affinity, regardless of the cause of such termination. In addition, respondent treated petitioner like a sex slave. They would have sex 4 or 5 times a day. At times, he would fetch respondent from her office during lunch break just so they could have sex. During sexual intercourse, he would either tie petitioner to the bed or poke her with things. He even suggested that they invite a third person with them while having sex. This made petitioner feel molested and maltreated. Should their marriage be nullified on the ground of psychological incapacity? Affinity is a relationship gained by marriage and a fictive kinship created by law. Also, it is aligned with the spirit of Art. 332 of the RPC. It holds for all intents and purposes favorable to the strengthening of the bond of the family. (Intestate Estate of Carungcong vs. People, G.R. No. 181409, February 11, 2010) 4. 5. A: YES. Respondent's repeated behavior of psychological abuse by intimidating, stalking, and isolating his wife from her family and friends, as well as his increasing acts of physical violence, are proof of his depravity, and utter lack of comprehension of what marriage and partnership entail. It would be of utmost cruelty for this Court to decree that petitioner should remain married to respondent. After she had exerted efforts to save their marriage and their family, respondent simply refused to believe that there was anything wrong in their marriage. This shows that respondent truly could not comprehend and perform his marital obligations. This fact is persuasive enough for this Court to believe that respondent's mental illness is incurable. (Tani-De La Fuente v. De La Fuente, Jr., G.R. No. 188400, March 8, 2017, as penned by J. Leonen) 6. 7. 8. 9. 2. Adopting parent & the adopted child; Surviving spouse of the adopting parent & the adopted child; Surviving spouse of the adopted child & the adopter; Adopted child & legitimate child of the adopter; Adopted children of the same adopter; Parties where one, with the intention to marry the other, killed the latter’s spouse or his/her spouse. (FC, Art. 38) NOTE: The list is EXCLUSIVE. If not falling within this enumeration, the marriage shall be valid. Such as marriages between: 1. 2. 3. 4. 3. INCESTUOUS MARRIAGES 1. Collateral blood relatives (legitimate or Illegitimate) up to the 4th civil degree; Step-parents & step-children; Parents-in-law & children-in-law; Between ascendants and descendants of any degree; Between brothers and sisters, whether of the full or half-blood. (FC, Art. 37) Adopted and Illegitimate child of the adopter; Step-brother and step-sister; Brother-in-law and sister-in-law; Parties who have been guilty of adultery or concubinage. Q: Amor gave birth to Thelma when she was 15 years old. Thereafter, Amor met David, and they got married when she was 20 years old. David has a son, Julian, with his exgirlfriend Sandra. Can Julian and Thelma get married? (2007 BAR) NOTE: Regardless of whether the relationship between the parties is legitimate or illegitimate. A: YES. Marriage between stepbrothers and 61 Civil Law stepsisters are not among the marriages prohibited under the Family Code. Boracay, Arnold met Jenny, a Filipina, who was vacationing there. Arnold fell in love with her. After a brief courtship and complying with all the requirements, they got married in Hong Kong to avoid publicity, it being Arnold’s second marriage. Is his marriage with Jenny valid? (2006 BAR) 4. SUBSEQUENT MARRIAGE Q: If a person contracts a subsequent marriage during the subsistence of a prior marriage, what is the status of the subsequent marriage? (1992, 2005, 2008 BAR) A: YES. The marriage will not fall under Art. 35(4) of the Family Code on bigamous marriages provided that Britney obtained an absolute divorce, capacitating her to remarry under her national law. Consequently, the marriage between Arnold and Jenny may be valid as long as it was solemnized and valid in accordance with the laws of Hong Kong. A: GR: Void for being bigamous or polygamous, even if celebrated abroad and valid there as such. XPN: Valid if it is a terminable bigamous marriage. Q: May a person contract a valid subsequent marriage before a first marriage is declared void ab initio by a competent court? Bigamous Marriage A: NO. A judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. (FC, Art. 40; In re: Salvador v. Serafico, A.M. 200820-SC, March 15, 2010) Bigamy - When a person contracts a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. (RPC, Art. 349) NOTE: Before one can contract a second marriage on the ground of nullity of the first marriage, there must first be a final judgment declaring the first marriage void. (FC, Art. 40) If a party fails to secure a judicial declaration of nullity of the first marriage, he or she runs the risk of being charged with bigamy as the marital bond or vinculum in the first nuptial subsists. (Mercado v. Tan, G.R. No. 137110, August 1, 2000; Te v. CA, G.R. No. 126746, November 29, 2000) NOTE: The same applies to polygamy. A subsequent void bigamous marriage contemplates a situation where such subsequent marriage was contracted at the time when the first marriage, which is valid in all respects, was still subsisting. A void bigamous marriage therefore involves a situation where the first marriage is not void but completely valid or at least annullable. (Sta. Maria, 2010) Special cases when subsequent marriage is allowed If the first marriage is void and a party to that first marriage subsequently remarries without obtaining a judicial declaration of nullity of the first marriage, the subsequent marriage is likewise void. It is void not because it is bigamous but because it failed to comply with the requirements under Article 40 in relation to Articles 52 and 53 of the Family Code. (Valdes v. RTC, G.R. No. 122749, July 31, 1996) 1. 2. Requisites for validity of subsequent marriage under Art. 41 under the Family Code (BAD) Q: Arnold, a Filipino, and Britney, an American, both residents of California, decided to get married in their local parish. Two years after their marriage, Britney obtained a divorce in California. While in UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Marriage between a Filipino and a foreigner and procurement by the alien spouse of a valid divorce decree abroad, capacitating him/her to remarry; Terminable bigamous marriages. (FC, Art. 41) Before the celebration of the subsequent marriage: 62 Marriage under the Family Code 1. 2. The Absent spouse had been absent for 4 consecutive years (ordinary absence) or 2 consecutive years (extra-ordinary absence); The present spouse has a well-founded Belief that the absent spouse is already dead; Finality of judicial presumptive death XPN: Under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court. (Republic of the Philippines v. Yolanda Cadacio Granada, G.R. No.187512, June 13, 2012) There is judicial Declaration of presumptive death in a summary proceeding in accordance with Article 253 of the Family Code. The declaration of presumptive death is without prejudice to the effect of reappearance of the absent spouse. (Sta. Maria, 2010) The declared presumption will still only be prima facie, and can be overthrown by evidence. (People v. Archilla, G.R. No. L-15632, February 28, 1961) NOTE: If both spouses of subsequent marriage acted in bad faith, such marriage is void ab initio. Requisites for issuance of judicial declaration of presumptive death 1. 2. 3. 4. of GR: The order of the trial court granting the petition for judicial declaration of presumptive death under Article 41 of the Family Code is immediately final and executory by the express provision of Article 247 of the Family Code. (Republic of the Philippines v. Bermudez-Lorino, G.R. No. 160258, January 19, 2005) NOTE: The Court in Cantor pointed out the term “well-founded belief” has no exact definition under the law. In fact, the Court notes that such belief depends on the circumstances of each particular case, as such must result from diligent efforts to locate the absent spouse. Such diligence entails an active effort on the part of the present spouse to locate the missing one. The mere absence of a spouse, devoid of any attempt by the present spouse to locate the former, will not suffice. (Republic v. Catubag, G.R. No. 210580, April 18, 2018) 3. declaration Q: The RTC declared Celerina presumptively dead after her husband, Ricardo, had filed a petition for declaration of absence or presumptive death for the purpose of remarriage. Ricardo remarried thereafter. In his petition for declaration of absence or presumptive death, Ricardo alleged that he and Celerina rented an apartment somewhere in San Juan, Metro Manila, after they had gotten married. After a year, they moved to Tarlac City. They were engaged in the buy and sell business. Ricardo claimed that their business did not prosper. As a result, Celerina convinced him to allow her to work as a domestic helper in Hong Kong. Ricardo initially refused but because of Celerina's insistence, he allowed her to work abroad. She allegedly applied in an employment agency in Ermita, Manila. She left Tarlac two months after and was never heard from again. Ricardo further alleged that he exerted efforts to locate Celerina. He went to Celerina's parents in Cubao, Quezon City, but they, too, did not know their daughter's whereabouts. He also inquired That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is a danger of death under the circumstances laid down in Article 391 of the New Civil Code; That the present spouse wishes to remarry; That the present spouse has a well-founded belief that the absentee is dead; and That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. (Republic of the Philippines v. Nolasco, G.R. No. 94053, March 17, 1993) The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present because she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. (Eduardo Manuel v. People, G.R. No. 165842, November 29, 2005) 63 Civil Law about her from other relatives and friends, but no one gave him any information. still subsist despite the absent or presumptively dead spouse's reappearance. Ricardo claimed that it was almost 12 years from the date of his RTC petition since Celerina left. He believed that she had passed away. According to Celerina, her true residence was in Neptune Extension, Congressional Avenue, Quezon City. This residence had been her and Ricardo's conjugal dwelling until Ricardo left. As a result of Ricardo's misrepresentation, she was deprived of any notice of and opportunity to oppose the petition declaring her presumptively dead. Celerina claimed that she never resided in Tarlac. She also never left and worked as a domestic helper abroad. Neither did she go to an employment agency. She also claimed that it was not true that she had been absent for 12 years. Ricardo was aware that she never left their conjugal dwelling in Quezon City. It was he who left the conjugal dwelling to cohabit with another woman. Celerina referred to a joint affidavit executed by their children to support her contention that Ricardo made false allegations in his petition. Is the reappearance not a sufficient remedy since it will only terminate the subsequent marriage but not nullify the effects of the declaration of her presumptive death and the subsequent marriage? A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of presumptive death, lacks the requirement of a well-founded belief that the spouse is already dead. The first marriage will not be considered as validly terminated. Marriages contracted prior to the valid termination of a subsisting marriage are generally considered bigamous and void. Only a subsequent marriage contracted in good faith is protected by law. Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action to declare his subsequent marriage void for being bigamous. The prohibition against marriage during the subsistence of another marriage still applies. Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid until terminated, the "children of such marriage shall be considered legitimate, and the property relations of the spouses in such marriage will be the same as in valid marriages." If it is terminated by mere reappearance, the children of the subsequent marriage conceived before the termination shall still be considered legitimate. Moreover, a judgment declaring presumptive death is a defense against prosecution for bigamy. It is true that in most cases, an action to declare the nullity of the subsequent marriage may nullify the effects of the subsequent marriage, specifically, in relation to the status of children and the prospect of prosecuting a respondent for bigamy. However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely by the husband or wife." This means that even if Celerina is a real party in interest who stands to be benefited or injured by the outcome of an action to nullify the second marriage, this remedy is not available to her. Therefore, for the purpose of not only terminating the subsequent marriage but also of nullifying the effects of the declaration of presumptive death and the subsequent marriage, mere filing of an affidavit of reappearance would not suffice. Celerina's choice to file an action for annulment of judgment will, therefore, lie. (Celerina J. Santos v. Ricardo T. Santos, G.R. 187061, October 8, 2014, as penned by J. Leonen) A: YES. The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is an action to annul the judgment. An affidavit of reappearance is not the proper remedy when the person declared presumptively dead has never been absent. The filing of an affidavit of reappearance is an admission on the part of the first spouse that his or her marriage to the present spouse was terminated when he or she was declared absent or presumptively dead. Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent marriage by reappearance is subject to several conditions. The existence of these conditions means that reappearance does not always immediately cause the subsequent marriage's termination. Reappearance of the absent or presumptively dead spouse will cause the termination of the subsequent marriage only when all the conditions enumerated in the Family Code are present. Hence, the subsequent marriage may UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES NOTE: A mere filing of an affidavit of 64 Marriage under the Family Code reappearance would not suffice for the purpose of terminating the subsequent marriage and also of nullifying the effects of the declaration of presumptive death and the subsequent marriage. Celerina does not admit to having been absent. She also seeks not merely the termination of the subsequent marriage but also the nullification of its effects. A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of presumptive death, lacks the requirement of a well-founded belief that the spouse is already dead; the first marriage will not be considered as validly terminated. Hence, Celerina’s choice to file an action for annulment of judgment is the proper remedy as annulment of judgment is the remedy when the RTC’s judgment, order, or resolution has become final, and the remedies of new trial, appeal, petition for relief (or other appropriate remedies) are no longer available through no fault of the petitioner. (Celerina J. Santos v. Ricardo T. Santos, G.R. No. 187061, October 8, 2014) or termination of the subsequent marriage. (SSS v. Jarque Vda. De Bailon, G.R. No. 165545, March 24, 2006 Q: Gregorio married Janet. When he was employed overseas, he was informed that Janet left. Five years later, he filed an action for her to be declared presumptively dead without alleging that he wishes to remarry. Will his action prosper? A: NO. A petition to declare an absent spouse presumptively dead may not be granted in the absence of any allegation that the spouse present will remarry. (Republic v. Nolasco, G.R. No. 94053, March 17, 1993) Q: What is the effect if the parties to the subsequent marriage obtain knowledge that the spouse absent has reappeared? A: NONE. If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentee's mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. (SSS v. Jarque Vda. De Bailon, G.R. No. 165545, March 24, 2006) Effect if both parties in the subsequent marriage under Article 41 acted in bad faith 1. 2. 3. 4. The subsequent marriage is void ab initio. All donations propter nuptias made by one in favour of the other are revoked by operation of law. All testamentary dispositions made by one in favour of the other are revoked by operation of law. The parties shall be liable for the crime of bigamy. (Rabuya, 2009) Termination Marriage of Subsequent Any interested party of the parties, including the parents, their children, the present spouse, or the subsequent spouse of the present spouse, may file the sworn statement of reappearance of the spouse who was absent. (Sta. Maria, 2010) Q: Nilda was married to Dante on November 29, 1975. On December 2, 1975, Dante, a member of the Armed Forces of the Philippines, left Nilda and went to Jolo, Sulu, where he was assigned. Since then, Nilda has heard no news from Dante and has tried everything to locate him by making inquiries with his parents, relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Thus, on April 14, 2009, she filed before the RTC a petition to declare Dante as presumptively dead for the purpose of remarriage, alleging that after the lapse of thirty-three (33) years without any kind of communication from him, she firmly believes that he is already dead. Both RTC and CA ruled in favor of Nilda. Is the ruling of the courts correct? Bigamous The recording of the affidavit of reappearance of the absent spouse in the civil registry of the residence of the parties to the subsequent marriage shall automatically terminate the terminable bigamous marriage (subsequent marriage) unless there is a judgment annulling the previous marriage or declaring it void ab initio. (FC, Art. 42) In Art. 42, no judicial proceeding to annul a subsequent marriage contracted under Art. 41 is necessary. Also, the termination of the subsequent marriage by affidavit provided for in Art. 42 does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution A: NO. 65 Before a judicial declaration of Civil Law presumptive death can be obtained, it must be shown that the prior spouse had been absent for four consecutive years and the present spouse had a well-founded belief that the prior spouse was already dead. citizen like her, who was among the passengers onboard a commercial jet plane which crashed in the Atlantic Ocean ten (10) years earlier, and has never been heard of ever since. Believing that her husband had died, Ana married Adolf Cruz Staedler, a divorced German national born of a German father and a Filipino mother residing in Stuttgart. To avoid being required to submit the required certificate of capacity to marry from the German Embassy in Manila, Adolf stated in the application for marriage license stating that Adolf was a Filipino, the couple got married in a ceremony officiated by the Parish Priest of Calamba, Laguna in a beach in Nasugbu, Batangas, as the local parish priest refused to solemnize marriage except in his church. Is the marriage valid? (2008 BAR) The "well-founded belief in the absentee's death requires the present spouse to prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort, not a passive one. As such, the mere absence of the spouse for such periods prescribed under the law, lack of any news that such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice. A: If the missing husband was in fact dead at the time the second marriage was celebrated, the second marriage was valid. Actual death of a spouse dissolves the marriage ipso facto whether or not the surviving spouse had knowledge of such fact. A declaration of presumptive death even if obtained will not make the marriage voidable because presumptive death will not prevail over the fact of death. In this case, Nilda testified that after Dante's disappearance, she tried to locate him by making inquiries with his parents, relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Other than making said inquiries, however, Nilda made no further efforts to find her husband. She could have called or proceeded to the AFP headquarters to request information about her husband but failed to do so. She did not even seek the help of the authorities or the AFP itself in finding him. (Republic v. Tampus, G.R. No. 214243, March 16, 2016) If the missing husband was in fact alive when the second marriage was celebrated, the second marriage was void ab initio because of a prior subsisting marriage. Had Ana obtained a declaration of presumptive death, the second marriage would have been voidable. In both cases, the fact that the German misrepresented his citizenship to avoid having to present his Certificate of Legal Capacity, or the holding of the ceremony outside the church or beyond the territorial jurisdiction of the solemnizing officer, are all irregularities which do not affect the validity of the marriage. Q: When are non-bigamous subsequent marriages void? A: The subsequent marriage of a person whose prior marriage has been annulled but contracted said subsequent marriage without compliance with Art. 52 of the FC, shall be VOID. Before he contracts a subsequent marriage, he must first comply with the requirement provided for in Art. 52, viz: JUDICIAL DECLARATION OF NULLITY OF MARRIAGE The recording in the civil registries and registries of properties of the following: 1. 2. 3. 4. Necessity of Judicial Declaration of Nullity of Marriage Judgment of annulment; Partition; Distribution of properties; and, Delivery of presumptive legitimes. 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. (FC, Art. 40) Q: Ana Rivera had a husband, a Filipino UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 66 Marriage under the Family Code There has yet to be a judgment declaring it void, for it is solely on the basis of that final judgment that a party can remarry. (Albano, 2013) the effectivity of the NCC, the doctrine laid down in Niñal v. Bayadog still applies; that the children have the personality to file the petition to declare the nullity of marriage of their deceased father to their stepmother as it affects their successional rights. (De Dios Carlos v. Sandoval, G.R. No. 179922, December 16, 2008) Remarriage is not the sole purpose of declaration of nullity of a marriage, as it can be declared void for other purposes. In Valdes v. RTC, it was said that the law aims to do away with any continuing uncertainty on the status of the second marriage. (Valdez v. Gomez- Valdez, G.R. No. 122749, July 31, 1996; Albano, 2013) Q: If the court denies a petition for declaration of nullity of marriage based on psychological incapacity, may a party to the said case file another petition for declaration of its nullity based on the absence of a marriage license? Prescriptive Period The time for filing an action or defense for the declaration of absolute nullity of marriage, whether in a direct or collateral manner, does not prescribe. (FC, Art. 39) (2002, 2006 BAR) A: NO. A petition to declare the marriage void due to the absence of marriage license, filed after the court denied a petition to declare the marriage void due to psychological incapacity is barred by res judicata. There is only one cause of action, which is the declaration of nullity of the marriage. Hence, when the second case was filed based on another ground, there was a splitting of a cause of action which is prohibited. (Mallion v. Alcantara, G.R. No. 141528, October 31, 2006) Any of the parties in a void marriage can file an action for the declaration of nullity of marriage even though such party is the wrongdoer. Effect of death of a party in a petition for declaration of nullity of marriages 1. 2. Q: Is the declaration of nullity of marriage applied prospectively? Before the entry of judgment – The court shall order the case closed and terminated without prejudice to the settlement of estate in proper proceedings. After the entry of judgment – The decision shall be binding upon the parties and their successors-in-interest in the settlement of the estate. A: NO, it retroacts to the date of the celebration of the marriage. Although the judicial declaration of nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the parties is concerned, it must be noted that the marriage is not without legal consequences or effects. One such consequence or effect is the incurring of criminal liability for bigamy. To hold otherwise would be to render nugatory the State’s penal laws on bigamy as it would allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages. (Tenebro v. CA, G.R. No. 150758, February 18, 2004) Petition for the declaration of nullity of marriage by the heirs of a deceased person after his death The heirs cannot file for declaration of nullity of marriage. The advent of the Rule on Declaration of Absolute Nullity of Void Marriages marks the beginning of the end of the right of the heirs of the deceased spouse to bring a nullity of marriage case against the surviving spouse. The heirs can still protect their successional right, for compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity but upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. Q: Is a decree of nullity of the first marriage required before a subsequent marriage can be entered into validly? A: GR: Under Art. 40 of the FC, 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 However, with respect to nullity of marriage cases commenced before the effectivity of A.M. No. 02-11-10 and marriages celebrated during 67 Civil Law void. a. On the ground of psychological incapacity of either or both parties; b. Due to the non-compliance with the requirements set forth under Article 52 of the Family Code. XPN: If the second marriage, however, took place prior to the effectivity of the FC, there is no need for judicial declaration of nullity of the first marriage pursuant to the prevailing jurisprudence at that time. (Rabuya, 2006) 2. NOTE: Art. 40 is applicable to remarriages entered into after the effectivity of the FC on August 3, 1988, regardless of the date of the first marriage. Besides, under Art. 256 of the FC, said Article is given “retroactive effect” insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws”. (Atienza v. Brillantes, A.M. No. MTJ-92-706, March 29, 1995) 3. 2. Property Relations GR: Either Article 147 or 148 (Co-Ownership) of the Family Code will apply. Q: While his first marriage is subsisting, Veronico married Leticia, which marriage was later declared void on the ground of psychological incapacity. When Veronico got married for the third time, Leticia filed a case for bigamy against him. For his defense, Veronico claims that effects of the nullity of his marriage with Leticia retroacts to the date when it was contracted, hence, he is not guilty of bigamy for want of an essential element – the existence of a valid previous marriage. Rule on Veronico’s argument. Article 147 applies if the parties do not suffer any legal impediment or they are legally capacitated to enter marriage but nonetheless void. All properties acquired are made through the joint efforts and industry of parties, thus properties, wages or income is divided equally among them. Article 148 applies if the parties suffer legal impediment, i.e. due to age or relationship pursuant to Article 37 FC (incestuous marriages) and Article 38 FC (by reason of public policy). Here, the properties, wages or income acquired during marriage are divided according to actual contributions made. A: Veronico’s argument has no merit. Art. 349 of the RPC penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a previous valid marriage. Here, as soon as the second marriage to Leticia was celebrated, the crime of bigamy had already been consummated as the second marriage was contracted during the subsistence of the valid first marriage. (Tenebro v. CA, G.R. No. 150758, February 18, 2004) XPN: If the subsequent marriage is void for noncompliance with Article 40 of the Family Code, the property relations of the void subsequent marriage are governed either by absolute community or the conjugal partnership of gains, as the case may be, unless the parties agree to a complete separation of property in a marriage settlement before marriage. (Diño vs. Diño, G.R. 178044, January 29, 2011) EFFECTS OF JUDICIAL DECLARATION OF NULLITY OF MARRIAGE 1. Legitimate if the children were conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory. (FC, Art. 54, 1st sentence) Legitimate if the children were conceived or born of the subsequent marriage under Article 53. (FC, Art. 54, 2nd sentence) Status of the Children (1990, 2010 BAR) Q: Is the declaration of nullity of marriage applied prospectively? GR: Children conceived and born outside a valid marriage or inside a void marriage are illegitimate. XPNs: A: NO. It retroacts to the date of the celebration of the marriage. It is as if the marriage did not happen at all. (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000) 1. Q: When a marriage was declared null and Legitimate if the marriage is void: UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 68 Marriage under the Family Code void, does it carry with it any legal effects? NOTE: The marriage between the deceased Teodorico and respondent Marietta was solemnized on 08 May 1958. The law in force at that time was the Civil Code, not the Family Code, which took effect only on 03 August 1988. Article 256 of the Family Code itself limited its retroactive governance only to cases where it thereby would not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. (Armas v. Calisterio, G.R. No. 136467, April 6, 2000) A: YES. When the ground for the declaration of nullity of marriage is psychological incapacity, the Supreme Court ruled that insofar as State’s penal laws on bigamy, the declaration of nullity of marriage does not retroact from the date of celebration. Thus, there is still criminal liability of bigamy although there is a declaration of nullity of marriage. (Tenebro v. CA, G.R. No. 150758, February 18, 2004) XPN to XPN: In ruling Jarillo and Montañez, Supreme Court applied Art. 40 retroactively, though the second marriage took place after the effectivity of the FC, holding that said provision is a rule of procedure. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. The reason is that as a general rule, no vested right may attach to, nor arise from, procedural laws. (Jarillo v. People, G.R. No. 164435, September 29, 2009) (Montañez v. Cipriano, G.R. No. 181089, October 22, 2012) Q: Is a decree of nullity of the first marriage required before a subsequent marriage can be entered into validly? A: GR: Under the Art. 40 of the FC, 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. XPNs: 1. 2. If parties merely signed the marriage contract, i.e. without the presence of the solemnizing officer. Q: Will the nullity of the subsequent marriage constitute a prejudicial question in the crime of bigamy? NOTE: The mere private act of signing a marriage contract bears no semblance to a valid marriage and, thus, needs no judicial declaration of nullity of marriage. (Morigo vs. People, G.R. 145226, February 06, 2004) A: NO. The Supreme Court held that the subsequent declaration of the second marriage could not be a ground for the dismissal of the criminal case for bigamy. Accordingly, the outcome of the civil case for annulment of petitioner's marriage to [private complainant] had no bearing upon the determination of petitioner's innocence or guilt in the criminal case for bigamy because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted. If one of the parties was a victim of identity theft. Here, the victim discovered that she was already married to a Korean national upon receipt of her NSO’s CENOMAR. The SC affirmed the trial court’s order for correction of entry under Rule 108 of ROC without need of declaration of nullity of the marriage since there is no marriage to be declared void in the first place. (Republic vs Olaybar, G.R. 189538, February 10, 2014) 3. Proxy marriages Philippines. conducted in 4. Same sex marriage celebrated abroad involving Filipino citizens by reason of public policy. Same sex marriage contracted by a Filipino citizen is not recognized as a valid marriage in the Philippines pursuant Article 1 of FC and Article 15 of the NCC. What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid first marriage. The parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of the first marriage assumes the risk of being prosecuted for bigamy. the 69 Civil Law Finally, it is a settled rule that the criminal culpability attaches to the offender upon the commission of the offense, and from that instant, liability appends to him until extinguished as provided by law. It is clear then that the crime of bigamy was committed by petitioner from the time he contracted the second marriage with private respondent. Thus, the finality of the judicial declaration of nullity of petitioner's second marriage does not impede the filing of a criminal charge for bigamy against him. (Capili v. People, G.R. No. 183805, July 3, 2013) celebrated, the crime of bigamy had already been consummated as the second marriage was contracted during the subsistence of the valid first marriage. (Tenebro v. CA, G.R. No. 150758, February 18, 2004) NOTE: If the ground in nullifying the subsequent marriage is due to psychological incapacity, in such ground, it cannot be a prejudicial question in the criminal case of bigamy because as held in Tenebro v. CA, the nullification still carries the legal effect in incurring criminal liability for bigamy. 1. Although the judicial declaration of nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the parties is concerned, it must be noted that the marriage is not without legal consequences or effects. One such consequence or effect is the incurring of criminal liability for bigamy. To hold otherwise would be to render nugatory the State’s penal laws on bigamy as it would allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages. (Tenebro v. CA, G.R. No. 150758, February 18, 2004) XPN to the XPN: If the donee spouse contracted the marriage in bad faith, all donations are revoked by operation by law. 3. GR: Donations propter nuptias are revocable at the instance of the donor. XPNs: 2. If the donation propter nuptias is embodied in a marriage settlement, the donation is void under Article 86 par. 1 of the Family Code; If the subsequent marriage is judicially declared void by reason of Article 40 of the Family Code, the donation remains valid; When both parties to a subsequent marriage contracted in bad faith under Article 44 of the Family Code, all donations propter nuptias are revoked by operation by law. 4. Designation as Beneficiary in Insurance Policy If the subsequent marriage is judicially declared void by reason of Article 40 of the Family Code, the innocent spouse may revoke such designation if the beneficiary spouse acted in bad faith, even if such designation be stipulated as irrevocable. However, if the marriage was not judicially declared void and the designation in the insurance policy is irrevocable, the insured cannot change such designation. Q: While his first marriage is subsisting, Veronico married Leticia, which marriage was later declared void on the ground of psychological incapacity. When Veronico got married for the third time, Leticia filed a case for bigamy against him. For his defense, Veronico claims that effects of the nullity of his marriage with Leticia retroacts to the date when it was contracted, hence, he is not guilty of bigamy for want of an essential element – the existence of a valid previous marriage. Rule on Veronico’s argument. 5. A: Veronico’s argument has no merit. Art. 349 of the RPC penalizes the mere act of contracting a valid second or subsequent marriage during the subsistence of a previous valid marriage. Here, as soon as the second marriage to Leticia was UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Donations Propter Nuptias Right to inherit 1. Intestate Succession: The parties cannot inherit from each other by way of intestate succession since they are no longer considered as spouses; 2. Testate Succession: GR: Any testamentary provision by one in favor of the other shall remain valid. 70 Marriage under the Family Code XPNs: 1. If the subsequent marriage is rendered void by non-compliance with Article 40 of the Family Code, the spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from the innocent spouse. 2. If the marriage is void by reason of the bad faith of both parties under Article 41 of the Family Code, all testamentary dispositions made by one in favor of the other are revoked by operation of law. 6. GR: It shall remain valid. XPN: If the donee spouse acted in bad faith, the donor may revoke the donation. Liquidation of Property if either spouse contracted the marriage in bad faith 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 be none, the children of the guilty spouse by previous marriage or in default thereof, the innocent spouse. NOTE: The parties are not disqualified to institute each other as voluntary heir in their respective wills to be executed after the judicial declaration of nullity 6. Parental Authority and Custody of Children The final judgment of nullity or annulment shall provide the following: GR: Since the children are considered as illegitimate, the parental authority and the custody of the children will be exercised by their mother. The illegitimate father, even if he admits paternity, will only have visitation rights. 1. 2. 3. XPN: If the marriage is declared void by reason of psychological incapacity of either or both of the parties, the parental authority and the custody will be exercised by the parent designated by the court. If a child is below seven years old, the law presumes the mother is the best custodian unless the court decides otherwise for compelling reasons. (FC, Art. 213) 2. 3. 4. 5. Liquidation, partition, and distribution of the properties of the spouses; Custody and support of the common children; and Delivery of their presumptive legitimes. Unless such matters had already been adjudicated in previous judicial proceedings, in which case, the final judgment of nullity or annulment need not provide for those which have already been adjudicated. NOTE: Where there was a failure to record in the civil registry and registry of property the judgment of annulment or absolute nullity of the marriage, the partition and distribution of the property of the spouses, and the delivery of the children’s presumptive legitimes, it shall not affect third persons. (FC, Art. 52) Effects of Decree of Annulment 1. succession; and Donation propter nuptias. Termination of the marital bond, as if it had never been entered into, but the effects thereof are not totally wiped out; Children conceived or born before the judgment of annulment has become final and executory are considered legitimate; Absolute community property regime or the conjugal partnership property regime is terminated or dissolved and the same shall be liquidated in accordance with the provisions of Arts. 102 and 129; The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in the insurance policy even if the designation is irrevocable; The spouse who contracted the marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate Forms of presumptive legitime: 1. Cash 2. Property 3. Sound security Remarriage after declaration of nullity or annulment A person must comply with the requirements of Art.52 of the FC before he can remarry, viz, the recording and registration of: (JPDD) 1. 71 Judgment of Annulment Civil Law 2. 3. 4. Partition Distribution of properties; and Delivery of presumptive legitime. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 72 Marriage under the Family Code Void vs. Voidable marriages BASIS Status of marriage Petition filed VOID MARRIAGE VOIDABLE MARRIAGE Void ab initio (the marriage is considered never to have taken place) Declaration of Nullity of Marriage Valid until annulled Annulment of Marriage GR: Offended Spouse GR: Solely by the husband or wife. Who may file XPNs: Any real party in interest, only in the following cases: 1. 2. 3. Nullity of marriage cases commenced before the effectively of A.M. No. 02-11-10 - March 15, 2003. Marriages celebrated during the effectivity of the Civil Code. (De Dios Carlos v. Sandoval, G.R. No. 179922, December 16, 2008) A party to the previous marriage may seek the nullity of the subsequent marriage on the ground that the subsequent marriage is bigamous. (Estrellita Juliano-Llave v. Republic of the Philippines, G.R. No. 169766, March 20, 2011) For direct proceeding – only during the lifetime of the parties Prescriptive period For collateral attack – no prescriptive period XPNs: 1. Parents or guardians in cases of insanity 2. Parents or guardians before the party reaches 21 years old on the ground of Lack of Parental Authority GR: Within 5 years from discovery of the ground XPNs: 1. Lifetime of spouse in cases of insanity 2. Before the party reaches 21 in cases where parents or guardians may file Annulment How may be impugned Either directly or collaterally Judicial declaration is necessary Legitimate GR: Illegitimate; Children XPNs: Those conceived or born of marriages declared void under: 1. Art. 36 (Psychological incapacity) of the Family Code, or 2. Art. 52 in relation to Art. 53 of the Family Code 73 Civil Law NOTE: If a person falls under a void marriage fails to get a Judicial Decree of Nullity of Marriage and remarries, the child in his second marriage is considered illegitimate. (FC, Art. 40) Property GR: Property relations are governed by rules on co-ownership Article 147 (without legal impediment) or Article 148 (with legal impediments mentioned under Article 37 and Article 38). GR: Governed by rules on absolute community. XPN: Unless another system is agreed upon in marriage settlement XPN: If the marriage is declared void by reason of non-compliance with Article 40 of the FC, the absolute community or the conjugal partnership, as the case may be, unless parties agree to complete separation of property in a marriage settlement prior marriage shall be dissolved and liquidated. (FC, Art. 43 (2), in relation to Art. 50) Judicial Declaration GR: There is no necessity to obtain a judicial declaration XPN: For purposes of remarriage, Judicial declaration of nullity is required. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 74 Necessary Marriage under the Family Code Q: Aurora prayed for the annulment of her marriage with Fernando on the ground of fraud in obtaining her consent after having learned that several months prior to their marriage, Fernando had pre-marital relationship with a close relative of his. III. VOIDABLE MARRIAGES A voidable marriage is considered valid and produces all its civil effects until it is set aside by final judgment of a competent court in an action for annulment. (Rabuya, 2018) Simply, a voidable marriage is valid until it is annulled. (Paras, 2016) According to her, the "non-divulgement to her of such pre-marital secret" constituted fraud in obtaining her consent within the contemplation of Art. 46 of the FC. Is the concealment by the husband of a pre-marital relationship with another woman a ground for annulment of marriage? Determination of the unsoundness of mind as a ground for annulment It is essential that the mental incapacity must relate specifically to the contract of marriage and the test is whether the party at the time of the marriage was capable of understanding the nature and consequences of the marriage. (Rabuya, 2018) A: NO. The non-disclosure to a wife by her husband of his pre-marital relationship with another woman is not a ground for annulment of marriage. For fraud as a vice of consent in marriage, which may be a cause for its annulment, comes under Art. 46 of the FC, the fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud enumerated in Art. 46 in relation to Art. 45(3). Fraud as a ground for annulment Fraud, as distinguished from fraud as a ground for annulment of contracts, refers to the nondisclosure or concealment of some facts deemed material to the marital relations. (Rabuya, 2009) Q: Under what conditions, respectively, may drug addiction be a ground, if at all, for the declaration of nullity of marriage, annulment of marriage, and legal separation? (1997 BAR) No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give ground for action for the annulment of marriage. (FC, Art. 46, last par.) A: Circumstances constituting FRAUD under Art. 45(3) (1996, 1997, 2002, 2003, 2006 BAR) 1. 2. 3. 4. a. The drug addiction must amount to psychological incapacity to comply with the essential obligations of marriage; b. It must be antecedent (existing at the time of marriage), grave and incurable. a. The drug addiction must be concealed; b. It must exist at the time of marriage; c. There should be no cohabitation with full knowledge of the drug Declaration of Nullity of Marriage Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; Concealment by the wife of the fact that at the time of marriage, she was pregnant by a man other than her husband; Concealment of sexually transmissible disease, regardless of its nature, existing at the time of marriage; or Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. (FC, Art. 46) Annulment of Marriage NOTE: Where there has been no misrepresentation or fraud, that is, when the husband at the time of the marriage knew that the wife was pregnant, the marriage cannot be annulled. (Buccat v. Buccat, G.R. No. 47101, April 25, 1941) 75 Civil Law imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants, or ascendants, to give his consent.” (NCC, Art. 1335, par. 2,) addiction; d. The case is filed within five (5) years from discovery. a. There should be no condonation or consent to the drug addiction; b. The action must be filed within five (5) years from the occurrence of the cause; A threat to enforce one's claim through competent authority however, if the claim is just or legal, does not vitiate consent. Drug addiction arises during the marriage and not at the time of marriage. Impotence (impotentia copulandi) refers to lack of power of copulation and not to mere sterility (impotentia genrandi) which refers to ability to procreate. The test is not the capacity to reproduce, but the capacity to copulate. (Paras, 2008) Although impotency carries with it sterility, a sterile person is not necessarily impotent. (Paras, 2016) Legal Separation c. Undue influence – control over one’s will XPN: However, if the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife. Impotence or physical incapacity Q: 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 void? (2002 BAR) Requisites for impotence to be a ground for annulment of marriage 1. A: If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur during the marriage, they will: 1. 2. 3. 2. 3. 4. 5. Not constitute grounds for declaration of nullity (FC, Art. 35) Not constitute grounds to render the marriage voidable (FC, Art. 45 and 46); and Constitute grounds for legal separation. (FC, Art. 55) Presumption of potency of one spouse GR: Presumption is in favor of potency. Vitiated consent as a ground for annulment of marriage XPN: Doctrine of triennial cohabitation. Doctrine Triennial cohabitation There is vitiation of consent when: If after 3 years of living together with her husband, the wife remained a virgin, the husband is presumed to be impotent. (Rabuya, 2018) The husband will have to overcome this presumption. GR: Consent of either party was obtained by force, intimidation or undue influence. Force or violence – “There is violence when, in order to wrest consent, serious or irresistible force is employed. Relative impotency may now be invoked as a ground for annulment. The Committee has decided to include relative impotency of one party because there are cases where a person is impotent with respect to his spouse but not with Intimidation – “There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Exists at the time of the Celebration of marriage; Permanent (does not have to be absolute); Incurable; Unknown to the other spouse; and, The other spouse must not also be Impotent. 76 Marriage under the Family Code other men or women. (Sempio Diy, 1995) 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 on the ground that Yvette has STD. Yvette opposes the suit contending that Joseph is estopped from seeking annulment of their 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? Q: The day after John and Marsha got married, John told her that he was impotent. Marsha continued to live with John for two years. Is Marsha now estopped from filing an annulment case against John? (2007 BAR) A: NO. Unlike the other grounds for annulment of voidable marriage which are subject to ratification by continued cohabitation, the law does not allow ratification in case of impotency. Requisites of Affliction of a Sexually Transmitted Disease (STD) as a Ground for Annulment 1. 2. One of the parties is afflicted with STD; STD must be: a. b. c. 3. 4. A: NO. Concealment of a sexually transmitted disease may annul the marriage it there was fraud existing unknown to the party concerned. In this case, there was no fraud because Joseph knew that Yvette was suffering from HIV when he married her. (FC, Art. 46, par. 3) Existing at the time the marriage is celebrated; Serious; and Apparently Incurable; Art. 45 v. 46 of the FC on STD as ground for annulment ARTICLE 45 ARTICLE 46 Affliction Concealment Ground for Annulment The fact of being The act of concealing afflicted because it constitutes fraud Concealment The other spouse is not aware of the other’s affliction; and The injured party must be free from STD. NOTE: Compulsory HIV testing shall be allowed when it is necessary to resolve relevant issues under E.O. No. 209, otherwise known as the Family Code of the Philippines. (R.A. No. 11166, Sec. 30 (b)) Not necessarily Necessary Nature of the Disease Must be serious and Does not have to be incurable serious and incurable Confidential HIV and AIDS information may be released by HIV testing facilities without consent when responding to a subpoena duces tecum and subpoena ad testificandum issued by a court with jurisdiction over a legal proceeding where the main issues it the HIV status of the individual. Provided: 1. 2. 3. PRESENCE OF PROSECUTOR Role of the prosecutor or Solicitor General in cases of annulment and judicial declaration of nullity That the confidential medical record, after having been verified for accuracy shall remain anonymous and unlinked; Shall be properly sealed by its lawful custodian, hand-delivered to the court, and personally opened by the judge; and That the judicial or administrative proceedings shall be held in executive session. (R.A. No. 11166, Sec. 45 (c)) The prosecutor or Solicitor General shall take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. Even if there is no suppression of evidence, the public prosecutor has to make sure that the evidence to be presented or laid down before the court is no fabricated. Only the active participation of the public prosecutor or the Solicitor General will ensure that the interest of the State is represented and protected in proceedings for declaration of nullity of marriages by preventing the fabrication or suppression of evidence. (FC, Art. 48) Q: Yvette was found to be positive for HIV virus, considered sexually transmissible, serious and incurable. Her boyfriend Joseph 77 Civil Law NOTE: The non-intervention of the prosecutor is not fatal to the validity of the proceedings in cases where the respondent in a petition for annulment vehemently opposed the same and where he does not allege that evidence was suppressed or fabricated by any of the parties. (Tuason v. CA, G.R. No. 116607, April 10, 1996) Collusion – Where for purposes of getting an annulment or nullity decree, the parties come up with an agreement making it appear that the marriage is defective due to the existence of any of the grounds for the annulment of marriage or the declaration of its nullity provided by law and agreeing to represent such false or non-existent cause of action before the proper court. (Sta. Maria, 2010) Actions prohibited in annulment and declaration of absolute nullity of marriage cases 1. 2. 3. 4. 5. Compromise; Confession of judgment; Stipulation of facts; Summary judgment; and Judgment on the pleadings. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. (Ocampo v. Florenciano, G.R. No. L-13553, February 23, 1960) Thus, stipulation of facts or confession of judgment if sufficiently supported by other independent substantial evidence to support the main ground relied upon, may warrant an annulment or declaration of absolute nullity. PENDENCY OF ACTION During the pendency of the action for annulment, declaration of absolute nullity of marriage or legal separation, the Court shall, in the absence of adequate written agreement between the spouses, provide for the: 1. 2. 3. Support of the spouses; Support and custody of the common children; Visitation rights of the other parent. (FC, Art.49) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 78 Marriage under the Family Code Voidable marriages and its ratification (1999, 2003, 2006, 2007, 2009 BAR) GROUND RATIFICATION WHO MAY FILE WHEN TO FILE Marriage of a party 18 years of age or over but below 21 solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order Contracting party who failed to obtain parental consent: Through free cohabitation after attaining the age of 21. By the contracting party whose parent did not give consent. Within 5 years after attaining the age of 21. Parent, guardian, or person having legal charge of the contracting party. At any time before such party has reached the age of 21. GR: Sane spouse who had no knowledge of the other’s insanity At any time before the death of either party. Either party was of unsound mind NOTE: The parents cannot ratify the marriage. The effect of prescription on their part is that they are barred from contesting it but the marriage is not yet cleansed of its defect. Insane spouse: Through free cohabitation after coming to reason. XPN: Any relative, guardian or person having legal charge of the insane; or Insane spouse during a lucid interval or after regaining sanity. During a lucid interval or after regaining sanity. Consent of either party was obtained by fraud Injured party: Through free cohabitation with full knowledge of the facts constituting the fraud. Injured party Within 5 years after the discovery of fraud. Vices of consent such as force, intimidation or undue influence Injured party: Through free cohabitation after the vices have ceased or disappeared. Injured party Within 5 years from the time the force, intimidation or undue influence disappeared or ceased. Impotence (impotencia copulandi) and afflicted with STD found to be serious and appears to be incurable May not be ratified but action may be barred by prescription only, which is 5 years after the marriage. Only the potent spouse can file the action (,) and he or she must not have been aware of the other’s impotency at the time of the marriage. 79 Within 5 years after the celebration of marriage. Civil Law LEGAL SEPARATION 6. Legal separation is a legal remedy available to parties in a valid but failed marriage for the purpose of obtaining a decree from the court entitling him or her certain reliefs such as the right to live separately from each other (without affecting the marital bond that exists between them), the dissolution and liquidation of their absolute community or conjugal partnership property regime and the custody of their minor children. 7. 8. NOTE: Sexual perversion includes all unusual or abnormal sexual practices which may be offensive to the feelings or sense of decency of either the husband or wife. 9. Nature of legal separation An action for legal separation which involves nothing more than bed-and-board separation of the spouses is purely personal. The Civil Code recognizes this: 1. 2. 10. Abandonment of petitioner by respondent without justifiable cause for more than 1 year. By allowing only the innocent spouse and no one else to claim legal separation; By providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already granted. (Lapuz v. Eufemio, G.R. No. L-31429, January 31, 1972) Q: If a man commits several acts of sexual infidelity, particularly in 2002, 2003, 2004, 2005, does the prescriptive period to file for legal separation run from 2002? (2007 BAR) A: The prescriptive period begins to run upon the commission of each act of infidelity. Every act of sexual infidelity committed by the man is a ground for legal separation. Repeated physical violence or grossly abusive conduct against petitioner, common child, child of petitioner; Q: Lucita left the conjugal dwelling and filed a petition for legal separation due to the physical violence, threats, intimidation, and grossly abusive conduct she had suffered at the hands of Ron, her husband. Ron denied such and claimed that since it was Lucita who had left the conjugal abode, then the decree of legal separation should not be granted, following Art. 56 par. 4 of the FC which provides that legal separation shall be denied when both parties have given ground for legal separation. Should legal separation be denied on the basis of Ron’s claim of mutual guilt? NOTE: Respondent’s child is not included 2. 3. 4. Attempt to corrupt or induce petitioner, common child, child of petitioner to engage in prostitution, or connivance in such corruption or inducement; Attempt by respondent against the life of petitioner; Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned; NOTE: The final judgment must promulgated during the marriage. 5. A: NO. Art. 56 par. 4 of the FC does not apply since the abandonment that is a ground for legal separation is abandonment without justifiable cause for more than one year. In this case, Lucita left Ron due to his abusive conduct. Such act does not constitute the abandonment contemplated in the said provision. Therefore, there is no mutual guilt between them as there is only one erring spouse. (Ong Eng Kiam v. CA, G.R be Drug addiction or habitual alcoholism of respondent; NOTE: It must exist after celebration of marriage UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Lesbianism or homosexuality of respondent; and NOTE: It must exist after celebration of marriage GROUNDS FOR LEGAL SEPARATION (FC, ART. 55) (1997, 2002, 2003, 2006, 2007 BAR) 1. Physical violence or moral pressure to compel petitioner to change religious or political affiliation; Bigamous marriage subsequently contracted by respondent in the Philippines or abroad; Sexual infidelity or perversion; 80 Marriage under the Family Code No. 153206, October 23, 2006) NOTE: No criminal conviction is necessary to issue a decree of legal separation. In legal separation, preponderance of evidence is enough. (Gandionco v. Penaranda, G.R. No. 79284, November 27, 1987) e. Act considered as acts of violence under R.A. No. 9262 1. 2. 3. 4. 5. f. Causing, threatening to cause, or attempting to cause physical harm to the woman or her child; Threatening to cause the woman or her child physical harm; Attempting to cause the woman or her child physical harm; Placing the woman or her child in fear of imminent physical harm; Attempting to compel or compelling the woman or her child to: i. ii. iii. iv. a. Engage in conduct which the woman or her child has the right to desist from; or b. Desist from conduct which the woman or her child has the right to engage in; 6. Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; 8. Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by: i. ii. iii. iv. Force, or Threat of force; Physical, or Other harm; or Threat of physical or other harm; or Intimidation directed against the woman or child. 9. a. a. b. b. c. d. c. d. e. 81 Force, or Threat of force; Physical harm, or Through intimidation directed against the woman or her child or her/his immediate family Engaging in purposeful, knowing, or reckless conduct, personally or through another that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman’s or her child’s movement or conduct: Threatening to deprive or actually depriving the woman or her child of custody to her/his family; Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman’s children insufficient financial support; Depriving or threatening to deprive the woman or her child of a legal right; Preventing the woman in engaging in Force, or Threat of force; Physical harm, or Through intimidation directed against the woman or her child or her/his immediate family; 7. Attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by: a. b. c. d. e. any legitimate profession, occupation, business or activity or controlling the victim’s own money or properties, or solely controlling the conjugal or common money, or properties. Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by: Stalking or following the woman or her child in public or private places; Peering in the window or lingering outside the residence of the woman or her child; Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; Destroying the property and personal belongingness or inflicting harm to animals or pets of the woman or her child; and Engaging in any form of harassment or Civil Law violence; and separation (2006 BAR) 10. Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman’s child/children. 1. 2. 3. 4. 5. 6. Protection Order 7. A protection order under R.A. 9262 is an order issued under this act for the purpose of preventing further acts of violence against a woman or her child and granting other necessary relief. 8. Prescriptive period for filing a petition for legal separation The relief granted under a protection order serves the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim’s daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. The protection orders that may be issued under this Act are the Barangay Protection Order (BPO), Temporary Protection Order (TPO) and Permanent Protection Order (PPO). An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (FC, Art. 57) Failure to interpose prescription as a defense When prescription was not interposed as a defense, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record. Who may file Petition for Protection order 1. 2. 3. 4. 5. 6. 7. 8. The offended party; Parents or guardians of the offended party; Ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity; Officers or social workers of the DSWD or social workers of local government units (LGUs); Police officers, preferably those in charge of women and children’s desks; Punong barangay or Barangay Kagawad; Lawyer, counselor, therapist or healthcare provider of the petitioner; or At least 2 concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who has personal knowledge of the offense committed. (Sec. 9. R.A. 9262) This is an exception to the Rules of Court provision that defenses not raised in the pleadings will not be considered since provisions on marriage are substantive in nature. (Brown v. Yambao, G.R. No. L- 10699, October 18, 1957) Q: 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, 1992 when Ariel returned to the Philippines with Mystica. Rosa filed an action for legal separation on February 5, 1994. a. Does Rosa have legal grounds to ask for legal separation? DEFENSES b. Has the action prescribed? (1994 BAR) Grounds for denial of petition for legal UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Condonation of the act complained of; Consent to the commission of the offense/act; Connivance in the commission of the act; Collusion in the procurement of decree of LS; Mutual Guilt; Prescription: 5 yrs from occurrence of cause; Death of either party during the pendency of the case (Lapuz-Sy v. Eufemio, G.R. No. L31429, January 31, 1972); Reconciliation of the spouses during the pendency of the case. (FC, Art. 56) 82 Marriage under the Family Code A: a. separation based upon a stipulation of facts or confession of judgment 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. The contracting of a subsequent bigamous marriage whether in the Philippines or abroad is a ground for legal separation under Art. 55 par. 7 of the FC. Whether the second marriage is valid or not, Ariel having converted into Islam, is immaterial. A decree of legal separation cannot be issued solely on the basis of a stipulation of facts or a confession of judgment. The grounds for legal separation must be proved. Neither confession of judgment nor summary judgment is allowed. In any case, the court shall order the prosecuting attorney or fiscal to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (FC, Art. 60) What the law prohibits is a judgment based exclusively or mainly on defendant’s confession. (Ocampo v. Florenciano, G.R. No. L-13553, February 23, 1960) b. NO. The aggrieved spouse must file the action within 5 years from the occurrence of the cause. (FC, Art. 57) The subsequent marriage of 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 FC. Filing of petition for legal separation COOLING – OFF PERIOD An action for legal separation shall be in no case tried before 6 months has elapsed since the filing of the petition, to enable the contending spouses to settle differences. In other words, it is for possible reconciliation. (FC, Art. 58) Who may file Husband or wife When to file Within 5 years from the time of the occurrence of the cause Where to file GR: The 6 months cooling-off period is a mandatory requirement. Petition shall not be granted if it is not observed. (Pacete v. Carriaga, G.R. No. L-53880, March 17, 1994) Note: Matters other than the merits of legal separation can be determined by the court without waiting for the lapse of the 6-month period. Family Court of the province or city where the petitioner or the respondent has been residing for at least 6 months prior to the date of filing or in case of a nonresident, where he may be found in the Philippines, at the election of the petitioner. EFFECTS OF FILING A PETITION FOR LEGAL SEPARATION (FC, ART. 61) XPN: There is no cooling-off period if the grounds alleged are those under R.A. 9262. (Anti-Violence against Women and Children Act) The court can immediately hear the case. The spouses shall be entitled to live separately from each other. In the absence of a written agreement between the parties, the court shall designate either the husband or the wife or a 3rd person to administer the absolute community or conjugal partnership property. RECONCILIATION EFFORTS The Court is required to take steps toward the reconciliation of the spouses and must be fully satisfied that, despite such efforts, reconciliation is highly improbable. (FC, Art. 59) Effect of death of a party during pendency Being personal in character, it follows that the death of one party to the action causes the death of the action itself– actio personalis moritur cum persona. (Rabuya, 2009) CONFESSION OF JUDGMENT Rule in rendering a judgment of legal 83 Civil Law Effect of death of a party before entry of judgment 6. The court shall order the case closed and terminated without prejudice to the settlement of estate proper proceedings in the regular courts. (Sec. 21, A.M. 02-11-11- SC) NOTE: Prescriptive period: 5 years from finality of decree of legal separation Effect of death of a party after entry of judgment 7. If the party dies after the entry of judgment, the same shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. (Sec. 21, A.M. 02-1111-SC) A: As a rule, the custody of the child shall be awarded to the innocent spouse, except if the child is below the age of seven where the law says that the child cannot be separated from the mother, except if there is a compelling reason to do so. The common-law relationship of a child's mother with a married man is a ground to separate the child from the mother, because such a situation will not afford the child a desirable atmosphere where he can grow and develop into an upright and moral-minded person. (Cervantes v. Fajardo, G.R. No. 79955, January 27, 1989) A: NO. An action for legal separation is purely personal, therefore, the death of one party to the action causes the death of the action itself – action personalis moritur cum persona. NOTE: In cases where one of the spouses is dead, or where the deceased’s heirs continue the suit, separation of property and any forfeiture of share already effected subsists, unless spouses agree to revive former property regime. Q: Which of the following remedies: EFFECTS OF LEGAL SEPARATION 2. a. b. c. d. Spouses entitled to live separately but the marriage bond is not severed; ACP/CPG shall be dissolved and liquidated. The share of the offending spouse in the net profits shall be forfeited in favor of: 4. 5. spouse avail 1. If the wife discovers after the marriage that her husband has “AIDS”? 2. If the wife goes abroad to work as a nurse and refuses to come home after the expiration of her three-year contract there? 3. If the husband discovers after the marriage that his wife has been a prostitute before they got married? 4. If the husband has a serious affair with his secretary and refuses to stop notwithstanding advice from relatives and friends? Custody of minor children is awarded to the innocent spouse (subject to FC, Art. 213); Offending spouse is disqualified to inherit from innocent spouse by intestate succession; Provisions in the will of innocent spouse UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Declaration of nullity of marriage; Annulment of marriage; Legal separation; and/or Separation of property. can an aggrieved himself/herself of: a. Common children, b. In default of the common children, children of the guilty spouse by a previous marriage, c. In default of common children and the children of the guilty spouse, innocent spouse; 3. Innocent spouse may revoke designation of offending spouse as beneficiary in any insurance policy, even when stipulated as irrevocable. Q: In case an action for legal separation is granted, what will happen to a child below the age of seven? Is the rule absolute? Q: May the heirs of the deceased spouse continue the suit (petition for decree of legal separation) if the death of the spouse takes place during the pendency of the suit? 1. which favors offending spouse shall be revoked by operation of law; Innocent spouse may revoke donations he/she made in favor of offending spouse; and 84 Marriage under the Family Code 5. If the husband beats up his wife every time he comes home drunk? (2003 BAR) Art. 101] 5. LEGAL SEPARATION, AND SEPARATION OF PROPERTY A: The wife may file an action for legal separation on the ground of repeated physical violence on her person. [FC, Art. 55(1)] 1. ANNULMENT OF MARRIAGE Since AIDS is a serious and incurable sexually transmissible disease, the wife may file an action for annulment 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. The marriage is voidable even though the husband was not aware that he had the disease at the time of marriage. 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. [FC, Art. 135(4), Art. 101] She may also file an action for declaration of nullity of the marriage if the husband’s behavior constitutes psychological incapacity existing at the time of the celebration of marriage. 2. SEPARATION OF PROPERTY Effect to the donations made by the spouses to each other 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 one year from the expiration of her contract, the husband may file the action for legal separation under Art. 55, par. 10 of the FC on the ground of abandonment of petitioner by respondent without justifiable cause for more than one year. The wife is deemed to have abandoned the husband when she leaves the conjugal dwelling without any intention of returning. (FC, Art. 101) The intention not to return cannot be presumed during the 3-year period of her contract. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation must be brought within five years from the time the decree of legal separation has become final. (FC, Art. 64) 3. NONE EFFECTS OF RECONCILIATION If the husband discovers after the marriage that his wife was a prostitute before they got married, he has no remedy. No misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute fraud as legal ground for an action for the annulment of marriage. (FC, Art. 46) 1. As to the Decree During the pendency of the case: LS proceedings terminated at whatever stage After the issuance of the decree: 4. LEGAL SEPARATION Final decree of LS to be set aside. (FC, Art. 66) The wife may file an action for legal separation. The husband’s sexual infidelity is a ground for legal separation. (FC, Art. 55) 2. As to the Property Regime GR: In case there had been already separation of property and forfeiture of the share of the guilty spouse, the same shall be maintained. (Pineda, 2008) She may also file an action for judicial separation of property for failure of her husband to comply with his marital duty of fidelity. [FC, Art. 135(4), 85 Civil Law XPN: The parties, however, can come into an agreement to revive their previous regime. Their agreement must be under oath and must contain a list of the properties desired to be returned to the community or conjugal property and those which will remain separate, a list of creditors and their addresses. thereby be terminated at whatever stage. 4. As to Capacity to Succeed The Family Code does not provide for the revival of revoked provisions in a will originally made in favor of the offending party as a result of the LS. This absence gives the innocent spouse the right to choose whether the offending spouse will be reinstituted. 5. As to the Forfeited Shares Those given to the children cannot be returned since the spouses are no longer the owners of such. But those given to the innocent spouse may be returned. Revival of previous property regime after reconciliation Reconciliation does not automatically revive the former property regime of the spouses. If the spouses want to revive the previous property regime, they must execute an agreement to revive the former property regime, which agreement shall be submitted in court, together with a verified motion for its approval. (FC, Art. 67) The agreement to revive must be under oath and specify: 1. 2. 3. The properties to be contributed anew to the restored regime; Those to be retained as separated properties of each spouse; and The names of all their known creditors, their addresses and the amounts owing to each. (Pineda, 2008) Effects of reconciliation while the petition is being heard by the court If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. The legal separation proceedings, if still pending, shall UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 86 Marriage under the Family Code Declaration of Nullity of Marriage vs. Annulment vs. Legal Separation BASIS Marriage bond DECLARATION OF NULLITY OF MARRIAGE ANNULMENT Dissolved Dissolved LEGAL SEPARATION No effect; marriage bond remains GR: Illegitimate Status of children Property relations XPN: Children conceived or born of marriages before declaration of nullity under Arts. 36 and 53 of the FC considered legitimate Legitimate GR: Governed either by Article 147 or Article 148 of the Family Code FC. Thus, property regime shall be liquidated pursuant to the ordinary rules on co- ownership. ACP/CPG shall be dissolved & liquidated. [FC, Art.43(2)] XPN: Marriages declared void under Article 40 which shall be liquidated in accordance with Article 43 par. 2 which property relations could either be governed by absolute community or conjugal gains unless the parties agree to complete separation of property in a marriage settlement prior marriage. (Valdes v. RTC, G.R. No. 122749. July 31, 1996) 2. If there are none, the children of the guilty spouse by a previous marriage; or 1. Share of spouse, who contracted the subsequent marriage in bad faith, in the net profits of the community property or conjugal partnership, shall be forfeited in favor of the common children; or 3. In default of children, the innocent spouse. GR: Donations propter nuptias are revocable at the instance of the donor. Donations propter nuptias XPN: i. If the donation propter nuptias is embodied in a marriage settlement, the donation is void under Article 86 par. 1 of the FC. ii. If the subsequent marriage is judicially declared void by reason of Art. 40 of the FC, the donation remains valid. XPN to the XPN: 1. If the donee spouse contracted the marriage in bad 87 GR: Shall remain valid. [FC, Art.43(3)] XPN: 1. If donee contracted the marriage in bad faith, such donations made to said donee shall be revoked by operation of law. 2. If both spouses to the marriage acted in bad faith, all donations propter nuptias shall be revoked by operation of law. Civil Law faith, all donations are revoked by operation by law. 2. When both parties to a subsequent marriage contracted in bad faith under Article 44 of the FC, all donations propter nuptias are revoked by operation by law. Insurance If the subsequent marriage is judicially declared by void by reason of Article 40 of the FC, the innocent spouse may revoke such designation if the beneficiary spouse acted in bad faith, even if such designation be stipulated as irrevocable. If one spouse acted in bad faith, innocent spouse may revoke his designation as beneficiary in the insurance policy even if such designation be stipulated as irrevocable. [FC, Art.43 (4)] Intestate Succession: The parties cannot inherit from each other by way of intestate succession since they are no longer considered as spouses. Testate Succession: GR: Any testamentary provision by one in favor of the other shall remain valid. Succession XPN: 1. If the subsequent marriage is rendered void by noncompliance with Article 40 of the Family Code FC, the spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from the innocent spouse. If one spouse contracted the marriage in bad faith, he shall be disqualified to inherit from innocent spouse by testate and intestate succession. [FC, Art. 43(5)] 2. If the marriage is void by reason of the bad faith of both parties under Article 41 of the Family Code FC, all testamentary dispositions made by one in favor of the other are revoked by operation of law. NOTE: The parties are not disqualified to institute each other as voluntary heir in their respective wills to be executed after the judicial declaration of nullity. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 88 Marriage under the Family Code RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE from her coercively or violently. (People v. Jumawan, G.R. No. 187495, April 21, 2014) ESSENTIAL OBLIGATIONS Therefore: a. The right to sexual intercourse involves normal intercourse. The wife may refuse to have sexual intercourse with the husband if he resorts to abnormal or perverse practices. b. The wife can also refuse to have sexual intercourse with the husband if she is ill, if it would endanger her health, or if he is suffering from some venereal disease. c. If the husband forces the wife to have sexual intercourse with him against her will, he may be charged with coercion. (Sempio-Diy, 1995) Rights and obligations of the spouses (2010 BAR) 1. Essential marital obligations (LOR) (FC, Art. 68): a. Live together which includes consortium (cohabitation) and copulation (sexual intercourse); XPN: The Court may exempt a spouse from the obligation to live together for the following reasons: i. ii. 2. Fix the family domicile (FC, Art. 69); The other spouse should live abroad. If there are other valid compelling reasons. NOTE: In case of disagreement the Court shall decide. 3. Jointly support the family (FC, Art. 70); NOTE: The exceptions would not apply if the same is not compatible with the solidarity of the family. (FC, Art. 69, par 2) b. c. a. b. Observe mutual love, respect, fidelity; and Render mutual help and support c. Expenses shall be paid from the community property, In the absence thereof from the income or fruits of their separate properties, In the absence or insufficiency thereof from their separate properties 4. Manage the household (FC, Art. 71); NOTE: It is true that the Family Code, obligates the spouses to love one another but this rule sanctions affection and sexual intimacy, as expressions of love, that are both spontaneous and mutual and not the kind which is unilaterally exacted by force or coercion. Further, the delicate and reverent nature of sexual intimacy between a husband and wife excludes cruelty and coercion. When sexual intimacy it is egoistically utilized to despoil marital union in order to advance a felonious urge for coitus by force, violence or intimidation, the Court will step in to protect its lofty purpose, vindicate justice and protect our laws and State policies. Besides, a husband who feels aggrieved by his indifferent or uninterested wife's absolute refusal to engage in sexual intimacy may legally seek the court's intervention to declare her psychologically incapacitated to fulfill an essential marital obligation. But he cannot and should not demand sexual intimacy 5. Not to neglect duties, or commit acts which tend to bring danger, dishonor, or injury to family (FC, Art. 72); 6. Either spouse may practice any legitimate profession/business, even without the consent of the other. NOTE: The other spouse may object on valid, serious and moral grounds. In case of disagreement, the court shall decide whether: a. b. 89 Objection is proper; and Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the community property. If the benefit accrued thereafter, such obligation shall be Civil Law enforced against the separate property of the spouse who has not obtained consent. (FC, Art. 73 as amended by R.A. 10572) ff. in the stated order: 1. 2. 3. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. Commencement of Property Regime Other obligations of spouses 1. 2. 3. Property relation agreed and embodied in the marriage settlement; Provisions of the FC; and Local custom. (FC, Art. 74) A property regime commences at the precise moment of the celebration of the marriage (i.e. actual time the marriage is celebrated on a certain date). Exercise the duties and enjoy the rights of parents; Answer for civil liability arising from injuries caused by children below 18; Exercise parental authority over children’s property Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (FC, Art. 88) Essential marital obligations cannot be compelled by court Laws that will govern the property relations of the spouses GR: Performance of essential marital obligation under Art. 68 of the FC cannot be compelled by court because it will be a violation of personal liberty. (Arroyo v. Arroyo, G.R. No. L-17014, August 11, 1921) GR: Philippine laws shall govern, regardless of place of celebration of marriage and residence of spouses, in the absence of contrary stipulation in a marriage settlement. (FC, Art. 80) XPN: XPN: Lex rei sitae applies: 1. 1. 2. Giving mutual help and support. NOTE: A husband is liable to pay the expenses arising from the medical assistance rendered to his wife even though he is not the one who actually called the attending physician on the ground that he has the obligation to provide support to his wife. (Pelayo v. Lauron, 12 Phil. 453) 2. 3. Wife left the conjugal home for justifiable reasons, is entitled to separate maintenance. (Goitia v. Campos Rueda, 35 Phil. 252) Rule on waiver of rights over the share in the community or conjugal property Reasons when the Court may exempt one spouse from living with the other 1. 2. GR: Cannot be waived during the marriage. If one spouse should live abroad. Other valid and compelling reasons. XPN: In case of judicial separation of property. NOTE: The waiver must be in a public instrument and recorded in the office of the local civil registrar where the marriage contract was recorded as well as in the proper registry of property. NOTE: The Court shall not grant the exemption if it is not compatible with the solidarity of the family PROPERTY RELATIONS OF THE SPOUSES Property regime governing the property relations of spouses in the absence of The property relations shall be governed by the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Where both spouses are aliens; With respect to the extrinsic validity of contracts affecting property not situated in the Philippines, and executed in the country where the property is located; or With respect to extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (FC, Art. 80) 90 Marriage under the Family Code marriage settlement or when regime agreed upon is void (1992, 1995, 2005 BAR) 1. 2. 3. 4. DONATION PROPTER NUPTIAS OR DONATIONBY REASON OF MARRIAGE (FC, ART. 82) The provisions in the marriage settlement must be in accordance with law, morals or public policy; otherwise such agreement is void. (Paras, 2008) GR: Absolute Community Property. (FC, Art. 75) XPNs: 1. For marriages contracted prior to the effectivity of the FC on August 3, 1988, conjugal partnership of gains shall govern the property relations and Art. 116 of the NCC will apply. The provisions of the FC shall have no retroactive effect because it shall impair vested rights. 2. Subsequent marriage contracted within one year from the death of the deceased spouse without liquidation of the community property or conjugal partnership of gains, either judicially or extra-judicially, as required under Arts.103 and 130 of the FC. In such case, a mandatory regime of complete separation of property shall govern the subsequent marriage. (Rabuya, 2009) In Writing; Signed by the parties; Executed before the celebration of marriage; Registration (to bind 3rd persons) A marriage settlement need not be notarized. The law is clear that the marriage settlements and any modification thereof shall be in writing signed by the parties and executed before the celebration of the marriage. (FC, Art. 77) The law merely requires it to be in writing; it does not require that it be in a public instrument for purposes of its validity. (Albano, 2013) The marriage settlements must be registered in the proper local civil registry where the marriage contract was recorded as well as in the proper registries of property in order that they may prejudice or bind third persons. (FC, Art. 77) Additional requirements for validity of the MS Q: Marriage being a contract, may the parties enter into stipulations which will govern their marriage? A: The nature, consequences and incidents of marriage are governed by law and not subject to stipulation between the spouses. This, however, is not an absolute rule. The law allows the spouses to fix their property relations during the marriage through a device known as “marriage settlement” subject only to the condition that whatever settlement they may have must be within the limits provided by the Family Code. MARRIAGE SETTLEMENT It is a contract entered into by a man and a woman who intend or plan to get married fixing the property regime that will govern their present and future properties during their marriage. It is also called as Ante-nuptial Agreement. (Sempio-Diy, 1995) FACTUAL SITUATION ADDITIONAL REQUIREMENT If one of both of the parties are: If the ff. must be made a party to the MS, otherwise the MS is void: 18-21 years old Parents; or those required to give consent Sentenced with civil interdiction Guardian appointed by the court Disabled Guardian appointed by the court Modification of the marriage settlement (FC, Art. 76) (2005 BAR) For any modification in the MS to be valid: 1. Requisites of a valid Marriage Settlement (FC, Art. 77) (W-S-E-R) 2. 3. 91 The requisites for a valid MS must be present; There must be judicial approval; Subject to the provisions of Arts. 66, 67, 128, Civil Law 135, and 136 of FC. 84) Effect on the ante-nuptial agreement in case the marriage is not celebrated (FC, Art. 81) GR: Everything stipulated in the settlements or contracts in consideration of the marriage shall be rendered void. XPN: Those stipulations not dependent upon, or are not made in consideration of, the marriage, subsist. Those donations which are made before the celebration of the marriage, in consideration of the same, and in favor of one or both of the future spouses. As to inclusio n of futurepr operty The formalities of the donation propter nuptias follows the same formalities as set forth in the law on donations. Revocati on NOTE: Donations of future property are governed by provisions on testamentary succession and formalities of wills. Donation propter nuptias (DPN) v. Ordinary Donation Future property may be included, provided the donation is mortis causa. [NCC, Art. 84(2)] Grounds for revocation are found in Art. 86 of FC. support from him (NCC, Art. 750) and further no legitimes of compulsory heirs shall be impaired. (NCC, Art. 752) Future property cannot be included. (NCC, Art. 751) Grounds for revocation are found in law in donations. Requisites for Donation Propter Nuptias BASIS DONATION PROPTER NUPTIAS As to formalit ies As to inclusio n of present property Donations of future property are governed by the provisions on testamentary succession and the formalities of wills. [FC, Art. 84(2)] Present property may be donated up to 1/5 of the donor’s present property if the future spouses have chosen a regime other than absolute community of property. (FC, Art. ORDINARY DONATION 1. 2. 3. Governed by Title III, Book III of the NCC. Rule regarding DPN made between spouses GR: Future spouses cannot donate to each other more than 1/5 of their present property and any excess from which shall be considered void. XPN: If they are governed by ACP, then each spouse can donate to each other in their marriage settlements present property without limit, provided there is sufficient property left for their support and the legitimes are not impaired. There is no limit except that the donor shall leave sufficient property for his support and that of all relatives entitled to UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Made before celebration of marriage; Made in consideration of the marriage; and Made in favor of one or both of the future spouses. Effect of donations of encumbered property Such donations are valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of the obligation, the donee 92 Marriage under the Family Code shall be entitled to the excess. (FC, Art. 85) 5. If with a resolutory condition which was complied with. Donations that may be revoked by the donor (FC, Art. 86) 6. Donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. A donation by reason of marriage may be revoked by the donor in the following cases: Grounds for filing an action for revocation of a DPN and their respective prescriptive periods 1. GR: Marriage is not celebrated or is judicially declared void ab initio. The prescriptive periods in other provisions of the Civil Code should apply, depending on the ground of revocation. Except for the action to revoke a donation to the guilty spouse in case of a legal separation, which the second paragraph of Art. 64 of the Code states must be brought within 5 years from the time of the decree of legal separation has become final, there is no other provision in the Family Code on the period of prescription of the action to revoke a donation proper nuptias. (Sempio-Diy, 2010) Effect: Donations stipulated in marriage settlement which are made not in consideration of the future marriage remains valid. Thus, can be revoked by the donor. XPN: a. Donations made in the marriage settlements in consideration of a future marriage because such donations are rendered void when marriage did not take place and, thus, there is nothing to revoke. b. If the marriage is judicially declared void by reason of non-compliance with Article 40 of the FC and the done spouse contracted the marriage in bad faith. The donation is deemed revoked by operation of law. c. If both parties acted in bad faith, all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (Article 44, FC) PRESCRIPTIVE PERIOD (reckoning point) GROUNDS (FC, Art. 86) 1. Marriage celebrated. is not Ground nullity: for XPN: automatically void by law. 2. Marriage takes place without the required consent of parents or guardians. NOTE: If the donor knew of the absence of consent of the parents before the marriage, he may not revoke the donation because the parent can still give their consent any time before the marriage ceremony takes palace. (Sta. Maria, 2017) 2. Marriage is judicially declared void. 3. Marriage is annulled and donee acted in bad faith. 4. Upon legal separation, the donee being the guilty spouse. 5 years from the time the marriage was not Those solemnized on the rendered fixed date. (FC, Art. 149) a. Contracted subsequent Revoked by marriage operation of law. before prior marriage has been judicially declared void. b. Any other 5 years grounds. Finality of judicial 3. Marriage took place declaration of without consent of nullity (if action is parents or guardian, to recover when required by law. property). NOTE: Prescription is 5 years from the judicial declaration of legal separation (a decree is necessary for the donor to revoke the donation). 93 Civil Law XPN: Moderate gifts on the occasion of any family rejoicing. 5 years from the time the donor came to know that the required parental consent was not obtained. 4. Marriage is annulled and donee acted in bad faith. The aforementioned rules also apply to common law spouses. (Matabuena v. Cervantes, G.R. No. L28771, March 31, 1971) PROPERTY RELATIONS OF SPOUSES 5 years from finality of decree. Different property regimes which may be adopted by future spouses 5 years from the 5. Upon legal separation, time the decree of donee being the guilty legal separation spouse. has become final. 6. Donation subject to resolutory condition which was complied with. I. II. III. IV. V. 5 years from the happening of the resolutory condition. The rule against donation to one another between the spouses do not include a spouse being a beneficiary of an insurance contract over the life of the other. (Gercio v. Sun Life Assurance Co., of Canada, G.R. No. 23703, September 28, 1925) 1 year From donor’s 7. Donee committed an knowledge of the act of ingratitude. commission of an act of ingratitude. Acts of ingratitude: (NCC, Art. 765) 1. Commission of an offense against the person, honor or property of the donor, his wife or his children under his parental authority; 2. GR: Imputation to the donor any criminal offense or any act involving moral turpitude; XPN: if the crime was committed against the donee himself, his wife or his children under his authority 3. Undue refusal to support the donor when he is legally or morally bound to give such support. DONATIONS DURING MARRIAGE Rule regarding donations between spouses during the marriage (FC, Art. 87) GR: Every donation or grant of gratuitous advantage, direct or indirect, between spouses is considered void. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Absolute Community of Property (ACP) Conjugal Partnership of Gains (CPG); Absolute Separation of Property (ASOP); A combination of the above regimes; Any other regime within limits provided by the FC. 94 Marriage under the Family Code ACP vs. CPG vs. CSOP ABSOLUTE COMMUNITY OF PROPERTY (ACP) When spouses: 1. Adopt it in a marriage settlement; 2. Do not choose any economic system property regime and the marriage took place during the effectivity of the Family Code (on August 3, 1988 or after); or 3. Adopted a different property regime and the same is void. CONJUGAL PPARTNERSHIP OF GAINS (CPG) When applicable 1. When the future spouses adopt it in a marriage settlement. 2. If the marriage is celebrated under the New Civil Code or prior the effectivity of the Family Code and they have not adopted any economic system property regime. Composition Each spouse retains his/her property before the marriage and only the fruits and income of such properties become part of the conjugal properties during the marriage. Effect of Separation In Fact The separation in fact shall not affect the regime of ACP, but: 1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; 2. When consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding. 3. In case of insufficiency of community or conjugal partnership property, separate property of both spouses shall be solidarily liable for the support of the family. Spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share. (FC, Arts. 100 & 127) Effect of Dissolution Upon dissolution and Upon dissolution of the liquidation of the community partnership, the separate property, what is divided properties of the spouses are equally between the spouses or returned and only the net their heirs is the net remainder profits of the partnership are of the properties of the divided equally between the ACP. spouses of their heirs. All the properties owned by the spouses at the time of marriage become community property. 95 COMPLETE SEPARATION OF PROPERTY (CSOP) 1. When future spouses adopt it in a marriage settlement; 2. ACP or CPG is dissolved; 3. Prior marriage is dissolved due to death of one spouse and surviving spouse failed to comply with the requirements under Art. 103 (judicial settlement proceeding of the estate of deceased spouse); 4. By judicial order. Judicial separation of property may either be voluntary or for sufficient cause. Civil Law Grounds for revival of former property regime 1. 2. 3. 4. 5. 6. 7. community Civil interdiction of the prisoner-spouse terminates; Absentee spouse reappears; Court authorizes resumption of administration by the spouse formerly exercising such power; Spouse who has abandoned the conjugal home returns and resumes common life with the other; Parental authority is judicially restored to the spouse previously deprived thereof; Reconciliation and resumption of common life of spouse who had been separated in fact for at least 1 year; or Spouses agree to revive their former property regime. 1. All the property owned by the spouses: a. At the time of the celebration of the marriage; or b. Acquired thereafter; 2. Property acquired during the marriage by gratuitous title, if expressly made to form part of the community property by the donor, testator or grantor; or Jewelry or properties with monetary value; Winnings in gambling. 3. 4. Properties excluded Community 1. Grounds for transfer of administration of the exclusive property of each spouse 2. When one spouses: 1. 2. 3. 4. 3. Is sentenced to penalty with civil interdiction; Becomes fugitive from justice or is hiding as an accused in a criminal case; Is judicially declared absent; Becomes guardian of another 4. Laws that govern the absolute community of property Family Code Civil Code provisions on co-ownership in the A wife, by affixing her signature to a deed of sale on the space provided for witnesses, is deemed to have given her implied consent to the contract of sale. The consent need not always be explicit absolute UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Property acquired during the marriage by gratuitous title and its fruits as well as income thereof, unless the grantor expressly provides that they shall form part of the community property; Property for personal and exclusive use of either spouse but jewelries shall form part of the ACP because of their monetary value; Property acquired before the marriage by one with legitimate descendants by former marriage and its fruits and income, if any; Those excluded by the marriage settlement. (FC, Art. 92) The sale or encumbrance of a conjugal property requires the consent of both the husband and the wife. (Guiang v. CA, G.R. No. 125172, June 26, 1998) The absence of the consent of one renders the entire sale or encumbrance null and void, including the portion of the conjugal property pertaining to the husband who contracted the sale. Neither would the conjugal partnership be liable for the loan on the ground that it redounded to the benefit of the family. (Homeowners Savings & Loan Bank v. Dailo, G.R. No. 153802, March 11, 2005) A property regime wherein the spouses are considered co-owners of all property brought into the marriage, as well as those acquired during the marriage, which are not otherwise excluded from the community either by the provisions of the Family Code or by the marriage settlement. (Rabuya, 2009) included Absolute In absence of evidence, property acquired during the marriage is presumed to belong to the community, unless proven otherwise by strong and convincing evidence. (FC, Art. 93) I. ABSOLUTE COMMUNITY OF PROPERTY (ACP) Properties the Presumption of inclusion in the absolute community NOTE: Transfer of administration of the exclusive property of either spouses does not confer ownership over the same. (Rodriguez v. De la Cruz, G.R. No. 3629, September 28, 1907) 1. 2. in 96 Marriage under the Family Code or set forth in any particular document so long as it is shown by acts of the wife that such consent or approval was in fact given. (Pelayo v. Perez, G.R. No. 141323, June 8, 2005) a. b. c. When the sale was entered into prior to the effectivity of the FC Art.173, in relation to Art. 166 of the NCC will apply if there was a finding of lack of the wife's consent. Under said provisions, the sale would have been merely voidable, and not void. 3. NOTE: For ante-nuptial debts, those contracted by one spouse without the consent of the other during the marriage and those contracted by the administratorspouse, the burden of proof that such debts were contracted for the benefit of the community or of the family lies with the creditor- party litigant claiming as much. (Rabuya, 2009) A. CHARGES UPON AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY PROPERTY Charges upon the ACP The support of: a. The spouses b. Their common children c. Legitimate children spouse; of 4. The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for selfimprovement; either NOTE: Support of illegitimate children of either spouse is chargeable to exclusive property of the illegitimate parent. (FC, Art. 197) 5. Payment, in case of absence or insufficiency of the exclusive property of the debtorspouse, of: XPN: Support of illegitimate children of either spouse is chargeable to community in case absence or insufficiency of the exclusive property of the debtor-spouse which shall be considered advances to be deducted from the share of the debtor-spouse upon liquidation of the community. (FC, Art. 94 (9)) 2. All debts and obligations during the marriage by: Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; a. All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; b. All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; c. Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for selfimprovement; d. Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (2007 BAR) The use of the jurat, instead of an acknowledgment, does not elevate the marital consent into the level of a public document but instead consigns it to the status of a private writing. Hence, the presumption of regularity does not apply, and the wife still needs to prove its genuineness and authenticity as required under the rules of evidence. The fact that the document contains a jurat, and not an acknowledgment, should not affect its genuineness or that of the related document of conveyance itself, the Deed of Absolute Sale. In this instance, a jurat suffices as the document only embodies the manifestation of the spouse's consent, a mere appendage to the main document. (Pan Pacific Industrial Sales Co., Inc. v. CA, G.R. No. 125283, February 10, 2006) 1. the designated administrator-spouse for the benefit of the community by both spouses by one spouse with the consent of the other; a. Ante-nuptial debts of either spouse which did not redound to the benefit of the family; b. The support of illegitimate children of either spouse; c. Liabilities incurred by either spouse by reason of a crime or quasi-delict; contracted NOTE: 97 The payment of which shall be Civil Law considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community. 6. Expenses of litigation between the spouses. However, if suit is found to be groundless, it cannot be charged against the ACP. (FC, Art. 94) ACP vs. CPG as to charges ACP (FC, Art. 94) CPG (FC, Art. 121) chargeable from separate property of person obliged to give support. In case of insufficiency or absence of separate property, ACP shall advance support, chargeable to share of parent upon liquidation. (FC, Art 94 (9)) from separate property of person obliged to give support. In case of insufficiency or absence of separate property, CP shall advance support, chargeable to share of parent upon liquidation, but only after obligations in Art. 121 have been covered. (FC, Art. 121) 1. Ante-nuptial debts are chargeable to ACP if they redounded to the benefit of family. 2. Personal debts not redounding to benefit of the family such as liabilities incurred by the reason of crime or quasi-delict are chargeable to the separate property of the debtor spouse. For ante-nuptial debts, same as ACP but in case of insufficiency of separate property, obligations enumerated in Art. 121 must first be satisfied before such debts may be chargeable to the CPG. 3. In case of insufficiency of separate property, chargeable to ACP but considered advances deductible from the share of the debtor-spouse upon liquidation. Support of the spouses, their common children, and legitimate children of either spouse. Debts and obligations contracted during marriage: a. b. c. d. By the administrator spouse designated in the marriage settlement/appointed by court/one assuming sole administration; By one without the consent of the other; By one with the consent of other; or By both spouses. For (a) and (b), creditor has the burden of proving benefit to the family and ACP/CPG chargeable to the extent of benefit proven, otherwise, chargeable to the separate property of the obligor spouse. For (c) and (d), real benefit to family is presumed. All taxes, liens, charges and expenses including minor repairs upon ACP or CPG. Expenses to enable commence/complete vocational or other improvement. either spouse to a professional, activity for self- Value donated/promise by both spouses in favor of common legitimate children for exclusive purpose of commencing or completing professional or vocational course or other activity for self-improvement. Expenses of litigation between spouses unless the suit is found to be groundless. For children, illegitimate support Q: An individual, while single, purchases a house and lot in 1990 and borrows money in 1992 to repair it. In 1995, such individual is married while the debt is still being paid. For illegitimate children, support UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 98 Marriage under the Family Code After the marriage, is the debt still the responsibility of such individual? (2007 BAR) 4. A: NO. Ante-nuptial debts of either spouse shall be considered as the liability of the absolute community of property insofar as they have redounded to the benefit of the family. During the pendency of the legal separation case, the court may designate either of the spouses as sole administrator. NOTE: But such powers do not include: 1. 2. 3. There is no presumption that the obligations incurred by one of the spouses during the marriage are charged against their community of property. Before any obligation may be chargeable against the community of property, it must first be established that such obligation is among the charges against the same. (Wong, et al, v. IAC, G.R. No. 70082, August 19, 1991) Disposition; Alienation; or Encumbrance of the conjugal or community property. "Court authorization" in the sale of conjugal properties Court authorization is resorted to in cases where the spouse who does not give consent is incapacitated. If there is no showing that the spouse is incapacitated, court authorization cannot be sought. (Manalo v. Fernandez, G.R. No. 147928, January 23, 2002) Insufficiency of the community property to cover liabilities GR: The spouses shall be solidarily liable for the unpaid balance with their separate properties. Disagreement in the administration community property (FC, Art. 96) XPN: Those falling under paragraph 9 of Art. 94. of the Family Code (Ante-nuptial debts, support of illegitimate children, liabilities incurred by spouse by reason of a crime or quasi-delict) – in which case the exclusive property of the spouse who incurred such debts will be liable. However, if the exclusive property is insufficient, payment will be considered as advances to be deducted from share of debtor- spouse. (FC, Art. 94 [9]) of In case of disagreement, the decision of the husband shall prevail but subject to recourse to the court by the wife for proper remedy. NOTE: Prescriptive period for recourse is within 5 years from the date of the contract implementing such decision. Sale or Disposition of Community Property B. OWNERSHIP, ADMINISTRATION, ENJOYMENT AND DISPOSITION OF THE ABSOLUTE COMMUNITY PROPERTY Alienation or encumbrance of community property must have the written consent of the other spouse or the authority of the court without which the disposition or encumbrance is VOID. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (FC, Arts. 96 and 124; Sps. Antonio and Luzviminda Guiang v. CA, et al., G.R. No. 125172, June 26, 1998) Administration of Community Property GR: The administration of community property belongs to both spouses jointly. XPN: 1. Agreement that only one of the spouses shall administer the community property; 2. If one spouse is incapacitated or otherwise unable to participate in the administration of the common properties – capacitated or able spouse may assume sole powers of administration without the need of court approval or authorization; 3. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for sole administration; The absence of consent of one of the spouses renders the entire sale null and void, including the sale of the portion of the conjugal property pertaining to the spouse who contracted the sale. The consent of one spouse regarding the disposition does not always have to be explicit or set forth in any particular document, so long as it is shown by acts of the said spouse that 99 Civil Law such consent or approval was indeed given. (Sps. Cirelos v. Sps. Hernandez, et al. G.R. No. 146523, June 15, 2006) However, even if the other spouse actively participated in negotiating for the sale of the property, that other spouse's written consent to the sale is required by law for its validity. Being aware of a transaction is not consent. (Jader-Manalo v. Camaisa, G.R. No. 147978, January 23, 2002) spouse GR: A spouse cannot donate any community property without the consent of the other. XPN: Moderate donations for charity or on occasion of family rejoicing or distress. (FC, Art. 98) Separation in fact between husband and wife (FC, Art. 100) Q: Marco and Gina were married in 1989. In 1999, Gina left Marco and lived with another man, leaving the two children of school age with Marco. When Marco needed money for their children’s education, he sold a parcel of land registered in his name, without Gina’s consent, which he purchased before his marriage. Is the sale by Marco valid, void, or voidable? Explain with legal basis. (2015 BAR) GR: Such separation does not affect the regime of absolute community. XPNs: 1. Spouse who leaves the conjugal home or refuses to live therein without just cause has no right to be supported; 2. When consent of one spouse to any transaction of the other spouse is required by law, judicial authorization must be obtained; 3. If community property is insufficient, the separate property of both spouses shall be solidarily liable for the support of the family. A: The sale is VOID. The parties were married in 1989. In the absence of a marriage settlement, the parties shall be governed by ACP whereby all the properties owned by the spouses at the time of the celebration of the marriage as well as whatever they may acquire during the marriage shall form part of the absolute community. In ACP, neither spouse can sell or encumber property belonging to the ACP without the consent of the other. Any sale or encumbrance made by one spouse without the consent of the other shall be void although it is considered as a continuing offer on the part of the consenting spouse upon authority of the court or written consent of the other spouse. Abandonment (1999, 2003 BAR) If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for: 1. 2. 3. Q: Does the prohibition cited above include lease by the husband over properties of the community of property without the consent of the wife? Presumption of Abandonment A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three (3) months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (Pineda, 2008) A: YES. In the contract of lease, the lessor transferred his right of use in favor of the lessee. The lessor's right of use is impaired therein. He may even be ejected by the lessee if the lessor uses the leased realty. Therefore, the lease is a burden on the land. It is an encumbrance on the land. Moreover, lease is not only an encumbrance but also a qualified alienation, with the lessee becoming, for all intents and purposes, and subject to its terms, the owner of the thing affected by the lease. (Roxas v. CA, G.R. No. 92245, June 26, 1991) The presumption is rebuttable by the presentation of clear, strong and convincing evidence that the absent spouse did not intend to leave the present spouse and family. (Pineda, Donation of a community property by a UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Receivership; Judicial separation of property; Authority to be the sole administrator of the absolute community. (FC, Art. 101) 100 Marriage under the Family Code 2008) 2. 3. 4. Prohibition against the sale of property between spouses 5. GR: Spouses cannot sell property to each other. NOTE: The absolute community of property or the conjugal partnership is considered dissolved only upon the issuance of the judicial decree of separation, not at the moment when the parties enter into a compromise agreement in the course of the proceedings for separation of property. (Albano, 2013) XPNs: 1. When a separation of property was agreed upon in the marriage settlement; 2. When there has been a judicial separation of property under Articles 135 and 136 of the Family Code. (NCC, Art. 1490) NOTE: The proscription against the sale of property between spouses under Art. 1490 of the New Civil Code applies even to common law relationships. In an earlier ruling, the Supreme Court nullified a sale made by a husband in favor of a concubine, after he had abandoned his family and left the conjugal home where his wife and children lived, and from whence they derived their support, for being contrary to morals and public policy. The sale was regarded by the court as subversive of the stability of the family, a basic social institution which public policy cherishes and protects. (Ching v. CA, G.R. No. 165879, November 10, 2006) D. LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS AND LIABILITIES Procedure in case of dissolution of ACP 1. 2. Inventory of all properties of the ACP, listing separately the communal properties from exclusive properties of each spouse; Payment of community debts; NOTE: First, pay out of the community assets. If not enough, husband and the wife are solidarily liable for the unpaid balance with their separate properties. C. DISSOLUTION OF ABSOLUTE COMMUNITY REGIME 3. Dissolution of Absolute Community Property (2009 BAR) 4. Delivery to each spouse of his/her remaining exclusive properties; Equal division of net community assets Unless there is: a. Absolute Community Property is terminated by: (FC, Art. 99) 1. Legal separation; Annulment; When the marriage is declared void under Art.40 of the Family Code; Judicial separation of property during marriage. (FC, Art. 99) b. Death of either spouse; 5. NOTE: If the surviving spouse contracts another marriage without compliance with the foregoing requirement, a mandatory regime of complete separation shall govern the property relations of the subsequent marriage. 6. An agreement for a different proportion; or A voluntary waiver of such share; Delivery of the presumptive legitimes of the common children; and Adjudication of conjugal dwelling and custody of common children. (FC, Art. 102) Applicable procedure in the dissolution of the ACP in case the marriage is terminated by death Upon lapse of the one-year period and liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. (FC, Art. 103) Community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial proceeding is instituted, the surviving spouse shall, judicially or extrajudicially, liquidate the community property within 1 year from the death of the deceased The reason for the law is that, the law seeks to protect the children's interest in the first marriage. (Albano, 2013) 101 Civil Law spouse. (FC, Art. 103) Q: Melinda is the widow of Jose. In December 18, 1984, they acquired a 310-square meter lot. Subsequently, a TCT was issued to "Jose, married to Melinda," covering the disputed property. Melinda discovered that the TCT had long been canceled through a string of transactions, and that the property was registered under the name of Spouses Montano. The Court found that since Jose acquired the gift by gratuitous title during marriage, the property was excluded from the conjugal partnership of gains. As it was his exclusive property, Jose can dispose it without Melinda's consent. Is the property in dispute a conjugal property? Consequences of failure to liquidate within 1 year 1. Failure to liquidate the community property within 1 year from the death of the deceased spouse contrary to Art. 103 of the Family Code, would render any disposition or encumbrance involving community property of the terminated marriage void. 2. If the surviving spouse contracts a subsequent marriage without compliance with the foregoing requirements, the subsequent marriage shall be governed, mandatorily, by a regime of complete separation of property. (Rabuya, 2006) A: YES, it is a conjugal property. The circumstances here transpired prior to the effectivity of the Family Code on August 3, 1988. Thus, petitioner and Jose's marriage and property relations are governed by the Civil Code. II. CONJUGAL PARTNERSHIP OF GAINS (CPG) It is the property relation formed by the husband and the wife by placing in a common fund: (FC, Art. 106) 1. 2. Under the Civil Code, property acquired during marriage is presumed to be conjugal. What must be established is that the property was acquired during marriage. Only through "clear, categorical, and convincing" proof to the contrary will it be considered the paraphernal property of one (1) of the spouses. (Melinda M. Malabanan V. Francisco Malabanan, Jr., Spouses Ramon and Prescila Malabanan, and Spouses Dominador III And Guia Montano, G. R. No. 187225, March 06, 2019, as penned by J. Leonen) The proceeds, product, fruits and income of their separate properties; Those acquired by either or both of them through: a. Effort – an activity or undertaking which may or may not be rewarded; b. Chance – activities like gambling or betting. Commencement of CPG EXCLUSIVE PROPERTY OF THE SPOUSES (FC, ART. 109) CPG shall commence at the precise moment when the marriage ceremony is celebrated. 1. Law that governs the conjugal partnership The rules on the contract of partnership in all that is not in conflict with what is expressly determined in the FC and by the spouses in their marriage settlements. (FC, Art. 108) NOTE: a. A property purchased before the marriage and fully paid during the marriage remains to be a separate property of either spouse. (Lorenzo v. Nicolas, G.R. No. L-4085, July 30, 1952) b. Fruits and income of said properties shall be included in the conjugal partnership. c. Those included therein in the marriage settlement, subject to the 1/5 limitation under Article 84 and the rule in Article 92(3) of the Family Code which apply by Only inchoate right over conjugal property The interest of the spouses in the conjugal properties is only inchoate or a mere expectancy and does not ripen into title until it appears the dissolution and liquidation of the partnership that there are net assets. (Sempio-Diy, 1995) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Those brought into the marriage as his/her own; 102 Marriage under the Family Code analogy 2. NOTE: For reverse accession to apply, the separate property must be owned by a spouse exclusively at the time of the introduction of the improvement. It will apply if the property is partly owned by a spouse and partly owned by a third person. Those acquired during the marriage by gratuitous title; NOTE: a. Pensions will not form part of the conjugal partnership of gains when it is given to him voluntarily and he is not entitled as a matter of right such as a fruit of industry or labor. b. Proceeds of life insurance policy will not form part of the conjugal partnership of gains when the beneficiary of the life insurance is the estate and the premiums are sourced from the separate property of the spouse. c. Retirement Benefits will not form part of the conjugal partnership of gains when it is given to him voluntarily and he is not entitled as a matter of right such as a fruit of industry or labor. 3. 2. NOTE: In either case, there shall be reimbursement upon the liquidation of the conjugal partnership and ownership of entire property shall be vested only upon reimbursement. Q: A parcel of land is owned by the father of W. With his permission, H and W constructed their house over the said parcel of land. After some time, the father of W died, leaving W as his sole heir. Who now owns the parcel of land and the improvements introduced by the H and W? Assume that the property regime of the H and W is conjugal partnership of gains. Those acquired by right of redemption, barter or exchange with exclusive property; NOTE: In right of redemption, for it to form part of the exclusive property of the spouse, the ownership over such property must still pertain to the said spouse. 4. A: W. The wife will now own both the parcel of land the house introduced by H and W. Reverse Accession under Article 120 of the Family Code will not apply since at the time of the introduction of the improvement the parcel of land is owned by the father of W which she inherited it when her father died. What will apply here instead is the ordinary rule of accession. However, the conjugal partnership of gains will still enjoy the said property as a usufructuary and W will be the naked owner thereof. That purchased with exclusive money of either spouse. NOTE: The controlling factor is the source of the money used, or the money promised to be paid. Alienation of exclusive properties of either spouse Q: A, prior to his death, sold his lot. There were improvements made on the said lot which was paid out of the conjugal funds of A and B. When A died, using Art. 120 of the FC to support her claim, B sought reimbursement of her half of the sale from C, the buyer of the property. Will the petition of B prosper? Either spouse may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property. (FC, Art. 111 as amended by R.A. 10572) Rules in cases of improvement of exclusive property (FC, Art. 120) 1. Accession – If the cost of the improvement and the value of the improvement is equal to or less than the value of the principal property, the entire property becomes the exclusive property of the respective spouse. Reverse accession – If the cost of the improvement and the value of the improvement is more than the value of the principal property at the time of the improvement, the entire property becomes conjugal. A: NO. The SC ruled that Art. 120 does not give any cause of action on the part of B to claim from C, the subsequent buyer of the property of A, the deceased husband. Art. 120 of the FC only allows claims from the husband if the latter is still the 103 Civil Law owner of the lot upon liquidation. (Ferrer vs Ferrer, G.R. No. 166496, November 9, 2006) during the marriage and net fruits of separate property; Presumption of inclusion of property in the Conjugal Partnership of Gains NOTE: Net fruits refer to the remainder of the fruits after deducting the amount necessary to cover the expenses of administration of said exclusive property. GR: All property 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 conjugal. 6. 7. XPN: Unless the contrary is proved. Property bought through installment (FC, Art. 118) Obligations Chargeable to Separate Property 1. 2. 3. 4. 5. 6. 7. 8. Support of illegitimate children; Liabilities incurred by reason of a crime or quasi- delict; Expenses of litigation between the spouses if found to be groundless; Debts contracted during the marriage by the administrator-spouse which does not benefit the community; Debts contracted during the marriage without the consent of the other which did not benefit the family; Ante-nuptial debts by either spouse which did not benefit the family; Taxes incurred on the separate property which is not used by the family; Expenses incurred during the marriage on a separate property if the property is not used by the family and not for its preservation. Requisites: 1. Property is bought on installment prior to the marriage; and 2. Paid partly from exclusive funds and partly from conjugal funds. Rules in determining ownership 1. 2. Composition of CPG (1995, 1998, 2004, 2005, 2008 Bar) (FC, Art. 117) Q: Yamane asserts that the parcel of land, which was purchased at auction, belonged to the conjugal partnership of him and his late wife. In the title, his name appeared to be merely descriptive of the civil status of the registered owner, his late wife. The purchase took place prior to the advent of the Family Code. Is the property conjugal or paraphernal property of his late wife? Those acquired by onerous title during the marriage with conjugal funds; Requisites: a. Acquisition is made during the marriage, b. Thru onerous title, c. At the expense of common fund; 2. 3. 4. 5. A: CONJUGAL. In this case, the provisions of the NCC would apply since the property was purchased before the FC took effect. Under Art. 160 of the NCC, all properties of the marriage are presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or the wife. In this case, there was no proof that Livestock in excess of what was brought to the marriage; Those acquired by chance such as winnings from gambling or betting; Those obtained from labor, industry, work or profession of either or both spouses; Fruits of conjugal property due or received UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES If full ownership was vested before the marriage – it shall belong to the buyer spouse; If full ownership was vested during the marriage – it shall belong to the conjugal partnership; NOTE: In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner/s upon liquidation of the partnership. CONJUGAL PARTNERSHIP PROPERTY 1. Share of either spouse in hidden treasure; and Those acquired through occupation such as hunting or fishing. (FC, Art. 117) 104 Marriage under the Family Code the property had been acquired exclusively by Yamane's late wife. The mere registration of a property in the name of one spouse does not destroy its conjugal nature in the absence of strong, clear and convincing evidence that it was acquired using the exclusive funds of said spouse. (Spouses Go v. Yamane, G.R. No. 160762, May 3, 2006) 3. 4. (Francisco v. CA, G.R. No. 102330, November 30, 1998). Proof of acquisition during the coverture is a condition sine qua non to the operation of the presumption in favor of the conjugal partnership. (Pintiano-Anno, v. Anno, et al., G.R. No. 163743, January 27, 2006) Effect if properties were registered during the marriage Those obtained from labor, industry, work or profession of either or both spouses; Fruits of conjugal property due or received during the marriage and net fruits of separate property; The fact that the properties were registered in the name of the spouses is no proof that the properties were acquired during the marriage. It is well-settled that the registration does not confer title but merely confirms one already existing. (Jocson v. CA, G.R. No. L-55322, February 16, 1989) NOTE: Net fruits refer to the remainder of the fruits after deducting the amount necessary to cover the expenses of administration of said exclusive property. 5. 6. Q: H & W got married on October 1926. H subsequently cohabited with X. During the cohabitation of H with X, H acquired certain properties and places his status as single. What is the nature of said properties? Share of either spouse in hidden treasure; Those acquired through occupation such as hunting or fishing; Q: Dolores seeks to recover a parcel of land, alleging that she and her husband acquired such during their marriage, that it formed part of their conjugal properties and that he sold it without her consent. She presents their marriage contract and the initial tax declaration over the property as pieces of evidence. Will her action prosper? A: THEY ARE CONJUGAL PROPERTIES. Whether a property is conjugal is determined by law and not by the will of one of the spouses. No unilateral declaration by one spouse can change the character of conjugal property. The clear intent of H in placing his status as single is to exclude W from her lawful share in the conjugal property. The law does not allow this. The cohabitation of a spouse with another person, even for a long period, does not sever the tie of a subsisting previous marriage. A: RECOVERY IS NOT WARRANTED because rule is all properties of the marriage are presumed to be conjugal in nature. However, for this presumption to apply, the party who invokes it must first prove that it was acquired during the marriage. Here, Dolores' evidence consisted of her marriage contract and the initial tax declaration over the property. She did not identify when she and her husband first occupied and possessed the land. H and X’s cohabitation cannot work to the detriment of Was the legal spouse. The marriage of H and W continued to exist regardless of the fact that H was already living with X. Hence, all property acquired from the date of their marriage until the death of W are presumed conjugal. It was neither claimed nor proved that any of the subject properties was acquired outside or beyond this period. (Villanueva v. CA, G.R. No. 143286, April 14, 2004) Neither did she present any witness to prove that they first occupied the property during their marriage and that they both worked on the land. (Pintiano-Anno v. Anno, G.R. No. 163743, January 27, 2006) Q: Suppose a property was acquired by one spouse while they were living separately, is this property conjugal or not? The presumption of conjugality of the properties of the husband and wife applies only when there is proof that the property was acquired during the marriage. If there is no showing as to when the properties alleged to be conjugal were acquired, the presumption does not apply A: It is presumed to be conjugal. All property acquired during the marriage regardless of whether the spouses are living together or not, are presumed to be conjugal property. (Flores v. Escudero, G.R. No. L-5302, March 11, 1953) 105 Civil Law If levy was made on the conjugal property by reason of the husband being a guarantor, the levy is improper. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except as they redounded to the benefit of the family. (FC, Art. 122) (2000, 2005 BAR) A. CHARGE UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP OF GAINS (CPG) 1. 2. 3. 4. 5. 6. 7. 8. 9. Support of the spouses, their common children and the legitimate children of either spouse; Debts and obligation by one without the consent of the other to the extent of the family benefited; Debts and obligations contracted during the marriage by an administrator-spouse, both spouses or one with the consent of the other; Taxes, liens, charges, expenses, including major or minor repairs upon conjugal property; Taxes and expenses for mere preservation made during the marriage of separate property; Expenses for professional, vocational or selfimprovement courses of either spouse; Ante-nuptial debts to the extent the family has been benefited; Value of what is donated or promised to common legitimate children for professional, vocation or selfimprovement courses; and Expenses of litigation between the spouses unless the suit is found to be groundless. (FC, Art. 121) Q: If one of the spouses committed the crime of slander and was held liable for damages in a damage suit, is it chargeable against the conjugal partnership? A: NO. Unlike in the system of absolute community where liabilities incurred by either spouse by reason of a crime or quasi-delict is chargeable to the absolute community of property, in the absence or insufficiency of the exclusive property of the debtor-spouse, the same advantage is not accorded in the system of conjugal partnership of gains. To reiterate, conjugal property cannot be held liable for the personal obligation contracted by one spouse, unless some advantage or benefit is shown to have accrued to the conjugal partnership. (Go v. Yamane, G.R. No. 160762, May 3, 2006) Q. Venancio is married to Lilia since 1973. During their union, they acquired three (3) parcels of land in Malolos, Bulacan. The properties were mortgaged to Philippine National Bank on August 25, 1994 to secure a loan worth P1,100,000.00, and was increased to P3,000,000.00. According to PNB, the spouses duly consented with the loan. When the Reyes Spouses failed to pay the loan obligations, Philippine National Bank foreclosed the mortgaged real properties. The auction sale happened and PNB emerged as the highest bidder and a certificate of sale was issued in its favor. Venancio claimed that his wife undertook the loan and the mortgage without his consent and his signature was falsified on the promissory notes and the mortgage. NOTE: If the conjugal partnership is insufficient to cover the foregoing liabilities, spouses shall be solidarily liable for the unpaid balance with their separate properties. Charges against the Separate Property that may be charged upon the CPG Requisites: 1. All the responsibilities of the partnership have already been covered; and 2. The spouse who is bound has no exclusive properties or the same are insufficient. Charges: 1. 2. 3. 1. What is the status of the real estate mortgage? Personal debts of either spouse contracted before the marriage which did not redound to the benefit of the family; Support of the illegitimate children of either spouse; Fines and indemnities arising from delicts and quasi- delicts. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 2. Can the conjugal partnership be held liable for the loan contracted unilaterally by Lilia? A. 106 Marriage under the Family Code 1. The real estate mortgage over a conjugal property is void if the non-contracting spouse did not give consent. Any disposition or encumbrance of a conjugal property by one spouse must be consented to by the other; otherwise, it is void. 2. YES. They are jointly and solidarily liable with each other with their separate properties if their conjugal partnership is insufficient to fully pay for the loan. What the lower courts declared void was the real estate mortgage attached to the conjugal property of the Reyes Spouses. Since the real estate mortgage was an encumbrance attached to a conjugal property without the consent of the other spouse, it is void and legally inexistent. Although petitioner cannot foreclose the mortgage over the conjugal property in question, it can still recover the loan amount from the conjugal partnership. (Philippine National Bank v. Venancio C. Reyes, JR., G.R. No. 212483, October 5, 2016, as penned by J. Leonen) sole powers of administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority or written consent of the other spouse. (Aggabao v. Parulan, G.R. No. 165803, September 1, 2010) Disagreement in the administration of the CPG In case of disagreement, the decision of the husband shall prevail subject to recourse to the court by the wife for proper remedy. NOTE: Prescriptive period for recourse is 5 years from the date of the contract implementing such decision. (2000, 2002 BAR) C. DISSOLUTION OF CONJUGAL PARTNERSHIP OF GAINS Conjugal partnership is terminated by: 1. 2. 3. 4. B. ADMINISTRATION OF THE CONJUGAL PARTNERSHIP OF GAINS (ART. 124) GR: The right to administer the conjugal partnership belongs to both spouses jointly. D. LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES XPN: 1. If one spouse is incapacitated or otherwise unable to participate in the administration of the common properties – capacitated or able spouse may assume sole powers of administration. 2. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for sole administration. 3. During the pendency of a legal separation case, the court may designate either of the spouse as sole administrator. 1. 2. 3. 4. 5. 6. 7. 8. But such powers do not include: 1. 2. 3. Death of either spouse; Legal separation; Annulment or Declaration of Nullity; Judicial separation of property during marriage. (FC, Art. 126) 9. Disposition; Alienation; or Encumbrance of the conjugal or community property. Inventory of all the properties; Restitution of advances made to each of the spouses; Reimbursement for use of exclusive funds; Debts and obligations of the CP are paid; Delivery of exclusive properties; Payment of losses and deterioration of movables belonging to each of the spouses, unless the owner had been indemnified from whatever source; Division of the net conjugal partnership; Delivery of the common children’s presumptive legitimes; Adjudication of conjugal dwelling and custody of common children. (FC, Art. 129) Liquidation of community property if the termination of the marriage is by death Upon termination of marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. (FC, Art. 130) NOTE: The sale of conjugal property without the consent of the husband is void. If one spouse is incapacitated or otherwise unable to assume 107 Civil Law Support to the surviving spouse and to the children during liquidation 1. The support to be given to the surviving spouse and to the children during liquidation shall come from the common mass of property and shall be particularly charged against the fruits, rents or income pertaining to their shares to the inventoried property. But where the support given exceeds the fruits, rents or income pertaining to their shares, the excess shall be deducted from their respective shares as these are deemed advances from the inventoried property. (FC, Art. 133) 2. Rules governing the regime of separation of property 1. 2. Liquidation of community property in the absence of a judicial settlement proceeding (FC, Art. 130) 1. 4. As to extent: (FC, Art. 144) a. b. NOTE: The system of complete separation of property will govern the property relations between the spouses only in the following cases: 2. 3. Marriage settlement Family Code in supplemental character (FC, Art. 149) Kinds of separation of property In the absence of a judicial settlement proceeding, the surviving spouse shall liquidate the community property either, judicially or extra-judicially within 1 year from the death of the deceased spouse. 1. Any disposition or encumbrance made by the surviving spouse involving community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. 2. As to kinds of property: (FC, Art. 144) a. b. c. When it is expressly provided for in the marriage settlement. When it is so decreed by a competent court. Mandatory regime of complete separation of property. By failure of the surviving spouse to liquidate the absolute community or conjugal partnership of gains of a previous marriage which has been terminated by death within the one-year period required by law prior to contracting another marriage. The subsequent marriage is mandatorily governed by a regime of complete separation. Total Partial – In this case, the property not agreed upon as separate shall pertain to the absolute community. Present property Future property Both present and future property Instances when separation of property is allowed (FC, Art. 134) 1. 2. By agreement through marriage settlement By judicial order Sufficient causes for judicial separation of property 1. 2. 3. III. COMPLETE SEPARATION OF PROPERTY (CSOP) 4. Civil interdiction of the spouse of petitioner; Judicial declaration of absence; Loss of parental authority as decreed by the court; Abandonment or failure to comply with family obligation; (2003 BAR) Administrator spouse has abused authority; Separation in fact for one year and reconciliation is highly improbable. (FC, Art. 135) If during the liquidation of the CP, the conjugal partnership assets are less than the conjugal partnership liabilities, the surviving spouse and the children shall not be entitled to support. 5. 6. Effects if the community property is not liquidated (FC, Art. 130) NOTE: In cases provided in 1, 2 and 3, the presentation of the final judgment against the guilty or absent spouse shall be enough bases for UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 108 Marriage under the Family Code the grant of the decree of judicial separation of property. cause, the revival of the previous property regime depends upon the cessation of the ground which was the basis of the judicial order. A subsequent judicial separation of property for a sufficient cause may be allowed so long as there is a new ground to rely on. Effects of judicial separation of property between spouses 1. 2. 3. 4. The absolute community or conjugal partnership is dissolved; The liability of the spouses to creditors shall be solidary with their separate properties; Mutual obligation to support each other continues except when there is legal separation; Rights previously acquired by creditors are not prejudiced. The procedure of the revival of previous property regime is the same as those followed upon reconciliation of the spouses after the finality of legal separation. Transfer of Administration of Exclusive Property to another Spouse during the Marriage In case of voluntary agreement for the separation of property, the law does not require specific reasons to justify the Court in approving the same. The law leaves the matter to the discretion of the court. (Sempio-Diy, 1995) (2005 BAR) 1. By agreement Requisites: a. b. Rights of the spouses under the regime of separation of property 1. 2. 2. Each spouse shall own, dispose of, administer, possess, and enjoy his or her own separate property, without need of the consent of the other. Each spouse shall own all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (FC, Art. 145) By means of a public instrument; To be recorded in the registry of property of the place where the property is located. By order of the court upon petition Based on these grounds: a. b. c. Liabilities of the spouses for family expenses under the regime of separation of property (FC, Art. 146) d. GR: Both spouses shall bear the family expenses in proportion to their income. Other spouse becomes the guardian of the other; The other spouse is judicially declared an absentee; Other spouse is sentenced to a penalty which carries with it civil interdiction; or Other spouse becomes fugitive from justice or hiding as an accused in a criminal case. (FC, Art. 142) NOTE: For as long as it is proven that s property was acquired during marriage, the presumption of conjugality will attach regardless in whose name the property is registered. XPN: In case of insufficiency or default thereof, to the current market value of their separate properties. The presumption is not rebutted by the mere fact that the certificate of title of the property or the tax declaration is in the name of one of the spouses. (Villanueva v. CA, G.R. No. 143286, April 14, 2004) Revival of previous property regime If the spouses opted for voluntary separation of property, the parties may agree to the revival even in the absence of a reason/ground. However, a subsequent voluntary separation of property is no longer allowed. Property regime in case the marriage is declared null and void on the ground of psychological incapacity If the separation of property is for a sufficient The property relation between the parties is 109 Civil Law governed by Art. 147 of the Family Code. Property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. Art. 50 of the Family Code, and Sec. 19 of the Rules on Declaration of Nullity applies only to marriages which are declared void ab initio or annulled by final judgment under Art. 40 and 45 of the Family Code. Art. 50 does not apply to marriages which are declared void ab initio under Art. 36 which should be declared void without waiting for the liquidation of the properties of the parties. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co-ownership. In this case, petitioner’s marriage to respondent was declared void under Art. 36 of the FC and not under Art.40. Thus, what governs the liquidation of property owned in common by petitioner and respondent are the rules on coownership under Art. 496 of the NCC. Partition may be made by agreement between the parties or by judicial proceedings. It is not necessary to liquidate the property of the spouses in the same proceeding for declaration of nullity of marriage. (Dino v. Dino, G.R. No. 178044, January 19, 2011) Q: Miko and Dinah started to live together as husband and wife without the benefit of marriage in 1984. 10 years after, they separated. In 1996, they decided to live together again, and in 1998 they got married. On February 17, 2001, Dinah filed a complaint for declaration of nullity of her marriage with Miko on the ground of psychological incapacity. The Court rendered the following decision: Co-ownership under Art. 147 When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules of co-ownership. 1. Declaring the marriage null and void; 2. Dissolving the regime of Absolute Community of Property; and 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, worker industry, 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 former's efforts consisted in the care and maintenance of the family and of the household. 3. Declaring that a decree of absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the parties’ properties under Art, 147. Dinah filed a Motion for Partial Reconsideration questioning the portion of the decision on the issuance of a decree of nullity of marriage only after the liquidation, partition and distribution of properties under Article 147. If you are the judge, how will you decide the petitioner’s Motion? Why? (2014 BAR) Under this article, there is a presumption that the properties which they acquired during their cohabitation were acquired through their joint efforts, work or industry. It further provides that a party who did not participate in the acquisition thereof shall be deemed to have contributed jointly in the acquisition thereof if his or her efforts consisted in the care and maintenance of the family and of the household. A: I will grant the partial reconsideration. If the marriage is declared void under Art. 36, the provisions of the Family Code on liquidation, partition and distribution of the properties on absolute community or conjugal partnership will not apply but rather Art 147 or Art. 148 depending on the presence or absence of the legal impediment between them. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Co-ownership under Art. 148 110 Marriage under the Family Code Co-ownership may ensue in case of cohabitation where, for instance, one party has a pre-existing valid marriage, provided that the parties prove their actual joint contribution of money, property or industry and only to the extent of their proportionate interest thereon. (Francisco v. Master Iron Works Construction Corp., G.R. No. 151967, February 16, 2005) A: a. Q: Romeo and Juliet lived together as husband and wife without the benefit of marriage. During their cohabitation, they acquired a house. When they broke up, they executed an agreement where he agreed to leave the house provided Juliet will pay his entire share in their properties. She failed to do so but she also ignored his demand for her to vacate. Romeo sued her for ejectment which the court granted. Was the court correct in granting the same? b. NO. Article 147 of the Family Code cannot apply to Bert and Joe because the law only applies to a man and a woman who are capacitated to marry each other who live together as husband and wife without the benefit of marriage or under a void marriage. In the case of Bert and Joe, they are both men, so the law does not apply. NO. Joint adoption is allowed between husband and wife, even if Bert and Joe are cohabiting with each other, they are not vested with the right to jointly adopt under the Family Code or even under the Domestic Adoption Act. (Sec. 7, R.A. 8552) Q: Benjamin is married to Azucena. While Azucena is out of country, Benjamin developed a romantic relationship with Sally, but her father was against this. In order to appease her father, Sally convinced Benjamin to sign a purported marriage contract. Eventually, their relationship ended a few years later. Benjamin asked the court for the partition of the properties he acquired with Sally in accordance with Article 148 of the FC, for his appointment as administrator of the properties during the pendency of the case. Among the 44 properties which were the subject of the partition, 7 were enumerated by Benjamin while Sally named 37 properties in her answer. Is Benjamin’s contention correct? A: NO. Under Art.147 of the Family Code, the property is co- owned by the parties. In the absence of proof to the contrary, any property acquired by common-law spouses during their cohabitation is presumed to have been obtained thru their joint efforts and is owned by them in equal shares. Their property relationship in such a case is essentially governed by the rules on coownership. Thus, Romeo cannot seek the ejectment of Juliet therefrom. As a co- owner, she is as much entitled to enjoy its possession and ownership as him. (Abing v. CA, G.R. No. 146294, July 31, 2006) Q: Bert and Joe, both male and single, lived together as common law spouses and agreed to raise a son of Bert’s living brother as their child without legally adopting him. Bert worked while Joe took care of they were able to acquire real estate assets registered in their names as co-owners. Unfortunately, Bert died of cardiac arrest, leaving no will. Bert was survived by his biological siblings, Joe and the boy. A: YES. The property relations of Benjamin and Sally is governed by Article 148 of the Family Code. They cohabitated without the benefit of marriage. Thus, only the properties acquired by them through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. Thus, the 37 properties being claimed by Sally is excluded as part of her conjugal properties with Benjamin because Sally was not legally married to Benjamin. As regards the seven remaining properties, only one of them is registered in the names of the parties as spouses. The other four were registered in the name of either one of them with the description “married to” and the last two were named to Sally as an individual. The words “married to” preceding the name of a spouse are merely descriptive of the civil status of the registered owner, which do not prove co-ownership. Without proof of actual contribution from either Can Article 147 on co-ownership apply to Bert and Joe, whereby all properties they acquired will be presumed to have been acquired by their joint industry and shall be owned by them in equal shares? If Bert and Joe had decided in the early years of their cohabitation to jointly adopt the boy, would they have been legally allowed to do so? Explain with legal basis. 111 Civil Law or both spouses, there can be no co-ownership under Article 148 of the Family Code. (GoBangayan v. Bangayan, Jr., G.R. No. 201061, July 3, 2013) Retroactive application of Art. 148 of the Family Code Although the adulterous co-habitation of the parties or the acquisition of the property occurred before the effectivity of the Family Code on August 3, 1998, Article 148 applies because the said provision was intended precisely to fill up the hiatus in Article 144 of the NCC. Before Article 148 of the Family Code was enacted, there was no provision governing property relations of couples living in a state of adultery or concubinage. (Atienza v. De Castro, G.R. No. 169698, November 29, 2006) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 112 Marriage under the Family Code IV. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE BASIS ART.147 (1997, 2000, 2006, 2009, 2010 BAR) 1. Applicability 2. Parties without legal impediment to marry; Void marriage on the ground of psychological incapacity. ART.148 (1992, 1998, 2000, 2006, 2009 BAR) With legal impediment caused by: 1. 2. 3. 4. 1. As to requisites 2. 3. The man and the woman must be capacitated to marry each other; live exclusively with each other as husband and wife; and their union is without the benefit of marriage or their marriage is void. (Mercado Fehr v. Fehr, G.R. No. 152716, October 23, 2003 Salas, Jr. v. Aguila, G.R. No. 202370, September 23, 2013) Owned in equal shares 1. 2. Adulterous relationships Bigamous/polygamous marriages Incestuous void marriages under Art.37 Void marriages by reason of public policy. (FC, Art. 38) The man and the woman must be incapacitated to marry each other, or they do not live exclusively with each other as husband and wife; and Their union is without the benefit of marriage or their marriage is void. (FC, Art. 148) Separately owned by the parties. If any is married, his/her salary pertains to the CPG of the legitimate marriage. Salaries & wages Property Belongs to party upon proof of exclusively acquisition through exclusive funds. acquired Property acquired by Governed by rules of co-ownership. both through their work or industry Property acquired while living together presumed obtained by their joint efforts, Presumption work or industry and owned by them in equal shares. If one party did not participate in acquisition: presumed to have contributed through care and maintenance of family and household. (Buenaventura v. CA, G.R. No. 127358, March 31, 2005) 113 Belongs to such party. Owned in common in proportion to their respective contributions. No presumption of joint acquisition. Actual joint contribution of money, property or industry shall be owned by them in common proportion. However, their contributions are presumed equal, in the absence of proof to the contrary. Civil Law Forfeiture When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of: 1. 2. 3. Proof of actual contribution their common children in case of default of/or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants In the absence of descendants, such shares shall belong to the innocent party. Not necessary UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES If one of the parties is validly married to another, his/her share in the coownership shall accrue to the ACP or CPG existing in the marriage. If the party who acted in BF is not validly married to another or if both parties are in BF, such share be forfeited in a manner provided in the last par. of Art. 147 Necessary 114 The Family under the Family Code Employee v. Glenda Mayor, A.M. No. P- 02-1564, November 23, 2004) THE FAMILY UNDER THE FAMILY CODE THE FAMILY AS AN INSTITUTION Requisites before a suit between members of the same family may prosper Being the foundation of the nation, it is a basic social institution which public policy cherishes and protects. (FC, Art. 149) 1. Family relations include 1. 2. 3. 4. 2. 3. Between husband and wife; Between parents and children; Among other ascendants and descendants; Among brothers and sisters, whether of the full or half-blood. (FC, Art. 150) This rule shall not apply to cases which may not be subject of compromise under the Art. 2035 of the New Civil Code. A suit between a brother-in-law and a sister-inlaw is not within the coverage of the law, hence, the failure of the plaintiff to allege earnest efforts to effect a compromise is not necessary. The relationship is based on consanguinity, except that of the husband and wife. (Gayon v. Gayon, G.R. No. L-28394, November 26, 1970) Q: Jose alleged that he and his family have been occupying two (2) parcels of land, which was then offered to sell to Jose the subject lands which Jose accepted. However, Consuelo decided to "cancel" their agreement. In response, Jose expressed his disapproval to Consuelo's plan and demanded that respondents proceed with the sale, which the latter ignored. Upon learning of such sale, Jose sent a demand letter to Rene asserting his right to the subject lands. As his demands went unheeded, Jose brought the matter to the barangay upon for conciliation proceedings between him and Rene. When it reached the CA such Court moto proprio dismissed the case on the ground that they failed to apply article 151. Can the CA motu proprio dismiss such case? The enumeration of brothers and sisters as members of the same family does not comprehend brothers- or sisters- in-law. (Guerero v. RTC, G.R. No. 109068, January 10, 1994) Rules to remember 1. 2. 3. Earnest efforts toward a compromise have been made; Such efforts failed; The fact that earnest efforts toward a compromise have been made but the same have failed appears in the verified complaint or petition. (FC, Art. 151) Family relations exists even if they are not living together. Illegitimate children are not included in the family relations under this Article because they have their own families. Adopted children are included. (Minutes of Committee Meeting of August 24, 1985) A: NO. Non-compliance with the earnest effort requirement under Article 151 of the Family Code is not a jurisdictional defect which would authorize the courts to dismiss suits filed before them motu proprio. Rather, it merely partakes of a condition precedent such that the noncompliance therewith constitutes a ground for dismissal of a suit should the same be invoked by the opposing party at the earliest opportunity, as in a motion to dismiss or in the answer. Otherwise, such ground is deemed waived. Rules governing family relations Family relations are governed by law. No custom, practice or agreement destructive of the family shall be recognized or given effect. (FC, Art. 149) NOTE: Even if not all forms of extra-marital relations are punishable under penal law, the sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union. Accordingly, the Court has had little qualms with penalizing judicial employees for their dalliances with married persons or for their own betrayals of the marital vow of fidelity. (Concerned If the respondents as parties-defendants could not, and did not, after filing their answer-topetitioner’s complainant, invoke the objection of absence of the required allegation on earnest efforts at a compromise, the appellate court 115 Civil Law unquestionably did not have any authority or basis to motu propio order the dismissal of petitioner’s complaint. (Moreno vs. Kahn, G.R. No. 217744, July 30, 2018) The FH must be part of the properties of the absolute community or the conjugal partnership or the exclusive properties of either spouse, with the latter’s consent. It may also be constituted by an unmarried head of a family on his or her own property. (FC, Art 156) The following cannot be compromised: 1. 2. 3. 4. 5. 6. NOTE: Property that is subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a FH. Civil status of persons; Validity of a marriage or legal separation; Any ground for legal separation; Future support; Jurisdiction of courts; and Future legitime. (NCC, Art. 2035) Beneficiaries of a Family Home (FC, Art. 154) NOTE: A sister-in-law or a brother-in-law is not covered by these two provisions. Being an exception to the general rule, Art. 150 of the Family Code must be strictly construed. (Gayon v. Gayon, G.R. No. L-28394, November 26, 1970) 1. 2. 3. 4. 5. 6. THE FAMILY HOME It is the dwelling house where the husband and wife and their family reside, and the land on which it is situated. It is constituted jointly by the husband and the wife or by an unmarried head of a family. (FC, Art. 152) Requisites to be considered as beneficiary (FC, Art 156) 1. Constitution of Family Home (FH) 2. 3. The FH is deemed constituted on a house and lot from the time it is occupied as a family residence. (FC Art. 153) 2. 3. 4. 5. 6. FH is deemed constituted from the time of actual occupation as a family residence; Only 1 FH may be constituted; Must be owned by the person constituting it; Must be permanent; Same rule applies to both valid and voidable marriages and even to common law spouses; (FC, Arts. 147 and 148) It continues despite death of one, either spouses, or an unmarried head of the family for 10 years or as long as there is a minor beneficiary. (FC, Art 159) A: NO. To qualify as beneficiary of the FH, the person must be among those mentioned under Art. 154 of the Family Code, he/she must be actually living in the FH and must be dependent for legal support upon the head of the family. (Patricio v. Darion, G.R. No. 170829, November 20, 2006) While Lucas satisfies the first and second The heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the FH. (FC, Art 159) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES They must be among the relationships enumerated in Art. 154 of the Family Code; They live in the FH; and They are dependent for legal support upon the head of the family. Q: On March 30, 2000, Mariano died intestate and was survived by his wife, Leonora and children, Danilo and Carlito. One of the properties he left was a piece of land in Alabang where he built his residential house. After his burial, Leonora and Mariano’s children extra-judicially settled his estate. Thereafter, Leonora and Danilo advised Carlito of their intention to partition the property. Carlito opposed invoking Art. 159 of the Family Code. Carlito alleged that since his minor child Lucas still resides in the premises, the family home continues until the minor beneficiary becomes of age. Is the contention of Carlito tenable? (2014 BAR) Guidelines in the constitution of the Family Home 1. Husband and wife, or Unmarried head of the family, Parents (may include parents-in-law), Ascendants, Descendants Brothers and sisters (legitimate or illegitimate) living in the FH and dependent on the head of the family for legal support. 116 The Family under the Family Code requisites, he cannot, however, directly claim legal support from his grandmother, Leonora because the person primarily obliged to give him support is his father Carlito. Thus, the partition may be successfully claimed by Leonora and Danilo. 1. 2. 3. 4. Occupancy of the FH either by the owner thereof or by “any of its beneficiaries” must be actual. That which is “actual” is something real, or actually existing, as opposed to something merely possible, or to something which is presumptive and constructive. Actual occupancy, however, need not be by the owner of the house. Rather, the property may be occupied by the “beneficiaries” enumerated by Art. 154 of the Family Code. (Manacop v. CA, G.R. No. 97898, August 11, 1997) Debts due to laborers, mechanics, architects, builders, material men and others who rendered service or furnished materials for the constitution of the building; Non-payment of Taxes; Debts incurred Prior to its constitution; Debts secured by Mortgages on the premises before or after such constitution. NOTE: Exemption is limited to the value allowed in the Family Code. Rule for the family home to be exempted from execution 1. If the FH was constructed before the effectivity of the FC, then it must have been constituted either judicially or extrajudicially as provided under Arts. 225, 229231 and 233 of the NCC. Judicial constitution of the FH requires the filing of a verified petition before the courts and the registration of the court’s order with the Registry of Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is governed by Arts. 240 to 242 of the New Civil Code and involves the execution of a public instrument which must also be registered with the Registry of Property. 2. For FH constructed after the effectivity of the FC, there is no need to constitute extrajudicially or judicially, and the exemption is effective from the time it was constituted and lasts as long as any of its beneficiaries actually resides therein. Moreover, the FH should belong to the absolute community or conjugal partnership, or if exclusively by one spouse, its constitution must have been with consent of the other, and its value must not exceed certain amounts depending upon the area where it is located. Further, the debts incurred for which the exemption does not apply as provided under Art. 155 for which the FH is made answerable must have been incurred after the effectivity of the Family Code. 3. And in both cases, whether under the Civil Code or the Family Code, it is not sufficient that the person claiming exemption merely alleges that such property is a FH. This claim for exemption must be set up and proved. (Juanita Trinidad Ramos, et al. v. Danilo Pangilinan et al. G.R. No. 185920, July 20, NOTE: This enumeration may include the inlaws where the FH is constituted jointly by the husband and wife. But the law definitely excludes maids and overseers. Effect of death of one or both spouses or of the unmarried head of the family upon the family home The FH shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is a minor beneficiary and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the FH. (FC, Art. 159) (2010 BAR) Exemption of Family Home from execution, forced sale or attachment GR: FH is exempt from execution, forced sale or attachment. From the time of its constitution and so long as any of its beneficiaries resides therein, the FH continues to be such and is exempt from execution, forced sale or attachment. (FC, Art. 153) However, the rule is not absolute. Art. 155 of the Family Code provides the circumstances wherein the FH will not be exempt from execution, forced sale of attachment, to wit: XPN: Under Art. 155 of the Family Code: 117 Civil Law 2010) 155 of the Family Code must be paid Exemption of Family Home must first be set up and proved b. The FH’s exemption from execution must be set up and proved to the Sheriff before the sale of the property at public auction. It should be asserted that the property is a FH and that it is exempted from execution at the time it was levied or within a reasonable time thereafter. It is not sufficient that the person claiming exemption merely alleges that such property is a FH. Failure to do so will estop one from later claiming the said exemption. (Spouses Araceli Oliva-De Mesa and Ernesto de Mesa v. Spouses Claudio D. Acero Jr. and Ma.Rufina D. Acero, Sheriff Felixberto L. Samonte and Registrar Alfredo Santos, G.R. No. 185064, January 16, 2012) The excess, if any, shall be delivered to the judgment debtor. (FC, Art. 160) NOTE: The actual value of the FH shall not exceed, at the time of its constitution, the amount of P300,000 in urban areas, and P200,000 in rural areas, or such amounts as may hereafter be fixed by law. (FC, Art. 157) Q: A complaint for damages was filed against Hinahon in 1986 when she incurred liabilities as early as 1977, which action prospered in 1989. The house and lot that she owned was levied upon and sold at auction. She assails the levy and sale on the ground that it was her family home and therefore exempt from execution. Decide. Requisites for the creditor to avail of the right to execute (FC, Art 160) 1. 2. 3. He must be a judgment creditor; His claim must not be among those excepted under Art. 155; He has reasonable grounds to believe that the FH is worth more than the maximum amount fixed in Art. 157. A: IT IS NOT EXEMPT. Under Art. 155 of the Family Code, the FH shall be exempt from execution, forced sale, or attachment except for, among other things, debts incurred prior to the constitution of the FH. The house and lot was not constituted as a FH, whether judicially or extrajudicially, at the time that the debtor incurred her debts. Under prevailing jurisprudence, it is deemed constituted as such by operation of law only upon the effectivity of the Family Code on August 3, 1988, thus, the debts were incurred before the constitution of the FH. (GomezSalcedo, et al. v. Sta. Ines, et al., G.R. No. 132537, October 14, 2005) Procedure in exercising the right to execute 1. Creditor must file a motion in the court proceeding where he obtained a favorable judgment for a writ of execution against the FH; 2. There will be a hearing on the motion where the creditor must prove that the actual value of the FH exceeds the maximum amount fixed by the Family Code, either at the time of its constitution or as a result of improvements introduced after its constitution; 3. If the creditor proves that the actual value exceeds the maximum amount, the court will order its sale in execution; 4. If the FH is sold for more than the value allowed, the proceeds shall be applied as follows: a. Here, the complaint against Hinahon was instituted on June 17, 1986, to seek redress for damages suffered by them due to acts and omissions committed by her as early as 1977. This means that Hinahon’s liability arose long before the levied property was constituted as FH by operation of law in August 1988. It is thus clear that the liability incurred by Hinahon falls squarely under one of the instances when a FH may be the subject of execution, forced sale, or attachment to answer for debts incurred prior to the constitution of the FH. (Gomez-Salcedo, et al. v. Sta. Ines, et al., G.R. No. 132537, October 14, 2005) Q: Has the residential house and lot of Cesario Montana which he and his family The obligations enumerated in Art. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES The judgment in favor of the creditor will be paid, plus all the costs of execution 118 The Family under the Family Code built in 1960 but which was not constituted as a family home, whether judicially or extrajudicially, under the NCC been constituted as a family home by operation of law under Art. 153 of the FC, and therefore, exempt from execution from a money judgment where the debt or liability was incurred before the effectivity of the FC? contention proper? A: NO. Even though Vitug’s property has been constituted as a family home, it is not exempt from execution. Article 155 of the Family Code explicitly provides that debts secured by mortgages are exempted from the rule against execution, forced sale, or attachment of family home. Since the property was voluntarily used by Vitug as a security for a loan he obtained from respondent, it may be subject to execution and attachment. (Vitug v. Abuda, G.R. No. 201264, January 11, 2016, as penned by J. Leonen) A: NO. Under Art. 162 of the Family Code, it is provided that “the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable.” It does not mean that Arts. 152 and 153 of the Family Code have a retroactive effect such that all existing family residences are deemed to have been constituted as a FH at the time of their occupation prior to the effectivity of the FC and are exempt from execution for the payment of obligations before the effectivity of the Family Code. Art. 162 simply means that all existing family residences at the time of the effectivity of the Family Code are considered FH and are prospectively entitled to the benefits accorded to a family home under the Family Code. (Manacop v. CA, 277 SCRA 64, August 11, 1997) Requisites in the sale, alienation, donation, assignment or encumbrance of the FH The following must give their written consent: 1. 2. 3. The person who constituted the FH; The spouse of the person who constituted the FH; Majority of the beneficiaries of legal age. NOTE: In case of conflict, the court shall decide. Limitations on Family Home NOTE: The Family Code does not have a retroactive effect. Thus, prior to August 5, 1988, the procedure mandated by the Civil Code had to be followed for a Family Home to be constituted as such. There being no proof that the subject property was judicially or extrajudicially constituted as a family home, it follows that petitioner cannot avail of the law’s protective mantle. (Modequillo v. Breva, G.R. No. 86355, May 31, 1990) 1. 2. 3. Q: On March 17, 1997, Evangeline A. Abuda loaned P250,000.00 to Florante Vitug and his wife, Narcisa. As a security for the loan, Vitug mortgaged to Abuda his property in Tondo Foreshore. The property was then subject of a conditional Contract to Sell between the NHA and Abuda. Later, the parties executed a “restructured” mortgage contract on the property to secure P600,000.00 representing the original P250,000.00 loan, additional loans, and subsequent credit accommodations. By then, the property was covered by TCT No. 234246 under Vitug’s name. Unfortunately, spouses Vitug failed to pay their loans despite demands. Vitug claimed that the property was exempt from execution because it was constituted as a family home before its mortgage. Is Vitug’s Each family can have only one FH. After one FH has been constituted, no other FH can be established without first dissolving the existing one. FH can be constituted only on the dwelling place, and therefore in the locality where the family has its domicile. The value of the FH must not exceed the limit fixed by law. (Tolentino, 2013) PATERNITY AND FILIATION Paternity is the civil status of a father with regard to the child. Filiation is the civil status of a child with regard to his parents. Filiation may be by nature or adoption, legitimate or illegitimate. NOTE: Paternity or filiation is established by clear and convincing evidence. (Constantino v. Mendez, G.R. No. 57227, May 14, 1992) Classifications of filiation (2009 BAR) I. Natural 119 Civil Law a. Legitimate – conceived OR born within a valid marriage. Illegitimate – conceived AND born outside a valid marriage. 1. II. Judicial Act a. Legitimated – conceived and born outside of wedlock of parents without impediment to marry at the time of conception or were so disqualified only because either or both of them were below eighteen (18) years of age. (FC, Art. 177) b. Adopted – a filiation created by law which vests between two persons a relationship similar to that which results from legitimate paternity and filiation. 3. b. 2. Presumption of legitimacy (2006, 2008, 2010 BAR) Article 164 of the Family Code provides that the children conceived or born during the marriage of the parents are legitimate. The presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded in a policy to protect innocent offspring from the odium of illegitimacy. (Liyao, Jr. v. Tanhoti-Liyao, G.R. 138961, March 7, 2002) I. NATURAL A. LEGITIMATE CHILDREN Legitimate child The presumption of legitimacy under Article 164 of the Family Code may be availed only upon convincing proof of the factual basis therefor, i.e., that the child’s parents were legally married and that his/her conception or birth occurred during the subsistence of that marriage. Else, the presumption of law that a child is legitimate does not arise. (Angeles Maglaya, G.R. No. 153798, September 2, 2005) GR: One who is conceived OR born during the marriage of the parents. (FC, Art. 164) XPN: Born outside of a valid marriage (void marriages) but considered as legitimate child: 1. 2. Children of marriages which are declared void under Art. 36; and Children of marriages which are declared void under Art. 53. (Rabuya, 2009) NOTE: The child by himself cannot choose his own filiation. Neither can he elect the paternity of the husband of his mother when the presumption of his legitimacy has been successfully overthrown. Requisites for a child conceived by artificial insemination to be considered legitimate (FC, Art. 164, par. 2) 1. 2. 3. 4. The artificial insemination is made on the wife, not on another woman; The artificial insemination on the wife is done with the sperm of the husband or of a donor, or both the husband and a donor; The artificial insemination has been authorized or ratified by the spouse on a written instrument executed and signed by them before the birth of the child; and The written instrument is recorded in the civil registry together with the birth certificate of the child. (FC, Art. 164) Q: What is the effect of the declaration of a wife against the legitimacy of the child where the child is conclusive presumed to be the legitimate child of H and W? A: The child shall still be legitimate, although the mother may have declared against his legitimacy. This law likewise applies to such instances where the mother may have been sentenced as an adulteress. (FC, Art. 167) NOTE: Art. 167 of the Family Code applies only to a situation where the wife denies the paternity of the husband. Art. 167 does not apply to a situation where a child is alleged not to be Rights of legitimate children (FC, Art. 174) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES To bear the surname of the father and the mother; To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters; and To be entitled to the legitimate and other successional rights granted to them by the Civil Code. 120 The Family under the Family Code the child of nature or biological child of the couple. (Rabuya, 2009) quo), filed a Complaint for judicial partition of properties left by the deceased Josefa. The RTC rendered a decision among which is the declaration that the other properties are under the co-ownership of all the plaintiffs and defendant and in equal shares. In omitting petitioners from the enumeration of Josefa's descendants, the CA reversed the finding of the RTC. The CA found that RTC erred in allowing petitioners to prove their status as illegitimate sons of Josefa after her death. May the petitioners prove their filiation to Josefa through their open and continuous possession of the status of illegitimate children, found in the second paragraph of Article 172 of the Family Code? Q: Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16 years old, they started living together as husband and wife without the benefit of marriage. When Faye reached 18 years of age, her parents forcibly took her back and arranged for her marriage to Brad. Although Faye lived with Brad after the marriage, Roderick continued to regularly visit Faye while Brad was away at work. During their marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad discovered her continued liaison with Roderick and in one of their heated arguments, Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a marriage license, claiming that they have been continuously cohabiting for more than 5 years. a. A: NO. In Uyguangco v. Court of Appeals, While the private respondent has admitted that he has none of the documents mentioned in the first paragraph (which are practically the same documents mentioned in Article 278 of the Civil Code except for the "private handwritten instrument signed by the parent himself), he insists that he has nevertheless been "in open and continuous possession of the status of an illegitimate child," which is now also admissible as evidence of filiation. What is the filial status of Laica? b. Can Laica bring an action to impugn her own status on the ground that based on DNA results, Roderick is her biological father? (2008 BAR) The problem of the private respondent, however, is that, since he seeks to prove his filiation under the second paragraph of Article 172 of the Family Code, his action is now barred because of his alleged father's death in 1975. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. A: a. Having been born during the marriage of Faye and Brad, she is presumed to be the legitimate child of Faye and Brad. This presumption had become conclusive because the period of time to impugn her filiation had already prescribed. b. NO. She cannot impugn her own filiation. The law does not allow a child to impugn his or her own filiation. In this case, Laica’s legitimate filiation was accorded to her by operation of law which may be impugned only by Brad, or his heirs in the cases provided by law within the prescriptive period. It is clear that the private respondent can no longer be allowed at this time to introduce evidence of his open and continuous possession of the status of an illegitimate child or prove his alleged filiation through any of the means allowed by the Rules of Court or special laws. The simple reason is that Apolinario Uyguangco is already dead and can no longer be heard on the claim of his alleged son's illegitimate filiation. (Romeo F. Ara and William A. Garcia v. Dra. Fely S. Pizarro and Henry Rossi, G.R. No. 187273, February 15, 2017, as penned by J. Leonen) Period to claim Filiation Q: Romeo F. Ara and William A. Garcia (petitioners), and Dra. Fely S. Pizarro and Henry A. Rossi (respondents) all claimed to be children of the late Josefa A. Ara (Josefa). Petitioners, together with Ramon and respondent Rossi (collectively, plaintiffs a 121 Civil Law Action to impugn legitimacy vs. Action to claim legitimacy BASIS Remedy ACTION TO IMPUGN LEGITIMACY (FC, ART. 166) possession” of the status. Person/s who may attack the legitimacy of the child ACTION TO CLAIM LEGITIMACY (FC, ART. 173) GR: Only the husband can contest the legitimacy of the child. Action to impugn Action to legitimacy or claim illegitimacy legitimacy (compulsory recognition) XPNs: Heirs of the husband may impugn the filiation of the child within the period prescribed in Art. 170 of the Family Code only in the following cases: 1. GR: Husband. Real party in interest XPNs: Heirs, in cases where: GR: Child. 2. XPNs: Heirs of the child, in cases where: 3. 1. Husband died before the 1. Child died expiration of in state of the period for insanity; bringing the action; 2. Child died 2. Husband died during after filing the minority. complaint, without NOTE: Must having be filed desisted; within 5 3. Child was years. born after the death of the husband. Prescrip tion 1 year – husband resides in the same municipality or city where birth took place. 2 years – husband does NOT reside in the same municipality or city. 3 years – husband is living abroad. Prescriptive period for filing action impugning the legitimacy of the child (2010 BAR) GR: The prescriptive period for filing action impugning the legitimacy of the child shall be counted from the knowledge of birth or its recording in the civil registry. XPN: If the birth was: 1. 2. GR: During the lifetime of the child. Concealed from; or Was unknown to the husband or his heirs, the periods shall be counted from the discovery or knowledge of the birth of the child or of the act of registration of said birth, whichever is earlier. (FC, Art. 170) Grounds in impugning legitimacy of a child (FC, Art. 166) XPN: Lifetime of the putative father. Legitimacy of the child may be impugned only on the following grounds: 1. In cases where the action is for recognition of illegitimate child by “open and continuous UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES If the husband should die before the expiration of the period fixed for bringing his action; If he should die after the filing of the complaint, without having desisted therefrom; or If the child was born after the death of the husband. (FC, Art. 171) (2008 BAR) Physical impossibility 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. 122 Physical incapacity of the husband to have sexual intercourse with his wife, The Family under the Family Code b. c. The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible, or Serious illness of the husband which absolutely prevented intercourse; 2. Proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the case of children conceived through artificial insemination; 3. 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. Sterility and Impotency Sterility is not synonymous with impotency. Sterility is the inability to procreate, while impotency is the Physical inability to copulate. (Menciano v. San Jose, G.R. No. L-1967, May 28, 1951) Q: Will an infliction of the last stages of tuberculosis be a ground for impugnation of the legitimacy of the child? A: Tuberculosis, even in its last stages, is not the kind of serious illness of the husband that will establish physical impossibility of access. (Andal v. Macaraig, G.R. No. L- 2474, May 30, 1951) Rule on status of child where the mother contracted another marriage within 300 days after termination of the former (1999 BAR) The child shall be considered as conceived during the: 1. Former marriage– if child is born: Before 180 days after the solemnization of the subsequent marriage, provided it is born within 300 days after termination of former marriage 2. Subsequent marriage –if a child is born: 180 days after the celebration of the subsequent marriage, even though it be born within 300 days after the termination of the former marriage. 123 Civil Law Illustrations: 180th day takes place before 300th day 180th day from solemnization of 300th day from termination of former marriage Born during this period: Born during this period: Marriage Marriage 180th day takes place after 300th day th 300 day from termination of former marriage Born during this period: Born during this period: conceived during Former Marriage UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 180th day from solemnization of subsequent marriage Marriage 124 The Family under the Family Code or otherwise having any sexual relations with her. Thus, he asserted that he could not have been the father of Richelle’s child. B. ILLEGITIMATE CHILDREN (2005, 2009, 2010 BAR) 1. 2. 3. 4. 5. 6. 7. 8. Children conceived and born outside a valid marriage: Children born of couples who are not legally married or of common law marriages; Children born of incestuous marriage; Children born of bigamous marriage; Children born of adulterous relations between parents; Children born of marriages which are void for reasons of public policy under Art. 38, Family Code; Children born of couples below 18; and Children born of void marriages under art. 35, except where the marriage is void for lack of authority on the part of the solemnizing officer, but the parties or either of them believed in good faith that the solemnizing officer had authority, in which case the marriage will be considered valid and the children will be considered legitimate. Is Richelle’s child entitled for support? A: NO. The obligation to give support shall only be demandable from the time the person entitled to it needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. Support pendente lite may also be claimed, in conformity with the manner stipulated by the Rules of Court. An illegitimate child, "conceived and born outside a valid marriage," as is the admitted case with petitioner's daughter, is entitled to support. To claim it, however, a child should have first been acknowledged by the putative parent or must have otherwise previously established his or her filiation with the putative parent." When "filiation is beyond question, support shall then follow as a matter of obligation." Having thus far only presented her child's birth certificate, which made no reference to respondent as the child's father, the necessary condition of filiation had yet to be established. (Richelle P. Abella, For and In Behalf of Her Minor Daughter, Marl Jhorylle Abella v. Policarpio Cabañero, G.R. No. 206647, August 09, 2017, as penned by J. Leonen) Rights of an illegitimate child (1990, 2003, 2006, 2009, 2010 BAR) 1. 2. 3. 4. They shall use the surname of the mother; They shall be under the parental authority of the mother; They shall be entitled to support in conformity with the FC, PROVIDED, only as to the separate property of the parent; and They shall be entitled to a legitime which shall consist of ½ of the legitime of a legitimate child. (FC, Art. 176) Effect of the recognition of an illegitimate child by the Father Such recognition would be a ground for ordering the latter to give support to, but not the custody of the child. The law explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and authority over the minor. (Briones v. Miguel, G.R. No. 156343, October 18, 2004) Q: Richelle alleged that while she was still a minor in the years 2000 to 2002, she was repeatedly sexually abused by respondent Cabañero inside his rest house at Barangay Masayo, Tobias Fornier, Antique. As a result, she allegedly gave birth to a child on August 21, 2002. Richelle added that on February 27, 2002, she initiated a criminal case for rape against Cabañero. This, however, was dismissed. Later, she initiated another criminal case, this time for child abuse under Republic Act No. 7610. This, too, was dismissed. Richelle prayed for the child's monthly allowance in the amount of P3,000.00. She presented the child’s birth certificate in evidence. Also, under the R.A. 9255, the illegitimate child has the option to use the surname of the father. Republic Act No. 9255 This act provides that illegitimate children may optionally use the father’s surname provided that: 1. Cabañero denied sexually abusing Richelle, 125 Filiation has been recognized by the father through the record of birth appearing in the Civil Law civil register 2. Admission in public document OR private handwritten instrument is made by the father c. NOTE: Provided that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. Establishing Illegitimate 1999, 2005, 2010 BAR) Filiation in a public document or in a private handwritten instrument signed by the parent concerned; AND IN THE ABSENCE THEREOF; and Filiation may be proved by: The open and continuous possession of the status of a legitimate child; An illegitimate child who has not been recognized by options (1) or (2) of the abovementioned enumeration MAY PROVE his filiation under number (3) based on open and continuous possession of the status of an illegitimate child but pursuant to Article 175 of the NCC, he or she must file the action for recognition during the lifetime of the putative father. The provision of Article 285 of the Civil Code allowing the child to file the action for recognition even after the death of the father will not apply because in the case presented, the child was no longer a minor at the time of death of the putative father. (1995, Q: Julie had a relationship with a married man who had legitimate children. A son was born out of the illicit relationship in 1981. Although the putative father did not recognize the child in his birth certificate, he nevertheless provided the child with all the support he needed and spent time regularly with the child and his mother. When the man died in 2000, the child was already 18 years old so he filed a petition to be recognized as an illegitimate child of the putative father and sought to be given a share in his putative father’s estate. The legitimate family opposed, saying that under the FC his action cannot prosper because he did not bring the action for recognition during the lifetime of his putative father. 2. 1. If you were the judge, how would you rule? NO. I will not approve the compromise agreement because filiation is a matter to be decided by law. It is not for the parties to stipulate whether a person is a legitimate or illegitimate child of another. (De Jesus v. Estate of Dizon, G.R. No. 142877, October 2, 2001) In all cases of illegitimate children, their filiation must be duly proved. (NCC, Art. 887) 2. Wishing to keep the peace, the child during the pendency of the case decides to compromise with his putative father’s family by abandoning his petition in exchange for what he would have received as inheritance if he were recognized as an illegitimate child. As the judge, would you approve such compromise? (2015 BAR) Public instrument subscribed and made under oath by the putative father indicating the illegitimate child as his is sufficient to establish illegitimate filiation A: 1. If I were the judge, I will not allow the action for recognition filed after the death of the putative father. A: To allow the child to adopt the surname of his mother’s second husband, who is not his father, could result in confusion in his paternity. It could also create the suspicion that the child, who was born during the covertures of his mother with her first husband, was in fact sired by the second husband, thus bringing his legitimate status into discredit. (Republic v. Vicencio, G.R. No. 88202. December 14, 1998) Filiation of illegitimate children, legitimate children is established by: a. b. Q: Why is an illegitimate child of a woman, who gets married, allowed to bear the surname of her subsequent spouse, while a legitimate child may not? like Record of birth appearing in the civil register or a final judgment; An admission of legitimate filiation UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES II. JUDICIAL 126 The Family under the Family Code Q: Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16 years old, they started living together as husband and wife without the benefit of marriage. When Faye reached 18 years of age, her parents forcibly took her back and arranged for her marriage to Brad. Although Faye lived with Brad after the marriage, Roderick continued to regularly visit Faye while Brad was away at work. During their marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad discovered her continued liaison with Roderick and in one of their heated arguments, Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a marriage license, claiming that they have been continuously cohabiting for more than 5 years. Can Laica be legitimated by the marriage of her biological parents? (2008 BAR) A. LEGITIMATE CHILDREN Legitimated children are those who, because of the subsequent marriage of their parents to each other, are by legal fiction considered legitimate. Legitimation (2004, 2010 BAR) Legitimation is a remedy or process by means of which those who in fact not born in wedlock and should therefore be ordinarily illegitimate, are by fiction, considered legitimate. It takes place by a subsequent valid marriage between parents. Furthermore, it shall retroact to the time of the child’s birth. (FC, Art 180) NOTE: The annulment of a voidable marriage shall not affect the legitimation. (FC, Art. 178) Children entitled to legitimation A: NO, she cannot be legitimated by the marriage of her biological parents. In the first place she is not, under the law, the child of Roderick. In the second place, her biological parents could not have validly married each other at the time she was conceived and born simply because Faye was still married to Roderick Brad at that time. Only children conceived or born outside of wedlock of parents who, at the time of the conception of the child were not disqualified by any impediment to marry each other, may be legitimated. (FC, Art. 177) Only children conceived and born outside of wedlock of parents who, at the time of conception of the former, were not disqualified by any impediment to marry each other, or were so disqualified only because either or both of them were below eighteen (18) years of age. (Art. 177, FC as amended by R.A. 9858) (1990, 2004, 2008, 2009 BAR) Requisites of legitimation 1. 2. 3. Child must have been conceived and born outside of wedlock; Child’s parents, at the time of former’s conception, were not disqualified by any impediment to marry each other or were so disqualified only because either or both of them were below eighteen (18) years of age; and The subsequent valid marriage of the parents. RIGHTS OF LEGITIMATE AND ILLEGITIMATE CHILDREN NOTE: Legitimated children shall enjoy the same rights as legitimate children. (FC, Art. 179) Q: Who may impugn the legitimation? (FC, Art. 182) A: Legitimation may be impugned only by those who are prejudiced in their rights, within 5 years from the time their cause of action accrues, that is, from the death of the putative parent. NOTE: The right referred to are successional rights. Hence, only those whose successional rights are directly affected may impugn the legitimation that took place. BASIS LEGITIMATE CHILDREN ILLEGITIMA TE CHILDREN Surname Bear the surnames of both parents (mother and father) Bear the surname of either the mother or the father under R.A. 9255 NOTE: Under the amendatory 127 Civil Law provisions of RA 9255, the use of illegitimate father's surname is permissive and not obligatory. (Rabuya, 2008) Support Receive support from: 1. 2. 3. Legitime Period for filing action for claim of legitimacy or illegitimacy Parents; Ascendan ts; and In proper cases, brothers and sisters under Art. 174 of the Family Code. Full Legitimes and other successional rights under the New Civil Code His/her whole lifetime regardless of type of proof provided under Art. 172 of the Family Code ty of right to file an action to claim legitimacy Right to inherit ab intestato Receive support according to provision of Family Code Yes No right to inherit ab intestate from legitimate children and relatives of father and mother under Art. 992, New Civil Code. (Iron Curtain Rule) ACTION TO CLAIM FILIATION Paternity and filiation or the lack of the same is a relationship that must be judicially established, and it is for the court to declare its existence or absence. It cannot be left to the will or agreement of the parties. (De Asis v. CA, G.R. 127578, February 15, 1999) Share is equivalent to ½ of the share of a legitimate child The manner of claiming filiation is the same for both legitimate and illegitimate children Person/s who may file for claim legitimate filiation (FC, Art. 173) GR: The right of claiming legitimacy belongs to the child For primary proof: his/her whole lifetime. XPN: The right is transferred to his heirs when the child dies: 1. 2. 3. For secondary proof: only during the lifetime of the alleged parent. During minority or In a state of insanity. After commencing the action for legitimacy NOTE: Questioning legitimacy may not be collaterally attacked. It can be impugned only in a direct action Person/s who may file for claim illegitimate filiation Transmissibili Yes GR: The right of claiming illegitimacy belongs to the child No UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 128 The Family under the Family Code XPN: The right is transferred to his heirs when: 1. 2. 3. Person/s who may file for claim illegitimate filiation During minority or In a state of insanity. After commencing the action for illegitimate filiation GR: The right of claiming illegitimacy belongs to the child XPN: The right is transferred to his heirs when: Prescription of action to claim legitimacy or illegitimacy 1. 2. 3. An action must be brought: 1. 2. By the child – during his lifetime By his heirs – within 5 years should the child dies during minority, in a state of insanity or after commencing the action for legitimacy Prescription of action to claim legitimacy or illegitimacy An action must be brought: NOTE: Provided that the action for illegitimacy is based on admission of paternity or filiation in a birth certificate or written instrument. 1. 2. However, if the action for illegitimacy is based on an open and continuous possession of status of illegitimate filiation or any other means allowed by the Rules of Court and special laws, the action must be brought during the lifetime of the alleged parent. By the child – during his lifetime By his heirs – within 5 years should the child dies during minority, in a state of insanity or after commencing the action for legitimacy NOTE: Provided that the action for illegitimacy is based on admission of paternity or filiation in a birth certificate or written instrument. However, if the action for illegitimacy is based on open and continuous possession of status of illegitimate filiation or any other means allowed by the Rules of Court and special laws, the action must be brought during the lifetime of the alleged parent. Paternity and filiation or the lack of the same is a relationship that must be judicially established, and it is for the court to declare its existence or absence. It cannot be left to the will or agreement of the parties. (De Asis v. CA, G.R. 127578, February 15, 1999) Kinds of proof of filiation (1995, 1999, 2010 BAR) The manner of claiming filiation is the same for both legitimate and illegitimate children Proof of filiation has two kinds (FC, Art 172, 1st par): Person/s who may file for claim legitimate filiation (FC, Art. 173) GR: The right of claiming legitimacy belongs to the child 1. Primary proof consists of the ff.: a. Record of birth appearing in civil registrar or final judgment; b. Admission of legitimate filiation in public document or private handwritten instrument signed by parent concerned. 2. Secondary consists of the ff. (FC, Art 172, 2nd par): a. Open and continuous possession of legitimacy; b. Any means allowed by the Rules of Court and special laws. XPN: The right is transferred to his heirs when the child dies: 1. 2. 3. During minority or In a state of insanity. After commencing the action for illegitimate filiation During minority or In a state of insanity. After commencing the action for legitimacy NOTE: Questioning legitimacy may not be collaterally attacked. It can be impugned only in a direct action 129 Civil Law NOTE: To prove open and continuous possession of the status of an illegitimate child, there must be evidence of manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity. constitutes a public document or private handwritten instrument signed by the parent concerned. Prima facie case of sexual relations with the putative father A prima facie case exists if a woman declares — supported by corroborative proof — that she had sexual relations with the putative father; at this point, the burden of evidence shifts to the putative father. Further, the two affirmative defenses available to the putative father are: Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously. (Jison v. CA, G.R. No. 124853, February 24, 1998) 1. Rules in proving filiation GR: Primary proof shall be used to prove filiation. 2. XPN: In absence of primary proof, secondary proof may be resorted to. Q: Rosanna, as surviving spouse, filed a claim for death benefits with the SSS upon the death of her husband, Pablo. She indicated in her claim that the decedent is also survived by their minor child, Lyn, who was born in 1991. The SSS granted her claim but this was withdrawn after investigation, when a sister of the decedent informed the system that Pablo could not have sired a child during his lifetime because he was infertile. However, in Lyn’s birth certificate, Pablo affixed his signature and he did not impugn Lyn’s legitimacy during his lifetime. Was the SSS correct in withdrawing the death benefits? Pictures or certificate of baptism do not constitute authentic documents to prove the legitimate filiation of a child Pictures or canonical baptismal certificate do not constitute the authentic documents to prove the legitimate filiation of a child. The baptismal certificate of the child, standing alone, is not sufficient. It is not a record of birth. Neither is it a public instrument nor a private handwritten instrument. (Abelle v. Santiago, G.R. No. L- 16307, April 30, 1963) Baptismal certificate does not prove filiation A: NO. Children conceived or born during the marriage of the parents are legitimate. (FC, Art. 164) This presumption becomes conclusive in the absence of proof that there is physical impossibility of access under Art. 166 of the Family Code. Upon the expiration of the periods for impugning legitimacy under Art. 170, and in the proper cases under Art. 171, of the Family Code, the action to impugn would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable. In this case, there is no showing that Pablo, who has the right to impugn the legitimacy of Lyn, challenged her status during his lifetime. There is adequate evidence to show that the child was in fact his child, and this is the birth certificate where he affixed his signature. (SSS v. Aguas, et al., G.R. No. 165546, February 27, 2006) Just like in a birth certificate, the lack of participation of the supposed father in the preparation of a baptismal certificate renders this document incompetent to prove paternity. And “while a baptismal certificate may be considered a public document, it can only serve as evidence of the administration of the sacrament on the date specified but not the veracity of the entries with respect to the child’s paternity. Thus, baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same”. (Antonio Perla v. Mirasol Baring and Randy B. Perla, G.R. No. 172471, November 12, 2012) NOTE: A will which was not presented for probate sufficiently establish filiation because it UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Incapability of sexual relations with the mother due to either physical absence or impotency; or That the mother had sexual relations with other men at the time of conception. (Charles Gotardo v. Divina Buling, G.R. No. 165166, August 15, 2012). 130 The Family under the Family Code Q: In an action for partition of estate, the trial court dismissed it on the ground that the respondent, on the basis of her birth certificate, was in fact the illegitimate child of the deceased and therefore the latter's sole heir, to the exclusion of petitioners. However, trial court failed to see that in said birth certificate, she was listed therein as “adopted.” Was the trial court correct in dismissing the action for partition? marriage and declared that the son, who was born during their marriage and was registered as their son, as illegitimate. What is the status of the child? A: The first marriage being found to be valid and subsisting, whereas that between Gerardo and Ma. Theresa was void and non-existent; the child should be regarded as a legitimate child out of the first marriage. This is so because the child's best interests should be the primordial consideration in this case. A: NO. The trial court erred in relying upon the said birth certificate in pronouncing the filiation of the respondent. However, since she was listed therein as “adopted”, she should therefore have presented evidence of her adoption in view of the contents of her birth certificate. In this case, there is no showing that she undertook such. A record of birth is merely prima facie evidence of the facts contained therein. It is not conclusive evidence of the truthfulness of the statements made there by the interested parties. (Rivera v. Heirs of Romualdo Villanueva, G.R. No. 141501, July 21, 2006) Q: Gerardo and Ma. Theresa, however, admitted that the child was their son. Will this affect the status of the child? A: NO. The admission of the parties that the child was their son was in the nature of a compromise. The rule is that: the status and filiation of a child cannot be compromised. Art. 164 of the Family Code is clear that a child who is conceived or born during the marriage of his parents is legitimate. (Concepcion v. CA, G.R. No. 123450, August 31, 2005) Q: In a complaint for partition and accounting with damages, Ma. Theresa alleged that she is the illegitimate daughter of Vicente, and therefore entitled to a share in the estate left behind by the latter. As proof, she presented her birth certificate which Vicente himself signed thereby acknowledging that she is his daughter. Is the evidence presented by Ma. Theresa sufficient to prove her claim that she is an illegitimate child of Vicente? Q: What is the effect of Ma. Theresa’s claim that the child is her illegitimate child with her second husband, to the status of the child? A: NONE. This declaration – an avowal by the mother that her child is illegitimate – is the very declaration that is proscribed by Art. 167 of the Family Code. This proscription is in consonance with, among others, the intention of the law to lean towards the legitimacy of children. (Concepcion v. CA, G.R. No. 123450, August 31, 2005) A: YES. Ma. Theresa was able to establish that Vicente was in fact her father. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. (De Jesus v. Estate of Juan Dizon, G.R. No. 142877, October 2, 2001) Any authentic writing is treated not just as a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. (Eceta v. Eceta, G.R. No. 157037, May 20, 2004) Q: In a petition for issuance of letters of administration, Cheri Bolatis alleged that she is the sole legitimate daughter of decedent, Ramon and Van Bolatis. Phoebe, the decedent’s second wife, opposed the petition and questioned the legitimate filiation of Cheri to the decedent, asserting that Cheri’s birth certificate was not signed by Ramon and that she had not presented the marriage contract between her alleged parents which would have supported her claim. Q: Gerardo filed a complaint for bigamy against Ma. Theresa, alleging that she had a previous subsisting marriage when she married him. The trial court nullified their In said birth certificate, it was indicated that her birth was recorded as the legitimate child of Ramon and Van Bolatis, and it also contains the word “married” to reflect the 131 Civil Law union between the two. However, it was not signed by Ramon and Vanemon Bolatis. It was merely signed by the attending physician, who certified to having attended to the birth of a child. Does the presumption of legitimacy apply to Cherimon? Cabatania v. CA, G.R. No. 124814, October 21, 2004) NOTE: In this age of genetic profiling and DNA analysis, the extremely subjective test of physical resemblance or similarity of features will not suffice as evidence to prove paternity and filiation before courts of law. This only shows the very high standard of proof that a child must present in order to establish filiation. A: NO. Since the birth certificate was not signed by Cher’s alleged parents but was merely signed by the attending physician, such a certificate, although a public record of a private document is, under Sec. 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution, which is, the fact of birth of a child. A birth certificate, in order to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses. There having been no convincing proof of respondent’s supposed legitimate relations with respect to the decedent, the presumption of legitimacy under the law did not therefore arise in her favour. (Angeles v. Angeles- Maglaya, G.R. No. 153798, September 2, 2005) Q: Ann Lopez, represented by her mother Araceli Lopez, filed a complaint for recognition and support of filiation against Ben-Hur Nepomuceno. She assailed that she is the illegitimate daughter of Nepomuceno submitting as evidence the handwritten note allegedly written and signed by Nepomuceno. She also demanded for financial support along with filial recognition. Nepomuceno denied the assertions reasoning out that he was compelled to execute the handwritten note due to the threats of the National People’s Army. RTC ruled in favor of Ann. Later, the RTC dismissed Araceli’s complaint for insufficiency of evidence. Is the dismissal of the complaint proper? Q: On the basis of the physical presentation of the plaintiff-minor before it and the fact that the alleged father had admitted having sexual intercourse with the child's mother, the trial court, in an action to prove filiation with support, held that the plaintiff- minor is the child of the defendant with the plaintiffminor's mother. Was the trial court correct in holding such? A: YES. Ann’s demand for support is dependent on the determination of her filiation. However, she relies only on the handwritten note executed by petitioner. The note does not contain any statement whatsoever about her filiation to petitioner. It is, therefore, not within the ambit of Article 172(2) vis-à-vis Art. 175 of the Family Code which admits as competent evidence of illegitimate filiation an admission of filiation in a private handwritten instrument signed by the parent concerned. A: NO. The birth certificate that was presented by the plaintiff-minor appears to have been prepared without the knowledge or consent of the putative father. It is therefore not a competent piece of evidence on paternity. The local civil registrar in this case has no authority to record the paternity of an illegitimate child on the information of a third person. A baptismal certificate, while considered a public document, can only serve as evidence of the administration of the sacrament on the date specified therein but not the veracity of the entries with respect to the child's paternity. (Macadangdang v. CA, G.R. No. L- 49542, September 12, 1980) Thus, certificates issued by the local civil registrar and baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same. (Jison v. CA, G.R. No. 124853, February 24, 1998; UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES The Court is mindful that the best interests of the child in cases involving paternity and filiation should be advanced. It is, however, just as mindful of the disturbance that unfounded paternity suits cause to the privacy and peace of the putative father’s legitimate family. (Ben-Hur Nepomuceno v. Archbencel Ann Lopez, represented by her mother Araceli Lopez G.R. No. 181258, March 18, 2010) ADOPTION Adoption is the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child. It is a juridical act, a proceeding in rem which 132 The Family under the Family Code creates between two persons a relationship similar to that which results from legitimate paternity and filiation. The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005) f. 2. Aliens who have the same qualifications as Filipinos and: The relationship established by the adoption is limited to the adopting parents and does not extend to their other relatives, except as expressly provided by law. Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents, nor of the legitimate children which they may have after the adoption, except that the law imposes certain impediments to marriage by reason of adoption. Neither are the children of the adopted considered descendants of the adopter. a. b. c. Preference in adoption (AID) d. 1. Adoption by the extended family; 2. 3. Domestic Adoption; Inter-Country Adoption. Applies to adoption of Filipino children, where the entire adoption process beginning from the filing of the petition up to the issuance of the adoption decree takes place in the Philippines. (Rabuya, 2009) a. a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or b. one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or c. one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. A. WHEN ALLOWED Adoption need NOT be a last resort. B. WHO CAN ADOPT Filipino citizens who are: a. b. c. d. e. that his/her country has diplomatic relations with the Republic of the Philippines; has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered; has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country; that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter. NOTE: The requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: I. DOMESTIC ADOPTION (R.A. 8552) 1. parent of the adoptee, or is the spouse of the adoptee's parent); and in a position to support and care for his/her children in keeping with the means of the family. of legal age, in possession of full civil capacity and legal rights; of good moral character; not been convicted of any crime involving moral turpitude; emotionally and psychologically capable of caring for children; at least sixteen (16) years older than the adoptee (may be waived when the adopter is the biological 3. Guardians with respect to their ward. NOTE: A guardian may only adopt his ward after termination of guardianship and clearance of his financial accountabilities. 4. Husband and wife NOTE: Spouses shall jointly adopt except in 133 Civil Law the following cases: a. b. c. Monina, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by Monina herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground. (In Re: Petition for Adoption of Michelle P. Lim, In Re: Petition for Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos. 168992-93, May 21, 2009) If one spouse seeks to adopt the legitimate child of the other; If one spouse seeks to adopt his or her own illegitimate child, provided that the other spouse as given his or her consent; and If the spouses are legally separated from each other. (Domestic Adoption Act of 1998 (RA 8552)) Joint adoption when the adoptees are already emancipated Q: Petitioner Monina P. Lim is an optometrist by profession and was married to Primo Lim. They were childless. Soon after, they registered two minor children to make it appear that they were the children’s parents. The children were named Michelle and Michael. They reared and cared for the children as if they were their own and sent the children to exclusive schools. They used the surname “Lim” in all their school records and documents. In 2000, Monina married Angel Olario, an American citizen. She then decided to adopt the children by availing of the amnesty given RA 8552 to those individuals who simulated the birth of a child. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years old. Both Michelle and Michael gave consent to the adoption. The trial court dismissed the petition and ruled that Monina should have filed the petition jointly with her new husband. Monina, in a Motion for Reconsideration argues that mere consent of her husband would suffice and that joint adoption is not needed, for the adoptees are already emancipated. Is the trial court correct in dismissing the petition for adoption? Even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights of a legitimate child such as: 1. 2. 3. C. ADOPTEE 1. 2. 3. 4. A: YES. Section 7, Art. 3 of R.A. 8552 reads: Sec. 7 – Husband and wife shall jointly adopt x x x. 5. The use of the word “shall” in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also ensures harmony between the spouses. 6. Any person BELOW eighteen (18) years of age who has been administratively or judicially declared available for adoption; The legitimate son/daughter of one spouse by the other spouse; An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; A child whose adoption has been previously rescinded; or A child whose biological or adoptive parent(s) has died: Provided, that no proceedings shall be initiated within six (6) months from the time of death of said parent(s). (Sec. 8, Art. 3, RA 8552) Child A child is any person below 18 years old. (Sec. 3, Art. 1, RA 8552) The law is clear. There is no room for ambiguity. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES To bear the surname of the father and the mother; To receive support from their parents; and To be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled such as support and successional rights. 134 The Family under the Family Code NOTE: The prohibition against physical transfer shall not apply to adoption by a relative or children with special medical conditions. (Rabuya, 2018) The written consent of the following is necessary for adoption: obtained before his parental rights and duties may be terminated and vested in the adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption. This is so under Sec. 9 (b) of R.A. 8552, otherwise known as the Domestic Adoption Act of 1998. Bernadette failed in this respect, thus necessitating the dismissal of her petition for adoption. (Landingin v. Republic, G.R. No. 164948, June 27, 2006) 1. Effects of Domestic Adoption Necessity of written consent for adoption under domestic adoption 2. 3. 4. 5. Biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; Adoptee, if ten (10) years of age or over; Illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the latter's spouse, if any; Legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; Spouse, if any, of the person adopting or to be adopted. (Sec. 9, Art. 3, RA 8552) GR: Severance of all legal ties between the biological parents and the adoptee and the same shall then be vested on the adopters. (Sec. 16, Art. 5, RA 8552) XPN: In cases where the biological parent is the spouse of the adopter; 1. 2. Q: Bernadette filed a petition for adoption of the three minor children of her late brother, Ian. She alleged that when her brother died, the children were left to the care of their paternal grandmother, because their biological mother Amelia went to Italy to work and has allegedly abandoned her children. However, the grandmother died, so she filed the petition for adoption. The minors gave their written consent to the adoption and so did all of her own grown-up children. The trial court granted the decree of adoption even though the written consent of the biological mother of the children was not adduced by Bernadette. Was the trial court correct in granting the decree of adoption? 3. 4. Deemed a legitimate child of the adopter (Sec. 17, Article 5, RA 8552); Acquires reciprocal rights and obligations arising from parent-child relationship; Right to use surname of adopter (NCC, Art. 365); In legal and intestate succession, the adopters and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern. (Sec. 18, Art. 5, RA 8552) Who may file the action for rescission of domestic adoption The adoptee has the sole right to severe the legal ties created by adoption and the one who will file the action for rescission. However, if the adoptee is still a minor or above 18 years of age but incapacitated, the Department of Social and Welfare Development as the adoptee’s guardian or counsel may assist the adoptee for rescinding the decree of adoption. A: NO. The rule is, adoption statutes must be liberally construed in order to give spirit to their humane and salutary purpose which is to uplift the lives of unfortunate, needy or orphaned children. However, the discretion to approve adoption proceedings on the part of the courts should not to be anchored solely on those principles, but with due regard likewise to the natural rights of the parents over the child. The written consent of the biological parents is indispensable for the validity of the decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be The adopter cannot seek the rescission of the adoption but he may disinherit the adoptee. (Section 19, Art. 6, RA 8552) Grounds upon which an adoptee may seek judicial rescission of the adoption (SARA) When the adopter has committed the following: 135 Civil Law 1. 2. 3. 4. Sexual assault or violence committed against the adoptee; Attempt on the life of the adoptee; Repeated physical and verbal maltreatment by the adopter despite having undergone counseling; or Abandonment and failure to comply with parental obligations. 5. Q: Despite several relationships with different women, Andrew remained unmarried. His first relationship with Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan. His third, with Donna, bore him two daughters: Vina and Wilma. His fourth, while Elena, bore him no children although Elena has a daughter, Jane, from a previous relationship. His last, with Fe, produced no biological children but they informally adopted without court proceedings, Sandy, now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted to them by the midwife who attended to Sandy’s birth. All the children, including Amy, now live with Andrew in his house. a. Is there any legal obstacle to the legal adoption of Amy by Andrew? b. To the legal adoption of Sandy by Andrew and Elena? c. In his old age, can Andrew be legally entitled to claim support from Amy, Jon, Ryan, Vina, Wilma and Sandy assuming that all of them have the means to support him? d. Can Amy, Jon, Ryan, Vina, Wilma and Sandy legally claim support from each other? e. Can Jon and Jane legally marry? (2008 BAR) Grounds by which an adopter may disinherit the adoptee 1. 2. 3. 4. 5. 6. 7. 8. Groundless accusation against the testator of a crime punishable by 6 years or more imprisonment; Found guilty of attempt against the life of the testator, his/her spouse, descendant or ascendant; Causes the testator to make changes or changes a testator’s will through violence, intimidation, fraud or undue influence; Maltreatment of the testator by word or deed; Conviction of a crime which carries a penalty of civil interdiction; Adultery or concubinage with the testator’s wife; Refusal without justifiable cause to support the parent or ascendant; or Leads a dishonorable or disgraceful life. (NCC, Art.919) Effects of rescission of the adoption under the Domestic Adoption Act of 1998 (R.A. 8552) 1. If adoptee is still a minor or is incapacitated – Restoration of: a. b. A: a. NO, there is no legal obstacle to the legal adoption of Amy by Andrew. While a person of age may not be adopted, Amy falls within two exceptions: (1) she is an illegitimate child and she is being adopted by her illegitimate father to improve her status; and (2) even on the assumption that she is not an illegitimate child of Andrew, she may still be adopted, although of legal age, because she has been consistently considered and treated by the adopter as his own child since minority. In fact, she has been living with him until now. Parental authority of the adoptee’s biological parents, if known; or Custody of the DSWD; 2. Reciprocal rights and obligations of the adopters and adoptee to each other shall be extinguished; 3. Court shall order the civil registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate; 4. Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission; UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Vested rights acquired prior to judicial rescission shall be respected. (Sec. 20, Art. 6, RA 8552) b. 136 YES. There is a legal obstacle to the adoption of Sandy by Andrew and Elena. Andrew and Elena cannot adopt jointly because they are not married. The Family under the Family Code 3. c. YES. Andrew can claim support from all of them, except from Sandy, who is not his legitimate, illegitimate or adopted child. d. YES. Amy, Jon, Ryan, Vina and Wilma can ask support from each other because they are half-blood brothers and sisters, and Vina and Wilma are full-blood sisters (Art. 195 [5], FC), but not Sandy who is not related to any of them. e. YES. Jon and Jane can legally marry because they are not related to each other. Jane is not a daughter of Andrew Has the capacity to act or assume all rights and responsibilities of parental authority under his national laws; 4. Not been convicted of a crime of involving moral turpitude; 5. Eligible to adopt under his national law; 6. Is in a position to give the necessary moral values and example to all his children, including the child to be adopted; 7. Agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the Rules and regulations issued to implement this Act; 8. Comes from a country whose government maintains a similarly authorized and accredited agency; 9. The adoption is allowed under his or her nation laws; and 10. Possess all the qualifications and none of the disqualifications under the law or other applicable Philippine laws. II. INTER – COUNTRY ADOPTION ACT OF 1995 (R.A. 8043) Inter-Country Adoption It is a socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines. (Sec. 3 (a), RA 8043) Note: If married, his or her spouse must jointly file for adoption. Necessity of written consent for adoption in inter-country adoption A. WHEN ALLOWED The written consent of the following is necessary for adoption: Adoption ONLY AS A LAST RESORT: No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. (Sec. 11, Article 3, R.A. 8043) 1. Written consent to the adoption in the form of a sworn statement by the biological and/or adopted children of the applicants who are ten (10) years of age or over, to be attached to the application filed with the Family Court or Inter- Country Adoption Board (Sec. 28, Art. 8, Amended Implementing Rules and Regulations of RA 8043); and 2. If a satisfactory pre-adoptive relationship is formed between the applicant and the child, the written consent to the adoption executed by the DSWD is required. (Sec. 50, Art. Art. 8, Amended Implementing Rules and Regulations of RA 8043) B. WHO MAY ADOPT An alien or Filipino citizen permanently residing abroad Qualifications needed for a Filipino or alien to adopt (Sec. 9, Article 3, RA 8043) 1. At least 27 years old and 16 years older than the child to be adopted at the time of the application unless: a. b. 2. Adopter is the parent by nature of the child; Adopter is the spouse of the parent by nature of the child to be adopted; Q: Sometime in 1990, Sarah, born a Filipino but by then a naturalized American citizen, and her American husband Sonny Cruz, 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? (2000 BAR) Has undergone the appropriate counselling from an accredited counselor in his or her country; 137 Civil Law A: IT DEPENDS. If Sonny and Sarah have been residing in the Philippines for at least three (3) years prior to the effectivity of R.A. 8552, the petition may be granted. Otherwise, the petition cannot be granted because the American husband is not qualified to adopt. months from the date the Deed of Voluntary Commitment was executed by the child’s biological parent/s. A legally-free child is freed of his biological parents, guardians, or adopters in case of rescission. NOTE: No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted in the Philippines. While the petition for adoption was filed in 1990, it was considered refiled upon the effectivity of R.A. 8552. This is the applicable law since the petition is still pending with the lower court. Under the Act, Sarah and Sonny 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, for being a former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or 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 3 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 Sec. 7(b) thereof, and the petition may be granted. GR: There shall be no physical transfer of a voluntarily committed child earlier than 6 months from the date of execution of Deed of Voluntary Commitment. XPN: 1. 2. INTER – COUNTRY ADOPTION BOARD Function of Inter-Country Adoption Board The Inter-Country Adoption Board (ICAB) acts as the central authority in matters relating to inter-country adoption. The Board shall ensure that all the possibilities for adoption of the child under the Family Code have been exhausted and that the inter-country adoption is in the best interest of the child. C. ADOPTEE Only a legally freed child may be adopted provided the following are submitted: 1. 2. 3. 4. 5. 6. Adoption by relative; Child with special medical condition. Trial custody Child study; Birth certificate/ foundling certificate; Deed of Voluntary Commitment/Decree of Abandonment/Death Certificate of parents; Medical evaluation or history; Psychological evaluation; and Recent photo. It is the pre-adoptive relationship which ranges six (6) months from the time of the placement. It starts from the actual transfer of the child to the applicant who, as actual custodian, shall exercise substitute parental authority over the person of the child. Results of Trial Custody Child A child is any person below 15 years old. (Sec. 3, RA 8043) 1. If unsatisfactory – the relationship shall be suspended by the board and the foreign adoption agency shall arrange for the child’s voluntary care. 2. If satisfactory – the Board shall submit the written consent of the adoption to the foreign adoption agency within 30 days after the request of the latter’s request. Child legally free for adoption A child voluntarily or involuntarily committed to the DSWD as a dependent, abandoned or neglected pursuant to the provisions of the Child and Youth Welfare Code maybe subject of InterCountry Adoption; provided that in case of a child shall be made not earlier that six (6) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES NOTE: The child shall be repatriated as a last resort if found by the ICAB to be in his/her 138 The Family under the Family Code interests. married at the time of their birth. On May 26, 2009, the Court of Appeals denied the petition. WON the petition for adoption must be denied? Q: Rosario alleged that she and Jose were married on August 5, 1962 in Laoag City. Their marriage had allegedly been troubled. They had a child, Rose Marie, who was born in 1963, but succumbed to congenital heart disease and only lived for nine days. Rosario allegedly left Jose after a couple of months because of the incompatibilities between them. Rosario and Jose, however, briefly reconciled in 1969. Rosario gave birth to Joanne a year later. She and Jose allegedly lived as husband and wife for about a year even if she lived in Manila and Jose stayed in Laoag City. Jose would visit her in Manila during weekends. A: YES. It is settled that "the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action." As Jose filed the petition for adoption on August 1, 2000, it is Republic Act No. 8552 which applies over the proceedings. The law on adoption requires that the adoption by the father of a child born out of wedlock obtain not only the consent of his wife but also the consent of his legitimate children. The law provides for several exceptions to the general rule, as in a situation where a spouse seeks to adopt his or her own children born out of wedlock. Afterwards, they separated permanently because Rosario alleged that Jose had homosexual tendencies. She insisted, however, that they "remained friends for fifteen (15) years despite their separation(.)" In this instance, joint adoption is not necessary. However, the spouse seeking to adopt must first obtain the consent of his or her spouse. In the absence of any decree of legal separation or annulment, Jose and Rosario remained legally married despite their de facto separation. On August 1, 2000, Jose filed a petition for adoption before the Regional Trial Court of Batac, Ilocos Norte. In the petition, he alleged that Jed and Regina were his illegitimate children with Lilibeth Fernandez Gregorio (Lilibeth), whom Rosario alleged was his erstwhile housekeeper. At the time of the filing of the petition, Jose was 70 years old. The petition for adoption was granted. For Jose to be eligible to adopt Jed and Regina, Rosario must first signify her consent to the adoption. Jose, however, did not validly obtain Rosario's consent. His submission of a fraudulent affidavit of consent in her name cannot be considered compliance of the requisites of the law. On October 18, 2007, Rosario and Joanne filed a petition for annulment of judgment under Rule 47 of the Rules of Civil Procedure with the Court of Appeals, seeking to annul the October 16, 2000 decision of the trial court approving Jed and Regina's adoption. In their petition, Rosario and Joanne allege that they learned of the adoption sometime in 2005. They alleged that Rosario's affidavit of consent, marked by the trial court as "Exh. K," was fraudulent. They also alleged that Jed and Regina's birth certificates showed different sets of information, such as the age of their mother, Lilibeth, at the time she gave birth. They argue that one set of birth certificates states the father to be Jose and in another set of National Statistic Office certificates shows the father to be Larry, Jose's driver and alleged lover. It was further alleged that Jed and Regina are not actually Jose's illegitimate children but the legitimate children of Lilibeth and Larry who were Had Rosario been given notice by the trial court of the proceedings, she would have had a reasonable opportunity to contest the validity of the affidavit. Since her consent was not obtained, Jose was ineligible to adopt. (Raul S. Imperi Rosario Mata Castro And Joanne Benedicta Charissima M. Castro, A.K.A. "Maria Socorro M. Castro" And "Jayrose M. Castro” v. Jose Maria Jed Lemuel Gregorio And Ana Maria Regina Gregorio, G.R. No. 188801, October 15, 2014, as penned by J. Leonen) 139 Civil Law Distinction between Domestic Adoption Act and Inter-country Adoption Act DOMESTIC ADOPTION ACT (R.A. 8552) Governing body When may adoption be resorted to Who may adopt INTER-COUNTRY ADOPTION ACT (R.A. 8043) DSWD Inter-country Adoption Board (ICAB) Adoption need not be the last resort Adoption only as last resort: No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. (Sec. 11) 1. Any FILIPINO CITIZEN (regardless 1. FILIPINO CITIZEN permanently of where residing) residing abroad may file an application for inter-country adoption of a Filipino child if he/she: a. Of legal age; b. At least sixteen (16) years older than the adoptee, (may be a. Is at least twenty-seven (27) years of waived when the adopter is the age; biological parent of the adoptee, or is the spouse of the adoptee’s b. At least sixteen (16) years older than parent; the child to be adopted, at the time of c. In possession of full civil application unless the adopter is the capacity and legal rights; parent by nature of the child to be d. Of good moral character, has not adopted or the spouse of such parent; been convicted of any crime involving moral turpitude, c. Has the capacity to act and assume all emotionally and rights and responsibilities of parental psychologically capable of caring authority under his national laws, and for children; and has undergone the appropriate e. Who is in a position to support counseling from an accredited and care for his/her children in counselor in his/her country; keeping with the means of the family. d. Has not been convicted of a crime involving moral turpitude; 2. Any ALIEN possessing the same e. Is in a position to provide the proper qualifications as above stated for care and support to give the necessary Filipino nationals, Provided; moral values and example to all his children including the child to be a. That he/she has been living in adopted; the Philippine for at least three (3) continuous years prior to the f. If married, his/her spouse must jointly filing of the application for file for the adoption; adoption and maintains such residence until the adoption g. Is eligible to adopt under his/her decree is entered; national law; b. That his/her country has diplomatic relations with the h. Agrees to uphold the basic rights of the Republic of the Philippines; child as embodied under Philippine UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 140 The Family under the Family Code c. d. e. i. ii. iii. He/she has been certified by laws, the U.N. Convention on the Rights his/her diplomatic or consular of the Child and to abide by the rules office or any appropriate and regulations issued to implement government agency that he/she the provisions of this Act; has the legal capacity to adopt in his/her country; i. Comes from a country with whom the That his/her government allows Philippines has diplomatic relations the adoptee to enter his/her and whose government maintains a country as his/her adopted similarly son/daughter; and That the requirements on j. Authorized and accredited agency and residency and certification to that adoption is allowed under his/her adopt in his/her country may be national laws; and WAIVED for the following: k. Possesses all the qualifications and A former Filipino citizen who none of the disqualifications provided seeks to adopt a relative within herein and in other applicable the fourth (4th) degree of Philippine laws. consanguinity or affinity; or One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. 3. The GUARDIAN with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. (Sec. 7) Who may be adopted a. Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; b. The legitimate son/daughter of one spouse by the other spouse; c. An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; d. A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; e. A child whose adoption has been previously rescinded; or f. A child whose biological or adoptive parent(s) has died: Provided, that no proceedings shall be initiated within six (6) months from the time of 141 a. Filipino children [Sec. 3(a)]; b. Below 15 years of age [Sec. 3(b)]; and c. Who are legally free, meaning children who have been voluntarily or involuntarily committed to the DSWD. [Sec. 3(f) and Sec. 8)] NOTE: IRR of 2004 adds that: Any child who has been voluntarily or involuntarily committed to the Department as dependent, abandoned or neglected pursuant to the provisions of the Child and Youth Welfare Code may be the subject of Inter-Country Adoption xxx. (Sec. 26) Civil Law death of said parent(s). (Sec. 8) Venue Petition for adoption shall be filed with Either with the Philippine RTC having Family Court of the province or city jurisdiction over the child, or with the where the prospective adoptive parents Inter-country Board through an reside. (Rule on Adoption, Sec. 6) intermediate agency, in the country of the adoptive parents. (Sec. 10) IRR of 2004 provides that: Application shall be filed with the Board or the Central Authority or the Foreign Adoption Agency in the country where the applicant resides. In case of foreign nationals who file petition for adoption under RA 8552 or Domestic Adoption Law, the Court after finding petition to be sufficient in form and substance and proper case for intercountry adoption shall immediately transmit the petition to the board for appropriate action. (Sec. 30) Trial Custody Takes place in the Philippines Where adoptive parents reside No provision limiting act of rescission only to adoptee. In IRR, the procedure is provided for when adoption process is terminated: Rescission Only upon petition of adoptee, never by adopters. (Sec.19) SECTION 47. DISRUPTION AND TERMINATION OF PLACEMENT. – In the event of serious damage in the relationship between the child and the applicant/s where the continued placement of the child is not in his/her best interests, the Central Authority and/or the FAA shall take the necessary measures to protect the child, in particular, to cause the child to be withdrawn from the applicant/s and to arrange for his/her temporary care. The Central Authority and/or FAA shall exhaust all means to remove the cause of the unsatisfactory relationship which impedes or prevents the creation of a mutually satisfactory adoptive relationship. A complete report should be immediately forwarded to the Board with actions taken as well as recommendations and appropriate plans. Based on the report, the Board may terminate the preadoptive relationship. SEC. 48. NEW PLACEMENT FOR CHILD. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 142 The Family under the Family Code In the event of termination of the preadoptive relationship, the Board shall identify from the Roster of Approved Applicants a suitable family with whom to place the child. The Central Authority and/or the FAA may also propose a replacement family whose application shall be filed for the approval of the Board. No adoption shall take place until after the Board has approved the application of such replacement family. SUPPORT 3. It comprises everything indispensable for sustenance, dwelling, clothing, medical attendance and transportation, in keeping with the financial capacity of the family, including the education of the person entitled to be supported until he completes his education or training for some profession, trade or vocation, even beyond the age of majority. (FC, Art. 194) (2010 BAR) Rules on support of illegitimate children of either spouse 1. 3. 4. 5. 6. 7. a. b. c. Personal; Reciprocal on the part of those who are by law bound to support each other; Intransmissible; Mandatory; Provisional character of support judgment; Exempt from attachment or execution; and Not subject to waiver or compensation 2. Sustenance; Dwelling; Clothing; Medical attendance; Education – includes schooling or training for some profession, trade or vocation, even beyond the age of majority; Transportation – includes expenses going to and from school, or to from place of work. d. Illegitimate children; Legitimate ascendants; Descendants, whether legitimate or illegitimate; Brothers and sisters, whether legitimately or illegitimately related. (Rabuya, 2009) SUMMARY OF SUPPORT OF SPOUSES TO OTHERS Kinds of support 1. 2. Separate property of person, for the support of the following: a. b. c. Support comprises everything indispensable for: 6. spouses; common children of the spouses; and legitimate children of either spouse NOTE: If the community property or the conjugal partnership is insufficient to cover them, the spouses shall be solidarily liable for the unpaid balance with their separate properties. COMPOSITION OF SUPPORT 1. 2. 3. 4. 5. It depends upon the property regime of the spouses. ACP or CPG for the support of the following: Characteristics of support (PRIMPEN) 1. 2. Conventional – by agreement. Legal – required or given by law; Judicial– required by court; may be: a. Pendente lite b. In a final judgment 143 Who are entitled Property Regime to be Liable Insufficiency/Abse nce Legitimat e ACP or CPG is principally ACP or CPG is insufficient, Civil Law children of both or either spouse and common children. liable Illegitima te children of either spouse Separate property is principally liable; ACP can advance the support; CPG can be liable if the responsibiliti es in Art. 121 are covered If Separate property of the spouse is insufficient, the spouses can use ACP or CPG Parents and siblings Separate property is principally liable; ACP or CPG can advance support, but only if there is complete absence of separate property There must be a complete absence of separate property on the part of the obligor-spouse. the legitimate and illegitimate children of the latter; separate property of both spouses are solidarily liable 4. NOTE: The alleged father of a child must first recognize the latter before he or she may be entitled to support. 5. Q: Rule when: a. Two or more persons are obliged to give support; b. Two or more recipients at the same time claim support from the same persons who does not have sufficient means to satisfy all claims A: a. The payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish support provisionally, without prejudice to his right to claim reimbursement from the other obligors of their corresponding shares. (FC, Art. 200) Persons obliged to support each other (2008 BAR) b. Spouses; NOTE: a. The spouse must be the legitimate spouse in order to be entitled to support b. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported. (FC, 100 and 127) 2. Legitimate ascendants & descendants; 3. Parents and their legitimate children, and UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Legitimate brothers and sisters whether full or half- blood. (FC, Art. 195) NOTE: Brothers and sisters not legitimately related, whether full or half-blood, are likewise bound to support each other. However, when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence, the illegitimate brother or sister has no right to be supported. (FC, Art. 196; Rabuya, 2009) PERSONS OBLIGED TO SUPPORT 1. Parents and their illegitimate children, and the legitimate and illegitimate children of the latter; The order established under Art. 199 of the Family Code shall be followed, unless the concurrent obliges should be the spouse and a child, in which case, the child shall be preferred. (FC, Art. 200) Sources of Support DURING MARRIAGE From the community 144 PENDING LITIGATION Spouses AFTER LITIGATION ACP GR: From the GR: No obligation to The Family under the Family Code property. community property assets XPN: If Art. 203 applies, that if the claimant spouse is the guilty spouse, he/she is not entitled to support. A: YES. There appears to be no dispute that the children are indeed the daughters of Federico by Belen. Under Art. 199 of the Family Code, “Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the following order herein provided: support XPN: If there is Legal Separation. In which case, the court may require the guilty spouse to give support. 1. 2. 3. 4. The obligation to give support rests principally on those more closely related to the recipient. However, the more remote relatives may be held to shoulder the responsibility should the claimant prove that those who are called upon to provide support do not have the means to do so. Here, since it has been shown that the girls' father, Federico, had no means to support them, then Francisco, as the girls’ grandfather, should then extend the support needed by them. CPG Support is considered an advance of such spouses’ share. NOTE: The rule does not apply if the spouses are under ACP based on Art. 153. NOTE: The second option in Art. 204 of the Family Code, that of taking in the family dwelling the recipient, is unavailing in this case since the filing of the case has evidently made the relations among the parties bitter and unpleasant. (Mangonon, et al. v. CA, et al., G.R. No. 125041, June 30, 2006) Children From the community property From the community property From the separate properties of the spouses Q: Marcelo and Juana called Dr. Arturo to their house to render medical assistance to their daughter-in- law who was about to give birth to a child. He performed the necessary operation. When Dr. Arturo sought payment, Marcelo and Juana refused to pay him without giving any good reason. Who is bound to pay the bill for the services rendered by Arturo? Liability to support (FC, Art. 199) The liability to support should be observed in the following order: 1. 2. 3. 4. The spouse; The descendants in the nearest degree; The ascendants in the nearest degree; and The brothers and sisters. A: HER HUSBAND, not her father and motherin-law. The rendering of medical assistance in case of illness is comprised among the mutual obligations to which the spouses are bound by way of mutual support. (FC, Arts. 142 and 143) Spouse; Descendants in the nearest degree; Ascendants in the nearest degree; Brothers and sisters. Q: Belen, in behalf of her minor children, instituted a petition for declaration of legitimacy and support against Federico, their alleged father, and Francisco, father of Federico. It appears that the marriage of the two was annulled due to the minority of Federico. May Francisco be ordered to give support? If every obligation consists in giving, doing or not doing something (NCC, Art. 1088), and spouses are mutually bound to support each other, there can be no question but that, when either of them by reason of illness should be in need of medical assistance, the other is under the unavoidable obligation to furnish the necessary services of a physician in order that 145 Civil Law health may be restored, and he or she may be freed from the sickness by which life is jeopardized. (Pelayo v. Lauron, G.R. No. L-4089, January 12, 1909) Lim v. Cheryl Lim, G.R. No. 163209, October 30, 2009) Q: Cheryl married Edward Lim and they begot three children. Cheryl, Edward and their children lived at the house of Edward’s parents, Prudencio and Filomena, together with Edward’s ailing grandmother and her husband. Edward was employed with the family business, which provided him with a monthly salary of P6,000 and shouldered the family expenses. Cheryl had no steady source of income. Cheryl caught Edward in “a very compromising situation” with the midwife of Edward’s grandmother. After a violent confrontation with Edward, Cheryl left the Forbes Park residence. She subsequently sued, for herself and her children, Edward, Edward’s parents and grandparents for support. Edward and his parents were ordered by the RTC to “jointly” provide, monthly support to Cheryl and her children. Is the court’s judgment in making Edward’s parents concurrently liable with Edward to provide support to Cheryl and her children correct? During the pendency of the action for annulment or declaration of absolute nullity of marriage and action for legal separation, the court shall provide for the support of the spouses and their common children in the absence of a written agreement between the spouses. (FC, Art. 49) A: YES. However, the Supreme Court modified the appealed judgment by limiting liability of Edward’s parents to the amount of monthly support needed by Cheryl’s children. Edward’s parents are liable to provide support but only to their grandchildren. By statutory and jurisprudential mandate, the liability of ascendants to provide legal support to their descendants is beyond cavil. Petitioners themselves admit as much — they limit their petition to the narrow question of when their liability is triggered, not if they are liable. Effect of adultery of the wife SUPPORT DURING MARRIAGE LITIGATION Sources of support shall be the properties of the absolute community or conjugal partnership. Mutual support of the spouses after the final judgment granting the petition for legal separation, annulment and declaration of nullity of marriage GR: Spouses are no longer obliged to render mutual support after final judgment. The obligation of mutual support ceases after final judgment. XPN: In case of legal separation the Court may order that the guilty spouse shall give support to the innocent one. (FC, Art. 198) Adultery of the wife is a valid defense in an action for personal support (i.e. support coming from the spouse’s own funds). If adultery is proved and sustained, it will defeat the action for support. But if both are equally at fault, the principle of in pari delicto applies in which the husband cannot avail of the defense of adultery. NOTE: Adultery is not a defense when it is to be taken from the conjugal properties or the absolute community of properties of the spouses. There is no showing that private respondent is without means to support his son; neither is there any evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandson's legal support. Cheryl is unable to discharge her obligation to provide sufficient legal support to her children. It also shows that Edward is unable to support his children. This inability of Edward and Cheryl to sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree, both in the paternal (petitioners) and maternal lines, following the ordering in Article 199. (Spouses UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Q: H and W are living separately. Both had been unfaithful to each other. After their separation, H had been giving money to W for her support. Subsequently, W brought an action against H for separate maintenance. Will the action prosper? A: YES. The principle of in pari delicto is applicable. Both are at fault. Consequently, H cannot avail of himself of the defense of adultery of W. Besides, the act of H in giving money to W is implied condonation of the adultery of W. 146 The Family under the Family Code (Amacen v. Baltazar, G.R. No. L-10028, May 28, 1958) distinguished from articles 206 of the Family Code and 2164 of the Civil Code, “the obligor unjustly refuses or fails to give support.” The law creates a promise of reimbursement on the part of the person obliged to furnish support, inspite of the deliberate disregard of his legal and moral duty. (Rabuya, 2006) AMOUNT Amount shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (FC, Art. 201) OPTIONS Support may be decreased or increased proportionately according to the reduction or increase of the necessities of the recipient and the resources of the person obliged to furnish the same. (FC, Art. 202) Options given to persons giving support 1. 2. WHEN DEMANDABLE To give a fixed allowance; or To receive and maintain the recipient in the giver’s home or family dwelling. (FC, Art. 204) The obligation to give support is demandable from the time the person who has a right to receive support needs it for maintenance. NOTE: In cases when there is a moral or legal obstacle, the latter alternative in giving support cannot be availed of. The support shall be paid only from the date of judicial or extrajudicial demand. If support is given by a stranger without the knowledge of the person obliged to give support; The right to support does not arise from mere fact of relationship but from imperative necessity without which it cannot be demanded. The law presumes that such necessity does not exist unless support is demanded. GR: The stranger shall have the right of reimbursement XPN: Unless it appears that he gave it without any intention of being reimbursed. (FC, Art. 206) Effect of Reaching Age of Majority NOTE: If the person obliged to give support unjustly refuses or fails to give it when urgently needed, any third person may furnish support to the needy individual, with a right of reimbursement. (FC, Art. 207) If a person is of age and no longer studies, he still entitled to support unless there are just reasons for the extinguishment of the right. (Javier v. Lucero, 94 Phil. 634) If, upon the other hand, he has not yet finished his studies even if already of age, he still entitled generally to be supported. Of course, if the person supporting dies, the obligation ceases. (Falcon v. Arca, L-18135, July 31, 1963) ATTACHMENT Attachment or execution of the right to receive support (FC, Art. 208) GR: The right to receive support and any money or property obtained as support cannot be attached nor be subject to execution to satisfy any judgment against the recipient. MANNER OF PAYMENT Payment shall be made within first five days of each corresponding month. In case of death of the person entitled to receive support, his heirs shall not be obliged to return what he has received in advance for such support. (FC, Art. 203) XPN: In case of contractual support or support given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Payment by Third Person under Article 208 NOTE: Contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances beyond the contemplation of the parties. The obligation to reimburse under this article is one that likewise arises from quasi-contract. As 147 Civil Law Q: Jurisdictional questions may be raised at any time. What is the exception with respect to the provisional character of judgment for support and the application of estoppel? so? A: YES. Pursuant to Art. 207 of the Family Code, Noel can rightfully exact reimbursement from Edward. This provision reads that “[W]hen the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support.” The resulting juridical relationship between the Edward and Noel is a quasi-contract, an equitable principle enjoining one from unjustly enriching himself at the expense of another. (Lacson v. Lacson, et al., G.R. No. 150644, August 28, 2006) A: Judgment for support is always provisional in character. Res Judicata does not apply. The lower court cannot grant a petition based on grounds, such as bigamy, not alleged in the petition. Such decision based on grounds not alleged in the petition is void on the ground of no jurisdiction. However, if the lower court’s void decision is not assailed on appeal which dealt only with the matter of support, the losing party is now estopped from questioning the declaration of nullity and the SC will not undo the judgment of the RTC declaring the marriage null and void for being bigamous. Q: Fe and her son Martin sued Martin’s alleged biological father Arnel for support. Arnel denied having sired Martin, arguing that his affair and intimacy with Fe had allegedly ended in long before Martin’s conception. As a result, Fe and Martin moved for the issuance of an order directing all the parties to submit themselves to DNA paternity testing. The said motion was granted by the court. Did the order of the court convert the complaint for support to a petition for recognition? It is axiomatic that while a jurisdictional question may be raised at any time, this however admits of an exception where estoppel has supervened. (Lam v. Chua, G.R. No. 131286, March 18, 2004) Q: Edward abandoned his legitimate children when they were minors. After 19 years from the time Edward left them, they, through their mother, finally sued him for support, which the court granted. The court ordered him to pay 2M pesos as support in arrears. A: The assailed order did not convert the action for support into one for recognition but merely allowed Fe to prove their cause of action. But even if the order effectively integrated an action to compel recognition with an action for support, such was valid and in accordance with jurisprudence. The integration of an action to compel recognition with an action to claim one’s inheritance is allowed. (Tayag v. CA, G.R. No. 95229, June 9, 1992) A separate action will only result in a multiplicity of suits. Furthermore, the declaration of filiation is entirely appropriate to the action for support. (Agustin v. CA, G.R. No. 162571, June 15, 2005) Edward assails the grant of the support in arrears as erroneous since under Art. 203 of the FC, there was never any demand for support, judicial or extrajudicial, from them. Is his contention correect? A: NO. Edward could not possibly expect his daughters to demand support from him considering their tender years at the time that he abandoned them. In any event, the mother of the girls had made the requisite demand for material support although this was not in the standard form of a formal written demand. Asking one to give support owing to the urgency of the situation is no less a demand just because it came by way of a request or a ppeal. (Lacson v. Lacson, et al., G.R. No. 150644, August 28, 2006) Q: Can DNA testing be ordered in a proceeding for support without violating the constitutional right against selfincrimination? A: YES. Compulsory DNA testing and the admissibility of the results thereof as evidence are constitutional. (People v. Yatar, G.R. No. 150224, May 19, 2004) Q: Noel helped Lea by extending financial help to support Lea’s children with Edward. May Noel seek reimbursement of his contributions? If yes, from whom may he do UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Moreover, it has mostly been in the areas of 148 The Family under the Family Code legality of searches and seizure and in the infringement of privacy of communication where the constitutional right to privacy has been critically at issue. If the child is illegitimate, parental authority is with the mother. (FC, Art. 176) NOTE: Joint parental authority may be exercised over an illegitimate child when: If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, so much more so may a party in a civil case, who does not face such dire consequences, be likewise compelled. DNA testing and its results is now acceptable as object evidence without running afoul self-incrimination rights of a person. (Agustin v. CA, G.R. No. 162571, June 15, 2005) 1. 2. The father is certain; The illegitimate children are living with the said father and mother, who are cohabiting without the benefit of marriage or under a void marriage not falling under Art. 36 and 53. (Sta. Maria, 2017) Parental Authority is “the mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation and even after this under certain circumstances.” (Sempio- Diy, 1995) Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution. (Arts. 222-224, FC; Act No. 3094) Parental authority includes Visitation rights 1. Caring for and rearing of such children for civic consciousness and efficiency; It is the right of access of a noncustodial parent to his or her child or children. 2. Development of their moral, mental and physical character and well-being. (FC, Art. 209) Who are entitled of visitation rights PARENTAL AUTHORITY 1. a. b. c. d. Characteristics of parental authority 1. 2. Jointly exercised by the father and mother; Natural right and duty of the parents; GR: Cannot be renounced, transferred or waived. 2. XPN: In cases authorized by law such as in cases of adoption, guardianship and surrender to a children's home or an orphan institution. (Santos v. CA, G.R. No. 113054, March 16, 1995). 3. 4. The non-custodial parent in cases of: Legal separation; Separation de facto; Annulment; Declaration of nullity on the ground of psychological incapacity or failure to comply with the requirements of Article 52; Illegitimate father over his illegitimate child. NOTE: In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family Code grants visitation rights to a parent who is deprived of custody of his children. Such visitation rights flow from the natural right of both parent and child to each other’s company. There being no such parent-child relationship between them, a person has no legally demandable right of visitation. (Concepcion v. CA, G.R. No. 123450, August 31, 2005) Purely personal; Temporary. Exercise of parental authority The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary. (FC, Art. 211) Q: Carlitos Silva and Suzanne Gonzales had a live-in relationship. They had two children, namely, Ramon Carlos and Rica Natalia. Silva 149 Civil Law and Gonzales eventually separated. They had an understanding that Silva would have the children in his company on weekends. Silva claimed that Gonzales broke that understanding on visitation rights. Hence, Silva filed a petition for custodial rights over the children before the RTC. The petition was opposed by Gonzales who claimed that Silva often engaged in gambling and womanizing which she feared could affect the moral and social values of the children. In the meantime, Suzanne had gotten married to a Dutch national. She eventually immigrated to Holland with her children Ramon Carlos and Rica Natalia. Can Silva be denied visitation rights? “Compelling Reasons” The so-called “tender-age presumption” under Article 213 of the Family Code may be overcome only by compelling evidence of the mother’s unfitness. The mother has been declared unsuitable to have custody of her children in one or more of the following instances: 1. 2. 3. 4. 5. 6. 7. 8. A: GR: NO. NOTE: In one case, the SC ruled that sexual preference or moral laxity alone does not prove parental neglect or incompetence; to deprive the wife of custody of her minor child, her moral lapses must have an adverse effect on the welfare of the child or it must have distracted the offending spouse from exercising proper parental care. (Pablo-Gualberto v. Gualberto, G.R. No. 154994 & 156254, June 28, 2005. XPN: If the fears and apprehensions were founded as to the father’s corrupting influence over the children and if it is proven therefore that indeed the father is a negative influence because of reasons like immorality, drunkenness, etc. on the children, the court, taking into consideration the best interest of the children, can deny his petition for the exercise of his visitation rights. (Silva v. CA, G.R. No. 114742, July 17, 1997) Exercise of parental authority in case of absence, death, remarriage of either parent, or legal or de facto separation of parents Parental Preference Rule The natural parents, who are of good character and who can reasonably provide for the child, are ordinarily entitled to custody as against all persons. NOTE: Tender-Age Presumption: 1. Absence or death of either parent – parent present shall continue exercising parental authority. 2. Remarriage of either parent – it shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (FC, Art. 213) No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise [FC, Art 213(2)]. (2006 BAR) NOTE: Parental authority is not automatically given to the new spouse over the child of the surviving parent, unless such new spouse legally adopts the children. The paramount consideration in matters of custody of a child is the welfare and well-being of the child. 3. The use of the word “shall” in Art. 213 of the FC is mandatory in character. It prohibits in no uncertain terms the separation of a mother and her child below 7 years, unless such separation is grounded upon compelling reasons as determined by a court. (Lacson v. San JoseLacson, G.R. No. L-23482, August 30, 1968) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Insanity Abandonment Neglect Drug addiction Affliction with a communicable disease Maltreatment of the child Immorality Unemployment Habitual drunkenness Legal or de facto separation of parents – the parent designated by the court. Considerations in the designation of child custody The Court shall take into account all relevant considerations in the designation of the parent, especially the choice of the child over seven 150 The Family under the Family Code years of age except when the parent chosen is unfit. (FC, Art. 213) rightful custody of the child may resort to the remedy of habeas corpus. (Salientes v. Abanilla, G.R. No. 162734, August 29, 2006) Q: Herald, an American citizen, and Sharon, Filipino, got married in Manila in 1994. Their union was blessed with one daughter, Stephanie who was born in 1995. In 1999, Sharon sought and obtained a divorce decree against Herald from Illinois. The Illinois court dissolved the parties’ marriage and awarded to Sharon the sole custody of Stephanie. In 2002, Herald and Sharon executed in Manila a contract for the joint custody of Stephanie. In 2004, Herald sued Sharon alleging that she violated their contract as she retained sole custody over Stephanie. The RTC dismissed Herald’s complaint and ruled that the parties’ contract is void for contravening Article 2035 (5) of the Civil Code. Is the RTC correct? NOTE: The general rule that children less than 7 years of age shall not be separated from the mother finds its raison d'etre in the basic need of minor children for their mother's loving care. This is predicated on the "best interest of the child" principle which pervades not only child custody cases but also those involving adoption, guardianship, support, personal status and minors in conflict with the law. (Pablo-Gualberto v. Gualberto, G.R. No. 154994/G.R. No. 156254, June 28, 2005) This also avoids the tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. (Dacasin v. Dacasin, G.R. No. 168785, February 5, 2010) A: YES. The contract is not only void ab initio for being contrary to law, it has also been repudiated by the mother when she refused to allow joint custody by the father. The agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live together. However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years. The Philippine courts do not have the authority to enforce an agreement that is contrary to law, morals, good customs, public order, or public policy. (Dacasin v. Dacasin, G.R. No. 168785, February 5, 2010) Q: Queenie was born to Renalyn and Ricky James, who had been living together with Renalyn's parents without the benefit of marriage. Three (3) years later, the relationship ended. Renalyn went to Manila, supposedly leaving Queenie behind in the care and custody of her father, Ricky James. Ricky James alleged that, the parents of Renalyn took Queenie from the school where he had enrolled her. When asked to give Queenie back, Renalyn's parents refused. Consequently, Ricky James filed a petition for habeas corpus and child custody before the RTC (petition a quo). Upon reaching the CA it remanded the case a quo for determination of who should exercise custody over Queenie. Was such action proper? A: NO, CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a situation in which the parents of the minor are married to each other but are separated either by virtue of a decree of legal separation or because they are living separately de facto. In the present case, it has been established that petitioner and Respondent Loreta were never married. Hence, that portion of the CA Decision allowing the child to choose which parent to live with is deleted, but without disregarding the obligation of petitioner to support the child. Q: If the parents are separated de facto, who between them has custody over their child/ children? A: In the absence of a judicial grant of custody to one parent, both of them have custody over their child/children General rule is that the father and the mother shall jointly exercise parental authority over the The parent who has been deprived of the 151 Civil Law persons of their common children. However, insofar as illegitimate children are concerned, Article 176 of the Family Code states that illegitimate children shall be under the parental authority of their mother. Accordingly, mothers (such as Renalyn) are entitled to the sole parental authority of their illegitimate children (such as Queenie), notwithstanding the father's recognition of the child. In the exercise of that authority, mothers are consequently entitled to keep their illegitimate children in their company, and the Court will not deprive them of custody, absent any imperative cause showing the mother's unfitness to exercise such authority and care. (Masbate vs. Relucio, G.R. No. 235498, July 30, 2018) Foundlings – newborn child abandoned by its parents who are unknown Abandoned – a child who has no proper parental care or guardianship Neglected – a child whose basic needs have been deliberately or inadequately unattended Q: Bonifacia Vancil, a US citizen, is the mother of Reeder C. Vancil, a US Navy serviceman who died in the USA on December 22, 1986. During his lifetime, Reeder had two children named Valerie and Vincent by his commonlaw wife, Helen G. Belmes. Bonifacia obtained a favorable court decision appointing her as legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil, Jr. She alleged that Helen was morally unfit as guardian of Valerie considering that Helen’s live-in partner raped Valerie several times. SUBSTITUTE PARENTAL AUTHORITY Substitute Parental Authority (2004 BAR) It is the parental authority which the persons designated by law may exercise over the persons and property of unemancipated children in case of death, absence or unsuitability of both parents, or in default of a judicially appointed guardian. Can Bonifacia exercise substitute parental authority over Valerie and Vincent? A: NO. Bonifacia, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of Helen. Considering that Helen is very much alive and has exercised continuously parental authority over Vincent, Bonifacia has to prove, in asserting her right to be the minor’s guardian, Helen’s unsuitability. Order of substitute parental authority 1. Surviving Grandparent; NOTE: The law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority. (Santos v. CA, G.R. No. 113054, March 16, 1995) 2. Oldest brother or sister, over 21 years unless unfit or disqualified; 3. Actual Custodian over 21 years unless unfit or disqualified (FC, Art. 216); 4. Bonifacia, however, has not proffered convincing evidence showing that Helen is not suited to be the guardian of Vincent. Bonifacia merely insists that Helen is morally unfit as guardian of Valerie considering that her live- in partner raped Valerie several times. (But Valerie, being now of major age, is no longer a subject of this guardianship proceeding). Even assuming that Helen is unfit as guardian of minor Vincent, still Bonifacia cannot qualify as a substitute guardian. She is an American citizen and a resident of Colorado. Obviously, she will not be able to perform the responsibilities and obligations required of a guardian. In fact, in her petition, Bonifacia admitted the difficulty of discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties to someone else who may not also qualify as a guardian. (Vancil v. Belmes, In case of foundlings, abandoned, neglected or abused children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency. (FC, Art. 217) NOTE: UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 152 The Family under the Family Code G.R. No. 132223, June 19, 2001) parents temporarily relinquish parental authority over the child to the latter. SPECIAL PARENTAL AUTHORITY Special Parental Authority (2003, 2004, 2005, 2010 BAR) EFFECTS OF PARENTAL AUTHORITY UPON THE PERSON OF THE CHILDREN It is the parental authority granted by law to certain persons, entities or institutions in view of their special relation to children under their supervision instruction or custody. It is denominated as special because it is limited and is present only when the child is under their supervision instruction or custody. It can also co- exist with the parents’ parental authority. Special Parental Authority (2003, 2004, 2005, 2010 BAR) It is the parental authority granted by law to certain persons, entities or institutions in view of their special relation to children under their supervision instruction or custody. It is denominated as special because it is limited and is present only when the child is under their supervision instruction or custody. It can also co- exist with the parents’ parental authority. Persons who may exercise special parental authority (FC, Art. 218) 1. 2. 3. 4. The school; School administrators; School teachers; Individual, entity or institution engaged in child care. Persons who may exercise special parental authority (FC, Art. 218) 1. 2. 3. 4. Scope of special parental authority The scope of special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. Scope of special parental authority NOTE: The nature of the liability of persons having special parental authority over said minors for their acts or omissions causing damage to another is principal and solidary. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. (FC, Art. 219) (2003, 2010 BAR) Substitute parental authority Special parental authority 1. 2. 3. SPECIAL PARENTAL AUTHORITY Exercised in case of: (DAU) Exercised concurrently with the parental authority of the parents; Rests on the theory that while the child is in the custody of the person exercising special parental authority, the Death Absence, or Unsuitability of parents. The scope of special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. NOTE: The nature of the liability of persons having special parental authority over said minors for their acts or omissions causing damage to another is principal and solidary. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. (FC, Art. 219) (2003, 2010 BAR) vis-à-vis SUBSTITUTE PARENTAL AUTHORITY The school; School administrators; School teachers; Individual, entity or institution engaged in child care. Right to Child’s Custody The right of parents to the custody of their minor children is one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts but derives from the nature of the parental relationship. (SagalaEslao v. CA, G.R. No. 116773, January 16, 1997) 153 Civil Law Parents’ right to custody of the child days. GR: Parents are never deprived of the custody and care of their children. Limitations on the exercise of the right to discipline the child and its consequences XPNS: Persons exercising such right are not allowed to: 1. For cause; 1. NOTE: the law presumes that the child’s welfare will be best served in the care and control of his parents. 2. If in consideration of the child’s welfare or well- being, custody may be given even to a non-relative. 1. 2. 2. Otherwise, the following are its consequences: Basis for the duty to provide support Family ties authority. or relationship, not parental Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. – Rule on the parent’s duty of representation 1. Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. 2. Any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places shall suffer the penalty of prision mayor in its maximum period and a fine of not less than Fifty thousand pesos (P50,000): Provided, That the provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty. 3. Any person who shall induce, deliver or offer a minor to any one prohibited by the Act to keep or have in his company a GR: Parents are duty-bound to represent their minor children in all matters affecting their interests; NOTE: This duty extends to representation in court litigations. XPN: A guardian ad litem may be appointed by the court to represent the child when the best interest of the child so requires. Scope of the parent’s right to discipline the child (FC, Art. 223) Persons exercising parental authority may: Impose discipline on minor children as may be required under the circumstances; 2. Petition the court for the imposition of appropriate disciplinary measures upon the child, which include the commitment of the child in entities or institutions engaged in childcare or in children’s homes duly accredited by the proper government agency. NOTE: Such commitment must not exceed 30 UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Parental authority may be suspended; Parent concerned may be held criminally liable for violation of RA 7160 (Special Protection of Children against Abuse, Exploitation and Discrimination Act) CHILD ABUSE (R.A. 7610) SEC. 10 NOTE: The obligation of the parents to provide support is not coterminous with the exercise of parental authority. 1. Treat the child with excessive harshness or cruelty; or Inflict corporal punishment. 154 The Family under the Family Code minor as provided in the preceding paragraph shall suffer the penalty of prision mayor in its medium period and a fine of not less than Forty thousand pesos (P40,000); Provided, however, that should the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be imposed shall be prision mayor in its maximum period, a fine of not less than Fifty thousand pesos (P50,000), and the loss of parental authority over the minor. 4. 5. is under twelve (12) years age. The victim of the acts committed under this section shall be entrusted to the care of the Department of Social Welfare and Development. (Sec. 10, R.A. 7610) Liabilities of Parents under Art. 59 of Presidential Decree No. 603 (Child and Youth Welfare Code) Article 59. Crimes. - Criminal liability shall attach to any parent who: Any person, owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor as described in the law shall be imposed a penalty of prision mayor in its medium period and a fine of not less than Fifty thousand pesos (P50,000), and the loss of the license to operate such a place or establishment. 1. Conceals or abandons the child with intent to make such child lose his civil status. 2. Abandons the child under such circumstances as to deprive him of the love, care and protection he needs. 3. Sells or abandons the child to another person for valuable consideration. 4. Neglects the child by not giving him the education which the family's station in life and financial conditions permit. 5. Fails or refuses, without justifiable grounds, to enroll the child as required by Article 72. 6. Causes, abates, or permits the truancy of the child from the school where he is enrolled. "Truancy" as here used means absence without cause for more than twenty schooldays, not necessarily consecutive. 7. It shall be the duty of the teacher in charge to report to the parents the absences of the child the moment these exceed five schooldays. 8. Improperly exploits the child by using him, directly or indirectly, such as for purposes of begging and other acts which are inimical to his interest and welfare. 9. Inflicts cruel and unusual punishment upon the child or deliberately subjects him to indignation and other excessive chastisement that embarrass or humiliate him. 10. Causes or encourages the child to lead an immoral or dissolute life. 11. Permits the child to possess, handle or carry a deadly weapon, regardless of its ownership. 12. Allows or requires the child to drive without a license or with a license which the parent knows to have been illegally procured. If the motor vehicle driven by the child belongs to the parent, it shall be presumed that he permitted or ordered the child to drive. (Art. 59, PD 603) Any person who shall use, coerce, force or intimidate a street child or any other child to: a. b. c. Beg or use begging as a means of living; Act as conduit or middlemen in drug trafficking or pushing; or Conduct any illegal activities, shall suffer the penalty of prision correccional in its medium period to reclusion perpetua. NOTE: The penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable under Article 337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of qualified seduction, acts of lasciviousness with the consent of the offended party, corruption of minors, and white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim 155 Civil Law Liability of persons exercising special parental authority over the child (FC, Art. 219) responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. GR: They are principally and solidarily liable for damages caused by the acts or omissions of the child while under their supervision, instruction or custody. In this case, the petitioners’ negligence and failure to exercise the requisite degree of care and caution was demonstrated by the following: (i) petitioner school did not take affirmative steps to avert damage and injury to its students although it had full information on the nature of dangerous science experiments conducted by the students during class; (ii) petitioner school did not install safety measures to protect the students who conduct experiments in class; (iii) petitioner school did not provide protective gears and devices, specifically goggles, to shield students from expected risks and dangers; and (iv) petitioner Tabugo (the teacher) was not inside the classroom the whole time her class conducted the experiment, specifically, when the accident involving the student occurred. (St. Joseph’s College v. Miranda, G.R. No. 182353, June 29, 2010) XPN: Unless they exercised the proper diligence required under the particular circumstance. This may extinguish the liability with the minor. (FC, Art. 219) NOTE: Parents, judicial guardians or those exercising substitute parental authority over the minor are subsidiarily liable for said acts and omissions of the minor Q: Jayson and his classmates were conducting a science experiment about fusion of sulphur powder and iron fillings under the tutelage of Tabugo, the subject teacher and employee of St. Joseph College. Tabugo left her class while the experiment was ongoing without having adequately secured the students from any untoward incident or occurrence. In the middle of the experiment, Jayson checked the result of the experiment by looking into the test tube with magnifying glass and it was moved towards his eyes. At that instance, the compound spurted from the test tube and several particles hit Jayson’s eyes. His left eye was chemically burned, for which he had to undergo surgery and spend for medication. Jayson filed a complaint for damages against the school and Tabugo. Can the said school and its teacher, Tabugo, be held liable for the unfortunate incident of Jayson? EFFECTS OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILDREN Legal guardianship can be exercised by the father or mother, jointly, without need of court appointment over the property of an emancipated child. NOTE: In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary. (FC, Art. 229) Kinds of properties of a minor ADVENTITIOUS 1. Earned or acquired by the child through his work or industry by onerous or gratuitous title; 2. Owned by the child; 3. Child is also the usufructuary, but the child’s use of the property shall be secondary to all collective daily needs of the family; 4. Administered by the parents. A: YES. The proximate cause of the student’s injury was the concurrent failure of petitioners to prevent the foreseeable mishap that occurred during the conduct of the science experiment. Petitioners were negligent by failing to exercise the higher degree of care, caution and foresight incumbent upon the school, its administrators and teachers. Art. 218 of the Family Code, in relation to Art. 2180 of the New Civil Code, bestows special parental authority on a school, its administrators and teachers, or the individual, entity or institution engaged in child care, and these persons have responsibility over the minor child while under their supervision, instruction or custody. Authority and UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 156 PROSFECTITIOUS 1. Property given by the parents to the child for the latter to administer; 2. Owned by the parents; 3. Parents are usufructuary; 4. Property administered by the child. The Family under the Family Code Necessity of posting a bond by the parents b. NOTE: Child is emancipated upon reaching the age of majority. A parent is required to post a bond if the market value of the property or the annual income of the child exceeds P50,000. c. NOTE: The bond shall not be less than 10% of the value of the property or annual income. (FC, Art. 225) 2. a. b. c. 1. d. The property of minor children shall be devoted to their support and education unless the title or transfer provides otherwise. e. f. The parents have the right to use only the fruits and income of said property for the following purposes: a. b. Death of child. (FC, Art. 228) Temporarily: – it may be revived Rules regarding the use of the child’s property (Art. 226, FC) 2. Emancipation of the child; Adoption of the child; Appointment of general guardian; Judicial declaration of abandonment of the child in a case filed for the purpose; Final judgment divesting parents of parental authority; Incapacity of parent exercising parental authority; Judicial declaration of absence or incapacity of person exercising parental authority. (FC, Art. 229) NOTE: In case of temporary termination of parental authority, parental authority may be revived thru a court judgment. (Rabuya, 2009) Primarily, to the child’s support; Secondarily, to the collective daily needs of the family. Grounds for Authority NOTE: Income of the child may be used to help pay the daily collective needs of the family when the former’s property or income is more than sufficient to maintain his or her needs. 1. 2. Rule on lease of property belonging to minor children 3. GR: The parents, as legal guardians of the minor’s property, may validly lease the same, even without court authorization, because lease has been considered as an act of administration. 4. 5. suspension of Parental Gives corrupting orders, counsel or example; Treats child with excessive harshness and cruelty; Subjects the child or allows him to be subjected to acts of lasciviousness; (FC, Art. 231) Conviction of crime with penalty of civil interdiction; (FC, Art. 230) Culpable negligence of parent or person exercising parental authority; Compels the child to beg. XPNs: Court authorization is required if: 6. 1. NOTE: If the person exercising Parental Authority has subjected the child or allowed him to be subjected to sexual abuse, he/she shall be permanently deprived of PA. 2. If the lease will be recorded in the Registry of Property; If the lease is for a period of more than one year, because this is already deemed an act of dominion. If the ground for suspension of parental authority is civil interdiction, the suspension is automatic so as its reinstatement. SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY Grounds for Authority 1. Termination of Revocation of suspension Authority and its revival Parental Parental The suspension may be revoked, and parental authority revived by filing a case for the purpose, or in the same proceeding if the court Permanently; a. of Death of parents; 157 Civil Law finds that the cause therefore had ceased and will not be repeated. 1. 2. Transfer or Authority renunciation of Parental 3. GR: Parental authority and responsibility are Inalienable and may not be transferred and renounced. 4. XPN: In cases authorized by law. Loss of parental authority over the minor under the Child Abuse Law (RA 7610) RETROACTIVITY OF FAMILY CODE GR: The Code shall have retroactive effect. (FC, Art. 256) When an ascendant, stepparent or guardian of the minor, induces, delivers or offers him to any person who would keep or have in his company such minor, twelve (12) years or under or who in ten (10) years or more his junior, in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places. XPN: When retroactivity would prejudice vested rights. (2005, 2010 BAR) Vested right Some right or interest in property that has become fixed or established and is no longer open to doubt or controversy. Rights are vested when the right to enjoyment, present or prospective, has become the property of some person as present interest. Corporal punishment It is the infliction of physical disciplinary measures to a student. This is absolutely prohibited under the Family Code. (Sta. Maria, 2010) Q: Antonia Aruego and her sister Evelyn filed a petition in the courts seeking Jose Aruego, Jr. and his five children to recognize them as illegitimate children and compulsory heirs of Jose. They claim that there is open and continuous possession of status of illegitimate children of Jose who had an amorous relationship with their mother Luz Fabian until the time of the death of Jose. The court declared that Antonia Aruego is an illegitimate daughter of the deceased with Luz Fabian while Evelyn is not. Antonia and Evelyn contested the decision citing provisions of the Family Code particularly Art. 127 on Filiation, Art.172 on illegitimate children’s filiation, and Art.256 on the retroactivity of the code. Whether the provisions of the Family Code can be applied retroactively, and will it impair the vested rights of the respondents? NOTE: While a teacher is administratively liable or civilly liable in the event that he or she inflicts corporal punishment to a student, it has been held that where there was no criminal intent on the part of the teacher who angrily and repeatedly whipped a student resulting in slight physical injuries to the said student and where the purpose of the teacher was to discipline a student, the said teacher cannot be held feloniously liable for the criminal offense of slight physical injuries. (Bagajo v. Marave, G.R. No. L-33345, November 20, 1978) Emancipation It is the release of a person from parental authority whereby he becomes capacitated for civil life. A: The action for compulsory recognition and enforcement of successional rights which was filed prior to the advent of the Family Code, must be governed by Art. 285 of the New Civil Code and not by Art. 175, par. 2 of the Family Code. The present law cannot be given retroactive Emancipation takes place by attainment of majority at the age of (18) eighteen years. (FC, Art. 234 as amended by RA 6809) (2010 BAR) Effects of emancipation UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Parental authority over the person and property of the child is terminated. Child shall be qualified and responsible for all acts of civil life, save exceptions established by existing Contracting marriage shall require parental consent until the age of 21. The responsibility of parents or guardians for children and wards below 21 under the second and third paragraphs of Art. 2180 of the New Civil Code shall not be derogated. 158 The Family under the Family Code effect insofar as the instant case is concerned, as its application will prejudice the vested right of private respondent to have her case decided under Art. 285 of the New Civil Code. The right was vested to her by the fact that she filed her action under the regime of the New Civil Code. Presiding from this, the conclusion then ought to be that the action was not yet barred, notwithstanding the fact that it was brought when the putative father was already deceased, since private respondent was then still a minor when it was filed, an exception to the general rule provided under Art. 285 of the New Civil Code. Hence, the trial court, which acquired jurisdiction over the case by the filing of the complaint, never lost jurisdiction over the same despite the passage of E.O. No. 209, also known as the Family Code of the Philippines. (Aruego v. CA, G.R. No. 112193, March 13, 1996) NOTE: In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. (NCC, Art. 305) 2. Funeral shall be: a. In keeping with the social position of the deceased; (NCC, Art. 306) b. In accordance with the expressed wishes of the deceased; c. In absence of the expressed wishes, his religious beliefs or affiliation shall determine; d. In case of doubt, the form of funeral is to be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family. (NCC, Art. 307) NOTE: If an action for recognition was filed prior to the effectivity of the FC, Art. 173 of the Family Code cannot be given retroactive effect because it will prejudice the vested rights of petitioners transmitted to them at the time of the death of their father, Eutiquio Marquino. "Vested right" is a right in property which has become fixed and established and is no longer open to doubt or controversy. It expresses the concept of present fixed interest, which in right reason and natural justice should be protected against arbitrary State action. (Marquino v. IAC, G.R. No. 72078, June 27, 1994) 3. Any person who: a. Shows disrespect to the dead, or b. Wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral. (NCC, Art. 309) 4. Funeral expenses are chargeable against the property of the deceased. However, if the deceased is one of the spouses, they are chargeable against the conjugal partnership or absolute community of property. (NCC, Art. 310) FUNERALS NOTE: No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in Art. 294 and 305. (Art. 308) General Guidelines 1. Duty and right to make arrangements in funerals in accordance with Art. 199, FC: a. b. Q: Adriano and Rosario are married to each other. However, their marriage turned sour and they were eventually separated-in-fact. Years later, Adriano met Fe which he courted and eventually decided to live together as husband and wife while his marriage with Rosario is still subsisting. Adriano later died while Rosario and the rest of his family are in the United States spending their Christmas vacation. When Rosario learned of Adriano’s death, she immediately called Fe for the delay of Adriano’s interment which was unheeded by Fe. The remains of Adriano were interred at the mausoleum of Fe’s family allegedly according to Adriano’s oral request from her. Who between Rosario and Spouse; in his absence or incapacity, Descendants in the nearest degree; in absence or incapacity, i. Preferred: the eldest descendant c. Ascendants in the nearest degree; i. d. Preferred: the paternal side Brothers and sisters, in absence of all the above. i. Preferred: the eldest sibling 159 Civil Law Fe is entitled to the remains of Adriano? Natural child acknowledged both parents. A: The law gives the right and duty to make funeral wife of Atty. Adriano. The fact that she was living separately from her husband and was in the United States when he died has no controlling significance. To say that Rosario had, in effect, waived or renounced, expressly or impliedly, her right and duty to make arrangements for the funeral of her deceased husband is baseless. The right and duty to make funeral arrangements, like any other right, will not be considered as having been waived or renounced, except upon clear and satisfactory proof of conduct indicative of a free and voluntary intent to that end. Natural child by legal fiction. Even assuming, ex gratia argumenti, that Atty. Adriano truly wished to be buried in the Fe’s family plot at the Manila Memorial Park, the result remains the same. Art. 307 simply seeks to prescribe the “form of the funeral rites: that should govern in the burial of the deceased. The right and duty to make funeral arrangements reside in the persons specified in Article 305 in relation to Article 199 of the Family Code. Even if Article 307 were to be interpreted to include the place of burial among those on which the wishes of the deceased shall be followed, Dr. Arturo M. Tolentino (Dr. Tolentino), an eminent authority on civil law, commented that it is generally recognized that any inferences as to the wishes of the deceased should be established by some form of testamentary disposition. (Valino v. Adriano, G.R. No. 182894, April 22, 2014) Adopter’s Illegitimate Mother’s or father’s if requisites of R.A. 9255 are complied with. 2. When an admission of paternity is made by the father in a public document or private handwritten instrument PROVIDED, the father has the right to institute an action before the regular courts to prove nonfiliation during his lifetime. (Art. 176, FC, as amended by R.A. 9255) SURNAME TO BE USED Under the amendatory provision of R.A. 9255, the use of the illegitimate father’s surname is PERMISSIVE and not obligatory. (Rabuya, 2009) Father’s or mother’s Note: There is no legal obstacle if the child chooses to use the surname of the mother, as he is equally entitled to. (Sta. Maria, 2017) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Adopted 1. If his/her filiation has been expressly recognized by the father through the record of birth appearing in the civil registry; or (1) legitimate; (2) legitimated; (3) adopted; and (4) illegitimate Legitimated Recognizing parent 1. Rule with regard to the use of surname by a child who is: Legitimate Natural child acknowledged only one parent. NOTE: An illegitimate child shall have the "option" to use the surname of the father in the following instances: USE OF SURNAMES CHILD CONCERNED Father’s 160 The Family under the Family Code Conceived prior to annulment of marriage Conceived after annulment of marriage Father’s Legally separated (NCC, Art. 372) Mother’s Widowed spouse (NCC, Art. 373) Rule with regard to the use of surname of a married woman FACTUAL CIRCUMSTANCE OF THE WIFE SURNAME TO BE USED Valid marriage (before1. husband dies) (NCC, Art. 370) 2. 3. 4. 5. 6. 7. 8. Marriage is annulled (NCC, Art. 371) Wife is the guilty party Wife is the 1. innocent party 2. 3. a. b. Wife shall continue using the name and surname employed by her, prior to the legal separation. She may use the deceased’s husband’s surname as though he is still living. Valid grounds for a change of name 1. First name and maiden name (Her maiden first name and surname) (FC, Art. 370) + husband’s surname. 2. 3. 4. 5. First name + husband’s surname Husband’s full name + prefix indicating that she is his wife (e.g., Mrs.) 6. One has continuously used and been known since childhood by a Filipino name and was unaware of alien parentage; The change results as a legal consequence, as in legitimation; There is a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anyone; The change will avoid confusion; The new first name or surname has been habitually and continuously used by the petitioner and is publicly known by that first name or nickname. (Pineda, 2010) The name is: a. b. Retain the use of her maiden name c. Ridiculous, Extremely difficult pronounce; and Dishonorable. to write or Q: Can a person change his registered first name and sex on the basis of a sex reassignment? *Use of husband’s surname is not a duty but merely an option for the wife. Shall resume using her maiden name A: NO. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable. (Silverio v. Republic, G.R. No. 174689, October 22, 2007) Choices: Resume using her maiden name Continue using husband’s surname Unless: Court decrees otherwise; She or the former husband is married again to another person 161 Civil Law Procedural requirements for a petition for change of name 1. 2. 3. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. (NCC, Art. 374) 3 -year residency in the province where the change is sought prior to the filing; (Sec. 2, Rule 103, Rules of Court) Must not be filed within 30 days prior to an election; (Sec. 3, Rule 103, Rules of Court) Petition must be verified. (Sec. 2, Rule 103, Rules of Court) In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either: 1. Q: Virginia Remo, a Filipino citizen, is married to Francisco Rallonza. In her passport, the following entries appear: "Rallonza" as her surname, "Maria Virginia" as her given name, and "Remo" as her middle name. Prior to the expiration of her passport, Virginia applied for the renewal of her passport with the DFA, with a request to revert to her maiden name and surname in the replacement passport. Virginia, relying on Article 370 of the Civil Code, contends that the use of the husband’s surname by the wife is permissive rather than obligatory. Is Virginia correct? 2. NOTE: No person can change his name or surname without judicial authority. (NCC, Art. 376) Elements of usurpation of name 1. 2. 3. A: NO. A married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Art. 370 of the New Civil Code. However, R.A. 8239 or the Philippine Passport Act of 1996 limits the instances when a married woman applicant may exercise the option to revert to the use of her maiden name. These are death of husband, divorce, annulment, and declaration of nullity of marriage. Actual use of another’s name by the defendant; Use is unauthorized; Use of another’s name is to designate personality or identify a person. Remedies available to the person whose name has been usurped In case of renewal of passport, a married woman may either adopt her husband’s surname or continuously use her maiden name. However, once she opted to use her husband’s surname in her original passport, she may not revert to the use of her maiden name, except if any of the four grounds provided under R.A. 8239 is present. 1. Civil – insofar as private persons are concerned: a. Injunction b. Damages 2. Criminal – prejudiced. when public affairs are NOTE: If the purpose of the usurpation is to conceal one’s true identity then, he is guilty of concealing true name under Art.178 of the RPC. (Pineda, 2010) It can also be a violation of CA 142 or the AntiAlias Law. Further, even assuming R.A. 8239 conflicts with the Civil Code, the provisions of R.A. 8239 which is a special law specifically dealing with passport issuance must prevail over the provisions of the Civil Code which is the general law on the use of surnames. A basic tenet in statutory construction is that a special law prevails over a general law. (Remo v. Sec. of Foreign Affairs, G.R. No. 169202, March 5, 2010) Use of another’s name is not always actionable GR: The unauthorized or unlawful use of another person’s surname gives a right of action to the latter. (NCC, Art. 378) XPN: It is not actionable when it is used as stage, screen or pen name. Identity of names and surnames UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Add a middle name or the mother’s surname, or Add the Roman Numerals II, III, and so on. (NCC, Art. 375) 162 The Family under the Family Code Provided: 1. Use is in good faith; 2. No injury is caused to the rights of the person whose name was used; 3. Use is motivated by: middle name be changed from "Astorga" to "Garcia," which is her mother's surname and that her surname "Garcia" be changed to "Catindig," which is his surname. This the trial court denied. Was the trial court correct in denying Honorato’s request for Stephanie’s use of her mother’s surname as her middle name? a. Modesty b. Desire to avoid unnecessary trouble c. Other reason not prohibited by law or morals. A: NO. The name of an individual has two parts – the given name or proper name and the surname or family name. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law. The Civil Code (Arts. 364 to 380) is silent as to the use of a middle name. Even Art. 176 of the Family Code, as amended by RA 9225 (An Act Allowing Illegitimate Children to Use the surname of Their Father) is silent as to what middle name a child may use. MIDDLE NAMES A middle name has practical or legal significance as it serves to identify the maternal pedigree or filiation of a person and distinguishes him from others who may have the same given name and surname as he has. Art. 364 of the Civil Code states that legitimate and legitimated children shall principally use the surname of their father. Art. 174 of the Family Code gives legitimate children the right to bear the surnames of the father and mother, while illegitimate children, under Art. 176, as amended by R.A. 9255, shall use the surname of their mother, unless their father recognizes their filiation, in which case, they may bear the father's surname. In the case of these children, their registration in the civil registry requires that their middle names be indicated therein, apart of course from their given names and surnames. (In re: Petition for Change of Name and/or Correction of Entry in the Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005) Q: Does an name? An adopted child is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother. As she had become a legitimate child on account of her adoption, it follows that Stephanie is entitled to utilize the surname of her father, Honorato Catindig, and that of her mother, Gemma Garcia. Since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother's surname, the High Court found no reason why she should not be allowed to do so. illegitimate child have a middle NOTE: The Supreme Court granted the petition for 2 reasons: A: NO. An illegitimate child whose filiation is not recognized by the father bears only a given name and his mother's surname and does not have a middle name. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother's surname as his middle name and his father's surname as his surname. (In Re: Petition for Change of Name of Julian Wang v. Cebu Civil Registrar, G.R. No. 155966, March 30, 2005) 1. 2. The adopted child's continued use of her mother's surname as her middle name will maintain her maternal lineage; and It will also eliminate the stigma of her illegitimacy. The Supreme Court, in granting the petition, predicated its ruling upon the statutory principle that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption. The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows a child with legitimate status. (In the Matter of the Adoption of Stephanie Nathy Q: Honorato filed a petition to adopt his minor illegitimate child Stephanie. Stephanie has been using her mother's middle name and surname. He prayed that Stephanie's 163 Civil Law Astorga Garcia, G.R. No. 148311, March 31, 2005) Gianna as “legitimate”, her surname carrying that of Andy’s, and that her parents were married to each other. Q: The petition filed by the parents in behalf of their minor son Julian Lin Carulasan Wang sought the dropping of the latter's middle name, "Carulasan." The parents averred that their plan for Julian to study in Singapore and adjust to its culture necessitates the drop since in that country, middle names or the mother's surname are not carried in a person's name. They therefore anticipate that Julian may be subjected to discrimination on account of his middle name, which is difficult to pronounce in light of Singapore's Mandarin language which does not have the letter "R" but if there is, Singaporeans pronounce it as "L." Should the petition for the dropping of his middle name be granted? Can a judicial action for correction of entries in Gianna’s birth certificate be successfully maintained to: a. Change her status from “legitimate” to “illegitimate”; b. Change her surname from that of Andy’s to Aimee’s maiden surname? c. Instead of a judicial action, can administrative proceedings be brought for the purpose of making the above corrections? d. Assuming that Aimee is successful in declaring her former marriage void, and Andy and Aimee subsequently married each other, would Gianna be legitimated? (2008 BAR) A: NO. Petitioners’ justification for seeking the change in the name of their child, that of convenience, was characterized by the Supreme Court as amorphous, to say the least, and would not warrant a favorable ruling. As Julian is only a minor and has yet to understand and appreciate the value of any change in his name, it is best that the matter be left to his judgment and discretion when he reaches legal age. A: a. A judicial action cannot be maintained to change the status of Gianna from “legitimate” to “illegitimate” child of Andy and Aimee. While it is true that Gianna is the biological daughter of Andy and Aimee conceived and born without marriage between them, Gianna is presumed, under the law as the legitimate child of Aimee and her husband. This filiation may be impugned only by the husband. To correct the status of Gianna in her birth certificate from “legitimate child of Andy and Aimee” to “illegitimate child of Andy and Aimee” will amount to indirectly impugning her filiation as the child of Aimee’s husband in a proper action. What cannot be done directly cannot be done indirectly. The State has an interest in the names borne by individuals and entities for purposes of identification, and that a change of name is a privilege and not a right, such that before a person can be allowed to change the name given him either in his birth certificate or civil registry, he must show proper or reasonable cause, or any compelling reason which may justify such change. Otherwise, the request would be denied. (In Re: Petition for change of name and/or correction/cancellation of entry in civil registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005) b. NOTE: The touchstone for the grant of a change of name is that there be proper and reasonable cause for which the change is sought. Q: Giana was born to Andy and Aimee, who at the time of Giana’s birth were not married to each other. While Andy was single at that time, Aimee was still in the process of securing a judicial declaration of nullity on her marriage to her ex-husband. Gianna’s birth certificate, which was signed by both Andy and Aimee, registered the status of UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 164 A judicial action to change the surname of Gianna from the surname of Andy to the maiden surname of Aimee is also not allowed. Gianna, being presumed to be the legitimate child of Aimee’s husband is required by law to be registered under the surname of Aimee’s husband. While it is true that Gianna’s registered surname is erroneous, a judicial action for correction of entry to change the surname of Gianna to that of Aimee’s maiden surname will also be erroneous. A judicial action to correct an entry in the birth certificate is allowed to correct an error and not to commit another error. The Family under the Family Code Alternative Answers: It may be noted that the problems do not show whether Gianna was born while Aimee was living with her ex-husband. Neither does it show who filed the judicial action to correct the entries. child since childhood and the child has been using it already in various records, then there is an ample justification for the continuation of the use of the mother’s surname. It is therefore, not whimsical, but on the contrary, is based on a solid and reasonable ground, i.e. to avoid confusion. (Alfon v. Republic, G.R. No. L- 51201, May 29, 1980) If the problem is intended only for purpose of determining whether factual changes are in order, then the answers are: ABSENCE a. b. c. A Change from “legitimate to illegitimate” is proper upon the proof of lack of marriage between Andy and Aimee. The special status of a person who has left his domicile and thereafter his whereabouts and fate are unknown, it being uncertain whether he is already dead or still alive. (Olaguiviel v. Morada, 63 O.G. 4940) If the child is considered illegitimate, then she should follow the surname of her mother. Kinds of absence Under R.A. 9048, only typographical errors are allowed to be corrected administratively. The change of status from legitimate to illegitimate is not a typographical error and even assuming that it is, its administrative correction is not allowed under R.A. 9048. Typographical errors involving status, age, citizenship, and gender are expressly excluded from what may be corrected administratively. 1. 2. Stages of Absence 1. 2. The change of the surname is also not allowed administratively. R.A. 9048 provides for an administrative procedure for change of first name only and not for change of surname. d. Physical Absence Legal Absence NO, Gianna will not be legitimated. While the court may have declared the marriage void ab initio and, therefore, no marriage took place in the eyes of the law, Gianna will still not be legitimated. This is because at the time she was conceived and born, her biological parents could not have validly married each other. For their marriage to be valid, the court must first declare the first marriage null and void. In the problem, Gianna was conceived and born before the court has decreed the nullity of her mother’s previous marriage. 3. Provisional Absence – when a person disappears from his domicile his whereabouts being unknown, without leaving an agent to administer his property. (NCC, Art. 381) Declared Absence– when a person disappears from his domicile and 2 years thereafter have elapsed without any news about him or since the receipt of the last news, or 5 years have elapsed in case he left a person to administer his property. (NCC, Art. 384) Presumptive Death – the absentee is presumed dead. (Jurado, 2011) Provisional absence 1. 2. When a person disappears from his domicile His whereabouts are unknown; and a. b. he did not leave any agent; or he left an agent but the agent’s power has expired. Remedy of an interested party, a relative or a friend of the absentee to protect the latter's interest NOTE: The word "principally" as used in the codal provision is not equivalent to "exclusively" so that there is no legal obstacle if a legitimate or legitimated child should choose to use the surname of its mother to which it is equally entitled. If the mother's surname is used by the They may petition the Court for the appointment of a representative to represent the absentee in all that may be necessary. 165 Civil Law Duty of the Court after appointing the representative condition of his death. Effectivity of judicial declaration of absence (NCC, Art. 386) The Court shall: 1. Take the necessary measures to safeguard the rights and interests of the absentee; 2. Specify the powers, obligations, and remuneration of the representative; 3. Regulate the powers, obligations and remuneration according to the circumstances by the rules concerning guardians. (NCC, Art. 382) Judicial declaration of absence takes effect six (6) months after its publication in a newspaper of general circulation. NOTE: A judicial declaration of absence is necessary for interested persons to be able to protect their rights, interests and benefits in connection with the person who has disappeared. It is also necessary to protect the interest of the absentee. (Sta. Maria, Jr., 2010) Order of preference in the appointment of a representative 1. 2. Spouse present, except, when legally separated. In the absence of spouse, any competent person. (NCC, Art. 383) ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE Administration of the property of the absentee ceases when (NCC, Art. 389) NOTE: The administrator of the absentee's property shall be appointed in accordance with the same order. 1. 2. DECLARATION OF ABSENCE 3. Requisites (NCC, Art. 384) 1. 2. 3. The absentee has disappeared from his domicile; His whereabouts are not known; and He has been absent without any news for 2 years, if nobody was left to administer his property or 5 years if somebody was left to administer such property. PRESUMPTION OF DEATH Kinds 1. Absence may be judicially declared if (NCC, Art. 387) 1. 2. 2. The absentee left no agent to administer his property- after two (2) years without any news about the absentee or since receipt of the last news. The absentee has left a person to administer his property- after five (5) years. 3. 4. In case of: 1. Disappearance upon or before reaching the age of seventy-five (75) years: a. After an absence of seven (7) years the absentee is presumed dead for all purposes except succession. b. After an absence of ten (10) years the absentee is presumed dead for all purposes including succession. Spouse present; Heirs instituted in a will, who may present an authentic copy of the same; Relatives who may succeed by intestacy; Persons who may have over the property of the absentee some right subordinated to the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Ordinary presumption – ordinary absence; absentee disappears under normal conditions without danger or idea of death. Extraordinary presumption – qualified absence; disappearance with great probability of death. Rules in ordinary presumption of death (NCC, Art. 390) Person who may ask for the declaration of absence (NCC, Art. 385) 1. 2. Absentee appears personally or by means of an agent. Death of the absentee is proved, and his testate or intestate heirs appear. A third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. 2. 166 Disappearance at the age of seventy-six (76) The Family under the Family Code years or older after an absence of five (5) years - the absentee is presumed dead for all purposes including succession. declaration, if it is the only question upon which a competent court has to pass? A: NO. Under the NCC, the presumption of death is established by law and no court declaration is needed for the presumption to arise. Moreover, it is clear that a judicial declaration that a person is presumptively dead, being a presumption juris tantum only, subject to contrary proof, cannot become final. If a judicial decree declaring a person presumptively dead, cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. (Disappearance after the age of seventy-five (75) years after an absence of five years -the absentee is presumed dead for all purposes including succession.) NOTE: The word “absence” in the rule that a presumption of death is raised by the “absence” of a person from his domicile when unheard of for seven years, means that a person is not at the place of his domicile and his actual residence is unknown, and it is for this reason that his existence is doubtful, and that, after seven years of such absence, his death is resumed. But removal alone is not enough. (Gorham v. Settegast, 98 SW 655, also cited by Sta. Maria, 2010) Q: Juana married Arturo in January 1973. However, because the latter was unemployed the spouses constantly argued. Thus, Arturo left the conjugal dwelling on October 1975. Years passed without any word from Arturo. Juana didn’t hear any news of Arturo, his whereabouts or even if he was alive or not. Believing that Arturo was already dead, Juana married Dante on June 1986. Subsequently, however, Dante's application for naturalization filed with the United States Government was denied because of the subsisting marriage between Juana and Arturo. Hence, on March 2007, Juana filed a Petition for declaration of presumptive death of Arturo with the RTC. The RTC dismissed the petition on the ground that Juana was not able to prove the existence of a wellgrounded belief that her husband Arturo was already dead as required under Article 41 of the Family Code. a. Was the RTC correct in dismissing the petition based on Article 41 of the Family Code? b. Will the petition for declaration of presumptive death, therefore, prosper? Presumption of death of absentee under an ordinary presumption Absentee is presumed to have died under an ordinary presumption at the end of the five, seven or ten-year period, as the case may be. Presumption of death for all purposes The following are presumed dead for all purposes including the division of estate among heirs in case of extraordinary presumption of death (NCC, Art. 391): 1. 2. 3. Person on board a vessel lost during a sea voyage, or an airplane which is missing, who has not been heard of for four (4) years since the loss of the vessel or airplane; Person in the armed forces who has taken at in war, and has been missing for four (4) years; Person who has been in danger of death under other circumstances and his existence has not been known for four (4) years. A: a. NO. Since the marriages were both celebrated under the auspices of the Civil Code, it is the Civil Code that applies to this case not Art. 41 of the Family Code. Under the Civil Code, proof of well-founded belief is not required. Juana could not have been expected to comply with the requirement of proof of "well- founded belief" since the FC was not yet in effect at the time of her marriage to Dante. Moreover, the enactment of the FC in 1988 does not change this Presumption of death of absentee under an extraordinary presumption The absentee presumed to have died under an extraordinary presumption at the time of disappearance. e.g. when the calamity took place. Q: May a petition for the declaration of presumptive death be the subject of a judicial 167 Civil Law conclusion. The FC shall have no retroactive effect if it impairs vested rights. To retroactively apply the provisions of the FC requiring Juana to exhibit "well- founded belief" will, ultimately, result in the invalidation of her second marriage, which was valid at the time it was celebrated. Such a situation would be untenable and would go against the objectives that the Family Code wishes to achieve. b. NO. Under the NCC, the presumption of death is established by law and no court declaration is needed for the presumption to arise. For the purposes of the civil marriage law, Art. 83 of the Civil Code, it is not necessary to have the former spouse judicially declared an absentee. The law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage. Since death is presumed to have taken place by the seventh year of absence, Arturo is to be presumed dead starting October 1982. Further, the presumption of death cannot be the subject of court proceedings independent of the settlement of the absentee’s estate. In case the presumption of death is invoked independently of such an action or special proceeding, there is no right to be enforced nor is there a remedy prayed for by the petitioner against her absent husband. Neither is there a prayer for the final determination of his right or status or for the ascertainment of a particular fact, for the petition does not pray for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead because he had been unheard of for seven years. In sum, the petition for a declaration that the petitioner's husband is presumptively dead, even if judicially made, would not improve the petitioner's situation, because such a presumption is already established by law. (Valdez v. Republic, G.R. No. 180863, September 8, 2009) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 168 The Family under the Family Code Declaration of presumptive death for purpose of contracting subsequent marriage vs. Opening succession and declaration of absence under the Rules of Court OPENING OF SUCCESSION NCC, Arts. 390-396 CONTRACTING SUBSEQUENT MARRIAGE DECLARATION OF ABSENCE Applicable laws Arts. 41-44, Family Code Who may file petition Rule 107, Rules of Court 1. 2. 3. Absentee’s co-heirs, heirs, assigns, representative or successors-in-interest 4. Spouse present Spouse present; Heirs instituted in the will; Relatives who will succeed by intestacy; or Those who have over the property of the absentee some right subordinated to the condition of his death. (Sec. 2, Rule 107) Purpose of petition To open succession GR: Absence of ten years. XPN: If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (Art. 392, Civil Code) For the purpose of contracting subsequent marriage by spouse present When to file petition GR: 4 consecutive years absence of spouse – and the spouse present has a wellfounded belief that the absent 1. spouse was already dead. 2. XPN: 2 consecutive years absence of spouse – In case of 3. disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code. (Art. 41, FC) Effect of reappearance It does not automatically terminate the subsequent marriage. To cause the termination of the subsequent marriage, the reappearance must be made in an affidavit of reappearance and the recording of a sworn statement of the fact and circumstances of such reappearance in the civil registry. If, however, there was previous judgment annulling or declaring the prior marriage void, then the 169 To appoint an administrator over the properties of the absentee. This is proper only where the absentee has properties to be administered After 2 years: From his disappearance and without any news about the absentee; or From the last news about the absentee. After 5 years: If he left an administrator of his property. (Sec. 2) The trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of those who may have a right thereto. Civil Law reappearance of the absent spouse, the execution of the affidavit, and the recording of the sworn statement shall not result to the termination of the subsequent marriage. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 170 Property Properties NOT susceptible of appropriation PROPERTY CHARACTERISTICS GR: Those properties belonging to everyone. While in particular no one owns common property, still in another sense, res communes are really owned by everybody in that their use and enjoyment are given to all of mankind. (Paras, 2008) e.g. air, wind, sunlight. All things which are or may be the object of appropriation considered as either real or personal property. (NCC, Art. 414) The term thing is broader in scope than property. All kinds of property are things but not all things are property; Things refer to all objects that exist including those which could not be appropriated by man. Property refers to objects already possessed by man or are in their possession; Things involve only corporeal objects. Property may refer to intangible matters. (Pineda, 2009) are not susceptible 2. 3. Not susceptible due to legal impossibility e.g. human body while the person is alive 1. As to nature/mobility a. Immovable or real property; and b. Movable or personal property. 2. As to ownership a. Public dominion; and b. Private ownership. 3. As to alienability a. Alienable or within the commerce of men; and b. Inalienable or outside the commerce of men. 4. As to individuality a. Specific property; and b. Generic property. 5. As to susceptibility to touch a. Tangible; and of Requisites for a thing to be considered as property (USA) 1. 3. CLASSIFICATIONS OF PROPERTY Q: Are the rights under the Bill of Rights considered as property? A: NO. They appropriation. Not susceptible due to physical impossibility e.g. sun, moon, and other heavenly bodies Under the R.A. 7170 or the Organ Donation Act of 1991, donation of all or a part of a human body may only occur after a person’s “death” (i.e., the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the brain system) [Sec. 2(j), RA 7170, as amended] Distinction between things and property 3. 2. While a human being is alive, he cannot, as such, be the object of a contract, for he is considered outside the commerce of man. He may donate part of his blood, may even sell part of his hair, but he cannot sell his body. (Paras, 2008) NOTE: Property does not only cover material things because it mentions of rights which could either be classified as real or personal right. 2. Common things (res communes) – XPN: Those that may be appropriated under certain conditions in a limited way. e.g. electricity, oxygen, distilled water The human body is NOT a property It is neither real nor personal property, whether alive or dead. It is not even property at all, in that it generally cannot be appropriated. It is an object or a right which is appropriated or susceptible of appropriation by man, with capacity to satisfy human wants and needs. (Pineda, 1999) 1. 1. Utility –It can serve as a means to satisfy human needs; Substantivity/Individuality – It has a separate and autonomous existence and not simply a part of a whole. Appropriability Susceptibility to ownership/possession, even if not yet actually appropriated. 171 Civil Law 6. 7. 8. 9. b. Intangible. As to susceptibility to substitution a. Fungible; and b. Non-fungible. irrespective of its ownership; 3. Destination – Things placed in buildings or on lands by the owner of the immovable or his agent in such a manner that it reveals the intention to attach them permanently thereto; and As to accession dependence or importance a. Principal; and b. Accessory 4. Analogy – Classified by express provision of law or those which are not actually tangible properties but are rights and interests over existing immovable properties. As to existence a. Existing or present property (res existentes); and b. Future property (res futurae) IMMOVABLE BY NATURE AND INCORPORATION Par. 1, Art. 415. Land, buildings, roads and constructions of all kinds adhered to the soil. As to consumability a. Consumable; and b. Non-consumable Land 10. As to divisibility a. Divisible; and b. Indivisible By its very nature is immovable property. In whatever transaction land is involved, it is always immovable. CLASSIFICATIONS OF THINGS 1. Res nullius – belonging to no one Those objects which have not yet been appropriated, or have been abandoned by the owner with the intention of no longer owning them. 2. Res communes – belonging to everyone Things which are used and enjoyed by all of mankind. (e.g. sunlight, starlight, and wind) 3. A truck full of soil taken from the land (like garden soil) becomes a personal property because it is no longer adhered to the land. However, the moment it is used to cover a land for ornamentation or gardening, it becomes immovable again. (Pineda, 2009) Building GR: A building is always immovable whether built in one’s own land or rented. Res alicujus – belonging to someone Objects, whether tangible or intangible, which are privately owned, either in a collective or individual capacity XPN: When a building is merely superimposed on the soil or is sold for immediate demolition, in which case it may be considered as movable or personal property. (e.g. Barong-barongs are not permanent structures but mere superimpositions on land.) CLASSIFICATION OF PROPERTY BY MOBILITY REAL OR IMMOVABLE PROPERTY (1995, 1997, 2007 BBAR) Effect of demolition of a house Once a house is demolished, its character as an immovable ceases because a house is classified as an immovable property by reason of its adherence to the soil on which it is built. (Bicerra v. Teneza, G.R. No. L-16218, November 29, 1962) Categories of immovable property: Real properties are categorized by: (NIDA) 1. Nature – Those which by their essence and nature are immovable or cannot be moved from one place to another; Mortgage of a building erected on a land belonging to another 2. Incorporation – Those which are attached to an immovable in a fixed manner and considered as an integral part thereof, UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES A building, by itself, may be mortgaged apart from the land on which it was built even if a 172 Property mortgage of land necessarily includes, in the absence of stipulation of the improvements thereon, buildings. Such a mortgage would still be a real estate mortgage (REM) for the building would still be considered immovable property even if dealt with separately and apart from the land. (Yee v. Strong Machinery Company, G.R. No. 11658, February 15, 1918) 2. A personal property. The moment trees are detached or uprooted from the land it is considered as personal property. NOTE: In case of uprooted timber, they are still not considered as personal property because timber is an integral part of the timber land. A building can be the subject of a chattel mortgage Growing fruits When the parties have so expressly designated, especially when it is considered that the property given as a security is a house of mixed materials which by its very nature is considered as personal property. (Luna v. Encarnacion, G.R. No. L-4637, June 30, 1952) GR: Growing fruits are considered as real property so long as they are still attached to the soil. Once removed from the soil, they become personal properties. Requisites for a building to be the subject of a chattel mortgage XPN: Growing fruits may be exceptionally treated as personal property pursuant to the provisions of Art. 416(2) of the New Civil Code. (Rabuya, 2008) 1. Parties mutually agreed to consider the house a personal property; and 2. That no innocent third party is prejudiced. E.g. 1. For the purposes of sale of the whole or part of the crops; 2. For purposes of attachment and execution; and 3. For applying the provisions of the Chattel Mortgage Law. NOTE: Under the doctrine of estoppel, parties to a contract who agreed to treat as personal property that which by nature would be real property are prohibited from assuming inconsistent positions and repudiating an obligation voluntarily assumed. IMMOVABLE BY INCORPORATION Par. 3, Art. 415. 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. Insofar as execution proceedings are considered, the house or building is considered real property. A building subjected to a chattel mortgage cannot be sold extrajudicially. For purposes of sale at public auction on execution sales, the building or house shall be treated as real property. The requirements of the Rules of Court on foreclosure of real estate mortgages must therefore be followed. (Pineda, 2009) An incorporated thing is considered as real property when in cases of separation, the injury, breakage, or deterioration is substantial. Res vinta These are immovables by incorporation, which when separated from the immovable, regain their condition as movable. Par. 2, Art. 415. Trees, plants and growing fruits, while they are attached to the land or form an integral part of an immovable. Steel towers are personal properties Trees and Plants They are not buildings adhered to the soil [(NCC, Art. 415(1)]; they are not attached to an immovable in a fixed manner; they can be separated without substantial damage or deterioration, and they are not machineries intended for works on the land. (Board of 1. A real property; or a. By nature - If they are spontaneous products of the soil; or b. By incorporation - If they have been planted through cultivation or labor. 173 Civil Law Assessment Appeals v. Meralco, G.R. No. L- 15334, January 31, 1964) 1. The industry or work must be Carried on in a building or on a piece of land; IMMOVABLE BY INCORPORATION & BY DESTINATION Par. 4, Art. 415. Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements. 2. The machinery must: a. Be placed by the Owner of the tenement or his agent; b. Tend directly to meet the needs of the said industry or work; and 3. Be Essential and principal to the industry or work, and not merely incidental thereto. “Placed by the owner” Machinery placed by a tenant or by a usufructuary is NOT real property. This means that the objects must be placed by the owner of the immovable and not necessarily the owner of the object. Since it is placed by a person having only a temporary right, it does not become immobilized. (Valdez v. Central Altagracia, 225 U.S. 58, 1912) Requisites 1. Placed in buildings or on lands by the owner of the immovable or by his agent; and 2. Placed there in a manner that it reveals the intention to attach them permanently to the tenements. Where a tenant places the machinery under the express provision of lease that it shall become a part of the land belonging to the owner upon the termination of the lease without compensation to the lessee, the tenant acts as an agent of the owner and the immobilization of the machineries arises from the act of the owner in giving by contract a permanent destination to the machinery. (Ibid.) Par. 3 distinguished from Par. 4 PAR. 3 PAR. 4 Cannot be Can be separated separated from the from the immovable immovable without without breaking breaking or or deterioration. deterioration. Need not be placed by the owner. Must be placed by the owner of the immovable, or by his agent whether express or implied. Real property by incorporation. Real property by incorporation and destination. Equipment and living quarters of the crew permanently attached are immovable properties It is intended to meet the needs of the industry being undertaken by MPC. The equipment partakes of the nature of the immovable upon which it has been placed. The living quarters, if attached to the immovable platform with permanence, becomes an immovable as well. Permanence means they cannot be separated without destroying the platform or the quarters. If the attachment is not permanent, or not merely superimposed on the platform, then the living quarters are movable properties. (2007 BAR) Par. 5, Art. 415. 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 & which tend directly to meet the needs of the said industry or works. Equipment of a transportation business classified as personal property A transportation business is not carried on in a building or on a specified land. Hence, equipment destined only to repair or service a transportation business may not be deemed real property, but personal property. Requisites for machinery to be considered real property (COTE) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 174 Property third persons acting in good faith are not affected by its stipulation characterizing the subject machinery as personal. (Serg’s Products, Inc. v. PCI Leasing and Finance, Inc., G.R. No. 137705, August 22, 2000) Machines must be essential and principal elements in the industry and must directly meet the needs of said industry. It does not include movables which are merely incidentals, without which the business can still continue or carry on their functions. Par. 6, Art. 415. Animal houses, pigeonhouses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included. Cash registers, typewriters, etc. usually found and used in hotels and restaurants are merely incidentals not considered immobilized by destination because these businesses can carry on their functions without this equipment. (Mindanao Bus Co. v. City Assessor and Treasurer, G.R. No. L-17870, September 29, 1962) Animal Houses, Pigeon Houses, Etc. Machineries bolted or cemented on real property mortgaged These are immovables by destination or by incorporation. The Code requires that they be placed by the owner of the land in order to acquire the nature of real property. However, they are still considered as real property even if not placed by the owner if such structures are adhered to the soil in a permanent manner. It is NOT considered an immovable property. The fact that machineries were bolted or cemented on real property mortgaged does not make them ipso facto immovable under Art. 415 (3) and (5) as the parties’ intent has to be looked into. Beehives, Fishponds or Breeding Places of Similar Nature Are Real Property; Animals Contained Therein, Included When immovable property by nature may be treated as a chattel Even if the properties appear to be immovable by nature, nothing detracts the parties from treating them as chattels to secure an obligation under the principle of estoppel. (Tsai v. CA, G.R. No. 120098, October 2, 2001) When purposely constructed or attached to the ground or on another immovable (like a treewall), fishponds and other similar breeding places, like cemented container where breeding of fishes or crustaceans is done, are considered immovable property if the owner of the land or tenement intended them to be permanent Effect of temporary separation of movables from the immovables to which they are attached The animals in the animal houses, the pigeons in the pigeon houses, the bees in the beehives, the fish in the fishponds are included and considered part of the immovable property. (Pineda, 2009) There are two views: 1. They continue to be regarded as immovables; and 2. Fact of separation determines the condition of the objects thus recovering their condition as movables. Cages are not included It will be considered as personal property since they can be moved from one place to another. Machines though essential and principal elements of the industry are personal properties when provided in the lease agreement Par. 7, Art. 415. Fertilizer actually used on a piece of land. Fertilizers in sacks are not included The Court’s holding that the machines should be deemed personal property pursuant to the Lease Agreement is good only insofar as the contracting parties are concerned. Hence, while the parties are bound by the Lease Agreement, Fertilizers which are still in the sacks, although there is intention to place them or use them on land, are movable. Only fertilizers actually used on a piece of land are deemed immovable since 175 Civil Law it is already placed in the land and can never be separated from it. the civil law and common law and occasionally referred to as peculiar kind of personal property. It is essential that a record of documents affecting the title to a vessel be entered in the record of the Collector of Customs at the port of entry. (Code of Commerce, Art.585) Par. 8, Art. 415. Mines, quarries and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant. Par. 10, Art. 415. Contracts for public works and servitudes and other real rights over immovable property. By their nature, mines quarries and slag dumps are immovable property. Mines - These are mineral lands where excavations are done to extract minerals such as gold, ores etc. Immovable by Analogy These properties refer to contracts for public works, servitudes and real rights over immovable property (like usufruct). They are inseparable from their sources which are immovable, Hence, for convenience, they are considered immovable not by their nature, destination or incorporation but by analogy. While no tangible, they have the characteristics of real property. (Pineda, 2009) Quarries - These are lands where stones are chipped of or where sand is being extracted. Slag dumps - They consist of waste and dirt taken from a mine and mounted on the surface of the ground under excavation Running or Stagnant Waters – These waters refer to waters still running through the soil or ground in mines and quarries. (Pineda, 2009) e.g. Contract over a construction of a bridge Art. 416. The following things are deemed to be personal property: (1) Those movables susceptible of appropriation which are not included in the preceding article; (2) Real property which by any special provision of law is considered as personality; (3) Forces of nature which are bought under control by science; and (4) In general, all things which can be transported from place to place without impairment of the real property to which they are fixed. Art. 417 The following are also considered as personal property: (1) Obligations and actions which have for their object movables or demandable sums; and Par. 9, Art. 415. Docks and structure which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake or coast. When power barges are classified as real properties Power barges are categorized as immovable property by destination, being in the nature of machinery and other implements intended by the owner for an industry or work which may be carried on in a building or on a piece of land and which tend directly to meet the needs of said industry or work. (Fels Energy, Inc. v. Province of Batangas, G.R. No. 168557, February 19, 2007) Floating platform is an immovable property (2) Shares of stock of agricultural, commercial and industrial entities, although they may have real estate The platform is an immovable property by destination. It was intended by the owner to remain at a fixed place on a river or coast. Art. 415 (9) of the NCC considers as real property “docks and structures which, though floating are intended by their nature and object to remain at a fixed place on a river, lake, or coasts.” (Fels Energy, Inc. v. The Province of Batangas, G.R. No. 168557, February 16, 2007) PERSONAL OR MOVABLE PROPERTY (1995 BAR) Movable properties (SOFTSS) 1. Vessels are considered personal property under UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 176 Movables Susceptible of appropriation Property 2. 3. which are not included in Art. 415; Real property which by any Special provision of law considers as personality; e.g. Growing crops under the Chattel Mortgage Law enhances, decodes and transmits said calls using its complex communications infrastructure and facilities. (Laurel v. Abrogar, G.R. No. G.R. No. 155076, January 13, 2009) Tests to determine whether a property is a movable property (MES) Forces of nature which are brought under the control of science; e.g. Electricity generated by electric powers, solar light for batteries power. 4. In general, all things which can be Transported from place to place without impairment of the real property to which they are fixed (NCC, Art. 416); 5. Obligations and actions which have for their object movables or demandable sums; and 6. Shares of stock of agricultural, commercial and industrial entities, although they have real estate. (NCC, Art. 417) 1. 2. 3. Test of Exclusion – Everything not included in Art. 415 of NCC; e.g. ships or vessels or interest in a business By reason of a Special law – Immovable by nature but movable for the purpose of the special law; e.g. Growing crops for purposes of the Chattel Mortgage Law Test of Mobility – If the property is capable of being carried from place to place without injuring the real property to which it may in the meantime be attached. Art. 418. Movable property is either consumable or non-consumable. To the first class belong those movables which cannot be used in a manner appropriate to their nature without their being consumed; to the second class belong all others. Special Kind of Personal Property The author, composer, painter, sculptor, inventor have rights over their works. These rights are personal property. (Pineda, 2009) CLASSIFICATION OF PROPERTY BY NATURE Interest in business is a personal property Properties classified consumability With regard to the nature of the property mortgaged which is one-half interest in the business, such interest is a personal property capable of appropriation and not included in the enumeration of real properties in articles 335 of the Civil Code, and may be the subject of mortgage. (Strochecker v. Ramirez, G.R. No. 18700, September 26, 1922) according to 1. Consumable property – That which cannot be used according to its nature without being consumed or being eaten or used up; e.g. cigarette, glass of wine 2. Non-consumable property – That which can be used according to its nature without being consumed or being eaten or used up. The business of providing telecommunication is a personal property e.g. eyeglasses, book The business of providing telecommunication or telephone service is likewise personal property which can be the object of theft under Art. 308 of the RPC. Properties classified according susceptibility to substitution to 1. Fungible property – That property which belongs to a common genus permitting its substitution; and 2. Non- fungible property – That property which is specified and not subject to substitution. Indeed, while it may be conceded that international long-distance calls, the matter alleged to be stolen in the instant case, take the form of electrical energy, it cannot be said that such international long-distance calls were personal properties belonging to PLDT since the latter could not have acquired ownership over such calls. PLDT merely encodes, augments, NOTE: As to whether a property is fungible or non-fungible is determined by the agreement of 177 Civil Law the parties and not on the consumability of the thing. character; (2) Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth. Art. 419. Property is either of public dominion or of private ownership Kinds of property of public dominion (USD) CLASSIFICATION OF PROPERTY BY OWNERSHIP 1. For public Use – may be used by anybody; 2. Intended for public Service and not for public use – may be used only by duly authorized persons; and 3. For the Development of the national wealth – like our natural resources. (NCC, Art. 420) 1. In relation to the State a. Public Dominion; and b. Patrimonial. 2. In relation to political subdivisions/local government unit a. Public use; and b. Patrimonial. Characteristics of properties dominion (ULEP-ROB) 1. 2. 3. In relation to private persons a. Owned individually; and b. Owned collectively. 3. 4. 5. NOTE: Sacred and religious objects are considered outside the commerce of man. They are neither public nor private party. (Barlin v. Ramirez, G.R. No. L-2832, November 24, 1906) 6. PUBLIC DOMINION 7. It means ownership by the public in general, in that not even the State or subdivisions thereof may make them the object of commerce as long as they remain properties for public use. (Paras, 2008) public In general, they can be Used by everybody; Cannot be Levied upon by execution or attachment; May Either be real or personal property; Cannot be acquired by Prescription; Cannot be Registered under Land Registration Law and be the subject of Torrens Title; Outside the commerce of man – cannot be alienated or leased or be subject of any contract; Cannot be Burdened by voluntary easement. Art. 421. All other property of the State, which is not of the character stated in the preceding article, is a patrimonial property. Properties classified as public dominion cannot be alienated but are not totally outside the commerce of man as the Constitution allows the State to enter into co-production, joint ventures or production-sharing agreements with private individuals or corporations for their exploration, development and utilization. Patrimonial Property This is a property pertaining to the State which is not intended for public use, public service, or for the development of the national wealth. It is intended rather for the attainment of the economic ends of the State, that is, for its subsistence. NOTE: In order to be classified as property of public dominion, an intention to devote it to public use or to public service is sufficient and it is not necessary that it must actually be used as such. NOTE: The patrimonial property of the State or any of its subdivisions may be acquired by private individuals or juridical persons through prescription. It can be the object of an ordinary contract. (Cebu Oxygen & Acetylene Co., Inc. v. Bercilles, 66 SCRA 481 [1975]) Art. 420. The following things are property of public dominion: (1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES of Art. 422. Property of public dominion, when no longer intended for public use or for public service, shall form part of the 178 Property them are patrimonial. Charging of fees does not remove property as public dominion patrimonial property of the State. Conversion From Property of Public Dominion To Patrimonial Property, How Effected. When no longer intended or operated for public use or public service, a property of public dominion shall form part of the State’s patrimonial property as of the date the Government, through the Executive or Legislative Departments, has formally declared that it is no longer needed for said purposes. (Ignacio vs. Director of Land [S.C], 58 Off. Gaz. 2403 [1960]; Cebu Oxygen Acetylynne Co. vs. Bercilles, 66 SCRA 481) The charging of fees to the public does not determine the character of the property whether it is of public dominion or not. The airport lands and buildings are devoted to public use because they are used by the public for international and domestic travel and transportation. The terminal fees MIAA charges to passengers, as well as the landing fees MIAA charges to airlines, constitute the bulk of the income that maintains the operations of MIAA. (Manila International Airport Authority v. CA, G.R. No. 155650, July 20, 2006) Art. 423. The property of provinces, cities, and municipalities is divided into property for public use and patrimonial property. PRIVATE OWNERSHIP Art. 425. Property of private ownership, besides the patrimonial property of the State, provinces, cities, and municipalities, consists of all property belonging to private persons, either individually or collectively. Art. 424. Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid by said provinces, cities, or municipalities All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws. Properties in private ownership of private persons or entities All properties not belonging to the State or its political subdivision are properties of private ownership pertaining to private persons, either individually or collectively. Properties for public service and properties for the development of national wealth Patrimonial property of the State 1. Public service – It depends on who pays for the service. If paid for by the political subdivision, public; if for profit, patrimonial; and 2. National wealth – It is still property for public use under the regalian doctrine. It is the property intended for the attainment of the economic ends of the State, that is, for subsistence. It is owned by the State in its private or proprietary capacity. It is the property not devoted to public use, public service, or the development of the national wealth. Property of municipal corporations An executive or legislative act is necessary to reclassify property into patrimonial. The conversion cannot be inferred from non-use. 1. 2. 3. 4. 5. 6. 7. 8. Provincial roads; City streets; Municipal streets; Squares; Fountains; Public waters; Promenades; and Public works for public service paid for by said provinces, cities, or municipalities. (NCC, Art. 424) NOTE: It may be disposed of by the State in the same manner that private individuals dispose of their own property subject, however, to administrative laws and regulations. The fact that the Roppongi site has not been used for a long time for actual Embassy service does not automatically convert it to patrimonial property. An abandonment of the intention to use the Roppongi property for public service and NOTE: All other property possessed by any of 179 Civil Law to make it patrimonial property must be definite. Abandonment cannot be inferred from the nonuse alone. (Laurel vs Garcia, G.R. No. 92013, July 25, 1990) been in open, continuous, exclusive, and notorious possession and, occupation of agricultural lands of the public domain, under a bona fide claim of acquisition or ownership, since June 12, 1945”. Any such conversion happens only if the property is withdrawn from public use. Accordingly, the withdrawal of the property in question from public use by the City of Cebu and its subsequent sale to the petitioner is valid. (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481, August 29, 1975) Section 48(b) of the Public Land Act therefore requires that two (2) requisites be satisfied before claims of title to public domain lands may be confirmed: first, that the land subject of the claim is agricultural land; and second, open, continuous, notorious, and exclusive possession of the land since June 12, 1945. That the Iligan property was alienable and disposable, agricultural land, has been admitted. What is claimed instead is that petitioners' possession is debunked by how the Iligan Property was supposedly part of a military reservation area57 which was subsequently reserved for Iligan City's slum improvement and resettlement program, and the relocation of families who were dislocated by the National Steel Corporation's five-year expansion program. (Heirs Of Leopoldo Delfin And Soledad Delfin, Namely Emelita D. Fabrigar And Leonilo C. Delfin v. National Housing Authority, G.R. No. 193618, November 28, 2016, as penned by J. Leonen) Sewage system of a city is a patrimonial property It is property of the city, purchased with private funds and not devoted to public use (it is for profit). It is therefore patrimonial under the Civil Code. Nor can the system be considered “public works for public service” under Art. 424 because such classification is qualified by ejusdem generis; it must be of the same character as the preceding items. (City of Cebu v. NAWASA, G.R. No. 12892, April 20, 1960) Q: The Delfin Spouses claimed that they were the owners of a 28,800 square meter parcel of land in Iligan City. They had been declaring the Iligan Property in their names for tax purposes since 1952, and had been planting it with mangoes, coconuts, corn, seasonal crops, and vegetables. They alleged that NHA took possession of a 10,798 square meter portion of the property. Despite their repeated demands for compensation, the National Housing Authority failed to pay the value of the property. Private ownership of land prohibited to Aliens (KRIVENKO DOCTRINE) GR: Aliens have no right to acquire any public or private agricultural, commercial or residential lands in the Philippines. The same rule is applicable to a foreign corporation even if it is a religious and non-stock corporation. A foreign-owned corporation cannot be the transferee of a land in the Philippines even temporarily. (Pineda, 2009) The NHA alleged that the Delfin Spouses' property was part of a military reservation area. It reserved the area in which property is situated for Iligan City's slum improvement and resettlement program as cited in Proclamation No. 2143, and the relocation of families who were dislocated by the National Steel Corporation's five-year expansion program. Does the Spouses have the right to claim the just compensation? XPN: Aliens may only acquire such lands by hereditary succession. (Krivenko v. Registry of deeds, G.R. No. L-630, November 15, 1947) Effect of a subsequent sale by the disqualified alien vendee to a qualified Filipino citizen If land is invalidly transferred to an alien who subsequently becomes a citizen or transfers it to a citizen, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid. A: YES. Section 48 of Commonwealth Act 141(Public Land Act) enabled the confirmation of claims and issuance of titles in favor of citizens occupying or claiming to own lands of the public domain or an interest therein. Section 48 (b) specifically pertained to those who "have UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Thus, the subsequent transfer of the property to qualified Filipinos may no longer be impugned 180 Property on the basis of invalidity of the initial transfer. The objective of the constitutional provision to keep our lands in Filipino hands has been achieved. (Lee v. Republic of the Philippines, G.R. No. 12819, October 3, 2001) XPN: When the law or the individual declaration clearly provides that the aforesaid things are included. OWNERSHIP NOTE: The constitutional proscription on alien ownership of lands of the public or private domain was intended to protect lands from falling in the hands of non-Filipinos. (Lee v. Republic of the Philippines, G.R. No. 12819, October 3, 2001) Art. 427. Ownership may be exercised over things or rights. Ownership is the juridical relation of a person over a thing by virtue of which said person has the exclusive power or authority to receive all the benefits and advantages arising from said thing, save those restricted by law or the recognized rights of others. Regalian Doctrine: All lands not otherwise appearing to be clearly within private ownership are presumed to be owned by the state. (Pineda, 2009) Kinds of ownership Reversion - An action where the ultimate relief sought is to revert the land back to the government under the Regalian Doctrine. (Pineda, 2009) 1. Full ownership – Includes all the rights of an owner; NOTE: Naked ownership + Usufruct Art. 426. Whenever by provision of the law, or an individual declacration, the expression “immovable things or property,” or “movable things or property, “is used, it shall be deemed to include, respectively, the things enumerated in Chapter 1 and in Chapter 2. 2. Naked ownership – Ownership where the rights to the use and to the fruits have been denied; NOTE: Full ownership – Usufruct Whenever the word “muebles,” or “furniture,” is used alone, it shall not be deemed to include money, credits, commercial securities, stocks and bonds, jewelry, scientific or artistic collection, books medals, arms, clothing, horses or carriages and their accessories, grains, liquids and merchandise, or other things which do not have as their principal object the furnishing or ornamenting of a building except where from the context of the law, or the individual declaration, the contrary clearly appears. 3. Sole ownership – Ownership is vested in only one person; and 4. Co-ownership– Ownership is vested in two or more persons. There is Unity of the property, and plurality of the subjects. Q: Respondents inherited the subject property from Emiliana Bacalso, by virtue of Decree No. 98992. Sometime later, they found the heirs of Alejandra Delfin to be occupying the said property, to which they even constructed houses there. The heirs argued they have better right for it was inherited to them after it was bought by the predecessor from Emiliana Bacalso; also, they are the ones paying the subject property’s realty taxes. Do the respondents have the better right to the ownership and possession of the subject property? “Muebles” Or “Furniture” When Used Alone; Effects. If used alone in a contract or agreement, it will not include things found therein like money, jewelry, collections, books, medals, arms, clothing, etc., which do not have as their principal purpose the furnishing or the ornamenting of the building where the “muebles” or “furniture” is found. A: YES, respondents have the better right to the ownership and possession of the subject property. The basis is the LRA certification, daybook entry, and Decree No. 98992 that was issued to Emiliana Bacalso. The Decree bars all claims and rights which arose as may have 181 Civil Law existed prior to the decree of registration. (Heirs of Delfin v. Rabadon, G.R. No. 165014, July 31, 2013) Jose emerged as the highest bidder. A Certificate of Sale was thus issued in his favor. The period of redemption expired without the subject property being redeemed; hence, a Final Bill of Sale was issued and registered in Jose's name. Thereafter, the latter executed an Affidavit of Consolidation of Ownership. This notwithstanding, Nicolasa persisted in her occupancy of the subject property and refused to deliver possession to Jose. Is the Writ of Possession and Notice to Vacate issued by the RTC is valid? Art. 428. The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. The owner has also a right of action against the holder and possessor of the thing in order to recover it. Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property A: YES. "It is well-settled that the purchaser in an extrajudicial foreclosure of real property becomes the absolute owner of the property if no redemption is made within one 1 year from the registration of the certificate of sale by those entitled to redeem. As absolute owner, he is entitled to all the rights of ownership over a property recognized in Article 428 of the New Civil Code, not least of which is possession, or jus possidendi." JUS UTENDI, FRUENDI, ABUTENDI, VINDICANDI, DISPODENDI, POSSIDENDI, ACCESIONES It should be clarified that the purpose of a petition for the issuance of a writ of possession under Act No. 3135, as amended by Act No. 4118, is to expeditiously accord the mortgagee who has already shown a prima facie right of ownership over the subject property (based on his consolidated title over the same) his incidental right to possess the foreclosed property. To reiterate, "possession being an essential right of the owner with which he is able to exercise the other attendant rights of ownership, after consolidation of title, the purchaser in a foreclosure sale may demand possession as a matter of right." Attributes of ownership 1. 2. 3. 4. 5. 6. 7. 8. 9. Right to enjoy (jus utendi) (NCC, Art. 428); Right to the fruits (jus fruendi); Right to abuse (jus abutendi); Right to dispose (jus dispodendi) (NCC Art. 428); Right to recover (jus vindicandi) (NCC. Art. 428); Right to accessories (jus accessiones); Right to possess (jus possidendi).; Right to exclude (NCC, Art. 429); and Right to enclose (NCC, Art. 430). Lease merely follows the property as a lien or encumbrance Thus, it is only upon a credible showing by a third- party claimant of his independent right over the foreclosed property that the law's prima facie deference to the mortgagee's consolidated title should not prevail. Verily, a mere claim of ownership would not suffice. Q: On April 15, 1991, Nicolasa authorized her daughter, Carmelita, Artemio's sister, to mortgage the subject property to Jose, the predecessor-in-interest of Jose, Jose Jr. and Virginia in order to secure a loan in the amount of P112,000.00. As Nicolasa failed to settle her loan obligation when it fell due, Jose, led an application for extra-judicial foreclosure of mortgage before the Regional Trial Court of Olongapo City, Branch 72 (RTC), docketed as Case No. 07-0-91. After the requirements of posting, notices, and publication were complied with, the subject property was sold at a public auction, where UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES As jurisprudence prescribes, the demonstration by the third party- claimant should be made within the context of an adversarial hearing, where the basic principles of Evidence and Civil Procedure ought to be followed, such as: (1) it is the claimant who has the burden of proving his claim; (2) the claim must be established through a preponderance of evidence; and (3) evidence not presented or formally offered cannot be 182 Property admitted against the opposing party. In this case, none of these principles were followed for the CA considered evidence that were not only submitted in a totally different case against an entirely different party, but are also innately inadequate to — at least — prima facie show the source of the third party claimant's independent title, all to the detriment of the mortgagee who had already consolidated his title to the contested property. (Heirs of Peñaflor v. Dela Cruz, G.R. No. 197797, August 8, 2017) of a writ of possession before the trial court, claiming entitlement to the said writ by virtue of the Final Deed of Sale covering the subject lots. Gerry opposed the petition, arguing that he purchased and has, in fact, been in actual, open and exclusive possession of the same properties for at least 15 years. Is the Rural Bank of Sta. Barbara, Inc. is entitled to a writ of possession over the subject lots? A: YES. It is well-established that after consolidation of title in the purchasers’ name for failure of the mortgagor to redeem the property, the purchasers right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title, to a purchaser in an extrajudicial foreclosure sale becomes merely a ministerial function, unless it appears that the property is in possession of a third party claiming a right adverse to that of the mortgagor. REMEDIES TO RECOVER POSSESSION Legal remedies to recover possession of one’s property 1. Personal property – Replevin 2. Real property a. Accion Interdictal; i. Forcible entry; or ii. Unlawful detainer. b. Accion Publiciana; or c. Accion Reinvindicatoria. Gerry Centeno acquired the subject lots from his parents, Sps. Centeno, on March 14, 1988 after they were purchased by Rural Bank of Sta. Barbara, Inc. and its Certificate of Sale at Public Auction was registered with the Register of Deeds of Iloilo City in 1971. It cannot therefore be disputed that Gerry is a mere successor-ininterest of Sps. Centeno. Consequently, he cannot be deemed as a third party who is actually holding the property adversely to the judgment obligor under legal contemplation. (Rural Bank of Sta. Barbara, Inc. v. Gerry Centeno, G.R. 200667, March 11, 2013) 3. Ancillary remedies common to both a. Writ of preliminary mandatory injunction; or b. Writ of possession. Q: Spouses Gregorio and Rosario Centeno previously owned the subject lots, which they mortgaged in favor of Rural Bank of Sta. Barbara, Inc. as security for a P1,753.65 loan. Sps. Centeno, however, defaulted on the loan, prompting the bank to cause the extrajudicial foreclosure of the mortgage. Consequently, the subject lots were sold to the bank, being the highest bidder at the auction sale. Sps. Centeno failed to redeem the subject lots within the one- year redemption period pursuant to Section 6 of Act No. 3135. Yet, they still continued with the possession and cultivation of the aforesaid properties. Q: On June 26, 2003, petitioner Teodorico A. Zaragoza (petitioner) bought a 3,058-square meter (sq. m.) parcel of land. His father leased a 1,000-sq. m. portion of Lot 937-A (subject land) to respondent Iloilo Santos Truckers, Inc. (respondent). This notwithstanding, petitioner allowed the lease to subsist and respondent had been diligent in paying its monthly rent amounting to P10,000.00 per month. Petitioner claimed that when his father died, respondent stopped paying rent. Gerry Centeno, son of Sps. Centeno, later on purchased the said lots from his parents. Accordingly, Rosario paid the capital gains taxes on the sale transaction and tax declarations were eventually issued in the name of Gerry. On the other hand, respondent maintained that it was willing to pay rent, but was uncertain as to whom payment should be made. Respondent made a consignation on the RTC br. 24 for the amount of P521,396.89 equivalent for the rent of February 2007 to On March 19, 1998, Rural Bank of Sta. Barbara, Inc. filed a petition for the issuance 183 Civil Law March 2011. Petitioner averred that the amount was insufficient to cover the unpaid rentals plus interests from February 2007 to May 2011. Petitioner clarified that his earlier demand to pay was for the period of February 2007 to May 2011. Thus, petitioner posited that respondent had continuously failed and refused to comply with the terms and conditions of the lease contract concerning the payment of monthly rental. May petitioner eject respondent from the subject land? NOTE: A property validly deposited in custodia legis cannot be subject of a replevin suit. (Calub v. CA, G.R. No. 115634, April 27, 2000) A: YES. For an unlawful detainer suit to prosper, the plaintiff-lessor must show that: first, initially, the defendant-lessee legally possessed the leased premises by virtue of a subsisting lease contract; second, such possession eventually became illegal, either due to the latter's violation of the provisions of the said lease contract or the termination thereof; third, the defendant-lessee remained in possession of the leased premises, thus, effectively depriving the plaintiff-lessor enjoyment thereof; and fourth, there must be a demand both to pay or to comply and vacate and that the suit is brought within one (1) year from the last demand. 1. 2. RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY Accion interdictal It is a summary action to recover physical or material possession only and it must be brought within one year from the time the cause of action arises. It may be: Accion publiciana It refers to an ejectment suit filed within 10 years after the expiration of one year from accrual of cause of action or from the unlawful witholding of possession of the realty. (Gabriel Jr. v. Crisologo, G.R. No. 204626, June 9, 2014) It is an ordinary civil proceeding to recover the better right of possession, except in cases of forcible entry and unlawful detainer. What is involved here is not possession de facto but possession de jure. In this case, all requisites have been indubitably complied with, considering that at the time the suit was instituted on June 21, 2011: (a) there was a subsisting lease contract between petitioner and respondent; (b) , respondent was not updated in its monthly rental payments, as there is no evidence of such payment for the months of April, May, and even June 2011-- said omission constitutes a violation of the lease contract on the part of respondent; (c) respondent was still in possession of the subject land; and (d) the case was filed within one (1) year from petitioner's letter dated May 24, 2011 demanding that respondent pay monthly rentals and at the same time, vacate the subject land. (Teodorico Zaragoza v. Iloilo Santos Truckers, Inc., G.R. No. 224022, June 28, 2017) Accion reinvindicatoria It is an action to recover real property based on ownership. Here, the object is the recovery of the dominion over the property as owner. NOTE: Where the facts averred in the complaint reveals that the action is neither one of forcible entry nor unlawful detainer but essentially involves a boundary dispute, the same must be resolved in an accion reinvindicatoria. (Sarmiento v. CA, G.R. No. 116192, November 16, 1995) Requisites of accion reivindicatoria RECOVERY OF POSSESSION OF MOVABLE PROPERTY 1. Identity of property; and 2. Plaintiff’s title to the property. Q: A contract of lease executed by Alava (lessor) and Anita Lao (lessee) was not registered with the Register of Deeds. Aside from Anita, Rudy Lao also leased a portion of the same property where he put up his business. At that time, Rudy knew that Anita Replevin It is the remedy when the complaint prays for the recovery of the possession of personal property. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Forcible Entry; or Unlawful detainer. 184 Property and her husband were the owners of the said building. He also knew that she had leased that portion of the property, and that Jaime Lao, their son, managed and maintained the building, as well as the business thereon. Rudy eventually purchased the entire property from Alava. Rudy then filed a complaint for unlawful detainer against Jaime alleging that the latter had occupied a portion of his property without any lease agreement and without paying any rentals, and prayed that an order be rendered directing Jaime to vacate the premises. Should the complaint be dismissed? liability until they vacate the premises. Whether or Not they can suspend their payment? A: NO. In this case, the disconnection of electrical service over the leased premises on May 14, 2004 was not just an act of physical disturbance but one that is meant to remove respondents from the leased premises and disturb their legal possession as lessees. Ordinarily, this would have entitled respondents to invoke the right accorded by Article 1658 of the Civil Code. However, this rule will not apply in the present case because the lease had already expired when petitioner requested for the temporary disconnection of electrical service. Petitioner demanded respondents to vacate the premises by May 30, 2004. Instead of surrendering the premises to petitioner, respondents unlawfully withheld possession of the property. Respondents continued to stay in the premises until they moved to their new residence on September 26, 2004. At that point, petitioner was no longer obligated to maintain respondents in the "peaceful and adequate enjoyment of the lease for the entire duration of the contract." (Victoria Racelis v. Sps. Javier, G.R. No. 189609, January 29, 2018, as penned by J. Leonen) A: YES. The records in this case show that the respondent has been in possession of the property in question, not by mere tolerance or generosity of Rudy, but as the manager of his mother, who conducted her business in the building which stood on a portion of the property leased from Alava. Jaime’s possession was in behalf of his mother, and not in his own right. (Lao v. Lao, G.R. No. 149599, May 16, 2005) Q: In August 2001, the Spouses Javier offered to purchase the Marikina property. However, they could not afford to pay the price of ₱3,500,000.00. They offered instead to lease the property while they raise enough money. Racelis hesitated at first but she eventually agreed. The parties agreed on a month-tomonth lease and rent of ₱10,000.00 per month. This was later increased to ₱11,000.00. The Spouses Javier used the property as their residence and as the site of their tutorial school. Effect of non-registration of the contract of lease Although the lease contract was not filed with the Register of Deeds, nevertheless, the buyer of the property was bound by the terms and conditions of said contract. The lease, in effect became a part of the contract of sale. He had no cause of action for unlawful detainer against the lessee because of the subsisting contract of lease; hence, he could not file the complaint against her. (Lao v. Lao, G.R. No. 149599, May 16, 2005) Sometime in 2002, Racelis inquired whether they are still interested to purchase the property then Sps. Javier agreed and even said that they would pay Php 100,000.00 to buy them more time within which to pay the purchase price. But they only delivered Php 78,000.00 but they consistently paid rent until February 2004. Then Racelis wrote to inform them that her family had decided to terminate the lease agreement and to offer the property to other interested buyers. In the same letter, Racelis demanded that they vacate the property by May 30, 2004. The Spouses Javier refused to vacate due to the ongoing operation of their tutorial business. They insisted that the sum of ₱78,000.00 was advanced rent and proposed that this amount be applied to their outstanding Q: Spouses Magtanggol managed and operated a gasoline station on a 1,000 sq.m. lot which they leased from Francisco Biglaawa. The contract was for a period of three years. When the contract expired, Francisco asked the spouses to peacefully vacate the premises. The spouses ignored the demand and continued with the operation of the gasoline station. One month after, Francisco, with the aid of a group of armed men, caused the closure of the gasoline station by constructing fences 185 Civil Law around it. Was the act of Francisco and his men lawful? Why? (2014 BAR) No previous demand for the defendant to vacate is necessary. Demand is jurisdictional if the ground is nonpayment of rentals or failure to comply with the lease contract. As to necessity of proof of prior physical possession Plaintiff must prove Plaintiff need not that he was in prior have been in prior physical possession physical possession. of the premises until NOTE: The fact that he was deprived petitioners are in thereof by the possession of the lot defendant. does not automatically entitle them to remain in possession. (Ganilla v. CA, G.R. No. 150755, June 28, 2005) As to when one-year period is counted from A: NO, the act was not lawful. Even if the lessee’s right to occupy the premises has expired, the lessor cannot physically oust the lessee from the leased premises if the latter refuses to vacate. The lessor must go through the proper channels by filing an appropriate case for unlawful detainer or recovery of possession. Every possessor has a right to be respected in his possession (NCC, Art. 539) and in no case can possession be acquired through force or intimidation as long as there is a possessor who objects thereto (NCC, Art. 536). The act of Francisco is an abuse of rights because even if he has the right to recover possession of his property, he must act with justice and give the lessees their day in court and observe honesty and good faith. DISTINCTION BETWEEN FORCIBLE ENTRY AND UNLAWFUL DETAINER Forcible Entry One-year period is generally counted from the date of actual entry of the land. Unlawful Detainer As to when possession became unlawful Possession of the Possession is defendant is unlawful inceptively lawful from the beginning as but becomes illegal he acquired from the time possession by defendant (FISTS) unlawfully 1. Force; withholds 2. Intimidation; possessions after 3. Strategy; the expiration or 4. Threat; or termination of his 5. Stealth. right thereto. REQUISITES FOR RECOVERY OF PROPERTY 1. Clearly identify the land he is claiming in accordance with the title/s on which he bases his right of ownership; and NOTE: Burden of proof lies on the party who asserts the affirmative of an issue. The description should be so definite that an officer of the court might go to the locality where the land is situated and definitely locate it. NOTE: The question of possession is primordial, while the issue of ownership is generally unessential in unlawful detainer. (Rosa Rica Sales Center v. Sps. Ong, G.R. 132197, August 16, 2005) As to necessity of demand UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES One-year period is counted from the date of last demand or last letter of demand. 2. Prove that he has a better title than the defendant. a. Best proof is a Torrens certificate; and b. Tax receipts, tax declarations are only prima facie evidence of ownership; it is rebuttable. NOTE: Plaintiff’s title must be founded on positive right or title and not merely on the lack or inefficiency of the defendant’s title. In other words, he shall not be permitted to rely upon the defects of the defendant’s title. (NCC, Art. 434) 186 Property deforciant illegally occupying the land or property the moment he is required to leave. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. (Intramuros Administration v. Offshore Construction Development Company, G.R. No. 196795, March 7, 2018, as penned by J. Leonen) Q: In 1998, Intramuros leased certain real properties of the national government which it administered to Offshore Construction. Three properties were subjects of the Contracts of Lease: Baluarte De San Andres, Baluarte De San Francisco De Dilao and Revellin De Recoletos. All three properties were leased for five years from September 1,1998 to August 31,2003. Offshore Construction occupied and introduced improvements in the leased premises. However, Intramuros and the DOT halted the projects due to Offshore Construction’s non-conformity with PD 1616, which required 16th to 19th centuries Philippine-Spanish Architecture in the area. During the lease period, Offshore Construction failed to pay its utility bills and rental fees, despite several demand letters. Intramuros tolerated the continuing occupation, hoping that Offshore Construction would pay its arrears. To settle its arrears, Offshore Construction proposed to pay the DOT’s monthly operational expenses and the parties executed a Memorandum of Agreement covering the period of August 15,2004 to August 25,2005. But Offshore Construction failed to pay its arrears amounting to Php 13,448,867.45. Is Intramuros entitled to possession to the said leased properties to Offshore Construction? Reasons why the plaintiff is NOT allowed to rely on the weakness of defendant’s title 1. 2. 3. 4. Possibility that neither the plaintiff nor the defendant is the true owner of the property. In which case, the defendant who is in possession will be preferred; One in possession is presumed to be the owner and he cannot be obliged to show or prove a better title; Possessor in the concept of an owner is presumed to be in good faith and he cannot be expected to be carrying every now and then his proofs of ownership over the property; and He who relies on the existence of a fact, should prove that fact. If he cannot prove, the defendant does not have to prove. REAL v. PERSONAL RIGHTS A: YES, Intramuros tolerance of respondent's occupation and use of the leased premises after the end of the lease contracts does not give the latter a permanent and indefeasible right of possession in its favor. When a demand to vacate has been made, as what petitioner had done, respondent’s possession became illegal and it should have left the leased premises. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. In other words, one whose stay is merely tolerated becomes a Real Right (Right of possession; possessionis) Personal Right (Right to possess; possidendi) Creation Created by both Created by title title and mode alone. directly over a It is not directly thing. created over a thing but is exercised through another against whom the action is to be brought. Object Generally corporeal Incorporeal or or tangible. intangible. Object is specific Object covers all property or thing. the present and future property of the debtor. (NCC, Art. 2236). 187 Civil Law Subjects a. One definite a. An active active subject subject (creditor); (e.g. owner) and b. One indefinite b. A definite passive subject passive subject which is the (debtor). whole world Right of pursuit is therefore available. Real right follows its object in the hands of any possessor. Enforceability Enforceable against Enforceable only the whole world. against the original debtor or his transferee charged with notice of the personal rights Limit Limited by No such limitation. usefulness, value or productivity of the thing. Extinguishment Extinguished by Not so loss or destruction extinguished. of the thing Claim for damages may still be pursued-in case of loss or destruction of the thing. d. Lease; 4. Grantor of the property on the grantee, either by: a. Contract b. Donation or c. Will; LIMITATIONS ON THE RIGHT OF OWNERSHIP PRINCIPLE OF SELF-HELP 5. Those arising from Conflicts of private rights Those which take place in accession continua; 6. Constitution - On the prohibition against the acquisition of private lands by aliens; 7. Acts in state of necessity – The law permits injury or destruction of things owned by another provided this is necessary to avert a greater danger (with right to indemnity v. principle of unjust enrichment); and 8. True owner must resort to judicial process – When thing is in possession of another; law creates a disputable presumption of ownership to those in actual possession. (2008 BAR) Art. 429. The owner of lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion of usurpation of his property This principle authorizes an owner or lawful possessor of a property to use reasonable force to prevent or repel an actual or threatened unlawful physical invasion or usurpation of property. (NCC, Art. 429) There must be no delay in the pursuit, otherwise, his recourse will be to go to the court for the recovery of property. Those imposed by the: (SLOG-C2-SO) 1. State in the exercise of: a. Power of taxation; b. Police power; and c. Power of eminent domain 2. Law; a. b. 3. Requisites of the Principle of Self-Help (RODA) Legal easements (i.e., easements of waters and of right of way) and The requirement of legitime in succession; 1. Reasonable force used 2. Such force is used by the owner or lawful possessor 3. There is no delay 4. Actual or threatened physical invasion or usurpation of the property. Owner himself; a. Voluntary easement b. Mortgage c. Pledge UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Counterpart of Self-Help in Criminal Law 188 Property The loose counterpart of the principle of selfhelp under the criminal law is self-defense provided for in Article 11, par. 1 of the Revised Penal Code Art. 11. Property owner can use his property in any manner he desires provided he does not injure the rights of others (sic utere tuo ut alienum non laedas). (Pineda, 2009) Justifying circumstances. — The following do not incur any criminal liability: Art. 430. Every owner may enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon. 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: Limitation on the right of the owner to enclose or fence one’s land or tenement First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself. Every owner may enclose or fence his land or tenement by means of walls, ditches, live or dead hedges or by any other means provided that in so fencing the property, no servitude or easement constituted thereon should be impaired. (Pineda, 2009) Right of self-help exercised by third person A third person who is not a possessor may repel unlawful possession on the property owned by another. In such an event, he is acting as a negotorium gestor. The owner must indemnify him for injuries sustained. (Pineda, 2009) DOCTRINE OF STATE OF NECESSITY The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him. (NCC, Art. 432) Test of reasonableness The reasonableness of the defensive acts resorted to by a possessor is determined not by what he imagined to exist but by the objective situation. (Pineda, 2009) He will be liable for damages, if he uses force more than what is necessary in repelling the aggression. This principle authorized the destruction of property which is lesser in value to avert the danger poised to another property of greater value. German Management's drastic action of bulldozing and destroying the crops of private respondents on the basis of the doctrine of selfhelp was unavailing because the doctrine of selfhelp can only be exercised at the time of actual or threatened dispossession which is absent in the case at bar. (German Mgmt. Services Inc. v. CA, G.R. No. 76216, September 14, 1989) Requisites of Doctrine of State of Necessity 1. 2. NOTE: The intruder must not have succeeded in its entry, for otherwise, he must resort to court action; self-help cannot apply. One cannot put the law into his own hands. Art. 429 must be read in relation to Art. 536. Interference necessary to avert an imminent danger and the threatened damage to the actor or a third person; Damage to another is much greater than the damage to the property. Art. 433. Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property. “Sic utere tuo ut alienum non laedas” Disputable presumption of ownership The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person. (NCC, Art. 431) There is disputable presumption of ownership when a person is in actual possession of the property under the claim of ownership. (Pineda, 189 Civil Law 2009) Resort of the presumption owner rebutting or otherwise informally appropriated or injuriously affected; and 5. The utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. (National Power Corporation vs. Court of Appeals, 254 SCRA 577) the Under Art. 433 the remedy is judicial process to recover the property of the person. Requisites to prove claim of ownership 1. 2. Q: Alfredo Hababag, Sr. (Alfredo) was the owner of several parcels of agricultural land situated in the Municipality of Gubat, Sorsogon. The aforesaid landholdings were voluntarily offered for sale (VOS) to the government under Republic Act No. (RA) 6657, otherwise known as the "Comprehensive Agrarian Reform Law of 1988,". The Land Bank of the Philippines (LBP) initially valued the subject lands at P1,237,850.00, but Alfredo rejected the valuation. After summary administrative proceedings for the determination of the amount of just compensation, the Office of the Provincial Agrarian Reform Adjudicator (PARAD) of the Department of Agrarian Reform (DAR) Adjudication Board (DARAB) fixed the value of the subject lands at P1,292,553.20. Proper identification of the property; and Title must be clear, strong and credible. (Pineda, 2009) Art. 434. In an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on the weakness of the defendant’s claim. Requisites For Action To Recover Property 1. To clearly identify the land he is claiming in accordance with the title or titles on which he bases his right of ownership; and, 2. To prove that he has a better title than the defendant. (Pineda, 2009) Dissatisfied, Alfredo filed a Complaint for the determination of the amount of just compensation before the RTC. RTC rendered a Decision fixing the amount of just compensation of the subject lands at P5,653,940.00. The RTC applied the Income Productivity Approach. CA set aside the RTC's valuation for failure to give due consideration to the factors enumerated in Section 17 of RA 6657 and the formula under DAR AO 6-92, as amended by DAR AO 11-94. Moreover, contrary to the limitation imposed by DAR AO 6-92 - i.e., that the computed value using the applicable formula shall not exceed the landowner's offer to sell - the CA found that the amount as recomputed by the RTC was way beyond the landowner's offer of P1,750,000.00 as stated in the Claims Valuation and Processing Form. Is the CA correct in setting aside the computation of RTC? Art. 435. No person shall be deprived of his property except by competent authority and for public use and always upon payment of just compensation Should this requirement be not first complied with, the courts shall protect and, in a proper case, restore the owner in his possession. Eminent Domain This is the superior right of the State to acquire private property whether registered or not for public use upon payment of just compensation. It is one of the limitations on the right of ownership in the pursuit of public interest. (Pineda, 2009) Elements of “Taking” of Property Purposes of Eminent Domain For 1. The expropriator must enter a private property; 2. The entrance into private property must be for more than a momentary period; 3. The entry into the property should be under warrant or color of legal authority 4. The property must be devoted to a public use UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES A: YES. Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. It has been repeatedly-stressed by this Court that the measure is not the taker's gain but the owner's loss. The word "just" is used to intensify the 190 Property meaning of the word "compensation" to convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full [and] ample. data gathered therefrom adequately consider the factors set forth in Section 17 of RA 6657, as well as the DAR formula. As such, the CA's computation, which was derived from the same, must be sustained. Lest it be misunderstood, the ascertainment of just compensation on the basis of the landholdings' nature, location, and market value, as well as the volume and value of the produce is valid and accords with Section 17 of RA 6657 and the DAR formula, as in this case In this relation, the RTC, sitting as a Special Agrarian Court, has been conferred with the original and exclusive power to determine just compensation for parcels of land acquired by the State pursuant to the agrarian reform program. To guide the RTC in this function, Section 17 of RA 6657 enumerates the factors which must be taken into consideration to accurately determine the amount of just compensation to be awarded in a particular case. They are: (a) the acquisition cost of the land; (b) the current value of like properties; (c) the nature and actual use of the property, and the income therefrom; (d) the owner's sworn valuation; (e) the tax declarations; (f) the assessment made by government assessors; (g) the social and economic benefits contributed by the farmers and the farmworkers, and by the government to the property; and (h) the nonpayment of taxes or loans secured from any government financing institution on the said land, if any. Corollarily, pursuant to its rule-making power under Section 49 of the same law, the DAR translated these factors into a basic formula, which courts have often referred to and applied, as the CA did in this case. It, however, bears stressing that courts are not constrained to adopt the said formula in every case since the determination of the amount of just compensation essentially partakes the nature of a judicial function. In this accord, courts may either adopt the DAR formula or proceed with its own application for as long as the factors listed in Section 17 of RA 6657 have been duly considered. On the contrary, the Court finds the RTC's valuation to be improper, as it contradicts the definition of "market value" as crafted by established jurisprudence on expropriation. (Land Bank of the Philippines v. Alfredo Hababag, Sr., Substituted by his wife, Consolacion, and children, namely: Manuel, Salvador, Wilson, Jimmy, Alfredo, Jr., and Judith, all surnamed Hababag, G.R. No. 171352, September 16, 2015) Q: The Republic of the Philippines filed before the RTC a complaint against an unknown owner for the expropriation of a lot located in Barangay Ugong, Valenzuela City for the construction of the C-5 Northern Link Road Project, otherwise known as North Luzon Expressway (NLEX) Segment 8.1, traversing from Mindanao Avenue in Quezon City to the NLEX in Valenzuela City. Petitioner applied for a writ of possession over the subject lot on May 5, 2008, which was granted, and was required to deposit with the court the amount of P550,000.00 (i.e., at P2,750.00/sq. m.) as provisional deposit. However, respondent Macabagdal was substituted as party- defendant upon sufficient showing that the subject lot is registered in her name under the Transfer Certificate Title of the lot. Respondent did not oppose the expropriation, and received the provisional deposit. In keeping with these considerations, the Court finds the CA's valuation - which made use of the DAR formula - as reflective of the factors set forth in Section 17 of RA 6657. Records disclose that the CA's computation, as adopted from the LBP's own computation, is based on: (a) actual production data; (b) the appropriate industry selling prices of the products from the Philippine Coconut Authority and the Bureau of Agricultural Statistics of Sorsogon; and (c) the actual uses of the property. Likewise, the (a) income from the coconut fruit- bearing trees, as well as the unirrigated riceland, (b) cumulative cost of the non-fruit-bearing trees; and (c) market value of the cogonal land have been duly considered. The Court observes that the holistic The RTC appointed a board of commissioners to determine the just compensation for the subject lot, which thereafter submitted report dated May 23, 2014, recommending a fair market value of P9,000.00/sq. m. as the just compensation for the subject lot, taking into consideration its location, neighborhood and land classification, utilities, amenities, physical characteristics, occupancy and usage, highest and best usage, current market value offerings, as well as previously decided expropriation cases of the same RTC involving properties similarly situated in the 191 Civil Law same barangay. The Court of Appeals affirmed this decision and imposed interest the rate of 12% per annum from the time of the filing of the complaint until June 30, 2013, and thereafter, at 6% per annum until full payment. Is the 12% per annum interest on the unpaid balance be computed from the time of the taking of the subject until full payment valid? A: YES. No expropriation proceeding can continue if the property to be expropriated will not be for public use. In Metropolitan Water District v. De Los Angeles, the Court held that the fundamental basis then of all actions brought for the expropriation of lands, under the power of eminent domain, is public use. That being true, the very moment that it appears at any stage of the proceedings that the expropriation is not for a public use, the action must necessarily fail and should be dismissed, for the reason that the action cannot be maintained at all except when the expropriation is for some public use. Considering that the National Power Corporation is no longer using respondents' properties for the purpose of building the Substation Project, it may be allowed to discontinue with the expropriation proceedings, subject to the approval of the court. (National Power Corporation v. Socorro T. Posada, Renato Bueno, Alice Balin, Adrian Tablizo, Teofilo Tablizo, and Lydia T. Olivo, Substituted By Her Heirs, Alfredo M. Olivo, Alicia O. Salazar, Anita O. Ordono, Angelita O. Lim, And Adelfa O. Espinas, G.R. No. 191945, March 11, 2015, as penned by J. Leonen) A: NO. The value of the landholdings should be equivalent to the principal sum of the just compensation due, and interest is due and should be paid to compensate for the unpaid balance of this principal sum after taking has been completed. From the date of the taking of the subject lot on May 5, 2008 when the RTC issued a writ of possession in favor of petitioner, until the just compensation therefor was finally fixed at P9,000.00/sq. m., petitioner had only paid a provisional deposit in the amount of P550,000.00 (i.e., at P2,750.00/sq. m.). Thus, this left an unpaid balance of the "principal sum of the just compensation," warranting the imposition of interest. It is settled that the delay in the payment of just compensation amounts to an effective forbearance of money, entitling the landowner to interest on the difference in the amount between the final amount as adjudged by the court and the initial payment made by the government. It bears to clarify that legal interest shall run not from the date of the filing of the complaint but from the date of the issuance of the Writ of Possession on May 5, 2008, since it is from this date that the fact of the deprivation of property can be established. As such, it is only proper that accrual of legal interest should begin from this date. (Republic v. Leonor Macabagdal, G.R. No. 227215, January 10, 2018) Art. 436. When any property is condemned or seized by competent authority in the interest of health, safety or security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified. Extent of ownership of parcel of land The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation. (NCC, Art. 437) Q: National Power Corporation instituted expropriation proceedings for the acquisition of a right-of-way easement and for the construction of the Substation Island Grid Project over the parcels of land owned by respondents. During the pendency of the proceedings, NPC filed a motion to discontinue the proceedings since the delay in the possession of the properties would adversely affect the project. NPC also claims that the properties were no longer needed as it was set to acquire an alternative site. AD COLEUM The owner of a land has rights not only to its surface but also to everything underneath and the airspace above it up to a reasonable height. Presumably, the landowner’s right extends to such height or depth where it is possible for them to obtain some benefit or enjoyment, and it is extinguished beyond such limit as there would be no more interest protected by law. (Napocor v. Ibrahim, G.R. No. 168732, June 29, 2007) May NPC be allowed to discontinue the expropriation proceedings? UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 192 Property If the finder is married If the finder is married, he or she gets one half of the treasure or its value. His or her spouse is entitled to share one-half of that share, it being a conjugal property. (NCC, Art. 117, par. 4, FC) Art. 438. Hidden treasure belongs to the owner of the land, building, or other property on which it is found. Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, onehalf thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure. Requisites in order that the finder be entitled to any share in the hidden treasure (ACTA) 1. If the things found be of interest to science or the arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated. 2. 3. Discovery was made on the property of Another, or of the State or any of its political subdivisions; Made by Chance; and He is not a Trespasser or Agent of the landowner. (NCC, Art. 438, par. 2) NOTE: If the things found be of interest to science or the arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated. (NCC, Art. 438) Art. 439. By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry or other precious objects, the lawful ownership of which does not appear. “By chance” HIDDEN TREASURE The finder had no intention to search for the treasure. There is no agreement between the owner of the property and the finder for the search of the treasure. Treasure is understood, for legal purposes, as any hidden and unknown deposit of money, jewelry, or other precious objects, the lawful ownership of which does not appear. (NCC, Art. 439) (1997, 2008, 2014 BAR) Yamashita treasure The State is entitled to 75% share and the finder to 25%. (PD 7056-A) “Other precious objects” The finder is not entitled to the hidden treasure if it was deliberately searched. (1976 BAR) Under the ejusdem generis rule, the phrase should be understood as being similar to money or jewelry. It was not found by chance (NCC, Art. 438). Moreover, treasure is defined as hidden and unknown deposit of precious objects, the lawful ownership of which does not appear. There being a tip, the deposit is known. (NCC, Art. 439) Oil or gold NOT considered as hidden treasure These are natural resources. The Regalian Doctrine applies and not the provisions on hidden treasure. Nature and ownership of the old notes and coins Rule regarding discovery of hidden treasure (NCC, Art. 438 in relation to Art. 718) The ownership of the vault, together with the notes and coins can now legally be considered as hidden treasure because its ownership is no longer apparent. The contractor is not a trespasser and therefore entitled to one-half of the hidden treasure and the owner of the property is entitled the other half. (NCC, Art. 438) Since the notes and coins have historical value, the government may acquire them at their just price which in turn will be divided equally GR: If the finder is the owner of the land, building, or other property where it is found, the entire hidden treasure belongs to him. XPN: If the finder is not the owner or is a stranger (includes the lessee or usufructuary), he is entitled to ½ thereof. (NCC, Art. 566) 193 Civil Law between them. (NCC, Art. 438, par. 3) The vault has been buried for about a century and the successor of the bank which previously owned it cannot succeed by inheritance to the property. (2008 BAR) implicitly included in ownership, without which it will have no basis or existence. (Paras, 2008) NOTE: In general, the right to accession is automatic (ipso jure), requiring no prior act on the part of the owner or principal. NOTE: Bills and notes found are not hidden treasures. The owner can be traced through the serial numbers. Q: Filipinas Palm Oil Plantation Inc. is a private organization engaged in palm oil plantation with a total land area of more than 7,000 hectares of National Development Company (NDC) lands in Agusan del Sur. Harvested fruits from oil palm trees are converted into oil through Filipinas' milling plant in the middle of the plantation area. Within the plantation, there are also three (3) plantation roads and a number of residential homes constructed by Filipinas for its employees. Q: O, owner of Lot A, learning that Japanese soldiers may have buried gold and other treasures at the adjoining vacant Lot B, belonging to Spouses X and Y, excavated in Lot B where she succeeded in unearthing gold and precious stones. How will the treasures found by O to be divided – (1) 100% to O as finder, (2) 50% to O and 50% to X and Y, (3) 50% to O and 50% to the State (4) none of the above? (2010 BAR) The LBAA found that the P207.00 market value declared in the assessment by the Provincial Assessor was unreasonable. It found that the market value should not have been more than P85.00 per oil palm tree. The sudden increase of realty tax assessment level from P42.00 for each oil palm tree in 1993 to P207.00 was confiscatory. The LBAA adopted Filipinas' claim that the basis for assessment should only be 98 trees. Although one (1) hectare of land can accommodate 124 oil palm trees, the mountainous terrain of the plantation should be considered. Because of the terrain, not every meter of land can be fully planted with trees. The LBAA found that roads of any kind, as well as all their improvements, should not be taxed since these roads were intermittently used by the public. A: NONE OF THE ABOVE. The finding of the treasure was not by chance because O knew that the treasure was in Lot B. While a trespasser is also not entitled to any share and there is no indication in the problem whether or not O was a trespasser, O is not entitled to share because the finding was not by chance. ACCESSION The right pertaining to the owner of a thing over everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. (NCC, Art. 440) Right of accession It is that right of ownership of which an owner of a thing has over the products of said thing (accession discreta), as well as to all things inseparably attached or incorporated thereto whether naturally or artificially (accession continua). (Pineda, 2009) Should the roads the respondent constructed within the leased area be assessed with real property taxes? Accession is NOT a mode of acquiring ownership A: NO, the roads that respondent constructed within the leased area should not be assessed with real property taxes. It is not one of the modes enumerated under Art. 712 (different modes of acquiring ownership). It is, therefore, safe to conclude that accession is not a mode of acquiring ownership. The roads that respondent constructed became permanent improvements on the land owned by the NGPI-NGEI by right of accession under the Civil Code, thus: Reason: Accession presupposes a previously existing ownership by the owner over the principal. Fundamentally, accession is a right Article 440. The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 194 Property attached thereto, either naturally or artificially. Article 445. Whatever is built, planted or sown on the land of another and the improvements or repairs made thereon, belong to the owner of the land[.] are considered as natural or industrial fruits. Which respect to animals, it is sufficient that they are in the womb of the mother, although unborn. Despite the land being leased by respondent when the roads were constructed, the ownership of the improvement still belongs to NGPI-NGEI. As provided under Article 440 and 445 of the Civil Code, the land is owned by the cooperatives at the time respondent built the roads. Hence, whatever is incorporated in the land, either naturally or artificially, belongs to the NGPI-NGEI as the landowner. (Provincial Assessor Of Agusan Del Sur v. Filipinas Palm Oil Plantation, Inc., G.R. No.183416, October 5, 2016, as penned by J. Leonen) Existence of the fruit It depends on the type of fruit: 1. Annual (must be planted every year/must re-plant after harvest; rice, wheat, corn) – deemed manifest the moment their seedlings appear; and 2. Perennial (only planted once and bear fruit for several seasons; mango and coconut trees) – deemed to exist only when they actually appear. Art. 441. To the owner belongs: (1) The natural fruits; (2) The industrial fruits; (3) The civil fruits. Animal young ACCESSION DISCRETA They are considered existing even if still in the maternal womb. They should be considered existing only at the commencement of the maximum ordinary period for gestation. The right of accession with respect to what is produced by the property. Pratus sequitor ventrem – offspring follows the mother To the owner belongs the: This legal maxim means that the offspring follows the dam (mother). The legal presumption, in the absence of proof to the contrary, is that the calf, as well as its mother belongs to the owner of the latter, by the right of accretion. (US v. Caballero, G.R. No. 8608, September 26, 1913) Thus, when the ownership over the offspring of the animal when the male and female belongs to different owners, the owner of the female was considered also the owner of the young, unless there is a contrary custom or speculation. 1. Natural fruits - The spontaneous products of the soil, and the young and other products of animals; 2. Industrial fruits - Are those produced by lands of any kind through cultivation or labor; 3. Civil fruits - The rents of buildings, the price of leases of lands and other property and the amount of perpetual or life annuities or other similar income. (NCC, Art. 441-442) Art. 445. Whatever is built, planted or sown on the land of another and the improvements or repairs made thereon, belong to the owner of the land, subject to the provisions of the following articles. Obligation of the owner who receives the fruit from a third person He who receives the fruits has the obligation to pay the expenses made by a third person in their production, gathering and preservation. (NCC, Art. 443) (2009 BAR) When fruits are deemed to exist 1. Civil fruits accrue daily and are considered personal property and may be pro-rated; and 2. Natural and industrial fruits, while still growing, are considered as real property; ordinarily, they cannot be pro-rated. Meaning of third person One who is NOT the owner, builder, planter or sower. Art. 444. Only such as are manifest or born 195 Civil Law 1. 2. 3. Art. 446. All works, sowing, and planting are presumed made by the owner and at his expense, unless the contrary is proved. Ownership of fruits GR: Fruits belong to the owner. (NCC, Art. 441) 4. XPNS: If the thing is: (PULPA) 1. In possession of a Possessor in good faith (NCC, Art 546) (1992, 1996, 2000 BAR); before the possession is legally interrupted; 2. Subject to a Usufruct (NCC, Art. 566); 3. Lease of rural land; 4. Pledged [NCC, Art. 1680 and Art. 2102(7)]; pledge is entitled to the fruits but has the obligation to compensate or set-off what he receives with those which are owing to him; or 5. In possession of an Antichretic creditor. (NCC, Art. 2132) 5. 6. 7. FOR IMMOVABLES ACCESSION INDUSTRIAL Three kinds of industrial endeavors (BPS) GENERAL RULLES OF ACCESSION 1. Accession exists only if separation is not feasible. Otherwise, separation may be demanded. 2. ACCESSION CONTINUA It is the right pertaining to the owner of a thing over everything incorporated or attached thereto either naturally or artificially; by external forces. 3. 1. 2. 3. b. Accession natural i. Alluvium (Art. 457); ii. Avulsion (Art. 459); iii. Change of course of rivers (Art. 461462); and iv. Formation of islands. (Art. 464- 465) accession connection with accession The accessory follows the principal; The accessory follows the nature of that to which it relates; and What is built upon the land goes with it; or the land is the principal, and whatever is built on it becomes the accessory. Rule on ownership industrial regarding accession GR: The owner of the land is the owner of whatever is built, planted or sown on that land, including the improvements or repairs made thereon. 2. Movable property a. Adjunction or Conjunction; b. Mixture; and c. Specification. in Building – Erecting a structure or construction of any kind, with roof for residential, office, social, commercial or other purposes; Planting – Setting into the soil or land seeds or seedlings of trees such as mangoes, coconuts, etc; Sowing – The act of scattering or spreading of germinated seeds indiscriminately or evenly through hand or mechanical device. Maxims in industria 1. Immovable Property a. Accession industrial (Art. 445-455) i. Building; ii. Planting; and iii. Sowing. Basic principles (BADONG-E) He who is in Bad faith is liable for damages. Accessory follows the principal; Union or incorporation must generally be effected in such a manner that to separate the principal from the accessory would result in substantial Damage to either or diminish its value; To the Owner of the thing belongs the extension or increases to such thing; Bad faith of one party Neutralizes the bad faith of the other so that they shall be considered in good faith; He who is in Good faith may be held responsible but not penalized; and No one shall unjustly Enrich himself at the expense of another. XPNs: 1. When the doer is in good faith the rule is modified; or continua UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 196 Property 2. Improvements on the land of one of the spouses at the expense of the conjugal partnership will belong to the partnership or to the spouse who owns the land depending on which of the two properties has a higher value. (FC, Art. 120) NOTE: If the doer is in bad faith, he is entitled only to necessary expenses for the preservation of the land. Art. 447. The owner of the land who makes thereon, personally or through another, plantings, constructions or works with the materials of another, shall pay their value; and, if he acted in bad faith, he shall also be obliged to the reparation of damages. The owner of the materials shall have the right to remove them only in case he can do so without injury to the work constructed, or without the plantings, constructions or works being destroyed. However, if the landowner acted in bad faith, the owner of the materials may remove them in any event, with a right to be indemnified for damages. Good faith and bad faith distinguished. Good Faith - A person who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. Bad Faith - A person who is aware that there exists in his title or mode of acquisition any flaw which invalidates it. When Both Parties Are in Bad Faith If both parties are in bad faith, the bad faith of one cancels the bad faith of the other. Hence, both are considered in good faith. NOTE: Good faith is always presumed; and upon him who alleges bad faith on the part of the possessor rests the burden of proof. 197 Property RULE IF THE PLANTER AND OWNER OF THE LAND ARE DIFFERENT Gathered Fruits Planter in GF Planter Landowner Planter in BF Keeps fruits before possession is legally interrupted. (NCC, Art. 544, par. 1) (2008 Bar) Reimbursed for expenses for production, gathering and preservation. (NCC, Art. 443) No necessity to reimburse the planter of expenses since the planter retains the fruits. (NCC, Art. 544, par. 1) Standing Crops Planter in GF Owns fruits provided he pays planter expenses for production, gathering and preservation. (NCC, Art. 443) Planter in BF Planter Reimbursed for expenses, for production, gathering and preservation. (NCC, Art.443) Loses what is built, planted or sown without right to indemnity. (NCC, Art 449) Entitled to reimbursement for the necessary expenses of preservation of the land. (NCC, Art. 452) Landowner Owns fruits provided he pays planter expenses for production, gathering and preservation. (NCC, Art. 443) Owns fruits. (NCC, Art. 449) RULE WHEN THE LAND OWNER IS THE BUILDER, PLANTER OR SOWER (1999 BAR) Land Owner and Builder, Planter or Sower Good faith Acquire building etc. after paying indemnity for value of materials. (NCC, Art. 447) (1999 Bar) 1. 2. Bad faith Acquire building etc. after paying value of materials; and indemnity for damages, subject to the right of the owner of materials to remove. (NCC, Art. 447) Good faith 1. Acquire w/o paying indemnity and right to damages (NCC, Art 445 and 449, by analogy); and Owner of Materials Good faith 1. Receive indemnity for value of materials; or 2. Remove materials if without injury to works, plantings or constructions. (NCC, Art. 447) Good faith 1. Be indemnified for value of materials and damages; or 2. Remove materials, with or without injury and be indemnified for damages. (NCC, Art. 447) 1. Bad faith Lose materials w/o being indemnified and pay damages (NCC, Articles 445 and 449, by analogy); and 2. Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid. (NCC, Articles 452 and 546) Bad faith Bad faith As though both acted in good faith (in pari delicto). ( NCC, Art. 453) (1999 BAR) 2. Pay necessary expenses for preservation. (NCC, Articles 452 and 546) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 198 Civil Law RULE WHEN THE LAND OWNER IS NOT THE BUILDER, PLANTER OR SOWER Land Owner Good faith He can either: (NCC, Art. 448) (1992, 1996, 2000 Bar) 1. Acquire improvements after paying indemnity for: a. Necessary expenses; and b. Useful expenses which could either be: 1. Original costs of improvements; or 2. Increase in the value of the whole. (NCC, Articles 443 and 546) 2. Builder, Planter, Sower and Owner of Materials Good faith If the Land Owner: 1. Acquires the improvements after paying indemnity, Builder, Planter, or Sower has the right to retain the thing (and cannot be required to pay rent) until indemnity is paid. (NCC, Art. 546) Sell the land to builder or planter or collect rent from sower unless the value of the land is considerably greater than the building etc., in which case, the builder and planter shall pay rent. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. 1. a. Good faith The land owner can either: Acquire improvements without paying indemnity and collect damages. (NCC, Articles 445, 449 and 451) b. Order the demolition of work or restoration to former condition and collect damages in both cases (NCC, Art. 450); or c. Sell the land to builder and planter or rent it to the sower, and collect damages in both cases. (NCC, Art. 450) (2008 Bar) 2. If the useful improvements can be removed without damage to the principal thing, the Builder, Planter or Sower may remove them, unless the person who recovers the possession exercises the other. (NCC, Articles 547 and 447) 3. Sells the land, Builder or Planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. (NCC, Art. 448) (1992, 1996, 1999, 2000, 2001 BAR) Bad faith 1. Lose improvements without right to be indemnified unless the latter sells the land. (NCC, Art. 449) (1996, 2000 BAR) Pay necessary expenses for preservation. (NCC, Articles 452 and 546) Bad Faith Acquires improvements after paying indemnity and damages to builder, planter, sower, unless the latter decides to remove. (NCC, Articles 454 and 447) 2. Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid. (NCC, Articles 452 and 546) 3. Pay damages to land owner. (NCC, Art. 451) 2. He cannot compel the builder planter or sower to buy the land. The reason why said article (NCC, Art. 447) applies 199 Good Faith 1. Receive indemnity for improvements and receive damages; or 2. Remove them in any event and receive damages. (NCC, Articles 454 and 447) Property may be explained as follows: That if the land owner knew that something was being built, planted or sown on his land by another and he did not interpose any objection thereto, it is as if he was the one building, planting or sowing in bad faith on his own land with materials belonging to another, using the owner of the materials as his worker. (Rabuya, 2008) Bad Faith Bad Faith As though both acted in good faith (in pari delicto). (Art. 453) RULE WHEN THE LAND OWNER, BUILDER, PLANTER, SOWER AND OWNER OF MATERIALS ARE DIFFERENT PERSONS Land-Owner Good faith Builder, Planter, Sower Good faith He shall answer subsidiarily for their value and only in the event that the one who made use of them has no property with which to pay. (NCC, Art. 455) Pay value of materials to its owner without paying damages (NCC, Art. 455) and if the Land Owner: 1. He can either (NCC, Art. 448): 1. Acquire improvements after paying indemnity for: a. Necessary expenses; and b. Useful expenses which could either be: c. Original costs of improvements; or d. Increase in the value of the whole. (NCC, Art. 546 & 443) 2. Sell the land to builder and planter or collect rent from sower unless the value of the land is considerably greater than the building etc., in which case, the builder and planter shall pay rent. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. Acquires the improvement, Builder, Planter, or Sower may demand from the landowner the value of the materials and labor. (NCC, Art 455) And he has the right to retain the thing (and cannot be required to pay rent) until indemnity is paid. (NCC, Art. 546) If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the other (NCC, Articles 547 and 447); or 2. Sells the land or rents it, Builder or Planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 200 Owner of Materials Good faith 1. Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (NCC, Art. 455); or 2. Remove the materials only if without injury to the work constructed, or without the plantings, constructions or works being destroyed. (NCC, Art. 447) NOTE: Landowner is subsidiarily liable only if he appropriates/acquires the improvements. Civil Law The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. (NCC, Art. 448) Builder, Planter, Sower Bad faith Land-Owner Good faith Option to: 1. 2. 3. Acquire improvements without paying indemnity and collect damages (NCC, Art. 445 & 449); 1. Order the demolition of work or restoration to former condition and collect damages in both 2. cases (NCC, Art. 450); or Sell the land to builder and planter or rent it to the sower and collect damages in both cases. (NCC, Art. 450) (2008 BAR) Lose improvements without right to be indemnified unless the landowner sells the land (NCC, Art. 449); Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid (NCC, Art. 452 & 546); 3. Pay value of materials to its owner plus damages (NCC, Art. 455); and 4. Pay necessary expenses 4. for preservation (NCC, Articles 452 and 546); and Pay damages to land owner. (NCC, Art. 451) 5. Subsidiarily liable owner of materials. 1. Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (NCC, Art. 455); or 2. Remove materials in any event if builder, planter, sower acquired materials. to Land-Owner Good faith Land Owner can either: (NCC, Art. 448) 1. Owner of Materials Good faith Acquire improvements after paying indemnity for: a. Necessary expenses; and b. Useful expenses which could either be: i. Original costs of improvements; or ii. Increase in the value of the whole. (NCC, Articles 546 and 443) Builder, Planter, Sower Good faith If the Land Owner: 1. Acquires the improvement, Builder, Planter, or Sower has the right to retain the thing (and cannot be required to pay rent) until indemnity is paid. (NCC, Art. 546) If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the other (NCC, Art. 547); or 201 Owner of Materials Bad faith 1. Loses materials without right to indemnity (NCC, Art. 449); and 2. Pays damages (NCC, Art. 451) The builder, planter or sower would be considered merely an agent of the owner of materials. Therefore, the provisions of Article 449 of the Civil Code will apply by analogy. He is even liable for damages. (Rabuya, 2008) Property 4. Sell the land to builder and planter or collect rent from sower unless the value of the land is considerably greater than the building etc., in which case, the builder and planter shall pay rent. 2. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. Without subsidiary liability for cost of materials. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. (NCC, Art. 448) Without indemnity to owner of materials and collects damages from him. Land Owner Good faith Option to: 1. Acquire improvements without paying indemnity and collect damages (NCC, Articles 445 and 449); 2. Order the demolition of work or restoration to former condition and collect damages in both cases (NCC, Art. 450); or 3. Sell the land to builder and planter or rent it to the sower, and collect damages in both cases (NCC, Art. 450); 4. Has right to demand damages from both (NCC, Art. 451); 5. Pay necessary expenses for preservation (NCC, Art. 452 & 546); and 6. Not subsidiarily liable to the owner of the materials because as to him, the two acted in bad faith. (De Leon, 2006) Land-Owner Sells or rents it, Builder or Planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent. Builder, Planter, Sower Bad faith 1. Lose improvements without right to be indemnified unless the landowner sells the land (NCC, Art. 449); 2. Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid (NCC, Articles 452 and 546); 3. 1. Recover value from Builder, Planter, Sower (in pari delicto); 2. If Builder, Planter, Sower acquired improvements, remove the materials only if without injury to the work constructed, or without the plantings, constructions or works being destroyed (NCC, Art. 447); 3. No action against land owner; and 4. May be liable to the land owner for damages. (NCC, Art. 451) Pay the value of the materials to the owner of the materials.; and Since both the owner of the materials and the builder, etc. acted in bad faith, as between them, they are treated as having both acted in good faith. (De Leon, 2006) 4. Owner of Materials Bad faith Pay damages to land owner. (NCC, Art. 451) Builder, Planter, Sower UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 202 Owner of Materials Civil Law Bad faith 1. 2. Acquires improvements after paying indemnity and damages, unless the latter decides to remove (NCC, Art. 454, 447 & 443); and Good faith If he pays the owner of the materials, plants or seeds: 1. Cannot compel builder, planter and sower to buy land. 2. Land Owner Bad faith 1. 2. Acquires improvements after paying indemnity and damages, unless the builder, planter or sower decides to remove (NCC, Art. 454, 447 & 443); and He may demand from the landowner the value of the materials and labor (NCC, Art 455) and shall also be obliged to the reparation of damages (NCC, Art. 447); or 1. Acquire improvements after paying indemnity for: 1. Necessary expenses, and 2. Useful expenses which could either be: Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (NCC, Art. 455); or 2. Remove the materials in any event, with a right to be indemnified for damages. (NCC, Art. 447) Remove the materials in any event, with a right to be indemnified for damages. (NCC, Articles 454 and 447) If he pays the owner of the materials, plants or seeds: 1. He may demand from the landowner the value of the materials and labor (NCC, Art. 455) and shall also be obliged to the reparation of damages (NCC, Art. 447); or 2. Land Owner can either: (NCC, Art. 448) 1. Builder, Planter, Sower Good faith Cannot compel builder, planter and sower to buy land. Land-Owner Bad faith The owner of the land shall answer subsidiarily for their value and only in the event that the one who made use of them has no property with which to pay (NCC, Art. 455); and Good faith Remove the materials in any event, with a right to be indemnified for damages. (NCC, Articles 454 and 447) Builder, Planter, Sower Bad faith Pay value of materials to its owner (NCC, Art. 455) and Owner of Materials Bad faith 1. Loses materials without right to indemnity (NCC, Art. 449); and 2. Pays damages. (NCC, Art. 451) The builder, planter or sower would be considered merely an agent of the owner of materials. Therefore, the provisions of Article 449 of the Civil Code will apply by analogy. He is even liable for damages. (Rabuya, 2008) 1. If the Land Owner: 1. Acquires the improvement, Builder, Planter, or Sower may demand from the landowner the value of the materials and labor. (NCC, Art 455) And he has the right to retain the thing (and cannot be required to pay rent) until indemnity is paid (Art. 546). 203 2. Owner of Materials Good faith Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (NCC, Art. 455); or Remove the materials in any event, with a right to be indemnified for damages. (NCC, Art. 447) Property i. Original costs of improvements ii. Increase in the value of the whole. (NCC, Articles 546 and 443) 2. Sell the land to builder and planter or collect rent from sower unless the value of the land is considerably greater than the building etc., in which case, the builder and planter shall pay rent. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises option 2 (NCC, Articles 547 and 447); 2. Sells or rents it, Builder or Planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. (NCC, Art. 448) Land-Owner Builder, Planter, Sower Owner of Materials Bad faith Bad faith Bad faith Same as though both acted in good faith (in pari delicto). (NCC, Art. 453) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 204 Civil Law When there is good faith on the part of both the owner of the land and the builder, planter or sower 2. The owner of the land only has the options of paying the value of the building or selling the land. 3. He cannot refuse either to pay or sell and compel the owner of the building to remove it from the land where it is erected. He is entitled to such removal only when, after having chosen to sell the land, the other party fails to pay for the same. (Ignacio v. Hilario, G.R. No. L-175, April 30, 1946; Sps. Espinoza vs. Mayandoc, G.R. No. 211170, July 3, 2017) As to the pending crops planted in good faith, the landowner has the option of allowing the planter in good faith to continue the cultivation and to harvest the crops, or to continue the cultivation and harvest the crops himself. In the latter option, however, the landowner 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. (NCC, Art. 545) The landowner upon demand for payment CANNOT automatically become the owner of the improvement for failure of the builder to pay for the value of the land. There is nothing in Articles 448 and 546 which would justify the conclusion that upon failure of the builder to pay the value of the land, when such is demanded by the landowner, the land owner becomes automatically the owner of the improvement Q: Believing that a piece of land belonged to him, A erected thereon a building, using materials belonging to C. The owner of the land, B, was aware of the construction 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? (1984 BAR) under Art. 445. When the land’s value is considerably more than the improvement, the landowner cannot compel the builder to buy the land. In such event, a “forced lease” is created and the court shall fix the terms thereof in case the parties disagree thereon. (Depra v. Dumalo, G.R. No. L-57348, May 16, 1985; Communities Cagayan, Inc. v. Sps. Arsenio, G.R. No. 176791, November 14, 2012) A: B, regardless of his good or bad faith, becomes the owner of the building. (NCC, Arts. 445 and 448) However, A, a builder in good faith will be entitled to reimbursement of his necessary and useful expenses, with right to retain the same until paid. He may also remove the construction, since B acted in bad faith in not stopping the construction. (NCC, Arts. 454 and 447) C shall have the right to reimbursement and may also remove them but only if he can do so without injury to the work. (NCC, Art. 447) Rule when landowner sells the land to a third person who is in bad faith Builder must go against the third person but if the latter has paid the land owner, a case against such land owner may still be filed by the builder and the third person may file a third-party complaint against land owner. Q: 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? (1999 BAR) Recourse left to the parties where the builder fails to pay the value of the land The Civil Code is silent on this point. Guidance may be had from these decisions: 1. and assume the relation of lessor and lessee; In Ignacio v. Hilario, G.R. L-175, April 30, 1946, Pen Development Corporation v. Martinez Leyba, Inc., G.R. No. 211845, August 9, 2017 owner of the land may have the improvement removed; or In Bernardo v. Bataclan, G.R. No. L-44606, November 28, 1938, the land and the improvement may be sold in a public auction, applying the proceeds first to the payments of the value of the land, and the excess if any, to be delivered to the owner of the house in payment thereof. In Miranda v. Fadullon, G.R. No. L-8220, October 29, 1955, the builder might be made to pay rental only, leave things as they are, A: Since the lot owner Y is deemed to be in bad faith (Art. 453), X as the party in good faith may (a) remove the house and demand 205 Property indemnification for damages suffered by him, or (b) demand payment of 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. the spouses Nuguid improvement? benefit from the A: NO. Since spouses Nuguid opted to appropriate the improvement for themselves when they applied for a writ of execution despite knowledge that the auction sale did not include the apartment building, they could not benefit from the lot’s improvement until they reimbursed the improver in full, based on the current market value of the property. (Pecson v. CA, G.R. No. 115814, May 26, 1995) Q: Bartolome constructed a chapel on the land of Eric. What are Bartolome’s rights if he were: (1) possessor of the land in good faith, or (2) in bad faith? (1996 BAR) A: (1) 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 of reimbursement of the value of the chapel with right of retention until he is reimbursed. (NCC, Arts. 448, 546 & 547) The builder is entitled to a refund of the expenses he incurred and not on the market value of the improvement (2000 BAR) Under Art. 448 in relation to Art. 546, the builder in good faith is entitled to a refund of 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 of the landowner. The builder is entitled to a refund of the expenses he incurred, and not to the market value of the improvement. (2) Bartolome loses whatever he built, without any right to indemnify. (NCC, Art. 449) Q: Pecson owned a commercial lot on which he built a building. For failure to pay realty taxes, the lot was sold at public auction to Nepomuceno, who in turn sold it to the spouses Nuguid. The sale, however, does not include the building. The spouses subsequently moved for the delivery of possession of the said lot and apartment. Pecson filed a motion to restore possession pending determination of the value of the apartment. NOTE: The case of Pecson v. CA, G.R. No. 115814, May 26, 1995 is not applicable. The landowner is entitled to the rentals of the building if he opted to appropriate it, subject to the right of retention of the builder in good faith (2000 BAR) The landowner is entitled to the rentals of the building. As the owner of the land, he is also the owner of the building being an accession thereto. However, the builder in good faith is entitled to retain the building until indemnity is paid. Consequently, he 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. May Pecson claim payment of rentals? A: YES, Pecson is entitled to rentals by virtue of his right of retention over the apartment. The construction of the apartment was undertaken at the time when Pecson was still the owner of the lot. When the Nuguids became the uncontested owner of the lot, the apartment was already in existence and occupied by tenants. NOTE: Art. 448 does not apply to cases 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 market value of the building and not just the cost of construction thereof. To do otherwise would unjustly enrich the new owner of the land. Q: The Church, despite knowledge that its intended contract of sale with the National Housing Authority (NHA) had not been perfected, proceeded to introduce improvements on the disputed land. On the other hand, NHA knowingly granted the Church temporary use of the subject properties and did not prevent the Church from making improvements thereon. Did the Church and NHA act in bad faith? Q: Pending complete reimbursement, may A: YES. The Church and the NHA, both acted in UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 206 Civil Law bad faith, hence, they shall be treated as if they were both in good faith. (National Housing Authority v. Grace Baptist Church, G.R. No. 156437, March 1, 2004) improvements in case the owner decides to appropriate them. They cannot be asked to remove the improvements because that is not one of the options given by law to the landowner in case the builder is in good faith. Q: A squatter, X, is sought to be evicted by the landowner Y, seeks reimbursement from the latter for the improvements he made on the property, while Y demands the value of all the fruits X gathered from the land during the occupancy thereof. Is X entitled to the indemnity he prays for? Is he bound to pay for the fruits he received? Why? (1983 BAR) When there is bad faith on the part of both the owner of the land and the builder, planter or sower Q: The Municipality instituted an action for the recovery of a tract of land in the pueblo of Oas claiming that it was a part of the public square. Roa alleged that he was the owner of the property and admitted in writing that he knew that the land is owned by the Municipality and that Castillo, whom he bought the property from did not own the land. On the other hand, when Roa constructed a substantial building on the property in question the Municipality did not oppose the construction. Is there bad faith on both of the parties? A: As a possessor in bad faith, X may recover only the necessary expenses he may have incurred while in possession and reimbursement for useful improvements introduced by him if owner Y chooses to retain them and X must pay Y the value of all the fruits he received. Q: Mr. and Mrs. X migrated to the US with all their children. As they had no intention of coming back, they offered their house and lot for sale to their neighbors, Mr. and Mrs. A (the buyers) who agreed to buy the property for 128 Million. Because Mr. and Mrs. A needed to obtain a loan from a bank first, and since the sellers were in a hurry to migrate, the latter told the buyers that they could already occupy the house, renovate it as it was already in a state of disrepair, and pay only when their loan is approved and released. While waiting for the loan approval, the buyers spent Pl Million in repairing the house. A month later, a person carrying an authenticated special power of attorney from the sellers demanded that the buyers either immediately pay for the property in full now or vacate it and pay damages for having made improvements on the property without a sale having been perfected. A: YES. Roa was not a purchaser in good faith. The Municipality, having permitted the erection by the defendant of a building on the land without objection, acted in bad faith. The rights of the parties must, therefore, be determined as if they both had acted in good faith. When there has been bad faith, not only on the part of the person who built, sowed, or planted on another's land, but also on the part of the owner of the latter, the rights of both shall be the same as if they had acted in good faith. Therefore, the owner of the land on which the building, sowing, or planting is done in good faith shall have a right to appropriate as his own the work, sowing, or planting after the indemnity mentioned in Articles 453 and 454, or, to oblige the person who has built or planted, to pay him the value of the land and to force the person who sowed to pay the proper rent. (Art. 453) (Municipality of Oas vs Roa, G.R. No. L-2017, November 24, 1906) What are the buyers' options or legal rights with respect to the expenses incurred in improving the property under circumstances? (2015 BAR) Good faith can concur with negligence Art. 456 applies to Arts. 447-455 where good faith was mentioned. A: The buyers here may be deemed possessors or builders in good faith because they were made to believe that they were allowed to make repairs or renovation by the sellers themselves. As builders in good faith, they have the right to seek reimbursement for the value of the Good faith does not necessarily preclude negligence, for, in fact, in negligence there is no intention to do wrong or cause damage unlike in bad faith which presupposes such intention. (De Leon, 2006) 207 Property made or artificial accretions to lands that adjoin canals or esteros or artificial drainage system. (Ronquillo v. CA, G.R. No 43346, March 20, 1991) Thus, person who is in good faith may be guilty of negligence for which he may be made liable under Art. 2176 involving quasi-delicts. (Pineda, 2009) NOTE: If the deposits accumulate, not through the effects of the current of the water, but because of the constructions made by the owner purely for defensive purposes against the damaging action of the water, the deposits are still deemed to be alluvion and will belong to the riparian owner. ACCESSION NATURAL ALLUVION Alluvium or alluvion (2001, 2003, 2008, 2009 BAR) If the deposit is brought about by sea water It is the gradual deposit of sediment by natural action of a current of fresh water (not sea water), the original identity of the deposit being lost. Where it is by sea water, it belongs to the State. (Government of Philippine Islands v. Cabangis, G.R. No. L-28379, March 27, 1929) When the sea moves towards the estate and the tide invades it, the same becomes a foreshore land which consequently becomes part of the public domain. Thus, it belongs to the state. Registration NOTE: Art. 457 of NCC states “To the owners of the lands adjoining the banks of the rivers belongs the accretion which they gradually receive from the effects of the current of the waters. Alluvial deposits must be registered. Though, automatically it is owned by the riparian owner (Heirs of Navarro v. IAC, G.R. No. 68166, February 12, 1997), it is still subject to acquisitive prescription which may divest the riparian owner the ownership over the accretion. Riparian owner Failure to register He is the owner of the land adjoining rivers. If the riparian owner fails to register the deposits within the prescriptive period of acquiring real property (10 years if ordinary prescription or 30 years if extraordinary prescription), it subjects said accretion to acquisition thru prescription by third persons. (Reynante v. CA, G.R. No. 95907, April 8, 1992) Accretion v. Alluvium Accretion is the process whereby the soil is deposited while alluvium is the soil deposited. Requisites of accretion 1. Deposit be gradual and imperceptible; 2. Resulted from the effects of the current of the water; and 3. The land where the accretion takes place is adjacent to the banks of a river. However, registration under the Torrens System does not protect the riparian owner against the diminution of the area of his registered land through gradual changes in the course of an adjoining stream. If all the requisites are present, the riparian owner is automatically entitled to the accretion. Q: Benjamin is the owner of a titled lot which is bounded on the north by the Maragondon River. An alluvial deposit of two (2) hectares was added to the registered area. Daniel took possession of the portion formed by accretion and claims that he has been in open, continuous and undisturbed possession of said portion since 1923 as shown by a tax declaration. In 1958, Benjamin filed a Complaint for Quieting of Title and contends that the alluvium belongs to him as the riparian owner and that since NOTE: The alluvion starts to become the property of the riparian owner from the time that the deposit created by the current of water becomes manifest. (Heirs of Navarro v. IAC, G.R. No. 68166, February 12, 1997) Man-made or artificial accretions to lands NOT included The rule on alluvion does not apply to manUNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 208 Civil Law the alluvium is, by law, part and parcel of the registered property, the same may be considered as registered property. Decide the case and explain. (2016 BAR) the riparian owners. Are the petitioners the exclusive owners of the First and Second Accretion? A: NO. Petitioners are not the riparian owners of the Motherland to which the First Accretion had attached, hence, they cannot assert ownership over the First Accretion. Consequently, as the Second Accretion had merely attached to the First Accretion, they also have no right over the Second Accretion. Neither were they able to show that they acquired these properties through prescription as it was ·not established that they were in possession of any of them. Being the owner of the land adjoining the foreshore area, respondent is the riparian or littoral owner who has preferential right to lease the foreshore area. Accordingly, therefore, alluvial deposits along the banks of a creek or a river do not form part of the public domain as the alluvial property automatically belongs to the owner of the estate to which it may have been added. The only restriction provided for by law is that the owner of the adjoining property must register the same under the Torrens system; otherwise, the alluvial property may be subject to acquisition through prescription by third persons. (Heirs of Francisco I. Narvasa, Sr. et.al v. Emiliana Imbornal et.al, G.R. No. 182908, August 6, 2014) A: I will decide in favor of Daniel and dismiss the action to quiet title filed by Benjamin. Under Article 457 of the Civil Code, the owner of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. The accretion, however, does not automatically become registered land. It must be brought under the Torrens system of registration by Benjamin, the riparian owner. Since he did not, the then increment, not being registered land, was open to acquisition through prescription by third persons, like Daniel. (Ignacio Grande, et. al. v. Court of Appeals, G.R. No. L-17652, June 30, 1962; Leonida Cureg v. Intermediate Appellate Court, G.R. No. 73465, September 7, 1989) Reasons for granting a riparian owner the right to alluvion deposited by a river 1. To compensate him for: a. Danger of loss that he suffers due to the location of his land; and b. The encumbrances and other easements on his land 2. To promote the interests of agriculture as he is in the best position to utilize the accretion. Art. 459. Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it, provided that he removes the same within two years. The owners of estates adjoining ponds or lagoons do not acquire the land left dry by the natural decrease of the waters, or lose that inundated by them in extraordinary floods. (NCC, Art. 458) NOTE: This rule does not apply to lakes. CHANGE IN THE COURSE OF THE RIVER Q: The First Accretion adjoined the southern portion of the Motherland. Decades later, the Second Accretion abutted the First Accretion on its southern portion. OCT was issued in the names of all the respondents covering the Second Accretion. Petitioners alleged that through deceit, fraud, falsehood, and misrepresentation, respondent Victoriano, with respect to the First Accretion, and the respondents collectively, with regard to the Second Accretion, had illegally registered the said accretions in their names, notwithstanding the fact that they were not Whenever a river, changing its course by natural causes, opens a new bed through a private estate, this bed shall become of public dominion. (NCC, Art. 462) Requisites (NAPA) 1. There must be a Natural change in the course of the waters of the river; otherwise, the bed may be the subject of a State grant; 2. The change must be Abrupt or sudden; 3. The change must be Permanent; and 209 Property NOTE: The rule does not apply to temporary overflowing of the river. ALLUVIUM Gradual and imperceptible. Soil cannot be identified. Belongs to the owner of the property to which it is attached. Merely an attachment. 4. There must be Abandonment by the owner of the bed. NOTE: Abandonment pertains to the decision not to bring back the river to the old bed. Effect when the river bed is abandoned River beds which are abandoned through the natural change in the course of the waters ipso facto belong to the owners whose lands are occupied by the new course in proportion to the area lost. However, the owners of the lands adjoining the old bed shall have the right to acquire the same by paying the value thereof, which value shall not exceed the value of the area occupied by the new bed. (NCC, Art. 461) AVULSION Sudden or abrupt process. Identifiable and verifiable. Belongs to the owner from whose property it was detached. Detachment followed by attachment. Requisites of avulsion (CAI) 1. Transfer is caused by the Current of a river, creek, or torrent; 2. Transfer is sudden or Abrupt; and 3. The portion of the land transported is known or Identifiable. NOTE: The rule on abandoned river bed does not apply to cases where the river simply dries up because there are no persons whose lands are occupied by the waters of the river. NOTE: By analogy, land transferred from one tenement to another by forces of nature other than the river current can still be considered as an avulsion. Under the Water Code, the government or the riparian owner may return the river back to the original bed. (P.D. 1067, Art. 58) Rule on acquisition of titles over an avulsion Art. 460. Trees uprooted and carried away by the current of the waters belong to the owner of the land upon which they may be cast, if the owners do not claim them within six months. If such owners claim them, they shall pay the expenses incurred in gathering them or putting them in a safe place. XPNs: The owner must remove (not merely claim) the transported portion within two years to retain ownership, otherwise, the land not removed shall belong to the owner of the land to which it has been adjudicated in case of: GR: Original owner retains title. 1. Abandonment; or 2. Expiration of two years, whether the failure to remove be voluntary or involuntary, and irrespective of the area of the portion known to have been transferred. AVULSION It is the deposit of known (identifiable) portion of land detached from the property of another which is attached to the property of another as a result of the effect of the current of a river, creek or torrent. (2001 BAR) Rule on avulsion of uprooted trees GR: The owner of the tree retains ownership. XPN: 1. The owner must claim them within a period of six months; and Whenever the current of a river, creek, or torrent segregates from an estate on its banks a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it, provided that he removes the same within 2 years. (NCC, Art. 459) (2001 BAR) NOTE: The claim does not require actual recovery. It can be recovered on the basis of prescriptive period for acquiring movables which is four years. 2. If uprooted trees have been transplanted by the owner of the land which the trees may Alluvium vs. Avulsion (2001 BAR) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 210 Civil Law have been cast and said trees have taken root in said land, the owner of the trees, upon making the claim, is required to refund the expenses incurred in gathering them or in putting them in safe place, including the expenses incurred by the owner of the land for the preservation of the trees. (Rabuya, 2008) If formed on non-navigable/non-floatable rivers Nearer in margin to Owner of nearer one bank margin is the sole owner If equidistant Island divided longitudinally in halves. Q: Eduave is the owner of land forming part of an island in a non-navigable river. Said land was eroded due to a typhoon, destroying the bigger portion thereof and improvements thereon. Due to the movements of the river deposits on the part of the land that was not eroded, the area was increased. Later, Eduave allowed Dodong to introduce improvements thereon and live there as a caretaker. However, Dodong later denied Eduave’s claim of ownership so the latter filed action to quiet title over the property. Who has a better right to the land? Art. 463. Whenever the current of a river divides itself into branches, leaving a piece of land or part thereof isolated, the owner of the land retains his ownership. He also retains it if a portion of land is separated from the estate by the current. Effects of Ramifications of A River 1. Some parts of the original estate may be isolated but remaining steady and secure on their location; 2. Other parts may be separated and pushed away from the original estate. A: EDUAVE has a better right to the land. The land in question is an island that appears in a non- floatable and non-navigable river, and it is not disputed that Eduave is the owner of the parcel of land. The island belongs to the owner of the parcel of land nearer the margin. (NCC, Art. 465) Because the island is longer than the property of Eduave, he is deemed ipso jure the owner of that portion which corresponds to the length of his property along the margin of the river. (Jagualing v. CA, G.R. No. 94283, March 4, 1991) Art. 464. Islands which may be formed on the seas within the jurisdiction of the Philippines, on lakes, and on navigable or floatable rivers belong to the State. Art. 465. Islands which through successive accumulation of alluvial deposits are formed in non-navigable and non-floatable rivers, belong to the owners of the margins or banks nearest to each of them, or to the owners of both margins if the island is in the middle of the river, in which case it shall be divided longitudinally in halves. If a single island thus formed be more distant from one margin than from the other, the owner of the nearer margin shall be the sole owner thereof. NOTE: There is no accession when islands are formed by the branching of a river; the owner retains ownership of the isolated piece of land. MOVABLES Art. 466. Whenever two movable things belonging to different owners are, without bad faith, united in such a way that they form a single object, the owner of the principal thing acquires the accessory, indemnifying the former owner thereof for its value ISLANDS Rules on ownership with regard to formation of islands LOCATION OWNER If formed on the sea Within territorial State waters Outside territorial First country to occupy waters If formed on lakes or navigable/floatable rivers State Different kinds of accession continua as regard movables 1. Adjunction or conjunction; 2. Mixture; and 3. Specification. 211 Property Adjunction the two things incorporated is the principal one, the thing of the greater value shall be so considered, and as between two things of equal value, that of the greater volume. It is the process by virtue of which two movable things belonging to different owners are united in such a way that they form a single object and each of the things united preserves its own nature. (NCC, Art. 466) Tests to determine the principal 1. That of greater value; 2. If two things are of equal value – That of greater volume; 3. If two things are of equal volume – That to which the other has been united as an ornament, or for its use or perfection; and 4. That which has greater merits, utility and volume if things. (NCC, Art. 468) Requisites of adjunction (2BUS) There is adjunction when there are: 1. 2. 3. 4. Two (2) movables; Belonging to different owners; United forming a single object; and Separation would impair their nature or result in substantial injury to either thing. NOTE: In painting and sculpture, writings, printed matter, engraving and lithographs, the board, metal, stone, canvas, paper or parchment shall be deemed the accessory thing. (NCC, Art. 468) Classes of adjunction or conjunction 1. Painting (pintura); 2. Engraftment or Inclusion - Like setting a precious stone on a golden ring; 3. Writing (escritura); 4. Weaving; and 5. Soldering- Joining a piece of metal to another metal a. b. Ownership when the adjunction involves three or more things If the adjunction involves three or more things, the court should first distinguish the principal and apply Art. 466 in an equitable manner such that the principal acquires the accessory, indemnifying the former owner thereof for its value. Ferruminacion -Principal and accessory are of the same metal; or Plumbatura – Different metals (NCC, Art. 468) Art. 469. Whenever the things united can be separated without injury, their respective owners may demand their separation. Ownership of the resulting object The owner of the principal by law becomes owner of the resulting object and should indemnify the owner of the accessories for the values thereof. Nevertheless, in case the thing united for the use, embellishment or perfection of the other, is much more precious than the principal thing, the owner of the former may demand its separation, even though the thing to which it has been incorporated may suffer some injury. Good faith is necessary in Adjunction Art. 526 explains that good faith is that condition of the mind where the person concerned is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. If the owner of the principal thing acted in bad faith, Art. 470 (par. 2) will apply NOT Art. 466. (Pineda, 2009) Separation of things is allowed in the following cases: 1. Separation without injury; 2. Separation with injury – Accessory is much more precious than the principal, the owner of the former may demand its separation even though the principal may suffer injury; 3. Owner of the principal acted in Bad faith. (NCC, Art. 469) Art. 467. The principal thing, as between two things incorporated, is deemed to be that to which the other has been united as an ornament, or for its use or perfection. Art. 468. If it cannot be determined by the rule given in the preceding article which of UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Art. 470. Whenever the owner of the 212 Civil Law accessory thing has made the incorporation in bad faith, he shall lose the thing incorporated and shall have the obligation to indemnify the owner of the principal thing for the damages he may have suffered. If the one who has acted in bad faith is the owner of the principal thing, the owner of the accessory thing shall have a right to choose between the former paying him its value or that the thing belonging to him be separated, even though for this purpose it be necessary to destroy the principal thing; and in both cases, furthermore, there shall be indemnity for damages. though there is injury to the principal and pay damages. or without injury to principal and receive damages. Bad faith Same as though both acted in good faith. Art. 471. Whenever the owner of the material employed without his consent has a right to an indemnity, he may demand that this consist in the delivery of a thing equal in kind and value, and in all other respects, to that employed, or else in the price thereof, according to expert appraisal. If either one of the owner has made the incorporation with the knowledge and without the objection of the other, their respective rights shall be determined as though both acted in good faith. Indemnity It is made either by: 1. Delivery of a thing equal in kind and value; or 2. Payment of its price including the sentimental value. (NCC, Art. 471) Rights of owners over the thing in adjunction PRINCIPAL OWNER OF THE ACCESSORY Good faith 1. Acquire 1. Receive accessory and payment for pay owner of the value of accessory for its accessory; or value; or 2. GR: Demand 2. Demand separation separation provided the provided the thing thing suffers no suffers no injury. injury. XPN: If accessory is more precious than principal, he may demand separation with or without injury to the thing. Good faith Bad faith Acquire accessory Lose accessory and without paying the pay damages. owner of accessory and entitled to damages. Bad faith Good faith 1. Pay value of 1. Receive accessory and pay payment and damages; or damages; or 2. Have the things 2. Have accessory separated, even separated with Art. 472. If by the will of their owners two things of the same or different kinds are mixed, or if the mixture occurs by chance, and in the latter case the things are not separable without injury, each owner shall acquire a right proportional to the part belonging to him, bearing in mind the value of the things mixed or confused. Art. 473. If by the will of only one owner, but in good faith, two things of the same or different kinds are mixed or confused, the rights of the owners shall be determined by the provisions of the preceding article. If the one who caused the mixture or confusion acted in bad faith, he shall lose the thing belonging to him thus mixed or confused, besides being obliged to pay indemnity for the damages caused to the owner of the other thing with which his own was mixed. Mixture It is the combination of materials where the respective identities of the component elements are lost either voluntarily or by chance. (NCC, Articles. 472-473) 213 Property new thing to himself, after first paying indemnity for the value of the work, or demand indemnity for the material. Kinds of mixtures (COM-CON) 1. Commixtion – mixture of solids; and 2. Confusion – mixture of liquids If in the making of the thing bad faith intervened, the owner of the material shall have the right to appropriate the work to himself without paying anything to the maker, or to demand of the latter that he indemnify him for the value of the material and the damages he may have suffered. However, the owner of the material cannot appropriate the work in case the value of the latter, for artistic or scientific reasons, is considerably more than that of the material. Proportionate Ownership In Commixtion Or Confusion If the things mixed or confused are not separable without injury, each owner shall have a right to the resulting thing proportionate to the value of the thing he owns. (Pineda, 2009) Rules regarding mixtures By Will of Both Owners or by Accident Good faith 1. Right is subject to stipulations; or 2. Right is in proportion to the part belonging to. him (Co-ownership arises) (NCC, Art.422) By will of only one owner/ by chance Good faith 1. Have the things separated provided the thing suffers no injury; or 2. If cannot be separated without injury, acquire interest on mixture in proportion to his part (co-ownership). Bad faith (caused Good faith the mixture) First owner will lose Second owner will his part on the acquire entire mixture mixture and pay and entitled to damages to the damages. second owner. Bad faith Good faith (caused the mixture) As if both acted in GF, As if both acted in GF, because the 2nd since the first owner owner in GF was the is in BF and the one who caused the second owner who ratification, because caused the mixture in the first owner. GF in a way ratifies the BF of first owner. Specification (NCC, Art. 474) It is the giving of new form to another’s material through application of labor. The material undergoes a transformation or change of identity. The labor is the principal and the material used is the accessory. Respective rights of the maker and the owner of the materials in specification OWNER OF MATERIALS (OM) Good faith GR: Appropriate the Receive payment for thing transformed and value of materials. pay the owner of the materials for its value. MAKER XPN: If the material is more precious than the thing transformed, the owner of the materials has the option to: 1. Acquire the work and indemnify the maker for his labor; or 2. Demand indemnity for the material. Good faith 1. Receive payment 1. Appropriate new for value of his thing and pay the work; or maker for the 2. Appropriate the work; or new thing and 2. Receive payment pay the owner of for value of materials for its materials. value. Bad faith Good faith Art. 474. One who in good faith employs the material of another in whole or in part in order to make a thing of a different kind, shall appropriate the thing thus transformed as his own, indemnifying the owner of the material for its value. If the material is more precious than the transformed thing or is of more value, its owner may, at his option, appropriate the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 214 Civil Law 1. Lose the new thing and pay damages to owner of the materials; or 2. Pay value of materials and damages to owner of the materials. 1. ADJUNCTIO N Involves at least two things. Accessory follows the principal. Things joined retain their nature. QUIETING OF TITLE It is a proceeding in equity, the purpose of which is the declaration of the invalidity of a claim on a title or the invalidity of an interest in property adverse to that of the plaintiff, and thereafter to free the plaintiff and all those claiming under him from any hostile claim thereon. (Pineda, 2009) NOTE: Not available if the new thing is more valuable than materials for scientific or artistic reasons. 2. Adjunction, mixture, distinguished Appropriate the new thing without paying and receive damages; or Receive payment for the value of materials and damages and MIXTURE Involves at least two things. Coownershi p results. Things mixed or confused may either retain or lose their respective natures. Quieting of title is a common law remedy for the removal of any cloud upon, doubt, or uncertainty affecting title to real property. Whenever there is a cloud on title to real property or any interest in real property by reason of any instrument, record, claim, encumbrance, or proceeding that is apparently valid or effective, but is, in truth and in fact, invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. In such action, the competent court is tasked to determine the respective rights of the complainant and the other claimants, not only to place things in their proper places, and make the claimant, who has no rights to said immovable, respect and not disturb the one so entitled, but also for the benefit of both, so that whoever has the right will see every cloud of doubt over the property dissipated, and he can thereafter fearlessly introduce any desired improvements, as well as use, and even abuse the property. (Phil-Ville Development and Housing Corporation v. Maximo Bonifacio, et al., G.R. No. 167391, June 8, 2011) specification SPECIFICATIO N May involve one thing (or more) but form is changed, Accessory follows the principal. The new object retains or preserves the nature of the original object. Nature of the action to quiet title Significantly, suits to quiet title are characterized as proceedings quasi in rem. Technically, they are neither in rem nor in personam. In an action quasi in rem, an individual is named as defendant. However, unlike suits in rem, a quasi in rem judgment is conclusive only between the parties. A proceeding quasi in rem is one brought against persons seeking to subject the property of such persons to the discharge of the claims assailed. (Portic v. Cristobal, G.R. No. 156171, 22 April 2005) Art. 475. In the preceding articles, sentimental value shall be duly appreciated. Sentimental Value The value placed by the owner on the property is more than the actual value by reason of some sentiments like, love, affection, respect and honor. Classifications of actions 1. Remedial action – one to remove cloud on title; and 2. Preventive action – one to prevent the casting of a (threatened) cloud on the title. 215 Property Scope of the action to quiet title Oños' opposition, and upon order of the RTC, Lim converted the petition for reconstitution into a complaint for quieting of title. The Oños now contend that this action for quieting of title should be disallowed because it constituted a collateral attack on OCT No. RO-9969-(O-20449). Is their contention correct? Only real properties can be subject of an action for quieting of title. (Pineda, 2009) Requisites for an action to quiet title (LCDR) 1. Plaintiff must have a Legal or equitable title to, or interest in the real property which is the subject matter of the action; A: NO. The attack is direct when the objective is to annul or set aside such judgment, or enjoin its enforcement. On the other hand, the attack is indirect or collateral when, in an action to obtain a different relief, an attack on the judgment is nevertheless made as an incident thereof. The averments readily show that the action was neither a direct nor a collateral attack for Lim was asserting only that the existing title registered in the name of the petitioners' predecessors had become inoperative due to the conveyance in favor of Lim's mother, and resultantly should be cancelled. (Oño vs Lim, G.R. No. 154270, March 09, 2010) NOTE: He need not be in possession of said property. (NCC, Art.477) 2. There must be Cloud in such title; 3. Such cloud must be Due to some (IRCEP) a. Instrument; b. Record; c. Claim; d. Encumbrance; or e. Proceeding which is apparently valid but is in truth invalid, ineffective, voidable or unenforceable, and is prejudicial to the plaintiff’s title; and Art. 476. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. 4. Plaintiff must a. Return to the defendant all benefits he may have received from the latter; or b. Reimburse him for expenses that may have redounded to his benefit. Reasons for quieting of title 1. 2. 3. 4. Prevent future litigation on the ownership of the property; Protect true title & possession; To protect the real interest of both parties; and To determine and make known the precise state of title for the guidance of all. Rules in actions for quieting of title 1. These put an end to vexatious litigation in respect to property involved; plaintiff asserts his own estate & generally declares that defendant’s claim is without foundation; 2. Remedial in nature; 3. Not suits in rem nor personam but suits against a particular person or persons in respect to the res (quasi in rem); 4. May not be brought for the purpose of settling a boundary disputes; 5. Applicable to real property or any interest therein; 6. An action to quiet title brought by the person in possession of the property is IMPRESCRIPTIBLE; and 7. If he is not in possession, he must invoke his remedy within the prescriptive period as Persons who may file an action to quiet title 1. 2. 3. Registered owner; A person who has an equitable right or interest in the property; or The State. Q: Lim filed in the RTC in Cebu City a petition for the reconstitution of the owner's duplicate copy of OCT No. RO-9969-(O20449), alleging that said OCT had been lost during World War II by his mother, Luisa, who acquired title to it by virtue of a deed of sale, albeit unregistered. On account of the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 216 Civil Law follows; a. Ordinary prescription- 10 years b. Extraordinary prescription- 30 years. Plaintiff asserts own Plaintiff declares his claim and declares own claim and title that the claim of the and at the same time defendant is indicates the source unfounded and calls and nature of on the defendant to defendant’s claim justify his claim on pointing its defect the property that and prays for the same may be declaration of its determined by the validity. court. Filed against whom Against people who Against defendant who have claims; claims asserts claims based on are more general in an invalid instrument nature (but not apparent). Requisites for existence of a cloud (ATP) 1. There is an Apparently valid or effective instrument; NOTE: They must appear valid or effective – and extraneous evidence is needed to prove their invalidity or ineffectivity. 2. But such instrument is in Truth: a. Invalid; b. Ineffective; c. Voidable; d. Unenforceable; e. Has been extinguished or terminated; or f. Has been barred by extinctive prescription. Action to quiet title cannot be availed until the donation has been first revoked The barangay traces its claim of ownership over the disputed property to a valid contract of donation which is yet to be effectively revoked. Such rightful claim does not constitute a cloud on the supposed title of Edgardo over the same property removable by an action to quiet title. (Dolar v. Brgy. Lublub, G.R. No. 152663, November 18, 2005) 3. Such instrument may be Prejudicial to the title. Purpose of an action to remove cloud on title It is intended to procure the cancellation, or delivery of, release of an instrument, encumbrance, or claim constituting a claim on plaintiff’s title, and which may be used to injure or vex him in the enjoyment of his title. Art. 477. The plaintiff must have legal or equitable title to, or interest in the real property which is the subject matter of the action. He need not be in possession of said property. Action to quiet title v. Action to remove cloud on title Indispensable Requirement for Action To Quiet Title ACTION TO QUIET ACTION TO REMOVE TITLE CLOUD ON TITLE As to purpose To put an end to To procure the vexatious litigation in cancellation; delivery; respect to the release of an property involved. instrument, encumbrance or claim, which constitutes a claim in plaintiff’s title, and which may be used to injure or to vex him in his enjoyment of his title. As to nature of the action Remedial in nature, Preventive in nature, involving a present to remove a cloud adverse claim. which may be used for future actions. As to nature of claims For an action to quiet title or remove cloud on a title to stand, the plaintiff must have legal or equitable title to or interest in the subject real property. This requirement is indispensable, the absence of which is fatal to the action. (Pineda, 2009) Legal title covers a situation when the owner is registered as the owner of the property. Equitable title covers a situation when the person has the beneficial ownership of the property. (Ibid.) Art. 478. There may also be an action to quiet title or remove a cloud therefrom when the contract, instrument or other obligation has been extinguished or has terminated or has been barred by extinctive 217 Property must demolish the same to forestall the possibility of causing death or harm to anyone, or injury to property. (Pineda, 2009) prescription. PRESCRIPTION OR NON-PRESCRIPTION OF ACTION Art. 483. Whenever a large tree threatens to fall in such a way as to cause damage to the land or tenement of another or to travelers over a public or private road, the owner of the tree shall be obliged to fell and remove it; and should he not do so, it shall be done at his expense by order of the administrative authorities. Prescriptive periods for bringing an action to quiet title 1. Plaintiff in possession – Imprescriptible; or 2. Plaintiff not in possession – a. 10 years (ordinary) or b. 30 years (extra-ordinary). Imprescriptibility of action to quiet title CO - OWNERSHIP It is imprescriptible if plaintiff is in possession. If not, it prescribes within period for filing accion publiciana or accion reinvidicatoria. Art. 484. There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. In default of contracts, or of special provisions, co-ownership shall be governed by the provisions of this Title. Laches It is the failure or neglect, for unreasonable and unexplained length of time, to do that which by exercising due diligence, could or should have been done earlier. There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. (NCC, Art. 484) It is the right of common dominion which two or more persons have in a spiritual (or ideal) part of the thing which is not physically divided. The negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. (Tijam v Sibonghanoy, G.R. No. L-21450, April 15, 1968) CHARACTERISTICS OF CO-OWNERSHIP IN GENERAL 1. Plurality of subjects or owners; 2. There is no mutual representation by the coowners; 3. It exists for the common enjoyment of the co-owners; 4. There is a single object which is not materially divided; 5. It has no distinct legal personality; and 6. It is governed first of all by the contract of the parties; otherwise, by special legal provisions, and in default of such provisions, by the provisions of Title III of the New Civil Code on co-ownership. An action filed within the period of limitations may still be barred by laches. (NCC, Articles 1431, 1433 and 1437) RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING Art. 482. If a building, wall, column, or any other construction is in danger of falling, the owner shall be obliged to demolish it or to execute the necessary work in order to prevent it from falling. Legal effect of co-ownership If the proprietor does not comply with this obligation, the administrative authorities may order the demolition of the structure at the expense of the owner, or take measures to insure public safety. Co-ownership creates rights in favor of each one of the co-owners with respect to the property owned in common. The rights of a co-owner can be viewed in two senses: 1. His right over the thing owned in common is If a building, wall, column or any other construction is in danger of falling, the owner UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 218 Civil Law limited by the other co- owner’s concomitant rights; or 2. His right over his ideal share or his undivided interest over the same property; the individual co-owner has absolute control and ownership over his ideal share. the others for the purpose of prescription. Prescription Prescription will continue to run among co-owners. Requisites of co-ownership (PUS) Prescription will not run among them. Co-ownership vs. Partnership 1. Plurality of owners; 2. Unity of object, which is an undivided thing or right; and 3. Each co-owner’s right must be limited only to his ideal Share of the physical whole. CO-OWNERSHIP No legal personality Can be created without the formalities of a contract By contract or by will. Agreement to exist for more than 10 years is void. No mutual representation. Not dissolved by the death/incapacity of a co- owner. A co-owner can dispose of his share w/o the consent of the others hence in a way a co- owner is substituted. Profits of a co-owner depend on his proportionate share. NOTE: By the very nature of co-ownership, a coowner cannot point to any specific portion of the property owned in common as his own because his share remains intangible and ideal. (Spouses Avila et al v. Spouses Barabat, GR. No. 141993, May 17, 2006) Rules to govern in co-ownership 1. Contracts; 2. Special provision of law; and 3. Provisions of the civil code. Co-ownership vs. Joint tenancy CO-OWNERSHIP JOINT OWNERSHIP Tenancy in Joint Tenancy common As to the extent of ownership Each co-owner is the Each joint owner owner of his own owns the whole ideal share. thing. As to disposition Each co-owner may Joint owner may not dispose of his dispose of his own undivided share share without the without the other co- consent of all the owners’ consent. rest, because he really has no ideal share. As to transfer of shares in case of death Upon the death of a Upon the death of a co- owner, his ideal joint owner, his share goes to his share goes to the heirs. other joint owners by accretion. As to minority or legal disability In case of a minor The legal disability who is a co-owner, of one joint owner this does not benefit benefits the others. For collective enjoyment. No public instrument is needed even if the object of the coownership is an immovable. ORDINARY PARTNERSHIP Has legal personality. Can be created only by contract, express By contract only. No term limit is set by law. There is mutual representation. Dissolved by death or incapacity of a partner. A partner cannot be substituted without the consent of the others. Profits may be stipulated upon; (e.g., profitsharing agreements). For profit. May be made in any form except when real property is contributed. Alienation of property co-owned When a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners’ who did not consent to the sale. A sale of the entire property by one co-owner 219 or i Property without the consent of the other co-owners is not null and void but affects only his undivided share and the transferee gets only what would correspond to his grantor in the partition of the thing owned in common. (Paulmitan v. CA, G.R. No. 51584, November 25, 1992) be void. (NCC, Art. 485, par. 1) Consequently, in order to determine the share of the co-owners in the benefits and charges, we must first determine their respective interests in the coownership. Interests are presumed equal, unless the contrary is proved. (NCC, Art. 485, par. 2) Q: Is there such a thing as perpetual coownership? A: NO. Any of the co-owners may demand partition any time. SOURCES OF CO-OWNERSHIP (LOST-C²) 1. No co-owner ought to be compelled to stay in a co- ownership indefinitely. He may insist the partition of the property any time. Such action to demand for partition does not prescribe. (Patricio v. Dario, G.R. No. 170829, November 20, 2006) 2. A co-owner has a right to freely sell or dispose his undivided share of interest but has no right to sell a divided or definite part of a real estate owned in common. (Lopez v. Illustre,G.R. No. 2426, January 24, 1906; Torres vs. Lapinid, G.R. No. 187987, November 26, 2014) 3. 4. 5. 6. In a property co-owned by the compulsory heirs, any act tantamount to partition such as identifying their shares and constructing their respective houses automatically terminates coownership. (Avila v. Sps. Arabat, G.R. No.141993, March 17, 2006) NOTE: One who is merely related by affinity to the decedent does not become a co-owner of the latter’s property Duration of the co-ownership (2000, 2002, 2008 BAR) Q: Hilaria Bagayas, an adoptive child, filed a complaint against her siblings who excluded her from inheriting from the estate of their parents. She asked to include her as a registered owner to the extent of one-third of the lands covered therein; citing Section 108 of PD No. 1529 or the “Property Registration Decree”. In an earlier complaint, she asked for the annulment of a Deed of Absolute Sale in favor of her brothers wherein the RTC found otherwise. They found that the lands where transferred to the brothers by the father’s execution of the deed of sale before he died. Is the dismissal of the earlier complaint on the ground that it is in the nature of a collateral attack on the certificates of title constitutes a bar to a subsequent petition under Section 108 of PD No 1529? An agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years (in relation to NCC, Art. 1083). Neither shall there be any partition when it is prohibited by law. (NCC, Art. 494) Share of the co-owners in the benefits and charges arising from the co-ownership The share of the co-owners in the benefits and charges arising from the co-ownership shall be proportional to their respective interests and any stipulation in a contract to the contrary shall UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Law – e.g. Easement of party walls (NCC, Art. 658); co-ownership between a man and a woman capacitated to marry each other (Art. 147, FC); between a man and a woman not capacitated to marry each other (Art. 148, FC); Occupancy – e.g. When two persons gather forest products or catch a wild animal; Succession – e.g. Heirs of undivided property before partition; Testamentary (or mortis causa) / Donation inter vivos – e.g. Where the donor prohibits partition of the property for a certain period of time; Contract; or By Chance or fortuitous event – e.g. Hidden treasure A: It does not. Section 108 of PD No. 1529 is used only for contemplating corrections or 220 Civil Law insertions of mistakes which are only clerical but certainly not controversial issues. Although Hilaria Bagayas was able to prove that she is a legally adoptive child, the action is not proper. As her petition was of an annulment of sale and partition. She must first prove that she is a coowner of the estate and conveyance of her lawful shares. However, she failed to do so. As regards to her citing of Section 108 of PD No. 1529, it was improper as her intent for using it is as a mode of directly attacking the certificates of title issued to the Bagayas brothers. It was ruled that it was not a direct attack, therefore cannot be used. The complaint is not covered by the intention of the decree. (Bagayas v. Bagas, G.R. Nos. 187308 & 187517, September 18, 2013) quieting of title, accion reivindicatoria, and replevin. 4. To Compel other co-owners to contribute to expenses for preservation of the thing (NCC, Art. 488) and to the taxes; 5. To Oppose to any act of alteration (NCC, Art. 491) even if beneficial to the co-owners; 6. To Protect against acts of majority which are prejudicial to the minority (NCC, Art. 492, par. 3); 7. To Exercise legal redemption; 8. To ask for Partition (NCC, Art. 494); 9. Right to exempt himself from obligation of paying necessary expenses and taxes by renouncing his share in the pro-indiviso interest; but cannot be made if prejudicial to co-ownership (NCC, Art.488); 10. Right to make repairs for preservation of things can be made at will of one co-owner; receive reimbursement therefrom; notice of necessity of such repairs must be given to co- owners, if practicable (NCC, Art.489); 11. Right to full ownership of his part and fruits. (NCC, Art. 493); 12. Right to alienate, assign or mortgage own part; except personal rights like right to use and habitation (NCC, Art.493); 13. Right of pre-emption; 14. Right to be adjudicated thing (subject to right of others to be indemnified); and 15. Right to share in proceeds of sale of thing if thing is indivisible and they cannot agree that it be allotted to one of them. (NCC, Art.498) Art. 486. Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. The purpose of the coownership may be changed by agreement, express or implied. RIGHT OF CO-OWNERS General rights of each co-owner as to the thing owned in common (USA-COPE-P) 1. To Use the thing according to the purpose intended provided that: a. It is without prejudice to the interest of the co-ownership; and b. Without preventing the use of other coowners. (NCC, Art. 486) Duties/liabilities of co-owners 1. Share in charges proportional to respective interest; stipulation to contrary is void; 2. Pay necessary expenses and taxes – May be exercised by only one co-owner; 3. Pay useful and luxurious expenses – If determined by majority; 4. Duty to obtain consent of all if thing is to be altered even if beneficial; resort to court if non-consent is manifestly prejudicial; 5. Duty to obtain consent of majority with regards to administration and better enjoyment of the thing; controlling interest; court intervention if prejudicial – Appointment of administrator; NOTE: The purpose of the co-ownership may be changed by an agreement, express or implied. 2. To Share in the benefits in proportion to his interest, provided the charges are borne in the same proportion (NCC, Art. 485); NOTE: A contrary stipulation is void. Hence, benefits cannot be stipulated upon by the coowners. 3. Each co-owner may bring an Action for ejectment (NCC, Art. 487); 6. No prescription to run in favor of a co-owner as long as he recognizes co-ownership; NOTE: Action for ejectment covers; forcible entry, unlawful detainer, accion publiciana, 221 Property Requisites for acquisition through prescription: a. He has repudiated through unequivocal acts; b. Such act of repudiation is made known to other co-owners; c. Evidence must be clear and convincing A suit for ejectment CANNOT be brought by one co-owner against another co-owner, since the latter also has a right of possession; the only effect of the action will be to obtain recognition of the co-ownership. RIGHT TO PROPERTY OWNED IN COMMON vs. FULL OWNERSHIP OVER HIS/HER IDEAL SHARE 7. Co-owners cannot ask for physical division if it would render thing unserviceable; but can terminate co-ownership; 8. After partition, duty to render mutual accounting of benefits and reimbursements for expenses. 1. Right to property owned in common NOTE: Each co-owner is granted the right to use the property owned in common for the purpose for which it is intended. Rights of a co-owner to third parties Two restrictions in the enjoyment of this right: a. The co- ownership shall not be injured; and b. The exercise of such right shall not prevent the other co- owners from using the property according to their own rights. 1. Assignees or creditors of the co-owners may take part in the division of the thing owned in common and object to it being effected without their concurrence, but they cannot impugn any partition already executed; and XPN: If there has been fraud or it was made notwithstanding their formal opposition presented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity. (NCC, Art. 497) 2. Full ownership over his/her ideal share NOTE: A co-owner has full ownership of his share (undivided interest) and the fruits and benefits arising therefrom. Being the full owner thereof, he may alienate, assign or mortgage it. He can also substitute another person in the enjoyment of his share, except only when personal rights are involved. 2. Non-intervenors – Retain rights of mortgage and servitude and other real rights and personal rights belonging to them before partition was made. Any of the co-owners may bring an action in ejectment Q: Melecio Heirs inherited a residential lot, ancestral house and two other structures erected thereon, the administration and management of which were left to the care of Erna who was then residing in their ancestral home. The Melecio Heirs purportedly executed a notarized Special Power of Attorney (SPA) authorizing Erna to apply for a loan with RBCI and mortgage the subject properties. Erna defaulted in the loan payment causing RBCI to extrajudicially foreclose the mortgaged properties. demanded RBCI to release the subject properties from the coverage of Erna's loan obligation to the extent of their shares and refused to vacate the premises. RBCI applied for and was issued a writ of possession. The Melecio Heirs filed a complaint in court alleging that the SPA submitted by Erna was spurious and their signatures appearing One of the co-owner’s action for ejectment against a defendant is deemed to be instituted for the benefit of all co-owners of the property. (Resuena v. CA, G.R. No. 128338, March 28, 2005) Consent of the co-owners is not required to bring an action for ejectment The law does not require that consent of all the co- owners must be first secured before one of them can bring an action for ejectment. If the case does not prosper: GR: The other co-owners are NOT bound by the judgment. XPN: If they were also served with summons, even as unwilling plaintiffs. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 222 Civil Law thereon were falsified. Is the mortgage of the entire property valid? et. al. sought to annul the Real Estate Mortgage. They averred that Roque Magsano passed away prior to the execution of the Real Estate Mortgage; hence, the mortgage was void, and could not have conferred any right to PSLB which it could pass to Sps. Manuel. PSLB and the heirs of Sps. Manuel denied knowledge of the death of Roque, and averred that petitioners have no cause of action to seek the annulment of the Real Estate Mortgage since they were not parties thereto. 1. Is the Real Estate Mortgage void? 2. Are Sps. Manuel purchasers in good faith? A: NO. Erna did not validly mortgage the entire property. While Erna, as herself a co-owner, by virtue of Article 493 of the Civil Code, had the right to mortgage or even sell her undivided interest in the said properties, she, could not, however, dispose of or mortgage the subject properties in their entirety without the consent of the other co-owners. The settled rule is that persons constituting a mortgage must be legally authorized for the purpose. In the present case, while Erna appears to be a co-owner of the mortgaged properties, she made it appear that she was duly authorized to sell the entire properties by virtue of the notarized SPA. (Rural Bank of Cabadbaran, Inc. v. Jorgita A. Melecio-Yap et. al, G.R. No. 178451, July 30, 2014) A: 1. Q: Vda. Rosario is the registered owner of 4 parcels of land, which she mortgaged to and foreclosed. Upon the expiration of the redemption period, she asked the assistance of Bobby Tan. Thereafter, she sold the lands to him. The children of Vda. Rosario said they are co-owners as they are inheritors of their deceased father, whose approval was needed to dispose the subject properties. Are the subject properties of conjugal in nature, thus making the children of Vda. Rosario coowners? NO. The validity of the Mortgage in favor of PSLD should be limited only to the Susana’s portion. At the time the Mortgage was constituted, Roque was already deceased. Upon Roque’s death, the conjugal partnership between him and Susana was dissolved. Thus, an implied co-ownership arose among Susana and the other heirs of Roque with respect to his share in the assets of the conjugal partnership pending liquidation. While she herself as co-owner had the right to mortgage or even sell her undivided interest in the subject property, she could not mortgage or otherwise dispose of the same in its entirety without the consent of the other co-owners. A: NO. SC ruled that Vda. Rosario is the sole owner of the parcel of lands. Conjugal partnership terminates upon the death of one spouse. Vda. Rosario was already a widow when she sold the subjected lands to Bobby Tan. Therefore, at the time of the sale, Vda. Rosario, a widow, can now dispose the properties on her own volition. (Bobby Tan v. Grace Andrade, G.R. No. 171904, August 07, 2013) 2. Q: Spouses Roque Magsano and Susana Capelo (Sps. Magsano), the parents of Norma, et. al., executed in favor of PSLB a Real Estate Mortgage over their parcel of land as security for their loan. Sps. Magsano defaulted in their obligation, causing the extra-judicial foreclose of the mortgaged property in which PSLB emerged as the highest bidder. It subsequently sold the subject land to Sps. Manuel. Thereafter, Sps. Magsano refused to vacate the premises despite PSLB’s demands; hence, the latter applied for and was granted a writ of possession and demolition. Norma NO. While the rule is that every person dealing with registered land may safely rely on the correctness of the certificate of title issued therefor and the law will in no way oblige him to go beyond the certificate to determine the condition of the property, where the land sold is in the possession of a person other than the vendor, as in this case, the purchaser must go beyond the certificate of title and make inquiries concerning the actual possessor. (Norma C. Magsano, et. al. v. Pangasinan Savings & Loan Bank, G.R. No. 215038, October 17, 2016) Co-owner’s right to use the property owned in common Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in 223 Property such a way as not to injure the interest of the coownership or prevent the other co-owners from using it according to their rights. Transitory character. in Does not affect the substance or form. NOTE: If one co-owner alone occupies the entire house without opposition from the other coowners, and there is no lease agreement, the other co-owners cannot demand the payment of rent. In relation to the right of a co-owner, they require the consent of the majority who represents the controlling interest. Can be exercised by the coowners through other persons. Rules on determination of the purpose of the property 1. Purpose stipulated in the agreement, express or implied; 2. In default thereof, its purpose ordinarily adapted based on its nature; or 3. In default thereof, the use for which it was formerly intended. Permanent Affects or relates to the substance or essence of the thing. Require the consent of all coowners. Must be exercised by the co-owners themselves. Effect of alteration without the express or implied consent of co-owners ACTS OF ALTERATION The co-owner who makes the alteration shall: Alteration (2008 BAR) 1. Lose what he has spent; 2. Be obliged to demolish the improvements done; and 3. Pay for the loss and damages the community property or other co-owners may have suffered. It is a change which is more or less permanent, which changes the use of the thing and which prejudices the condition of the thing or its enjoyment by the others. (Paras, 2008) Alteration includes the act by virtue of which a co- owner changes the thing from the state in which the others believe it should remain. It is not limited to material charges. NOTE: Estoppel will operate against the coowners who were aware of the execution of the acts of alteration, but did not object thereto. They are deemed to have given their implied consent. Acts of administration v. Acts of alteration ACTS OF ADMINISTRATION ACTS OF ALTERATION Refers to the enjoyment, exploitation, alteration of the thing which do not affect its substance, form, or purpose. Acts, by virtue of which, a co-owner, in opposition to the expressed or tacit agreement of all the co- owners, and in violation of their will, changes the thing from the state in which the others believe it would remain, or withdraws it from the use to which they believe it is intended. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Conversion It is the act of using or disposing of another’s property without lawful authority to do so in a manner different from that with which a property is held by the trustees to whom the owner had entrusted the same. It is not necessary that the use for which the property is given be directly to the advantage of the person misappropriating or converting the property of another. RIGHT TO PARTITION Rights of co-owners as to the ideal share of each (FARTS) 1. Each has Full ownership of his part and of his share of the fruits and benefits; 224 Civil Law 2. Right to Alienate, dispose or encumber; 3. Right to Renounce part of his interest to reimburse necessary expenses incurred by another co-owner; 4. Right to enter into Transaction affecting his ideal share; and Q: X, Y, Z are siblings who inherited a 1Ostorey building from their parents. They agreed in writing to maintain it as a coowned property for leasing out and to divide the net profits among themselves equally for a period of 20 years. On the 9th year, X wanted to get out of the co-ownership so he could get his 1/3 share in the property. Y and Z refused, saying X is bound by their agreement to keep the co- ownership for 20 years. Are Y and Z correct? Explain. (2015 Bar) NOTE: The transaction affects only his ideal share and not that of the other coowners. 5. Right to Substitute another person in its enjoyment, except when personal rights are involved. A: Y and Z ARE PARTLY CORRECT. If the coowners agree to keep the thing undivided, such agreement shall govern provided the period shall not exceed ten (10) years. In this case, the agreement to keep the thing undivided shall be valid at the most for 10 years. (NCC, Art. 494) NOTE: Personal rights or jus in personam is the power belonging to one person to demand from another, as a definite passive subject- debtor, the fulfillment of a prestation to give, to do, or not to do. (Paras, 2008) When partition is not allowed Right to demand partition 1. When indivision within 10 years is stipulated by the co-owners; 2. When co-ownership is imposed as a condition in a donation or in a last will and testament; 3. When from the nature of the property in common, it cannot just be divided (without following the requisites of the law) such as conjugal property and party walls; 4. When partition will render the property unserviceable for the use and purpose for which it is intended; and 5. When the issue of ownership had not been definitely resolved, it is premature to effect a partition of the properties. (Pineda, 2009) GR: Every co-owner has the right to demand partition. (NCC, Art. 494) (2000, 2002, 2008 BAR) XPNs: (EASI-PAUL) 1. When partition would render the thing Unserviceable; 2. When the thing is essentially Indivisible; 3. When partition is prohibited by Law by reason of their origin or juridical nature e.g. party walls and fences; 4. When the co-owners Agree to keep the property undivided for a period of time but not more than 10 years; 5. When partition is Prohibited by the transferor (donor/testator) but not more than 20 years (NCC, Art. 1083); 6. When a co-owner possessed the property as an Exclusive owner for a period sufficient to acquire it through prescription (acquisitive prescription); NOTE: 10 years ordinary prescription, 30 years extra-ordinary partition. 7. When co-owners may agree that it be Allotted to one of them reimbursing the others; and 8. If they cannot agree, they may Sell the thing and distribute the proceeds. Prescription Q: May prescription run against a co-owner? (2000, 2002, 2008 BAR) GR: As long as the co-owner expressly or impliedly recognizes the co-ownership, prescription cannot run in favor of or against him. Reason: Possession of a co-owner is like that of a trustee and shall not be regarded as adverse to the other co-owners but in fact is beneficial to all of them. Acts considered adverse to strangers may not be considered adverse insofar as co-owners are concerned. (Salvador v. CA, G.R. No. 109910, April 5, 1995) NOTE: The right to ask for partition CANNOT be waived or renounced permanently. Such waiver or renunciation is void. XPN: Co-owner's possession may be deemed 225 Property adverse to the cestui que trust or the other coowners provided the following elements must concur: 1. 2. 3. acquisitive prescription of ownership, laches and prescription of the action for partition will not lie in favor of Pastor. (Salvador v. CA, G.R. No. 109910, April 5, 1995) That he has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust or the other co- owners; That such positive acts of repudiation have been made known to the cestui que trust or the other co-owners; and That the evidence thereon must be clear and convincing. (Salvador v. CA, G.R. No. 109910, April 5, 1995) Notice of the proposed partition to creditors and/or assignees The law does not require that a notification be given but: 1. If notice is given – it is their duty to appear to concur /oppose, otherwise creditor’s claims are deemed waived; and 2. If no notice is given – creditors and/or assignees may still question the partition made on ground of fraud or for being prejudicial to existing rights. NOTE: Prescription begins to run from the time of repudiation. Example of acts of repudiation: filing of an action to: 1. 2. NOTE: Third persons who have rights attached to the community property before its partition, shall retain such rights even after the partition of the property. The protection granted by law applies to both real and personal rights. (Pineda, 2009) Quiet title; or Recovery of ownership. XPN to XPN: Constructive trusts can prescribe. Express trust cannot prescribe as long as the relationship between trustor and trustee is recognized. (Paras, 2008) Impugning partition already implemented GR: A partition already executed implemented CANNOT be impugned. Q: The two lots owned by Alipio were inherited by his nine children, including Maria, upon his death. Pastor, Maria’s husband, filed a complaint for quieting of title and annulment of documents against the spouses Yabo, alleging that he owned a total of 8 shares of the subject lots, having purchased the shares of seven of Alipio's children and inherited the share of his wife, Maria, and that he occupied, cultivated, and possessed continuously, openly, peacefully, and exclusively the parcels of land. He prayed that he be declared the absolute owner of 8/9 of the lots. His co-heirs then instituted an action to partition the lots. Did Pastor acquire by prescription the shares of his other co-heirs or co-owners? XPNs: 1. In case of fraud, regardless of notification and opposition; or 2. In case partition was made over their objection even in absence of fraud. (NCC, Article 497) Remedies available to co-owners where the co- owned property cannot be physically divided without rendering it useless or unserviceable (NCC, Art. 498) 1. A: NO. The only act which may be deemed as repudiation by Pastor of the co-ownership over the lots is his filing of an action to quiet title. The period of prescription started to run only from this repudiation. However, this was tolled when his co-heirs, instituted an action for partition of the lots. Hence, the adverse possession by Pastor being for only about six months would not vest in him exclusive ownership of his wife's estate, and absent UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES or 2. Agree on the allotment of the entire property to one of them who in turn will indemnify the others for their respective interests; or Sell the property and distribute the proceeds to the co-owners. (Pineda, 2009) Rights of third persons that are not affected by partition (MRS-P) 1. 226 Rights of a. Mortgage; b. Servitude; and c. Any other Real rights existing before Civil Law 2. partition. Personal rights pertaining to third persons against the co-ownership. (NCC, Art. 499) Acts of preservation (NCC, Art.489) Acts of preservation may be made in the property of the co-owners at the will of one of the co- owners, but he must, if practicable, first notify the others of the necessity of such repairs. Illustration: A, B and C where co-owners of parcel of land mortgaged to M. If A, B, and C should physically partition the property, the mortgage in M’s favor still covers all the three lots, which, together, formerly constituted one single parcel. If A alone had contracted an unsecured obligation, he would of course be the only one responsible. (Paras, 2008) Acts requiring the majority consent of the co- owners 1. Management; 2. Enjoyment; and 3. Improvement or embellishment. Rights of third persons in case of partition (NCC, Art. 499) 1. 2. Remedy of the minority who opposes the decision of the majority in co-ownership Minority may appeal to the court against the majority’s decision if the same is seriously prejudicial. The partition of a thing owned in common shall not prejudice third persons, who shall retain the rights of mortgage, servitude or any other real rights belonging to them before the division was made; and Personal rights pertaining to them against the co-ownership shall also remain in force, notwithstanding the partition. There is no majority unless the resolution is approved by the co-owners who represent the controlling interest in the object of the coownership. [NCC, Art. 492(2)] RIGHT TO CONTRIBUTION FOR EXPENSES WAIVER Expenses which the co-owners can be compelled to contribute A co-owner may opt not to contribute to the expenses for the preservation of the property Only necessary expenses. Useful expenses and those for pure luxury are not included. GR: YES, by renouncing his undivided interest equal to the amount of contribution. Necessary expenses, useful expenses, and expenses of pure luxury defined Necessary Expenses Useful Expenses Ornamental Expenses XPN: If the waiver or renunciation is prejudicial to the co-ownership, otherwise he cannot exempt himself from the contribution. (NCC, Art. 488) Are those made for the preservation of the thing, or those without which the thing would deteriorate or be lost, or those that augment the income of the things upon which are expended, or those incurred for cultivation, production, upkeep, etc. (Mendoza v. De Guzman, G.R. No. L-28721 October 5, 1928) Incurred for the preservation of the realty in order that it may produce the natural, industrial, and civil fruits it ordinarily produces. Adds value to the thing only for certain persons in view of their particular whims, neither essential for preservation nor useful to everybody in general. NOTE: The value of the property at the time of the renunciation will be the basis of the portion to be renounced. Failure or refusal of a co-owner to contribute pro rata to his share in expenses NOT tantamount to renunciation There must be an express renunciation, otherwise he is required to reimburse the others for the expenses they incurred. Effect of renunciation Since renunciation is intended as payment for expenses already made, it is in nature of dacion en pago - there is a change in the object of the 227 Property obligation (i.e. from sum of money to interest in the co-ownership). Consequently, the consent of the other co-owner who made the advances is necessary. (Tolentino, 2013) her rights to the other half was vested to her heirs including Villaner and their 8 legitimate children. (Acabal v. Acabal, G.R. No. 148376, March 31, 2005) Renunciation CANNOT be made without the consent of any unpaid creditor. This is because it is in effect a novation by substitution. It will prejudice the rights of the unpaid creditor. Status of the sale by a co-owner A sale of the entire property by one co-owner without the consent of the other co-owners is valid. However, it will only affect the interest or share in the undivided property of the coowner who sold the same. The remedy is an action for partition under Rule 69 of the Revised Rules of Court, the division of the common property. (Acabal v. Acabal, G.R. No. 148376, March 31, 2005) RIGHT OF REDEMPTION OF CO-OWNERS SHARE The shares of all or any other co-owner if sold to a third person may be redeemed by a coowner. If two or more co-owners want to redeem, they may do so in proportion to the shares they respectively have. TERMINATION/EXTINGUISHMENT Extinguishment of Co-ownership (CALSTEP) Effect of redemption by a co-owner 1. Confusion or merger of the rights in one coowner; 2. Acquisitive prescription in favor of a third person or a co-owner who repudiates; 3. Loss or destruction of thing co-owned; 4. Sale of thing co-owned; 5. Termination of period agreed upon; 6. Expropriation; or 7. Judicial or extra-judicial Partition. Redemption of the whole property by a coowner does not vest in him sole ownership over said property. Redemption within the period prescribed by law will inure to the benefit of all co-owners. Hence, it will not put an end to existing co-ownership. (Mariano v. CA, GR. No. 101522, May 28, 1993) Right of legal redemption cannot be exercised when there is no co-ownership EFFECT OF PARTITION Once the property is subdivided and distributed among the co-owners, the community ceases to exist and there is no more reason to sustain any right of legal redemption. The exercise of this right presupposes the existence of a coownership at the time the conveyance is made by a co-owner and when it is demanded by the other co-owners. (Vda. de Ape v. CA, G.R. No. 133638, April 15, 2005) 1. It confers upon the co-owner exclusive title over the property adjudicated to him (NCC, Art. 1091); and 2. Possession of the co-owner over the property adjudicated to him shall be deemed exclusive for the period during which the co-possession lasted. (NCC, Art. 543) In other words, it is deemed continuous. 3. By judicial proceedings. (NCC, Art. 496) A co-owner cannot alienate the shares of his other co-owners Rule in case the co-owners cannot agree in the partition While a co-owner has the right to freely sell and dispose of his undivided interest, nevertheless, as a co-owner, he cannot alienate the shares of his other co-owners. The disposition made by Villaner affects only his share pro indiviso, and the transferee gets only what corresponds to his grantor's share in the partition of the property owned in common. The property being conjugal, Villaner's interest in it is the undivided one-half portion. When his wife died, UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 1. If realty is involved, an action for partition (Rule 69, Rules of Court) against the coowners may be filed; and 2. In case of personality and actual partition could not be made, it may be sold under the discretion of the court and the proceeds be divided among the owners after deducting the necessary expenses. 228 Civil Law Rule in case the co-owners cannot agree as to the partition of a thing which is essentially indivisible the necessary expenses. Rule in case the co-owners cannot agree as to the partition of a thing which is essentially indivisible 1. Firstly, the property may be allotted to one of the co-owners, who shall indemnify the other; or 2. Otherwise, it shall be sold, and the proceeds distributed. (NCC, Art. 498) 1. Firstly, the property may be allotted to one of the co-owners, who shall indemnify the other; or 2. Otherwise, it shall be sold, and the proceeds distributed. (NCC, Art. 498) Acts of co-ownership 1. Ejectment – any of the co-owners may file such action. 2. Administration – majority of the co- owners shall decide. 3. Improvements – majority of the co-owners shall take part. 4. Alteration – all of the co-owners must agree. 5. Preservation – any of the co-owners can do so. Acts of co-ownership 1. Ejectment – any of the co-owners may file such action. 2. Administration – majority of the co- owners shall decide. 3. Improvements – majority of the co-owners shall take part. 4. Alteration – all of the co-owners must agree. 5. Preservation – any of the co-owners can do so. RIGHTS AGAINST INDIVIDUAL CO-OWNERS IN CASE OF PARTITION POSSESSION Obligations of co-owners upon partition (WARD) It refers to the holding of a thing or the enjoyment of a right. (NCC, Art. 523) (2007 BAR) 1. Mutual Accounting for benefits received, fruits and other benefits (in relation to Art. 1087 of NCC); 2. Mutual Reimbursements for expenses; 3. Indemnity for Damages caused by reason of negligence/fraud; and Reciprocal Warranty for defects of title and quality of the portion assigned to the co-owner. (NCC, Articles. 500-501) Requisites of possession (EPAV) 1. Existence of the thing or right; 2. Possession in fact or holding or control of a thing or right; 3. Animus possidendi or the deliberate intention to possess; and 4. Possession is by Virtue of one’s own right, either as an owner or as a holder. PARTITION IN CASE CO-OWNERS CANNOT AGREE Right TO Possession v. Right OF Possession Partition is effected either by (1998 BAR): Right TO Possession Jus possidendi An incident or attribute of ownership over a thing. e.g. The owner of a house is entitled to possess it. 1. By agreement between the parties; or 2. By judicial proceedings. (NCC, Art. 496) Rule in case the co-owners cannot agree in the partition 1. If realty is involved, an action for partition (Rule 69, Rules of Court) against the coowners may be filed; and 2. In case of personality and actual partition could not be made, it may be sold under the discretion of the court and the proceeds be divided among the owners after deducting Object of possession 229 Right OF Possession Jus possessionis An independent right, separate from ownership. e.g. The lessee of a property, who is not the owner thereof, is entitled to possess it for the period of the lease. Property GR: All things and rights susceptible of being appropriated. (NCC, Art. 530) 2. According to the concept of possession a. In the concept of an owner (en concepto de dueno) – possessor, by his actions, is believed by others as the owner, whether he is in good or bad faith. (NCC, Art. 525) Such possessor is presumed to possess just title (NCC, Art. 540); b. In the concept of a holder – possessor holds it merely to keep or enjoy it, the ownership pertaining to another; e.g. usufructuary with respect to the thing itself. (NCC, Art. 525) XPNs: 1. Res communes; 2. Property of public dominion; 3. Easement; and 4. Prohibited by law. Degrees of possession 1. Possession with no right or title (Grammatical Degree) – Possessor knows that his possession is wrongful. NOTE: None of these holders may assert a claim of ownership for himself over the thing but they may be considered as possessors in the concept of an owner, or under a claim of ownership, with respect to the right they respectively exercise over the thing. There can be possession in concept of both owner and holder or in either. e.g. possession by a thief. 2. With Juridical title (Juridicial Possession) – Title is not one of ownership. Possession peaceably acquired and will not ripen into full ownership as long as there is no repudiation of the concept under which property is held. e.g. possession of a tenant, depositary. 3. According to the condition of the mind (2008 BAR) a. Possession in good faith – possessor is not aware that there is in his title or mode of acquisition a defect that invalidates it (NCC, Art. 526); and b. Possession In bad faith – possessor is aware of the invalidating defect in his own title. (NCC, Art. 526) 3. With Just title sufficient to transfer ownership, but not from the true owner (Real Possessory Right) – ripens to full ownership by the lapse of time. e.g. Possession of a buyer of a car purchased from one who pretends to be the owner. NOTE: Only personal knowledge of the flaw in one’s title or mode of acquisition can make him possessor in bad faith. It is not transmissible even to an heir. Possession in good faith ceases from the moment defects in his title are made known to the possessor. 4. With a title in fee Simple (Dominium Possession) – Arises from ownership; highest degree of possession; perfect possession. CLASSES OF POSSESSION 4. 1. According to the name used as to its existence a. In one’s own name – possessor claims the thing for himself. (NCC, Art. 524) b. In the name of another – held by the possessor for another; agent, subject to authority and ratification; if not authorized, negotiorum gestio. (NCC, Art. 524) i. Voluntary – by virtue of an agreement; e.g. possession of an agent. ii. Legal – by virtue of law; e.g. possession in behalf of incapacitated. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES According to extent of possession a. Actual possession – occupancy in fact of the whole or at least substantially the whole property; and b. Constructive possession – occupancy of part, in the name of the whole, under such circumstances that the law extends the occupancy to the possession of the whole. Q: What is the doctrine of constructive possession? A: The possession of a part is a possession of the whole. To be considered in possession, one 230 Civil Law need not have actual or physical occupation of every square inch of the property at all times. (Habagat Grill v. DMC-Urban Property Developer, Inc., G.R. No. 155110, March 31, 2005) desire to obtain title to the property and announces his adverse claim against the State and all other interested parties, but also the intention to contribute needed revenues to the Government. Such an act strengthens one’s bona fide claim of acquisition of ownership. (Ganila v. CA, G.R. No. 150755, June 28, 2005) Requisites of constructive possession 1. 2. 3. 4. Possessor was in actual possession of a portion or part of the property; Claim of ownership of the whole area; Remainder of the area must not be in the adverse possession of another person; and Area claimed must be reasonable. ACQUISITION OF POSSESSION Modes of acquiring possession 1. By Material occupation (detention) of a thing or the exercise of a right (quasipossession); This includes: a. Constitutum possessorium – when the possessor who is the owner of the property continues his possession no longer under a title of ownership but under a title less than ownership, i.e. lessee, depositary, etc. b. Traditio brevi manu – when the possessor who is possessing the thing by a title other than ownership, continues to possess it under a new title, now of ownership. 2. By Subjection of the thing/right to our will which does not require actual physical detention or seizure; and Possession vs. Occupation (2007 BAR) POSSESSION OCCUPATION Apply to properties Applies only to whether with or property without an without an owner. owner Possession does not Occupation confers confer ownership. ownership. There can be There can be no possession without occupation without ownership ownership. Person declared as the owner of a certain property may still not be entitled to its possession Possession and ownership are distinct legal concepts. Ownership confers certain rights to the owner among which are the right to enjoy the thing owned and the right to exclude other persons from possession thereof. On the other hand, possession is defined as the holding of a thing or the enjoyment of a right. Literally, to possess means to actually and physically occupy a thing with or without a right. Thus, a person may be declared an owner but not entitled to possession. (Heirs of Roman Soriano v. CA, G.R. No. 128177, August 15, 2001) Tax declarations are evidence of ownership not This includes: a. Traditio longa manu – delivery by consent or mere pointing. b. Traditio symbolica – delivery of a mere symbol (e.g. key) placing the thing under the control of the transferee. 3. conclusive By constructive possession or proper Acts and legal Formalities established by law such as succession, donation, execution of public instruments. (NCC, Art. 531) Q: Respondents inherited the subject property from Emiliana Bacalso, by virtue of Decree No. 98992. Sometime later, they found the heirs of Alejandra Delfin to be occupying the said property, to which they even constructed houses there. The heirs argued they have better right for it was inherited to them after it was bought by the predecessor from Emiliana Bacalso; also, they are the ones paying the subject property’s realty taxes. Do the respondents have the better right to the ownership and Although tax declarations or realty tax payment of property are not conclusive evidence of ownership, nevertheless, they are good indicia of possession in the concept of owner for no one in his right mind would be paying taxes for a property that is not in his actual or at least constructive possession. They constitute at least proof that the holder has a claim of title over the property. The voluntary declaration of a piece of property for taxation purposes manifests not only one’s sincere and honest 231 Property possession of the subject property? foreclosure sale becomes merely a ministerial function, unless it appears that the property is in possession of a third party claiming a right adverse to that of the mortgagor. A: YES, respondents have the better right to the ownership and possession of the subject property. The basis is the LRA certification, daybook entry, and Decree No. 98992 that was issued to Emiliana Bacalso. The Decree bars all claims and rights which arose as may have existed prior to the decree of registration. (Heirs of Alejandra Delfin v. Alevina Rabadon, G.R. No. 165014, July 31, 2013) Gerry Centeno acquired the subject lots from his parents, Sps. Centeno, on March 14, 1988 after they were purchased by Rural Bank of Sta. Barbara, Inc. and its Certificate of Sale at Public Auction was registered with the Register of Deeds of Iloilo City in 1971. It cannot therefore be disputed that Gerry is a mere successor-ininterest of Sps. Centeno. Consequently, he cannot be deemed as a third party who is holding the property adversely to the judgment obligor under legal contemplation. (Rural Bank of Sta. Barbara, Inc. v. Gerry Centeno, G.R. No. 200667, March 11, 2013) Q: Spouses Gregorio and Rosario Centeno previously owned the subject lots, which they mortgaged in favor of Rural Bank of Sta. Barbara, Inc. as security for a P1,753.65 loan. Sps. Centeno, however, defaulted on the loan, prompting the bank to cause the extrajudicial foreclosure of the mortgage. Consequently, the subject lots were sold to the bank, being the highest bidder at the auction sale. Sps. Centeno failed to redeem the subject lots within the one-year redemption period pursuant to Section 6 of Act No. 3135. Yet, they still continued with the possession and cultivation of the aforesaid properties. Essential elements of acquiring possession 1. Corpus – Refers to the existence of the thing and its holding; and 2. Animus – Refers to the intent to possess the thing. Actual possession distinguished constructive possession Gerry Centeno, son of Sps. Centeno, later on purchased the said lots from his parents. Accordingly, Rosario paid the capital gains taxes on the sale transaction and tax declarations were eventually issued in the name of Gerry. Actual possession consists in the manifestation of acts of dominion over property of such a nature as a party would naturally exercise over his own; Constructive possession may be had through succession, donation, execution of public instruments, or the possession by a sheriff by virtue of a court order. (Remington Industrial Sales Corp v. CYMCAPI, G.R. No. 171858, January 22, 2007) On March 19, 1998, Rural Bank of Sta. Barbara, Inc. filed a petition for the issuance of a writ of possession before the trial court, claiming entitlement to the said writ by virtue of the Final Deed of Sale covering the subject lots. Gerry opposed the petition, arguing that he purchased and has, in fact, been in actual, open and exclusive possession of the same properties for at least 15 years. Is the Rural Bank of Sta. Barbara, Inc. is entitled to a writ of possession over the subject lots? Acquisition of possession according to person of possessor (NCC, Art. 532) 1. Personal – The possession acquired by the same person who is to enjoy it, either the owner or a mere holder. Requisites: a. Capacity to possess; b. Intent to possess; and c. Object must be capable possessed. A: YES. It is well-established that after consolidation of title in the purchasers’ name for failure of the mortgagor to redeem the property, the purchasers right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title, to a purchaser in an extrajudicial UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES from 2. 232 of being Through an authorized person – Acquisition of possession through a legal representative as provided by law or by appointing an agent. Civil Law 3. Requisites: a. Capacity to possess of the representative or agent; b. Authority to possess (for another) of the representative or agent; c. Intent to possess for principal; and d. Principal has intent and capacity to possess the father in GOOD FAITH is added to the possession of the son in GOOD FAITH, and we cannot say that the effects of possession in good faith shall commence only from the decedent’s death. (Paras, 2008) Through a person without authority (but only if subsequently ratified) – acquisition of possession through a person who is not clothed with authority by the supposed “principal.” Minors or incapacitated persons may acquire the possession of things; but they need the assistance of their legal representatives for them to be able to exercise the rights arising from the possession. (NCC, Art. 535) Requisites: a. Intent to possess for another the “principal”; b. Capacity of the “principal” to possess; and c. Ratification by “principal.” NOTE: Minors and incapacitated persons may acquire property or rights by prescription, either personally or thru their parents, guardians, or legal representatives. (NCC, Art. 1107) Acquisition of minors or incapacitated persons Nature of minors or incapacitated persons’ possession NOTE: The ratification does not suppress the consequences of negotiorum gestio. (Art. 2144) The principal is deemed to have acquired possession from the time the gestor had voluntarily took the management of the affairs of the former. (Pineda, 2009) If the stranger (gestor) had possessed it in his own name, it is he who had possession, and not the so-called “principal.” (Paras, 2008) Possession is allowed only in those matters where they have capacity to act (as in the case of physical seizure of res nullius or donation of personal property simultaneously delivered to them) and NOT possession where juridical acts are imperative like the possession of land the ownership of which he desires to test in court, for in such a case, and in similar ones, the intervention of the legal representatives or guardians is needed. (Paras, 2008) Acquisition of possession thru succession One who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he was aware of the flaws affecting it; but the effects of possession in good faith shall not benefit him except from the date of death of the decedent. (NCC Art. 534) Acts which do not give rise to possession (FATV) 1. 2. Effects If the father or decedent was in bad faith, it does not necessarily mean that the son was also in bad faith. The son is presumed to be in GOOD FAITH. (Arriola v. De la Serna, G.R. No. L-5397, December 17, 1909) However, since the father was in BAD FAITH, the consequences of the GOOD FAITH of the son should be counted only from the date of the decedent’s death. 3. 4. Through Force or intimidation as long as there is a possessor who objects thereto (NCC, Art. 536); (2006 BAR) Through Acts executed clandestinely and without the knowledge of the possessor which means that: a. Acts are not public; and b. Unknown to the owner or possessor Acts merely Tolerated by the owner or the lawful possessor; and Acts executed by Violence. (NCC, Art 537) Through Force or intimidation as long as there is a possessor who objects thereto. (NCC, Art. 536) NOTE: If the father had been in GOOD FAITH, the article is not applicable, for the son would not ‘‘suffer.” In such a case, the possession of NOTE: Impliedly, if at first there was objection 233 Property but later on such objection ceases, the possession begun by force or intimidation may be acquired. (Paras, 2008) Rule when two or more persons claim possession over the same property GR: Possession as a fact cannot be recognized at the same time in two different personalities. Through acts executed clandestinely and without the knowledge of the possessor XPN: 1. Co-possessors (since here, there is no conflict of interest, both of them acting as co-owners, as in the case of property owned or possessed in common). 2. Possession in different concepts or different degrees (e.g. both owner and tenant are possessors as a fact at the same time; the first, in the concept of owner; the second, in the concept of holder; other examples: principal and agent; depositor and depositary; owner and administrator). (Paras, 2008) NOTE: Clandestine possession by itself is hidden or disguised possession Acts merely tolerated by the owner or the lawful possessor. “Tolerance” is permission, as distinguished from abandonment. If an owner abandons, as when within the proper period for prescription, he brings no action, the possession of another will ripen into ownership. As a matter of fact, silence or inaction is NEGLIGENCE, not tolerance. But where a person occupies another’s land with the latter’s permission (or tolerance), the occupier, no matter how long he may remain, can never acquire ownership, because he never had possession. Whether there was permission, or there has been an abandonment, is a question of fact. Of course, it is possible that although there was permission at first, the permission was subsequently withdrawn, and abandonment has resulted. But this must be proved by clear and convincing evidence. (Paras, 2008) Rules to follow in case there is a dispute of possession of two or more persons 1. 2. 3. 4. How to recover possession First, he should request the usurper to give up the thing and if the latter refuses, the former should invoke the aid of the proper and competent court (that which has jurisdiction over the subject matter and the parties). (Repide v. Astuar, G.R. No. 505, April 8, 1902) Otherwise, the owner can be made the defendant in a forcible entry case with all its repercussions. (Santiago v. Cruz, G.R. No. 6276. March 21, 1911) (Paras, 2008) Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion. (NCC, Art. 540) NOTE: Art. 538 applies to preference of POSSESSION (whether real or personal property is involved). It also applies whether the possession was longer or shorter than one year. Art. 1544 applies to preference of OWNERSHIP in case of DOUBLE SALE (Art. 1544) or a DOUBLE DONATION. (NCC, Art. 744) (Paras, 2008) Possession by Force or Violence The force may be: 1. Actual or merely threatened; 2. Done by possessor himself or by his agent; 3. Done against the owner or against any other possessor or against the owner’s representative, such as a capataz; or 4. Done to oust possessor; or if occupied during the latter’s absence, done to prevent his getting back the premises. (Paras, 2008) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Present/actual possessor shall be preferred; If there are two possessors, the one longer in possession; or If the dates of possession are the same, the one with a title. If both claimants have titles, the competent court will determine the rightful possessor, and in the meantime, the thing shall be placed in judicial deposit. (NCC, Art. 538) EFFECTS OF POSSESSION POSSESSOR IN GOOD FAITH One is a possessor is in good faith when he is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. (NCC, Art. 526) (2008 BAR) Requisites in order to be considered a 234 Civil Law possessor in good faith 1. 2. 3. the right of retention of useful improvements nor the right to demand refund for useful expenses. (Art. 546 & 547; Carbonell v. CA G.R. No. L-29972, January 26, 1976) Ostensible title or mode of acquisition; Vice or defect in the title; and Possessor is ignorant of the vice or defect and must have an honest belief that the thing belongs to him. Mistake upon a doubtful or difficult question of law Mistake upon a doubtful or difficult question of law may be the basis of good faith provided that such ignorance is not gross and therefore inexcusable. (NCC, Art. 526) Ignorance of the law may be based on an error of fact. (2008 BAR) Cessation of possession in good faith Possession in good faith ceases from the moment defects in his title are made known to the possessor by extraneous evidence or by suit for recovery by the true owner. This interruption of good faith may take place 1. At the date of summons; or 2. That of the answer if the date of summons does not appear. RIGHTS OF A POSSESSOR Right to be respected in possession Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court. Effect of cessation of possession in good faith Possessor is now considered as a possessor in bad faith and he may be required to pay rent or vacate the property. In both cases he is required to pay damages to the lawful owner or possessor of the property. A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the fi ling thereof. (NCC, Art. 539) Q: A Deed of Sale was executed between Jose (seller) and Rosario (buyer). However, later on, Jose could not continue the sale because he sold the lot to Emma with whom he executed a formal deed of sale. Informed that the sale in favor of Emma was not registered, Rosario registered her adverse claim. Later, Emma registered her deed of sale and a TCT was issued to her but with Rosario’s adverse claim. Emma then took possession of the lot. Rights of a possessor 1. 2. 3. a. Who has a better right to the land? b. Is Emma entitled to the improvements she introduced in the lot? 4. A: a.. ROSARIO has a better right. Rosario’s prior purchase of the land was made in good faith; she was the only buyer at that time. Her good faith did not cease after Jose told him of the second sale to Emma. In order to protect her right, Rosario registered her adverse claim. Said recording is deemed to be in good faith and emphasized Emma’s bad faith. (Carbonell v. CA G.R. No. L-29972, January 26, 1976) To be respected in his possession; To be protected in said possession by legal means; To secure in an action for forcible entry the proper writ to restore him in his possession; and To secure from a competent court in an action for forcible entry the Writ of preliminary mandatory injunction to restore him in his possession. (NCC, Art. 539) Possession contemplated by law is legal possession– thief cannot exercise possession. Such possession is exercised by every possessor–in good faith or bad faith. “Every possessor’’ is protected under Art. 539, whether in the concept of owner or in the concept of holder. b. NO. The possessor in bad faith has neither 235 Property NOTE: An adverse possession of property by another is not an encumbrance in law and does not contradict the condition that the property be free from encumbrance. Likewise, the adverse possession is not a lien for a lien signifies a security for a claim. (Ozaeta v. Palanca, L-17455, August. 31, 1964) litigation of such possession. (Paras, 2008) Requisites for the issuance of the writ of preliminary injunction: 1. Legal Means for Restoration of Possession A. B. Reasons for requiring legal means: To prevent spoliation or a disregard of public order; 2. To prevent deprivation of property without due process of law; and 3. To prevent a person from taking the law into his own hand. 2. 1. Thus: The owner should go to court, and not eject the unlawful possessor by force. 2. A tenant illegally forced out by the owner- landlord may institute an action for forcible entry even if he had not been paying rent regularly. 3. The proper actions are forcible entry or unlawful detainer (summary action or accion interdictal), accion publiciana, accion reivindicatoria; replevin; injunction (to prevent further acts of dispossession). However, injunction is GENERALLY not the proper remedy to recover possession, particularly when there are conflicting claims of ownership. An accion reivin-dicatoria would be better. A final judgment in an unlawful detainer case may be executed even if there is still pending an accion reivindicatoria, for the two actions can co- exist. A mere trespasser, even if ejected, has no right to institute an action of forcible entry. (Paras, 2008) 4. Writ of preliminary mandatory injunction. 1. Q: During his lifetime, Velasco acquired Lot A from spouses Sacluti and Obial evidenced by a deed of sale. In 1987, spouses Padilla entered the said property as trustees by virtue of a deed of sale executed by the Rural Bank. The Padillas averred that the Solomon spouses owned the property which was identified as Lot B. However, it was proved during trial that the land occupied by spouses Padilla was Lot A in the name of Velasco, whereas the land sold by the bank to the spouses Padilla was Lot B. The heirs of Velasco demanded that spouses Padilla vacate the property, but they refused. Thus, the heirs filed a complaint for accion publiciana. a. Who has the better right of possession? b. Has the action already prescribed? A: a. Writ of preliminary mandatory injunction As a rule, injunction cannot substitute for the other actions to recover possession. This is because in the meantime, the possessor has in his favor, the presumption of rightful possession, at least, until the case is finally decided. The exception, of course, is a very clear case of usurpation. Similarly, a receiver should not ordinarily be appointed to deprive a party who is in possession of the property in UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES In forcible entry cases (in the original court) — file within 10 days from the time the complaint for forcible entry is filed (not from the time the dispossession took place) (NCC. Art. 538); In ejectment (unlawful detainer cases) in the CFI (RTC) or appellate court (Court of Appeals) — file within 10 days from the time the appeal is perfected (that is, from the time the attorneys are notified by the Court of the perfection of the appeal), only if: a. The lessee’s appeal is frivolous or dilatory; or b. The lessor’s appeal is prima facie meritorious. (NCC, Art. 1674) 236 The HEIRS OF VELASCO have the better right. Accion publiciana, recovery of the right to possess, is an action filed in the RTC to determine the better right to possession of realty independently of the title. The objective of the plaintiffs in accion publiciana is to recover possession only, not ownership. Lot A was the subject of a cadastral case. The OCT was issued to Sacluti and Obial who sold the same to Artemio. From the date of sale, until Artemio’s death, he was in continuous possession of the land. Civil Law b. NO. The remedy of accion publiciana prescribes after the lapse of ten years. The action was filed with the RTC in 1991. Spouses Padilla dispossessed the heirs of Velasco of the property in 1987. At the time of the filing of the complaint, only four years had elapsed from the time of dispossession. (Spouses Padilla v. Velasco, G.R. No. 169956, January 19, 2009) Presumption that possessor has a just title A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it. (Art. 541) Requirements under NCC, Art. 541 to raise the disputable presumption of ownership (of a thing or a right) Acquisitive prescription 1. Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion. (NCC, Art. 540) 2. Possession in the concept of an owner 1. 2. NOTE: A tenant cannot avail himself of the presumption of just title because he is not a possessor in the concept of owner). (Paras, 2008) If a person possesses en concepto de dueño — he may eventually become the owner by prescription; and Thus, a possessor merely in the concept of holder cannot acquire property by acquisitive prescription. (This is because here the possession, far from being adverse, recognizes right of ownership in others. One cannot recognize the right of another and at the same time claim adverse possession which can ripen to ownership through acquisitive prescription. For prescription to set in, the possession must be adverse, public and to the exclusion of all. (Paras, 2008) The Article can apply to both real and personal property. Thus, if a person possesses the key to a car over which he claims ownership, he can be presumed to be the owner. But such presumption may be overcome by documentary evidence concerning the car’s ownership. (Paras, 2008) Presumptions in favor of a possessor (GCENCE) 1. 2. 3. Possession in the concept of a holder 1. 2. 3. 4. 5. 6. 7. One must be in possession (actual or constructive) The possession must be in the concept of owner (not mere holder) Lessees or those merely permitted to occupy; Trustees (including parents over the properties of their unemancipated minor children or insane children (NCC, Art. 1109); and husband and wife over each other’s properties, as long as the marriage lasts, and even if there be a separation of property which had been agreed upon in a marriage settlement or by judicial decree (NCC, Art. 1109); Antichretic creditors; Agents; Attorneys (regarding their client’s properties) Depositaries; and Co-owners (unless the co-ownership is clearly repudiated by unequivocal acts communicated to the other co-owners). 4. 5. 6. Good faith; Continuity of initial good faith; Enjoyment in the same character in which possession was acquired until the contrary is proved; Non-interruption in favor of the present possessor; Continuous possession by the one who recovers possession of which he was wrongfully deprived; and Extension of possession of real property to all movables contained therein. KINDS OF TITLE 1. True and Valid Title Here, there was a mode of transferring ownership and the grantor was the owner. It is defined as a title which by itself is sufficient to transfer ownership without the necessity of letting the prescriptive period elapse. 237 Property e.g. B bought a Ford Expedition Limited from S, the owner thereof. Then S delivered the car to B. B now has a true and valid title. 2. shown or proved that they should be excluded. (NCC, Art. 542) (2008 BAR) Applicability of the Article: 1. Whether the possessor be in good faith or bad faith; 2. Whether the possession be in one’s own name or in another’s; and 3. Whether the possession be in concepto de dueno or in the concept of holder. Thus, the lessee of a building is presumed to be the possessor of the movables found therein, for he who needs them is supposed to have been the one who introduced the movables into the building. Colorable Title That title where, although there was a mode of transferring ownership, still something is wrong, because the grantor is NOT the owner. e.g. B bought a BMW car from S. S then delivered the car to B. But it turns out that S never owned the car, and that somebody else was its owner. Whether B was in good faith or in bad faith is immaterial in deciding if he (B) is the owner; what is important is that he is not the owner because he did not acquire or purchase the property from the owner, his title being merely “colorado’’ or colorable. NOTE: By “real property’’ and “movables’’, the law means only real or personal THINGS, not rights. (Paras, 2008) Exclusive possession by a previous co-owner Each one of the participants of a thing possessed in common shall be deemed to have exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period during which the co-possession lasted. Interruption in the possession of the whole or a part of a thing possessed in common shall be to the prejudice of all the possessors. However, in case of civil interruption, the Rules of Court shall apply. (NCC, Art. 543) NOTE: It must be remembered that: a. b. 3. Ordinary prescription needs good faith and just title, hence in the example given, if B is in good faith, he may become owner of the car by prescription after four years (the car being personal property) Extraordinary prescription does not need either good faith or just title, hence in the example given, if B is in bad faith, although there may be just title (titulo colorado), B may get ownership by prescription only after eight years. In case of real properties, the prescriptive periods are 10 years and 30 years respectively for ordinary and extraordinary prescription. (Paras, 2008) Example of interruption in possession of the WHOLE thing (NCC, Art. 543) A, B, and C have been co-possessors of a piece of land since 2002. If in 2006, A, B, and C lose possession over the whole land, it can be said that the three of them were in possession for only four years. Example of Interruption in possession of PART of the thing (NCC, Art. 543) Putative Title That title where although a person believes himself to be the owner, he nonetheless is not, because there was no mode of acquiring ownership. A and B have been co-possessors of a piece of land since 2002 thru a mutual agent X. In 2006, X lost possession of one-fifth of the land. A’s and B’s possession over the remaining four-fifth continues, the interruption being limited only to one-fifth. Presumption of Possession of Movables Found in an Immovable NOTE: If A and B had co-possessed the land in equal shares, the co-possession of the remaining four-fifths will also be in equal shares. If A and B had co-possessed in the The possession of real property presumes that of the movables therein, as long as it is not UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 238 Civil Law proportion of 3 to 1, their shares in the remaining four-fifths would also be in the proportion of 3 to 1. In other words, there is a PROPORTIONATE losing in the area possessed. (Paras, 2008) having contributed to the INDUSTRIAL WEALTH, unlike the owner, who by his presumed negligence, had virtually discarded his property. b. Fruits refer to natural, industrial, and civil fruits, not to other things. (If no actual fruits are produced, reasonable rents— civil fruits—must be given) c. Legal interruption happens when a complaint is filed against him and he receives the proper judicial summons. (Art. 1123) All fruits accrued and received since said date must be turned over to the winner, that is, either the owner or the lawful possessor adjudged as such by the court. Before legal interruption, the fruits received are his own. After the receipt of the judicial summons, the right to get the fruits not yet gathered ceases. d. Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion. (NCC, Art. 544) The reason why fruits should be returned from the TIME of legal interruption is that it is ordinarily only from said date that the possessor should be considered in BAD FAITH. Therefore, should there be proof that BAD FAITH had not set in even BEFORE legal interruption, fruits should be returned from that date of CONVERSION are not entitled to the fruits. As a matter of fact, the law provides that “the possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor (or owner) could have received” (NCC, Art. 549) This is true whether the possession in BAD faith was legally interrupted or not. It is understood of course that he is entitled to the fruits received BEFORE the conversion into BAD FAITH, for then, he would still be in good faith. (Paras, 2008) Right of a possessor in good faith to fruits already received When natural and industrial fruits are considered received First Paragraph: “A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.’’ Second Paragraph: “Natural and industrial fruits are considered received from the time they are gathered or severed.” Rules to apply for civil interruption The “Rules of Court” applies (NCC, Art. 543): 1. 2. Civil interruption is produced by judicial summons to the possessor (NCC, Art. 1123); and Judicial summons shall be deemed not to have been issued, and shall not give rise to interruption: a. b. c. If it should be void for lack of legal solemnities; If the plaintiff should desist from the complaint or should allow the proceedings to lapse; or If the possessor should be absolved from the complaint. In all these cases, the period of the interruption shall be counted FOR the prescription. (NCC, Art. 1124) RIGHTS OF POSSESSOR TO FRUITS Possessor in good faith is entitled to the fruits received before the possession is legally interrupted. Natural and industrial fruits are considered received from the time they are gathered or severed. a. a. Reason for the law: Justice demands that the fruits be retained by the possessor who thought that he was really the owner of the property, and who, because of such thought had regulated his daily life, income, and expenses by virtue of such fruits. Moreover, the possessor should be rewarded for b. 239 If at the time of legal interruption, the crops are still growing, the rule on pending crops, not that on gathered crops, should apply. (NCC, Art. 545) If at the time of legal interruption, the crops have already been gathered, but are sold only after such interruption, the sale is Property immaterial, for the law requires only a gathering or severance, so Art. 544 applies. (For his crop needed a total of 6 months from planting to harvesting). How should said crops be divided between A and B? When civil fruits are deemed to accrue A: In the proportion of 2 to 4 (or 1 to 2), 2 for A and 4 for B. This is what the law means when it says that the net harvest shall be divided in proportion to the time of possession. (Paras, 2008) Third Paragraph: “Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion.’’ a. b. If civil fruits (like rents) are accrued daily, Art. 545 does not apply; and Actual receipt of the rents is immaterial; hence, even if received only, for example, on the 30th of a month, all rents accrued before the 21st of the month (date for example of legal interruption) should belong to the possessor in good faith. Sharing of expenses and charges 1. RIGHT TO PENDING FRUITS If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession. 2. The charges shall be divided on the same basis by the two possessors. The owner of the thing may, should he so desires, give the possessor in good faith the right to finish the cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and the net proceeds; the possessor in good faith who for any reason whatever should refuse to accept this concession, shall lose the right to be indemnified in any other manner. (NCC, Art. 545) The expenses for cultivation shall also be divided pro rata (2 to 4) The law says “the possessor shall have a RIGHT to a part of the expenses for cultivation in proportion to the time of possession (This may in certain cases be UNFAIR because although he may have spent MORE than the owner, still he will be entitled to a reimbursement of LESS since his possession is shorter. The better rule would be for the expenses to be borne in proportion to what each receives from the harvest) (NCC, Art. 443) Otherwise, unjust enrichment would result. The charges (those incurred because of the land and the fruits, like TAXES, or INTEREST on MORTGAGES are what are referred to as CHARGES, and not those incurred on or in them, such as improvements) are also to be divided in proportion to the time of possession. (NCC, Art. 545, 2nd par.) (Paras, 2008) Options of the owner in case there are pending fruits at the time good faith ceases 1. 2. NOTE: This article applies to PENDING fruits, natural or industrial. Q: What if there are natural or industrial fruits at the time good faith ceases? To pay the possessor in good faith indemnity for his cultivation expenses and charges and his share in the net harvest; or To allow the possessor in good faith to FINISH the cultivation and gathering of the growing crops, as an INDEMNITY for his part of the expenses of cultivation and the net proceeds. (Paras, 2008) A: The possessor shall have the right to a part of the expenses of cultivation, and to a part in the net harvest both in proportion to the time of possession. (NCC, Art 545) (2000, 2008 Bar) NOTE: If the possessor refuses, for any reason, to finish the cultivation and gathering, he forfeits the right to be indemnified in any other manner. [NCC, Art. 545(3)] Q: A possessed in good faith a parcel of land. At the time he received judicial summons to answer a complaint filed by B, the crops still growing had been there for two months. Harvest was made only after 4 more months Art. 545 applies only to a possessor in GOOD faith for a possessor in bad faith has no right whatsoever to fruits already gathered nor to fruits still pending, except that in the former case (gathered fruits), he gets back the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 240 Civil Law necessary expenses for production, gathering, and preservation of fruits. (Art. 443) In the case of pending fruits, the principle of accession applies, and the law clearly states that he who plants or sows in BAD FAITH on the land of another, loses whatever is planted or sown without right to indemnity. (Paras, 2008) Urgent repairs — reparacion urgentisima — are also necessary expenses. The following are NOT Necessary Expenses 1. Those incurred for the filling up with soil of a vacant or deep lot (This is not also a repair since the term “repair” implies the putting back into the condition in which it was originally, and not an improvement in the condition thereof by adding something new thereto. The expenses are indeed in the nature of USEFUL improvements; 2. A house constructed on land possessed by a stranger (not the owner), because the house cannot be said to preserve the land (the house is USEFUL); 3. Land taxes are, for the purposes of the Article, not necessary expenses, for they are needed, not for preservation of the land itself; but for its continued possession. Failure to pay said taxes results not in destruction, but forfeiture, therefore they should be merely considered CHARGES. Consequently, Art. 545 regarding PRO RATING of charges should apply; and 4. Unnecessary improvements on a parcel of land purchased at a sheriff’s auction sale, made just to prevent redemption from taking place. (Paras, 2008) Crops not yet manifest Art. 545 applies to pending crops. Suppose the crops have already been planted but are not yet manifest at the time there is a transfer of possession, should the article also apply? It is submitted that the answer is YES, by the application of the general rules stated in Art. 443. (Paras, 2008) RIGHT TO BE REIMBURSED NECESSARY AND USEFUL EXPENSES Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor. Useful expenses shall be refunded only to the possessor in good faith with the same 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. (NCC, Art. 546) Rights of a possessor (in the concept of owner) as to the necessary expenses Necessary expenses (1992, 1996, 2000 BAR) Necessary expenses are expenses incurred to preserve the property, without which, said property will physically deteriorate or be lost. These expenses are not improvements but are incurred merely to protect the thing from becoming useless. 1. If in good faith — entitled to: a. Refund; or b. Retain premises until paid. 2. If in bad faith — entitled ONLY to a refund (no right of RETENTION, as penalty) Sample of necessary expenses NOTE: If the owner sues the possessor for the recovery of the property, the possessor in good faith (who is thus entitled to a refund) must file a counterclaim for the refund of necessary and useful expenses, otherwise the judgment in the case for possession will be a BAR to a subsequent suit brought solely for the recovery of such expenses. The purpose is clearly to avoid the multiplicity of suits. (Paras, 2008) 1. 2. Those incurred for cultivation, production, and upkeep; or Those made for necessary repairs of a house. Ordinary repairs are understood such as are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. (NCC, Art. 592) They do not increase the thing’s value; rather, they merely prevent the things from becoming useless. Right of removal of necessary expenses 241 Property There is NO right of removal of necessary expenses whether in good faith or bad faith. Necessary expenses affect the existence or substance of the property itself. NOTE: The possessor in good faith is entitled to both the fruits and expenses (necessary or useful), hence they do not compensate each other. NOTE: Improvements are so incorporated to the principal thing that their separation must necessarily reduce the value of the thing not curable by ordinary repairs. B. The possessor in BAD faith is NOT ENTITLED to any right regarding the useful expenses [BUT IN Angeles v. Guevara, L15697, October. 31, 1960, where the Supreme Court thru Justice Gutierrez David made the statement that although a possessor in bad faith is NOT entitled to reimbursements for expenses incurred, he may nevertheless REMOVE the objects (repairs on buildings) provided the things suffer NO INJURY thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession. Evidently, here, the Court was thinking NOT of useful improvement, but of expenses for PURE LUXURY or MERE PLEASURE. (NCC, Art. 549) Useful expenses Those which increase the value or productivity of the property. Examples of useful expenses 1. 2. 3. 4. 5. Those incurred for an irrigation system; Those incurred for the erection of a chapel, because aside from its possibility of conversion into such materialistic things as a warehouse or a residence, the chapel satisfied spiritual and religious aspirations and the attainment of man’s higher destinies. “To uphold the opposite view would be to reduce life to a mere conglomeration of desires and lust, when, as a matter of fact, life is also a beautiful aggregate of noble impulses and lofty ideals”; Those incurred for the making of artificial fishponds; Those incurred for the construction of additional rooms in a house, for use as kitchen, bathroom, stable, etc; Those incurred for clearing up land formerly thickly covered with trees and shrubbery. (Paras, 2008) Effect of voluntary surrender of property The voluntary surrender of property is a waiver of the possessor’s right of retention but his right to be refunded may still be enforced. XPN: He also waived the same. Removal of useful improvements introduced by the possessor Only a possessor in good faith is allowed to remove the useful improvements he introduced provided that the useful improvements can be removed without damage to the principal thing. (NCC, Art. 547) Rights of a possessor (in the concept of owner) as to the USEFUL expenses A. If in GOOD faith. 1. 2. 3. “Damage’’ here means a substantial one that reduces the value of the property, thus a slight injury curable by an ordinary repair does not defeat the right of removal, but the repairs should be chargeable to the possessor, for it is he who benefits by the removal and the object removed. (Paras, 2008) Right to REIMBURSEMENT (of either the amount spent or the increase in value — “plus value” — at OWNER’S OPTION) (NCC, Art. 546) Right of RETENTION (until paid) (NCC, Art. 546) Right of REMOVAL (provided no substantial damage or injury is caused to the principal, reducing its VALUE) — UNLESS the winner (owner or lawful possessor) exercises the option in (1) (NCC, Art. 547) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES If in BAD faith. NOTE: This right of removal is subordinate to the owner’s right to keep the improvements himself by paying the expenses incurred or the concomitant increase in the value of the property caused by the improvements. 242 Civil Law to the possessor in bad faith; but he may remove the objects for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession. (NCC, Art. 549) EXPENSES FOR PURE LUXURY Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended. (NCC, Art. 548) Q: Who is a possessor in bad faith? A: A possessor in bad faith is one who is aware that there exists in his title or mode of acquisition any flaw which invalidates it. Only personal knowledge of the flaw in one’s title or mode of acquisition can make him a possessor in bad faith. Luxurious expenses or expenses for pure luxury or mere pleasure (ornamental expenses) are expenses incurred for improvements introduced for pure luxury or mere pleasure. Examples of ornamental expenses a. Hand paintings on the wall of a house; b. A garage made of platinum; and c. Water fountains in gardens. NOTE: No tacking of bad faith, unless the successors in interest had learned of the defect in the title and still purchased it. Rights of a Possessor (in the Concept of Owner) as to Luxurious or Ornamental Expenses 1. Bad faith is not transmissible from a person to another, even an heir is not affected by bad faith of the deceased predecessor. If in GOOD faith: Right of the Possessor (in the Concept of Owner) as to FRUITS In general, no right of refund or retention but can remove if no substantial injury is caused. However, owner has OPTION to allow: a. Possessor to remove; or b. Retain for himself (the owner) the ornament by REFUNDING the AMOUNT SPENT. (NCC, Art. 548) 2. 1. If in GOOD faith: a. Gathered or severed or harvested fruits are his own (NCC, Art. 544); b. Pending or ungathered fruits — (prorating between possessor and owner of expenses, net harvest, and charges) (NCC, Art. 545) In BAD faith: 2. In general, no right of refund or retention but can remove if no substantial injury is caused. However, owner has OPTION to allow: a. Possessor to remove; or b. Retain for himself (the owner) the ornament by REFUNDING the VALUE it has at the TIME owner ENTERS INTO POSSESSION. (NCC, Art. 549) If in BAD faith: a. POSSESSOR IN BAD FAITH b. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received, and shall have a right only to the expenses mentioned in paragraph 1 of Art. 546 and in Art. 443. The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded Gathered fruits — must return value of fruits already received as well as value of fruits which the owner or legitimate possessor (not the possessor in bad faith) could HAVE received with due care or diligence, MINUS necessary expenses for cultivation, gathering, and harvesting, to prevent the owner from being unjustly enriched. (NCC, Arts. 549 and 443) Pending or ungathered fruits — no rights at all, not even to expenses for cultivation because by accession, all should belong to the owner, without indemnity. (NCC, Art. 449) NOTE: The costs of litigation over the property 243 Property shall be borne by every possessor. (NCC, Art. 550) “Every possessor’’ refers to one in good faith or bad faith, in the concept of owner or in the concept of holder, in one’s own name or in that of another, and not to the owner or the person adjudged by the court to be lawfully entitled to possess. (Paras, 2008) GOOD FAITH BAD FAITH As to fruits received Entitled to the fruits Shall reimburse the received before the fruits received and possession is legally those which the interrupted. (NCC, Art. legitimate possessor 544) could have received and shall have the a right only to necessary expenses (Art. 546, par. 1) and expenses in the production, gathering and preservation of such Fruits. (NCC, Art. 443) As to pending fruits Liable with legitimate None possessor for expenses of cultivation and shall share in the net harvest in proportion to the time of their Possession. (NCC, Art. 545) As to expenses (Necessary expenses) Right of Right of reimbursement and reimbursement only. retention. (Useful expenses) Right of None reimbursement, retention and limited right of removal. (Ornamental Expenses) Shall not be refunded Shall not be refunded but he has a limited but he has a limited right of removal, i.e. he right of removal, i.e. he may remove if the may remove if the principal thing suffers principal thing suffers no injury thereby, and no injury thereby, and if the lawful possessor if the lawful possessor does not prefer to does not prefer to refund the amount retain them by paying expended. its value at the time he enters into possession. As to liability in case of deterioration or loss No liability Always liable. XPN: If due to his fraudulent act or negligence, or after service of summons. Improvements caused by nature or time Neither the possessor in good faith nor in bad faith is entitled to: 1. 2. Improvements caused by NATURE (like alluvium, etc.) Improvements caused by TIME (like the improved flavor of wine) Liability for loss or deterioration A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons. A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event. (NCC, Art. 552) Rules applicable: A. Possessor in GOOD FAITH — 1. BEFORE receipt of judicial summons — NOT LIABLE. 2. AFTER judicial summons i. Loss or deterioration thru fortuitous event — not liable. ii. Thru fraudulent intent or negligence — liable B. Possessor in BAD FAITH — Whether before or after judicial summons, and whether due to fortuitous event or not, such possessor is LIABLE. Requisites to constitute possession whether in good faith or bad faith 1. Possessor has a title/mode of acquisition; 2. There is a flaw or defect in said title/mode; and 3. The possessor is aware or unaware of the flaw or defect. Possessor in good faith has the right of retention until he has been fully reimbursed Summary of rights of a possessor UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 244 Civil Law A possessor in good faith has the right of retention of the property until he has been fully reimbursed for all the necessary and useful expenses made by him on the property. Its object is to guarantee the reimbursement for the expenses, such as those for the preservation of the property, or for the enhancement of its utility or productivity. It permits the actual possessor to remain in possession while he has not been reimbursed by the person who defeated him in the possession for those necessary expenses and useful improvements made by him on the thing possessed. (Ortiz v. Kayanan, G.R. No. L-32974, July 30, 1979) right of possession. (NCC, Art. 555) An accion publiciana or reivindicatoria is still possible unless prescription, either ordinary or extraordinary, has set in. (Paras, 2008) NOTE: Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession. (NCC, Art. 537) (2001, 2009 Bar) Abandonment Abandonment involves a voluntary renunciation of all rights over a thing. There must be an intention to lose the thing. Presumption of Possession during the intervening period Requisites: A present possessor who shows his possession at some previous time is presumed to have held possession also during the intermediate period, in the absence of proof to the contrary. (NCC, Art 554) 1. 2. LOSS/TERMINATION OF POSSESSION Possession is lost through (PRADA) 3. 1. Possession of another; 2. Recovery of the thing by the legitimate owner; 3. Abandonment; 4. Destruction or total loss of the thing – a thing is lost when it perishes or goes out of commerce, or disappears in such a way that its existence is unknown, or it cannot be recovered (NCC, Art. 1189; Art. 555); or 5. Assignment – complete transmission of the thing/right to another by any lawful manner. (NCC, Art. 555) 4. The abandoner must have been a possessor in the concept of owner (either an owner or mere possessor may respectively abandon either ownership or possession); The abandoner must have the capacity to renounce or to alienate (for abandonment is the repudiation of property right); There must be physical relinquishment of the thing or object; and There must be no spes recuperandi (expectation to recover) and no more animus revertendi (intention to return or get back). (Paras, 2008) Additional Doctrines 1. 2. Possession of another Possession of another subject to the provisions of Art. 537, if a person is not in possession for more than one year but less than 10 years he losses possession de facto. He can no longer bring an action of forcible entry or unlawful detainer, since the prescriptive period is one year for such actions. But he may still institute an accion publiciana to recover possession de jure, possession as a legal right or the real right of possession. (NCC, Art. 555; Paras, 2008) 3. 4. If a person loses possession for more than 10 years, he loses possession de jure, or the real 245 A property owner cannot be held to have abandoned the same until at least he has some knowledge of the loss of its possession or the thing. There is no real intention to abandon property when as in the case of a shipwreck or a fire, things are thrown into the sea or upon the highway. An owner may abandon possession merely, leaving ownership in force, but a mere possessor cannot abandon ownership since he never had the same. If an owner has not lost possession because there has been no abandonment, it surely cannot be acquired by another thru acquisitive prescription. Thus, the mere fact that land is covered by the sea completely during high tide for failure in the meantime of the owner to dam the water off, does not indicate an abandonment of the land in favor of public Property 5. 6. 7. 8. dominion. Moreover, abandonment can hardly refer to land much less to registered land. There is no abandonment if an owner merely tolerated (permitted) another’s possession, nor if the latter was done by stealth or effected thru force and intimidation. (NCC, Articles 537 and 558) There is no abandonment of movables even if there is temporary ignorance of their whereabouts, so long as they remain under the control of the possessor (that is, so long as another has not obtained control of them). (NCC, Art. 556) In true abandonment, both possession de facto and de jure are lost. Abandonment which converts the thing into res nullius (ownership of which may ordinarily be obtained by occupation), does not apply to land (NCC, Art. 714, Civil Code) much less does abandonment apply to registered land. (Act, 496, Sec. 46) (Paras, 2008) without any possessor. When possession of movables is lost or not lost If the possessor has no idea at all about the whereabouts of the movable, possession is lost, but not when he more or less knows its general location, though he may not know its precise or definite location. In the former, he has lost juridical control; in the latter, the object remains within his patrimony (not in the patrimony of another). (Paras, 2008) NOTE: An abandoned property is considered as a lost thing. (Pineda, 1999) Loss of immovables with respect to third person The possession of immovables and of real rights is not deemed lost, or transferred for purposes of prescription to the prejudice of third persons, except in accordance with the provisions of the Mortgage Law and the Land Registration Laws. (NCC, Art. 557) Assignment Refers to a total transfer of ownership of property by the owner to another person either gratuitously or onerously. NOTE: Art. 557 refers to possession of real property, and other real rights over real property (like easement or usufruct) While in assignment, at no time did the thing not have a possessor (for possession merely changed hands or control); in abandonment, there was a time, no matter how short, when the object did not have any possessor at all. Moreover, while assignment may in some cases be by onerous title, abandonment is always gratuitous, otherwise it becomes a virtual assignment. Moreover, in assignment, both possession de facto and de jure are lost, and no action will allow recovery. (Paras, 2008) Acts of mere holder GR: Acts relating to possession, executed or agreed to by one who possesses a thing belonging to another as a mere holder to enjoy or keep it, in any character, do not bind or prejudice the owner. XPNS: 1. Unless he gave said holder express authority to do such acts; or 2. Ratifies them subsequently. (NCC, Art. 558) Q: Does Art. 555 refer to both real and personal property? FINDER OF LOST MOVABLE A: YES (for the law does not distinguish) except in the case of paragraph 4, for it is evident that the reference to possession of more than one year concerns only real property, the rule as to movable property being explicitly stated in Art. 556. LOSS OR UNLAWFUL DEPRAVATION OF A MOVABLE Rule regarding the right of a possessor who acquires a movable claimed by another If the possessor is in: 1. Bad faith – He has no right. 2. Good faith – He has presumed ownership. It is equivalent to title. A lost thing is one previously under the lawful possession and control of a person but is now UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES not Requisites: a. Owner has voluntarily parted with the 246 Civil Law b. c. possession of the thing; and Subsequent possessor is in the concept of an owner. Possession in good faith; incurred for the publication. (NCC, Art. 719) Duty of the owner who appeared 1. Give a reward to the finder equivalent to one-tenth (1/10) of the sum or of the price of the thing found (NCC, Art. 720); 2. Reimburse to the finder for the latter’s expenses incurred for the preservation of the thing (NCC, Art. 546) and expenses spent for the location of the owner; and 3. Reimburse the expenses for publication if there was a public auction sale. (Pineda, 1999) Possession of movable property acquired in good faith GR: Doctrine of irrevindicability – The possession of movable property acquired in good faith is equivalent to title and the true owner cannot recover such movable. NOTE: This is merely presumptive as it can be defeated by the true owner. (NCC, Art. 559) Summary principle XPNs: 1. When the owner has lost a movable; or 2. Has been unlawfully deprived of a movable. of recovery A. Owner MAY REIMBURSEMENT: In which case the possessor cannot retain the thing as against the owner, who may recover it without paying any indemnity 1. 2. XPN to the XPNs: Where the movable is acquired in good faith at a public sale, the owner must reimburse to recover. [NCC, Art. 559(2)] RECOVER non-recovery WITHOUT From possessor in bad faith; or From possessor in good faith (if owner had LOST the property or been unlawfully deprived of it) (the acquisition being from a private person). (NCC, Art. 559) B. Owner MAY REIMBURSE: Duty of a finder of a lost movable (NCC, Art. 719) or RECOVER but should If possessor acquired the object in good faith at a PUBLIC SALE or AUCTION. (NCC, Art. 559) Because the publicity attendant to a public sale should have been sufficient warning for the owner to come forward and claim the property. Whoever finds a lost movable, which is not a treasure, must return it to its previous possessor. If the latter is unknown, the finder shall immediately deposit it with the mayor of the city or municipality where the finding has taken place. The mayor in turn must publicly announce the finding of the property for two consecutive weeks. C. Authorized public auction of lost movable Owner CANNOT RECOVER, even if he offers to REIMBURSE (whether or not the owner had lost or been unlawfully deprived): 1. If the movable cannot be kept without deterioration, or without expenses which considerably diminish its value, it shall be sold at public auction eight days after the publication. 2. Awarding of the lost movable to the finder If the owner or previous possessor did not appear after 6 months from the publication, the thing found or its value or proceeds if there was a sale, shall be awarded to the finder. The finder, however, shall pay for the expenses 3. 247 If possessor had acquired it in good faith by purchase from a merchant’s store, or in fairs, or markets in accordance with the Code of Commerce and special laws (NCC, Art. 1505 and Code of Commerce, Art. 85 and Art. 86); If owner “is by his conduct precluded from denying the seller’s authority to sell.” (ESTOPPEL) (NCC, Art. 1505); and If possessor had obtained the goods because he was an innocent purchaser for value and holder of a NEGOTIABLE document of title to the goods. (NCC, Art. 1518) (Paras, 2008) Property Q: Suppose a recently stolen property is found in possession of A, is A presumed to be the thief? 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 prosper? (1998 BAR) A: YES, it is a disputable presumption “that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act.’’ (Rules of Court, Rule 131, Sec. 3[j]) It is true that one who possesses a movable, acquired in good faith, has what is called an equivalent of title, but this is destroyed when it is proved that said movable belongs to somebody else who has lost it, or has been unlawfully deprived of its possession. (NCC, Art. 559) (Paras, 2008) Q: In order to contest the title of the possessor in good faith, what should the true owner do? A: The suit should prosper because the criminal act of estafa should be deemed to come within the meaning of unlawful deprivation under Art. 559 as without it, United Car Sales would not have parted with the possession of its car. Thus, it was allowed to recover the property without having to reimburse the defendant. Possession of wild animals A: The true owner should present sufficient proof of the identity of the object AND that he had either lost it or has been illegally deprived of it. This proof is an indispensable requisite a conditio sine qua non in order that the owner of the chattel may contest the apparent title of its possessor. Without adequate proof of such loss or illegal deprivation, the present holder cannot be put on his defense, even if as possessor he has no actual proprietary title to the movable property in question. (Paras, 2008) Wild animals are possessed only while they are under one’s control; domesticated or tamed animals are considered domestic or tame, if they retain the habit of returning to the premises of the possessor. (NCC, Art. 560) Lawful recovery of possession that had been unjustly lost One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have enjoyed it without interruption. (NCC, Art. 561) Rule when possessor has already become the owner Requisites: 1. Possession was lost unlawfully or unjustly; 2. Possessor lawfully recovers possession; and 3. Uninterrupted possession is beneficial to him. Art. 559 in fact assumes that the possessor is as yet not the owner, for it is obvious that where the possessor has come to acquire indefeasible title, let us say adverse possession for the necessary period, no proof of loss, or illegal deprivation could avail the former owner of the chattel. He would no longer be entitled to recover it under any condition. (Paras, 2008) USUFRUCT Usufruct is the right of a person called usufructuary, to enjoy the property of another called the owner, with the obligation of returning it at the designated time and preserving its form and substance, unless the title constituting it or the law provides otherwise. (Pineda, 2009) Estafa is considered as unlawful deprivation Q: Using a falsified manager's check, Justine, as the buyer, was able to take delivery of a secondhand 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 UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES NOTE: A usufruct can be constituted in favor of a town, corporation or association, but it cannot be for more than 50 years. (NCC, Art. 605) Characteristics of usufruct (ENA) 1. 248 Essential – Those without which it cannot Civil Law be termed as usufruct: a. b. c. d. 2. Real right (whether registered in the registry of property or not); Constituted on property i. Real; ii. Personal; iii. Consumable; iv. Non-consumable; v. Tangible; vi. Intangible. Temporary duration; Purpose: to enjoy the benefits and derive all advantages from the object as a consequence of normal use or exploitation. KINDS OF USUFRUCT 1. As to origin: a. Legal – Created by law such as usufruct of the parents over the property of their unemancipated children; NOTE: The right of the parents over the fruits and income of the child’s property shall be limited primarily to the child’s support and secondarily to the collective daily needs of the family. (FC, Art. 226) b. Voluntary – Created by will of the parties either by act inter vivos (e.g. donation) or by act mortis causa (e.g. in a last will and testament); c. Mixed– Created by both law and act of the person (e.g. acquired by prescription: I possessed in good faith a parcel of land which really belonged to another. Still in good faith, I gave in my will to X, the naked ownership of land and to Y, the usufruct. In due time, Y may acquire the ownership of the usufruct by acquisitive prescription) (Paras, 2008); d. Prescriptive – acquired by third persons through continuous use of the usufruct for the period required by law. Natural – That which ordinarily is present, but a contrary stipulation can eliminate it because it is not essential; a. b. 3. require Michael to investigate Chayong’s title because the latter’s ownership over the property remains unimpaired despite such encumbrance. Only the jus utendi and jus fruendi over the property are transferred to the usufructuary. The owner of the property maintains the jus disponendi or the power to alienate, encumber, transform, and even destroy the same. (Hemedes v. CA, G.R. Nos. 107132 & 108472, October 8, 1999) The obligation of conserving or preserving the form and substance (value) of the thing.; and It is transmissible. Accidental – Those which may be present or absent depending upon the stipulation of parties. a. b. c. Whether it be pure or a conditional usufruct; The number of years it will exist; Whether it is in favor of one person or several, etc. Obligation to preserve the form substance of the thing in usufruct and GR: The usufructuary is bound to preserve the form and substance of the thing in usufruct. This is to prevent extraordinary exploitation, prevent abuse of property and prevent impairment. 2. As to the number of beneficiaries a. Simple – If only one usufructuary enjoys the usufruct; b. Multiple – If several usufructuaries enjoy the usufruct; i. Simultaneous – at the same time ii. Successive – one after the other NOTE: In case usufructuary is created by donation, apply Art. 756. If the usufruct is testamentary, apply Rules on Fidei Commisary substitution under Art. 863 and 869. XPN: In case of an abnormal usufruct, whereby the law or the will of the parties may allow the modification of the substance of the thing. Q: Chayong owned a parcel of land which she mortgaged to Michael. Upon the OCT was an annotation of usufructuary rights in favor of Cheddy. Is Michael obliged to investigate Chayong’s title? A: NO. The annotation is not sufficient cause to 249 Property 3. As to the extent of object: a. Total – constituted on the whole thing b. Partial – constituted only on a part. 2. Usufruct vs. Lease 4. As to the subject matter: a. Over things i. Normal (or perfect or regular) – involves non-consumable things where the form and substance are preserved; or ii. Abnormal (or imperfect or irregular) – Involves consumable things – that which involves things which would be useless to the usufructuary unless they are consumed or expanded. b. Over rights – involves intangible property; rights must not be personal or intransmissible in character so present or future support cannot be an object of usufruct. BASIS 5. As to the effectivity or extinguishment: a. Pure – no term or condition b. With a term – there is a period which may be either suspensive or resolutory i. Ex die – from a certain day ii. In diem – up to a certain day iii. Ex die in diem – from a certain day up to a certain day. c. Conditional – subject to a condition which may be either suspensive or resolutory. GR: No form is required in constituting a usufruct. Even an oral usufruct may be constituted. XPNs: 1. Usufruct over real property must be registered to bind third person 2. Statute of Frauds apply in case Real Property is involved. If Personal property, Statute of Frauds will apply where the value is P 500 or higher and in case the agreement is not to be performed in one year; 3. A usufruct by donation or by will must comply with formalities of a donation or will Rules governing usufruct 1. The agreement of the parties or the title UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES giving the usufruct. In case of deficiency, the provisions on Civil Code. (NCC, Art. 565) 250 USUFRUCT Nature of the right Always a real right. Creator of Right Owner or his agent. Origin By law, contract, will of testator or by prescription. Extent of Enjoyment All fruits, uses and benefits. Cause A passive owner who allows the usufructuary to enjoy the object of usufruct LEASE Real right only if, as in the case of a lease over real property, the lease is registered, or is for more than one year, otherwise it is a personal right. May not be the owner, as in the case of a sub- lessor or a usufructuary. By contract, by way of exception by law (as in the case of an implied new lease under Art. 1670), or when a builder has built in good faith on the land of another a building, when the land is considerably worth more in value than the building. Only those particular or specific use. An active owner who makes the lessee enjoy Civil Law Repairs and Taxes Limitation on the use of property Usufructuary pays for ordinary repairs and pays for annual charges and taxes on the fruits. Usufructuary may lease the property to another but cannot alienate the thin itself. usufructuary may lease the thing to another, even without the consent of the owner. Lessee cannot constitute a usufruct on the property leased. 8. Rule as to certain rights (rent, pension, benefits, etc.) Whenever a usufruct is constituted on the right to receive a rent or periodical pension, whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds of fruits of such right. Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character. In either case they shall be distributed as civil fruits, and shall be applied in the manner prescribed in the preceding article. (Paras, 2008) The lessee cannot constitute a usufruct on the property leased. RIGHTS OF USUFRUCTUARY Rights of the usufructuary as to the thing and its fruits (RIRICRES) 1. To Receive the fruits of the property in usufruct and half of the hidden treasure he accidentally finds on the property (NCC, Articles 566 and 438); The things referred to in Art. 570 are considered civil fruits and shall be deemed to accrue proportionately to the naked owner and usufructuary, for the time the usufruct lasts. NOTE: The usufructuary is entitled to the natural, industrial, and civil fruits that will accrue during the existence of the usufruct. 2. 3. 4. 5. 6. 7. Rules if the finder of a hidden treasure is a usufructuary To enjoy any Increase which the thing in usufruct may acquire through accession (NCC, Art. 571); To Retain the thing until he is reimbursed for advances for extraordinary expenses and taxes on the capital (NCC, Art. 612); To make such Improvements or expenses on the property he may deem proper and to remove the improvements provided no damage is caused to the property (NCC, Art. If the finder is a usufructuary and he discovers it by chance, the usufructuary shall be entitled to one half of the value thereof. The other half belongs to the naked owner. If the finder is a third person and he found hidden treasure by chance in the property under usufruct, the usufructuary shall be considered a stranger. The finder gets half and the other half shall belong to the naked owner. (Paras, 2008) 579); To Collect reimbursements from the owner for indispensable extra ordinary repairs, taxes on the capital he advanced, and damages caused to him; To Remove improvements made by him if the same will not injure the property; To personally Enjoy the thing or lease it to another (NCC, Articles. 572-577) generally for the same or shorter period as the usufruct; and NOTE: As to the To Set-off the improvements he may have made on the property against any damage to the same. (NCC, Art. 580) thing itself, Rights of a usufructuary on pending natural and industrial fruits (NCC, Art. 567) FRUITS GROWING At the beginning of the usufruct the 251 RIGHTS OF THE USUFRUCTUARY a. Belong to the usufructuary; Property b. Limitations to Usufructuary Rights Not bound to refund to the owner the expenses of cultivation and production but without prejudice to the right of third persons; The usufructuary cannot: 1. Sell, pledge or mortgage the property itself because he is not the owner; 2. Sell future crops (growing crops at the termination of the usufruct belong to the owner); and 3. Lease the thing for a period longer than the term of the usufruct without the consent of owner BUT without prejudice to the right of third persons. Thus, if the fruits had been planted by a possessor in good faith, the pending crop expenses and charges shall be pro-rated between said possessor and the usufructuary At the termination of the usufruct XPN: In lease of rural lands, it may exceed the lifetime of the usufruct and shall subsist during the agricultural year. Q: Can a usufruct be constituted on an encumbered or mortgaged land? Belong to the owner but he is bound to reimburse the usufructuary of the ordinary cultivation expenses (NCC, Art. 545) out of the fruits received. (NCC, Art. 443) The right of innocent third parties should not be prejudiced. A: YES. The mortgage remains inactive until the debt is not paid, and the mortgage is not for the purpose of limiting the use of the fruits. Right of usufructuary to make useful or luxurious improvements NOTE: Civil fruits accrue daily; stock dividends and cash dividends are considered civil fruits. However, dividends declared from “capital stocks” are not covered by usufruct because such are not declared from profits of the corporation. 1. 2. Aside from the right to the fruits, the usufructuary has the right to the enjoyment (use, not ownership) of: a. Accessions (whether artificial or natural); b. Servitudes and easements; and c. All benefits inherent in the property (like the right to hunt and fish therein, the right to construct rainwater receptacles, etc.) 3. 4. Reason: The usufructuary, as a rule, is entitled to the: a. ENTIRE jus fruendi (including fruits of accessions); and b. ENTIRE jus utendi (so he can make use for example of an easement) NOTE: If the right of the usufructuary to remove improvements is not registered in the registration proceedings of the land in usufruct, an innocent purchaser for value of the property is not bound to respect the right. When the expenses of cultivation and production exceeds the proceeds of the growing fruits Offsetting of damages and improvements introduced by the usufructuary If the expenses exceed the proceeds of the growing fruits, the owner has no obligation to reimburse the difference. (NCC, Art. 567) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES The usufructuary may construct and make improvements on the property as he may deem proper; XPN: If there is an express prohibition to that effect. Limitation: the usufructuary cannot alter its form and substance; Removal: usufructuary may generally remove provided no injury is made on the principal even against the will of the naked owner. If he has chosen not to remove he cannot be compelled to remove them; and Indemnity: no right to be indemnified if the improvements cannot be removed. He may however set-off the value of the improvements against the amount of damage he had caused to the property. (Pineda, 2009) Requisites before set-off can be made: 1. Damage must have been caused by the usufructuary; 252 Civil Law 2. 3. Improvements must have augmented the value of the property; and Notice of intention to set-off. property, the usufructuary shall answer to the owner. (Art. 590) The relation between the owner and the usufructuary, does not end just because a lease has been made. The usufructuary, however, can demand reimbursement from the lessee, because of the latter’s breach of the contract of lease. If the usufructuary cannot pay the damage to the naked owner, his bond shall be liable. This is precisely one reason for the requirement of a bond. (NCC, Art. 583) If the damages exceed the value of the improvements, the usufructuary is liable for the difference as indemnity. If the improvements exceed the amount of damages, the usufructuary may remove the portion of the improvements representing the excess in value if it can be done without injury; otherwise, the excess in value accrues to the owner. 2. Rights with Reference to the USUFRUCTUARY RIGHT ITSELF Q: Why do improvements accrue to the owner? A: Because there is no indemnity for improvements. The usufructuary may alienate (sell, donate, bequeath, or devise) the usufructuary right (except a legal usufruct, i.e., the usufruct which parents have over the properties of their unemancipated children, because said usufruct is to be used for certain obligations towards children); or a usufruct granted a usufructuary in consideration of his person; or a usufruct acquired thru a caucion juratoria, for here, the need of the usufructuary himself is the reason for the enjoyment. (NCC, Art. 587) Rights of the usufructuary as to the usufruct itself 1. 2. 3. To Alienate, pledge or mortgage the right of usufruct, even by gratuitous title (NCC, Art. 572); In a usufruct to Recover property/real right, to bring the action and to oblige the owner thereof to give him the proper authority and the necessary proof to bring the action (NCC, Art. 578); and In a usufruct of part of a Common property, to exercise all the rights pertaining to the co-owner with respect to the administration and collection of fruits or interests. The usufructuary may pledge or mortgage the usufructuary right (because he OWNS said right) BUT he cannot pledge or mortgage the thing itself because he does not own the thing [NCC, Art. 2085(2)]. Neither can he sell or in any way alienate the thing itself, or future crops, for crops pending at the termination of the usufruct belong to the naked owner. (NCC, ArtIcles 567 and 572 and Mortgage Law, Art. 106) Lease, alienation and encumbrance of the property subject to usufruct Q: 120 hectares of land from the NHA property were reserved for the site of the National Government Center. 7 hectares from which were withdrawn from the operation. These revoked lands were reserved (MSBF) However, MSBF occupied approximately 16 hectares and leased a portion thereof to Bulacan Garden Corporation (BGC) BGC occupies 4,590 sqm. Implementing such revocation, NHA ordered BGC to vacate its occupied area. BGC then filed a complaint for injunction. Has BGC any right over the leased premises? 1. Rights with Reference to the THING ITSELF (in Addition to the Usufruct) The usufructuary, not being the owner of the thing subject to usufruct, cannot alienate, pledge or mortgage the thing itself. However, the usufructuary may lease the thing to another (This can be done even without the owner’s consent; moreover, ordinarily the lease must not extend to a period longer than that of the usufruct, unless the owner consents. Thus, the lease ends at the time the usufruct ends, except in the case of rural leases). A: A usufructuary may lease the object held in usufruct. The owner of the property must respect the lease entered into by the NOTE: If the lessee should damage the 253 Property usufructuary so long as the usufruct exists. MSBF was given a usufruct over only a 7-hectare area. NHA cannot evict BGC if the 4,590 square meter portion MSBF leased to BGC is within the 7hectare area held in usufruct by MSBF. However, the NHA has the right to evict BGC if BGC occupied a portion outside of the 7- hectare area covered by MSBF's usufructuary rights. (NHA v. CA, G.R. No. 148830, April 13, 2005) 1. 2. Pay the APPRAISED value (if appraised when first delivered); or If there was no appraisal, return same kind, quality, and quantity OR pay the price current at the termination of the usufruct (therefore not at the original price or value) Usufruct on fruit-bearing trees and shrubs Transfer of the usufruct The usufructuary of fruit-bearing trees and shrubs may make use of the dead trunks, and even of those cut off or uprooted by accident, under the obligation to replace them with new plants. (NCC, Art. 575) The transferee can enjoy the rights transferred to him by the usufructuary until the expiration of the usufruct. Transfer of usufructuary rights, gratuitous or onerous, is co-terminus with the term of usufruct. Exercise of acts of ownership by a usufructuary NOTE: This is a SPECIAL usufruct. Rights GR: A usufructuary cannot exercise acts of ownership such as alienation or conveyance. The usufructuary can use (even for firewood, though he is NOT the naked owner) the following: a. Dead trunks; and b. Those cut off or uprooted by accident. XPNs: When what is to be alienated or conveyed is a: 1. Consumable; 2. Property intended for sale; or 3. Property which has been appraised when delivered. (NCC, Art. 574) BUT he must REPLACE them with new plants (for indeed, he was not the naked owner) NOTE: If it has not yet been appraised or if it is not a consumable, return the same quality (mutuum) 1. Other SPECIAL usufructs 2. 3. Abnormal usufruct on consumable things This is another instance of abnormal usufruct, and is sometimes referred to as a “quasiusufruct” because the form and substance is not really preserved. Thus, this is really a SIMPLE loan. It has been included however in the title on usufructs because in what are called UNIVERSAL USUFRUCTS, both non-consumable and consumable properties are included. While we seldom find usufructs on consumable properties alone, it is a fact that they indeed exist. Thus, the Supreme Court has held that even money may be the object of a usufruct. (Paras, 2008) RULES for this ‘QUASI-USUFRUCT’ 1. 2. 4. 5. 6. 7. Special usufruct over a WOODLAND This is not a common or frequent usufruct because: 1. Natural resources (including forest or timber lands) belong to the State (Regalian Doctrine under Art. XII, Sec. 3 of the 1987 Philippine Constitution); 2. A license is generally essential if one desires to gather forest products (Revised The usufructuary (debtor-borrower) can use them (as if he is the owner, with complete right of pledge or alienation) BUT at the end of the usufruct, he must: UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Of periodical pension, income, dividends (NCC, Art. 570); Of woodland (NCC, Art. 577); Of right of action to recover real property, real right, or movable property (NCC, Art. 578); Of part of property owned in common (Art. 582); Of the entire patrimony of a person (NCC, Art. 598); On a mortgaged immovable (NCC, Art. 600); and On a flock or herd of livestock. (NCC, Art. 591) 254 Civil Law Administrative Code, Sec. 47) The action may be instituted in the usufructuary’s name, for being the owner of the usufruct, he is properly deemed a real party in interest. (Rules of Court, Sec. 2, Rule 3) Obligations of the usufructuary over a woodland In the enjoyment usufructuary: 1. 2. of the usufruct, the a. Must bear in mind that he is not the owner, and therefore, in the exercise of the diligence in caring for the property (required under Art. 589 he must see to it that the woodland is preserved, either by development or by replanting, thus he cannot consume all, otherwise nothing would be left for the owner. In the cutting or felling of trees, he must— a. b. b. Usufructuary of a part of common property The usufructuary of a part of a thing held in common shall exercise all the rights pertaining to the owner thereof with respect to the administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing held in common, the usufruct of the part allotted to the co-owner shall belong to the usufructuary. (NCC, Art. 582) Follow the owner’s habit or practices; In default thereof, follow the customs of the place (as to MANNER, AMOUNT and SEASON) (NCC, Art. 577) — All without prejudice to the owner, for while he can USE, he cannot ABUSE. NOTE: The rule above is applicable if the woodland: i. Is a COPSE (thicket of small trees); or ii. Consists of timber for BUILDING. c. 3. A co-owner may give the usufruct of his share to another, even without the consent of the others, unless personal considerations are present. (NCC, Art. 493) The usufructuary in such a case takes the owner’s place as to: a. Administration (management); and b. Collection of fruits or interest (NCC, Art. 582) (BUT not as to alienation, disposition, or creation of any real right over the property, since these are strict acts of ownership, unless of course he is authorized by the naked owner) (Paras, 2008) If there be no customs, the only time the usufructuary can CUT DOWN trees will be for REPAIR or IMPROVEMENT, but here the owner must first be informed (the owner, thus, does not need to consent) Cannot alienate the trees (for the trees are not considered fruits) unless he is permitted, expressly or impliedly by the owner (as when the purpose of the usufruct was really to sell the timber) or unless he needs the money to do some repairs (but in the last case, the owner must be informed) Rights of usufructuary property held in usufruct to recover Rights of usufructuary at the expiration of the usufruct 1. the To bring the action, the usufructuary can DEMAND from the owner: 1. 2. If the purpose is the recovery of the property or right, he is still required under Art. 578 to obtain the naked owner’s authority. If the purpose is to object to or prevent disturbance over the property (once the property is given him), no special authority from the naked owner is needed. Authority to bring the action (usually a special power of attorney); and Proofs needed for a recovery. 255 To collect reimbursement from the owner: a. For indispensable extraordinary repairs made by the usufructuary (NCC, Art. 593); b. For taxes on the capital advanced by the usufructuary (NCC, Art. 597); c. For damages caused by the naked owner; d. For payment of increase in value of the immovable by reason of repairs provided the owner is notified of the Property urgency of such repairs but the latter failed to make said repairs despite the notification, and the repair is necessary for the preservation of the property. (NCC, Art. 594) 2. point out discrepancies and omissions in the inventory. 2. 3. To retain the thing until reimbursement is made. (NCC, Art. 612) The usufructuary has obligations 2. 3. be When inventory is not required Before the usufruct (like the making of inventory); During the usufruct (like taking due care of property); and After the usufruct (like the duty to return and indemnify in the proper cases) 1. 2. 3. 4. 1. Before the usufruct (NCC, Art. 583) a. Make an inventory; and b. Give security Waived; No one will be injured by the lack of inventory (NCC, Art. 585); When the donor has reserved to himself the usufruct of the property donated; or Agreement of both parties. Effects of failure to post a bond or security This article speaks of two obligations (inventory and security) They are not necessary however before the right to the usufruct begins; they are merely necessary before physical possession and enjoyment of the property can be had, thus if the usufructuary fails to give security (unless exempt) the usufruct still begins but the naked owner will have the rights granted him under Art. 586. (Paras, 2008) 1. The owner shall have the following options (NCC, Art. 586): a. Receivership of realty; b. Sale of movables; c. Deposit of securities; d. Investment of money; or e. Retention of the property as administrator. 2. The net product shall be delivered to the usufructuary; The usufructuary cannot collect credit due or make investments of the capital without the consent of the owner or of the court until the bond is given. 3. NOTE: The purpose of giving security is to insure fulfillment by the usufruct of the obligation imposed upon him. After the security has been given by the usufructuary, he shall have a right to all the proceeds and benefits from the day on which, in accordance with the title constituting the usufruct, he should have commenced to receive them (retroactive effect of security). (NCC, Art. 588) Effects of failure to give security 1. Requirements for the inventory 1. The naked owner or representative must be previously notified; NOTE: The purpose is to enable him to correct errors in the inventory if he desires. His absence is a waiver for corrections. If there is non-notification, the inventory can go on but the naked owner may later on UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES must NOTE: As a rule, no form is required, except when there are real properties. Expenses are to be borne by the usufructuary. (Paras, 2008) OBLIGATIONS OF USUFRUCTUARY 1. Conditions of immovables described; and Movables must be appraised. 2. 256 On the rights of the naked owner: a. May deliver the property to the usufructuary; b. May choose retention of the property as administrator; and c. May demand receivership or administration of the real property, sale of movable, conversion or deposit of credit instruments or investment of cash or profits. On the rights of the usufructuary: a. Cannot possess the property until he gives security; b. Cannot administer property; Civil Law c. d. Cannot collect credits that have matured nor invest them; and XPN: if the court or naked owner consents; May alienate his right to usufruct. Exemption of usufructuary obligation to give security from 2. During the usufruct a. b. the c. d. Usufructuary may be exempt from the obligation to give security when: 1. 2. 3. 4. 5. e. No one will be injured by the lack of the bond (NCC, Art. 585); The donor (or parent) reserved the usufruct of the property donated (NCC, Art. 584); When there is waiver by the naked owner; When there is parental usufruct (FC, Art. 225); The usufruct is subject to caucion juratoria where: a. b. f. g. h. i. j. The usufructuary takes an oath to take care of the things and restore them to its previous state before the usufruct is constituted; and The property subject to such cannot be alienated or encumbered or leased. k. Usufructuary’s liability for ordinary repairs The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. It includes such as are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. (NCC, Art. 592) Caucion juratoria – “by virtue of a promise under oath” The usufructuary, being unable to file the required bond or security, may file a verified petition in the proper court asking for the delivery of the house and furniture necessary for himself and his family so that he and his family be allowed to live in a house included in the usufruct and retain it until the termination of the usufruct without any bond or security. NOTE: If the naked owner demanded the repair and the usufructuary still fails to do so, the owner may make them personally or thru another, at the expense of the usufructuary. (NCC, Art. 592) Extraordinary repairs (NCC, Art. 593) The same rule shall be observed with respect to implements, tools and other movable property necessary for an industry or vocation in which he is engaged. (NCC, Art. 587) It includes: 1. Those required by the wear and tear due to the natural use of the thing but not indispensable for its preservation. Requisites before the caucion juratoria is allowed 1. 2. 3. 4. Take care of property; Replace the young of animals that die or are lost or become prey when the usufruct is constituted on a flock or herd of livestock; Make ordinary repairs; Notify the owner of urgent extraordinary repairs; Permit works & improvements by the naked owner not prejudicial to the usufruct; Pay annual taxes and charges on the fruits; Pay interest on taxes on capital paid by the naked owner; Pay debts when usufruct is constituted on the whole patrimony; Secure the naked owner’s/court's approval to collect credits in certain cases; Notify the owner of any prejudicial act committed by third persons; and Pay for court expenses and costs. Liabilities: a. The naked owner should be held liable, whether or not he is notified by the usufructuary; and b. The law does not require the naked owner to make them; what is important is that he will bear the expenses made by the usufructuary. (Paras, 2008) Proper court petition; Necessity for delivery of furniture, implements or house included in the usufruct; Approval of the court; and Sworn promise. 257 Property 2. Those caused by exceptional circumstances and are indispensable for its preservation. 3. Liabilities: a. The naked owner shall be held liable; and b. The usufructuary is allowed to make them with the right to get the increase in value and the right of retention at the termination of usufruct, provided there was notification by the usufructuary and failure to repair by the naked owner. (Paras, 2008) After the usufruct/ at the termination a. Return the thing in usufruct to the naked owner unless there is a right of retention; b. Pay legal interest for the time that the usufruct lasts; and c. Indemnify the naked owner for any losses due to his negligence or of his transferees. NOTE: The usufructuary may be liable for the damages suffered by the naked owner on account of fraud committed by him or through his negligence. 3. Those caused by exceptional circumstances but are not needed for its preservation. Liabilities: a. The naked owner is liable; and b. The usufructuary cannot compel the naked owner to make such repairs and he is not allowed to make them even if the naked owner has failed to make them. (Paras, 2008) XPN: the usufructuary is not deterioration due to: 1. 2. Wear and tear; or Fortuitous event. RIGHTS OF THE OWNER Rights of a naked owner and the limitations imposed upon him NOTE: Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify the owner when the need for such repairs is urgent. RIGHTS Right of retention of the usufructuary Alienation The usufructuary has a right of retention even after the termination of the usufruct until he is reimbursed for the increase in value of the property caused by extraordinary repairs for preservation. Alteration Enjoyment Charges or taxes which the usufructuary must pay 1. 2. Construction and Improvement The annual charges (in the fruits); The annual taxes on the fruits; and Taxes imposed directly on the capital LIMITATIONS Can alienate the thing in usufruct. Cannot alter the form and substance. Cannot do anything prejudicial to the usufructuary Can construct any works and make any improvement provided it does not diminish the value or the usufruct or prejudice the rights of the usufructuary. Alienation by naked owner These shall be at the expense of the owner provided they are not annual. (Paras, 2008) Since the jus disponendi and the title (dominium directum) reside with the naked owner, he retains the right to ALIENATE the property BUT: Rules: 1. If paid by the naked owner, he can demand legal interest on the sum paid; or 2. If advanced by the usufructuary, he shall recover the amount thereof at the termination of the usufruct. [NCC, Art. 597(2)] UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES liable for 1. 2. 258 He cannot alter its form or substance; or Do anything prejudicial to the usufructuary (as when he should illegally lease the property to another, since this right Civil Law ordinarily pertains to the usufructuary) Improper use usufructuary of the thing by OBLIGATIONS OF THE OWNER the 1. 2. The owner may demand the delivery of and administration of the thing with responsibility to deliver net fruits to usufructuary. 3. Q: On 1 January 1980, Minerva, the owner of a building granted Petronila a usufruct over the property until 01 June 1998 when Manuel, a son of Petronila, would have reached his 30th birthday. Manuel, however, died on 1 June 1990 when he was only 26 years old. To make reimbursement for advances of the usufructuary (NCC, Art. 597); To cancel the security, upon discharge of the usufructuary’s obligations (NCC, Art. 612); To respect leases of rural lands by the usufructuary for the balance of the agricultural year. (NCC, Art. 572) EXTINCTION/TERMINATION Usufruct is extinguished by: (PLDT-ERM) 1. Acquisitive Prescription; NOTE: The use by a third person and not the non-use by the usufructuary. Mere nonuse of the usufructuary does not terminate the usufruct. Minerva notified Petronila 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. Petronila refused to vacate the place on the ground that the usufruct in her favor would expire only on 1 June 1998 when Manuel would have reached his 30 th birthday and that the death of Manuel before his 30th birthday did not extinguish the usufruct. Whose contention should be accepted? (1997 BAR) XPN: unless it is also a renunciation. 2. Total Loss of the thing; NOTE: If the loss is only partial, the usufruct continues with the remaining part. 3. A: Petronila’s contention should be accepted. 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. (NCC, Art. 606) 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. Death of the usufructuary; GR: Death of the usufructuary generally ends the usufruct since a usufruct is constituted essentially as a lifetime benefit for the usufructuary or in consideration of his person. XPNs: a. In the case of multiple usufructs, it ends on the death of the last survivor (NCC, Art. 611); b. In case there is a period fixed based on the number of years that would elapse before a person would reach a certain age, unless the period was expressly granted only in consideration of the existence of such person, in which case it ends at the death of said person (NCC, Art. 606); or c. In case the contrary intention clearly appears. When buyer must respect the usufruct A purchaser of the property must respect the usufruct in case it is registered or known to him (NCC, Art. 709), otherwise, he can oust the usufructuary, who can then look to the naked owner for damages. (NCC, Art. 581) Effect of the death of the naked owner on the usufruct 4. The usufruct does not terminate the usufruct. The naked owner’s rights are transmitted to his heirs. 5. 259 Termination of right of the person constituting the usufruct; Expiration of the period or fulfilment of the resolutory condition; Property NOTE: If the usufructuary is a juridical person, the term should not exceed 50 years. 6. 7. the land but the building is destroyed in any manner whatsoever before the expiration of the period of usufruct: Renunciation by the usufructuary; and a. NOTE: It partakes the nature of a condonation or donation. It can be made expressly or impliedly as long as done clearly. If done expressly, it must conform with forms of donation. Renunciation of usufructuary’s rights is NOT an assignment of right. It is really abandonment by the usufructuary of his right and does not require the consent of the naked owner but it is subject to the rights of creditors. There can be a partial waiver except if it is a universal usufruct. Merger of the usufruct and ownership in the same person who becomes the absolute owner thereof. (NCC, Art. 1275) b. 2. Other Causes of termination of usufruct a. Annulment of the act or title constituting the usufruct; b. Rescission; c. Expropriation; d. Mutual withdrawal; e. Legal causes for terminating legal usufruct; or f. Abandonment or dissolution of juridical entity (e.g. corporation) granted with usufruct before the lapse of the period. Payment of insurance on a building held in usufruct (NCC, Art. 608) 1. If the naked owner and usufructuary share in the premiums and the property is destroyed: Any usufruct constituted in favor of a corporation or association cannot be constituted for more than fifty years. (NCC, Art. 605) A usufruct is meant only as a lifetime grant. Unlike a natural person, a corporation or association's lifetime may be extended indefinitely. The usufruct would then be perpetual. This is especially invidious in cases where the usufruct given to a corporation or association covers public land. (NHA v. CA, G.R. No. 148830, April 13, 2005) a building and/or a. If the owner constructs a new building, the usufruct continues on the new building. i. If the cost of the new building is less than the insurance indemnity, the usufructuary should get legal interests on the difference. ii. If the cost is more than the insurance indemnity, the usufructuary enjoys the new building completely with no obligation to give interest on the additional cost of the naked owner. b. If the naked owner does not construct a land Rules: 1. If the usufruct is both on the building and UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES The usufruct is on the building alone (but the building is destroyed before the termination of the period): a. The usufruct on the building ends, but the usufructuary can still make use of whatever materials of the building remain; b. The usufructuary is entitled to the use of the land but the naked owner enjoys preferential right to its use. (Paras, 2008) NOTE: While the usufruct on a building does not expressly include the land on which it is constructed, the land should be deemed included, because there can be no building without land. (De Leon, 2006) Usufruct cannot be constituted in favor of a town, corporation or association for more than 50 years Usufruct on concerned The usufruct on the building ends, but the usufruct on the land continues (usufructuary is still entitled to the use of the land and remaining materials of the building); If the naked owner wants to rebuild but the usufructuary refuses, the latter prevails but the use of the land is still his for the remainder of the period. (Paras, 2008) 260 Civil Law new building or rebuild, the naked owner gets the insurance indemnity but he should pay the interest thereon to the usufructuary. (Paras, 2008) alternative, he shall give security for the payment of interest. (NCC, Art. 609) 2. If the naked owner alone pays the insurance indemnity and the usufructuary refused to share: a. b. c. The naked owner gets the whole indemnity (with no obligation to give the interest thereon to the usufructuary) If the usufruct was on the building and the land, the usufruct continues on the land and the material. If the usufruct was on the building alone, the naked owner may rebuild, with or without the approval of the usufructuary, but he must pay interest on the value of the land and the old materials that may have been used. (NCC, Art. 607) 2. If both the naked owner and the usufructuary were separately given indemnity, each owns the indemnity given to him, the usufruct being totally extinguished. 3. If the usufructuary indemnity, he must owner and compel either the interest property. He may himself if the naked (Paras, 2008) Effect of bad use of the property held in usufruct 3. If the naked owner alone paid for the insurance but there is failure or omission on the part of the usufructuary to share: GR: Usufruct is not extinguished by bad use of the thing in usufruct. XPN: If the abuse should cause considerable injury to the owner, the latter may demand delivery to and administration by him, but he will be obliged to pay net proceeds to the usufructuary. (NCC, Art. 610) The effect is the same as if there was a sharing, but the usufructuary must reimburse the owner of the usufructuary’s share in the insurance premium. 4. If the usufructuary alone pays the insurance premium: a. The insurance indemnity goes to the usufructuary alone, with no obligation to share it with, nor to give legal interest thereon to, the naked owner. b. The usufruct continues on the land for the remaining period (unless usufruct has been constituted on the building alone) Rules in case of multiple usufructs 1. 2. Rule in case of expropriation of the property (NCC, Art. 609) 3. In case the property held in usufruct is expropriated for public use: 1. alone was given the give it to the naked the latter to return or to replace the deduct the interest owner fails to object. If constituted simultaneously, all the usufructuaries must be alive at the time of the constitution. The death of the last survivor extinguishes the usufruct (NCC, Art. 611); If constituted successively by virtue of a donation, all the donee-usufructuaries must be living at the time of the constitutiondonation of the usufruct (NCC, Art. 756); and If constituted successively by virtue of a last will, there should only be two successive usufructuaries, and both must have been alive at the time of testator’s death. EASEMENT OR SERVITUDE If the naked owner alone was given the indemnity, he has the option to: a. Replace it with another thing of the same value and of similar condition; or b. Pay legal interest to usufructuary on the amount of indemnity for the whole period of the usufruct, not just the unexpired period. NOTE: If the owner chooses the latter It is an encumbrance imposed upon an immovable for the benefit of: 1. 2. 261 Another immovable belonging to a different owner; or For the benefit of a community or one or more persons to whom the encumbered estate does not belong by virtue of which Property the owner is obliged to abstain from doing or to permit a certain thing to be done on his estate. (NCC, Articles 613 and 614) Essential qualities of easements: 1. 2. 3. Where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen. However, if these two circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest. 4. 5. 6. Incorporeal; Imposed upon corporeal property; Confers no right to a participation in the profits arising from it; Imposed for the benefit of corporeal property; Has two distinct tenements: dominant and servient estate; and Cause must be perpetual. Easement vs. Usufruct There can be no easement over another easement for the reason that an easement may be constituted only on a corporeal immovable property. An easement, although it is real right over an immovable, is not a corporeal right. (1995 BAR) BASIS Constituted on Easement vs. Servitude Use granted EASEMENT An English law term Real The right enjoyed SERVITUDE Used in civil law countries Real or personal Burden imposed upon another As to right of possession Characteristics of easement (NICE LIAR) 1. 2. 3. 4. 5. 6. 7. 8. As to effect of death A right limited by the Needs of the dominant owner or estate, without possession; Inseparable from the estate to which it is attached – cannot be alienated independently of the estate (NCC, Art. 617) (2001, 2010 BAR); Cannot consist in the doing of an act unless the act is accessory in relation to a real easement; Involves two (2) neighboring Estates: the dominant estate to which the right belongs and the servient estate upon which an obligation rests; A Limitation on the servient owner’s rights of ownership; Indivisible – not affected by the division of the estate between two or more persons (NCC, Art. 618); It is enjoyed over Another immovable never on one’s own property; and A Real right but will affect third persons only when registered. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Nature of right EASEMENT On real property Limited to a particular or specific use of the servient estate. No possessory right over an immovable Not extinguished by death of dominant owner. Real right whether or not registered. USUFRUCT Real or personal Includes all uses and fruits. Involves a right of possession in an immovable or movable. Extinguished by death of usufructuary. Real right whether or not registered. As to transmissibilit y Transmissibl e Transmissibl e How it may be constituted May be constituted in favor, or, burdening, a piece of land held in usufruct. Cannot be constituted on an easement but it may be constituted on the land burdened by an easement. Q: Can there be an easement over a usufruct? 262 Civil Law A: There can be no easement over a usufruct. Since an easement may be constituted only on a corporeal immovable property, no easement may be constituted on a usufruct which is not a corporeal right. For this purpose, he shall notify the owner of the servient estate, and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate. (NCC, Art. 627) Q: Can there be a usufruct over an easement? NOTE: The necessity of the works for the use and preservation of the easement is the basis and the determining factor for the extent of such works. A: 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 property. A servitude cannot be the object of a usufruct because it has no existence independent of the property to which it attaches. The works must be executed in the manner least inconvenient to the servient owner, who cannot recover indemnity for the inevitable damages or inconveniences which may be caused thereby. Q: Is there such thing as judicial easement? But if the work is done badly, the dominant owner will be liable for damages that may be suffered by the servient owner. A: NO. When the court says that an easement exists, it is not creating one. For, even an injunction cannot be used to create one as there is no such thing as a judicial easement. The court merely declares the existence of an easement created by the parties. (La Vista Association v. CA, G.R. No. 95252, September 5, 1997) Rights of the dominant owner (MARE) 1. 2. PARTIES TO AN EASEMENT 3. 1. Dominant estate – refers to the immovable for which the easement was established; and 2. Servient estate – the estate which provides the service or benefit. 4. Obligations of the dominant owner (CANECO) Dominant Estate v. Servient Estate DOMINANT ESTATE Immovable in favor of which, the easement is established. SERVIENT ESTATE That property or estate which is subject to the dominant estate. Which the right belongs. Upon which an obligation rests. Make on the servient estate all works necessary for the use and preservation of the servitude (NCC, Art. 627); Ask for mandatory injunction to prevent impairment of his right (Resolme v. Lazo, G.R. No. L-8654, March 30, 1914); Renounce the easement if he desires to be exempt from contributing necessary expenses (NCC, Art. 628); and Exercise all rights necessary for the use of the easement. (NCC, Art. 625) 1. 2. 3. 4. RIGHTS AND OBLIGATION OF THE OWNERS OF THE DOMINANT AND SERVIENT ESTATES 5. The owner of the dominant estate may make, at his own expense, on the servient state any works necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome. 6. 263 He cannot Exercise the easement in any other manner than that previously established (NCC, Art. 626); He cannot Alter the easement or render it more burdensome [NCC, Art. 627(1)]; He shall Notify the servient owner of works necessary for the use and preservation of the servitude [NCC, Art. 627(2)]; He must Choose the most convenient time and manner of making the necessary works as to cause the least inconvenience to the servient owner; If there are several dominant estates he must Contribute to the necessary expenses in proportion to the benefits derived from the works [NCC, Art. 628(1)]; and He can may make, at his Own expense, on the servient estate, any works necessary for the use of servitude, provided it will not Property alter or make it more burdensome. [NCC, Art.627(1)] constituted need not to be the owner of any estate and does not require a dominant estate because the person in whose favor the easement is constituted need not to be the property owner. Servient owner The owner of the immovable whose property is subject to easement for the benefit of the dominant owner. 2. Rights of the servient owner (RMC) 1. 2. 3. Retain the ownership of the portion of the estate on which easement is imposed; Make use of the easement unless there is an agreement to the contrary [NCC, Art. 628(2)]; and Change the place or manner of the use of the easement, provided it be equally convenient. [NCC, Art. 629(2)] As to the manner of exercise a. Continuous – Their use may or may not be incessant, without the intervention of any act of man. E.g. Easement of drainage (NCC, Art. 615); and NOTE: For acquisitive prescription, the easement of aqueduct and easement of light and view are considered continuous. b. Obligations or limitations imposed on the servient owner (IC) 3. 1. He cannot Impair the use of the easement. XPN: (1) When the easement has become very inconvenient to the said servient owner; and (2) If it prevents him from making any important works, repairs, or improvements thereon. 2. As to whether their existence is indicated a. Apparent – Made known and continually kept in view by external signs that reveal the use and enjoyment of the same (NCC, Art. 615); and NOTE: By way of exception the easement of aqueduct is always apparent, whether or not it can be seen. (NCC, Art. 646) He must Contribute to the necessary expenses in case he uses the easement, unless otherwise agreed upon. [NCC, Art. 628(2)] b. CLASSIFICATIONS OF EASEMENT 1. As to recipient of the benefit a. Real (or predial) – The easement is in favor of another immovable (NCC, Art. 613); and 4. NOTE: It requires two distinct immovables belonging to different owners to which it relates. b. Personal – The easement is in favor of a community, or of one or more persons to whom the encumbered estate does not belong e.g. easement of right of way for passage of livestock. (NCC, Art. 614) 5. NOTE: In personal servitude the person in whose favor the easement is UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Discontinuous – Used at intervals and depend upon the acts of man. E.g. Easement of right of way Non-apparent – They show no external indication of their existence. (NCC, Art. 615) As to the right given a. Right to partially use the servient estate; b. Right to get specific materials or objects from the servient estate; c. Right to participate in ownership; and d. Right to impede or prevent the neighboring estate from performing a specific act of ownership. (Paras, 2008) As to source a. Legal – Those created by law for public use or private interests; b. Voluntary - constituted by will or agreement of the parties or by testator; and NOTE: Like any other contract, a 264 Civil Law voluntary easement (of right-of-way) could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. (La Vista Association v. CA, G.R. No. 95252, September 5, 1997) c. 6. considered as such under Art. 620 which expressly makes it DISTINCT from title. 2. NOTE: Prescription runs irrespective of good faith or bad faith of the possessor and whether or not he has just title. The only requirement is adverse possession. Only continuous and apparent easements can be acquired by prescription. (NCC, Art. 620) Mixed – Created partly by agreement and partly by law. As to the duty of the servient owner: a. Positive – Imposes upon the owner of the servient estate the obligation of allowing something to be done or doing it himself; and e.g. Right of way – imposes the duty to allow the use of said way. b. 3. By deed of Recognition 4. By Final judgment NO JUDICIAL EASEMENTS. Resultantly, when the court says that an easement exists, it is not creating one. For, even an injunction cannot be used to create one as there is no such thing as a judicial easement. The court merely declares the existence of an easement created by the parties. (La Vista Association, Inc. v. CA, G.R. No. 95252, September 5, 1997) Negative – Prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. e.g. Easement of light and view – where the owner is prohibited from obstructing the passage of light. NOTE: If the owner of the servient estate refuses to execute the deed of recognition, the court may, in its judgment, declare the existence of the easement. MODES OF ACQUIRING EASEMENT 1. By Title – the following easements may be acquired only by title: a. b. c. By Prescription of 10 years (2009 BAR) 5. Continuous non-apparent easements; Discontinuous apparent easements; and Discontinuous non-apparent easements. (NCC, Art. 622) (2005 BAR) By Apparent sign established by the owner of the two adjoining estates XPN: unless at the time the ownership of the two estates is divided: a. b. NOTE: Title means: It does not necessarily mean document. It means a juridical act or law sufficient to create the encumbrance. There are contrary stipulations; or The sign is removed before the execution of the deed. (NCC, Art. 624) Computation of prescriptive period 1. E.g. law, donation, testamentary succession, contract. a. Intestate succession does not create an easement, for no act is involved. Hence, instead of creating an easement, it transmits merely an easement already existing. b. Prescription is a mode of acquisition, and is generally and ordinarily a title, but is not 2. Positive easement – The 10-year period is counted from the day when the owner of the dominant estate begins to exercise it; and Negative easement – from the day a notarial prohibition is made on the servient estate. Negative easement cannot be acquired by prescription since they are non-apparent. However, for purposes of prescription, there are negative easement that can be considered “apparent” not because there are visible signs or 265 Property their existence but because of the making of the NOTARIAL PROHIBITION which makes it apparent. NOTE: In negative easement there is a need of a formal act. 3. Doctrine of Apparent Sign Easements are inseparable from the estate to which they actively or passively pertain. The existence of apparent sign under Art. 624 is equivalent to a title. It is as if there is an implied contract between the two new owners that the easement should be constituted, since no one objected to the continued existence of the windows. 4. NOTE: It is understood that there is an exterior sign contrary to the easement of party wall whenever: 1. 2. 3. 4. 5. 6. There is a window or opening in the dividing wall of buildings; Entire wall is built within the boundaries of one of the estates; The dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others; or The lands enclosed by fences or live hedges adjoin others which are not enclosed. NOTE: The grounds under Article 631 are not exclusive. In addition to the foregoing causes enumerated in Article 631 of the New Civil Code the following may be added: (1) annulment or rescission of title constituting easement; (2) termination of the right of the grantor; and (3) abandonment of the servient estate; and (4) eminent domain. (4 Manresa, 5th ed., 590) In all these cases, ownership is deemed to belong exclusively to the owner of the property which has in its favor the presumption based on any of these signs. Merger It is enough that the merger be with respect to the portion of the tenement that is affected by the servitude, or the part for the benefit of which it was established. Acknowledgement of an easement in one who owns property An acknowledgement of the easement is an admission that the property belongs to another. (BOMEDCO v. Heirs of Valdez, G.R. No. 124669, July 31, 2003) Where the merger is temporary or under resolutory condition, there is at most a suspension, but not an extinguishment of the servitude. MODES OF EXTINGUISHMENT OF EASEMENTS Easements are extinguished (2001, 2010 BAR) 1. 2. discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements from the day on which an act contrary to the same took place; When either or both of the estates fall into such condition that the easement Cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; By the Expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional; By the Renunciation of the owner of the dominant estate; and By the Redemption agreed upon between the owners of the dominant and servient estates. (NCC, Art. 631) Non-user (MEN-CRR) Non-use must be due to voluntary abstention by the dominant owner, and not to fortuitous event, By Merger in the same person of the ownership of the dominant and servient estates; By Non-user for 10 years; with respect to because the basis of this cause of extinguishment is a presumptive renunciation. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES NOTE: Reckoning point: 266 Civil Law 1. 2. Discontinuous – counted from the day they ceased to be used. Continuous – counted from the day an act adverse to the exercise takes place. Private legal easement is for the interest of private persons or for private use. It shall be governed by: 1. Non-user presupposes that the easement has been used before but it was abandoned for 10 years. Thus, it cannot apply to easements which have not been used. 2. 3. Impossibility of use Agreement of the parties provided they are neither prohibited by law nor prejudicial to third persons; In default, general or local laws and ordinances for the general welfare; or In default, title VII of Articles 613-687 of the NCC. Kinds of legal easements (WIND – PLWS) The impossibility of use only suspends the servitude until such time when it can be used again. 1. Easement relating to Waters; Expiration 2. Easement relating to right of Way; e.g. An easement was agreed upon to last till the owner of the dominant easement becomes a lawyer. When the condition is fulfilled, the easement ceases. Renunciation Renunciation must be express, definite, clear, specific (otherwise it might be confused with non- user) This is particularly true for discontinuous easements. Renunciation of a real right must be reflected in a public instrument. 3. Easement of Party wall; Redemption This is voluntary redemption, existing because of an express stipulation. The stipulation may provide conditions under which the easement would be extinguished. (Paras, 2008) 4. Easement of Light and view; LEGAL EASEMENT Legal easements are those imposed by law having for their object either public use of the interest of private persons. They shall be governed by the special laws and regulations relating thereto, and in the absence thereof, by the Civil Code. 5. Drainage of Building; Public legal easement Public legal easement is for public or communal use. Private legal easement 267 Property Subjacent Support 6. Intermediate distances and works for certain construction and plantings; EASEMENTS RELATING TO WATERS Different easements relating to waters: (NBREWAC) A. Natural drainage (NCC, Art. 637); Scope of easement of natural drainage Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from higher estates, as well as the stones or earth which they carry with them. (NCC, Art. 637) (2002 BAR) 7. Easement against Nuisance; and NOTE: Art. 637 has already been superseded by Art. 50 of P.D. 1067. (Water Code of the Philippines) Duties of Servient Estate The owner cannot construct works that would impede the easement BUT he may regulate or control the descent of water. 8. Easement relating to lateral and Subjacent support. Duties of Dominant Estate 1. He cannot construct works which will increase the burden, but he may construct works preventing erosion; 2. They must compensate the owners of the servient estates if the waters are result of an overflow from irrigation dams, or the result of artificial descent done by man and damages caused by reason thereof, Lateral Support Prescription of easement of natural drainage The easement of natural drainage prescribes by non-use for 10 years. (Paras, 2008) Indemnity in easement of natural drainage UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 268 Civil Law Art. 637 of the New Civil Code, which provides for the easement of natural drainage, does not speak of any indemnity. It follows that no indemnity is required as long as the conditions laid down in the article are complied with. (Paras, 2008) B. Drainage of Buildings (NCC, Art. 674); C. Easement on Riparian banks for navigation, floatage, fishing, salvage, and tow path (NCC, Art. 638); 1. 2. 3. NOTE: The right to make the water flow thru or under intervening or lower estates. Requisites for drawing water or for watering of animals 1. 2. 3. Easement on Riparian Property The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three meters in urban areas, 20 meters in agricultural areas, and 40 meters in forest areas along their margins are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and salvage. 4. Easement Of Right Of Way Does Not Necessarily Include Easement Of Aqueduct If “A” was granted a right of way by “B” which he (“A”) uses in entering and exiting from his tenement, “A” has no presumed right to dig trenches and lay pipelines for conducting water to his tenement. (San Rafael Ranch Co. vs. Rogers, Co., 154 C 76, P1092) Easement of a Dam (NCC, Articles 639 and 647); A person may establish the easement of abutment or of a dam provided that: 1. 2. 3. 4. F. The purpose is to divert or take water from a river or brook, or to use any other continuous or discontinuous stream; It is necessary to build a dam; The person to construct it is not the owner of the banks or lots which must support it; and Payment of proper indemnity is made. Easement of Aqueduct (NCC, Articles 642646); and The easement of aqueduct, for legal purposes, is considered continuous and apparent even though the flow of water may not be continuous or its use depends upon the needs of the dominant estate or upon a schedule of alternate days or hours. (NCC, Art. 646) NOTE: Easement of aqueduct is not acquirable by prescription after 10 years because although it is continuous and apparent in character, under the Water Code of the Philippines (P.D. 1067), all waters belong to the State; therefore, they cannot be the subject of acquisitive prescription. (Jurado, 2011) He must seek the permission of the owner and in case of latter’s refusal, he must secure authority from the proper administrative agency. E. Owner of the dominant estate has the capacity to dispose of the water; The water is sufficient for the use intended; Proposed right of way is the most convenient and the least onerous to third persons; and Pay indemnity to the owner of the servient estate. (NCC, Art. 643) NOTE: The absence of any one of these requirements will prevent the imposition of the easement of aqueduct on the intervening estates. No person shall be allowed to stay in this zone bigger than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind. (Art. 51, PD 1067) D. It must be imposed for reasons of public use; It must be in favor of a town or village; and Indemnity must be paid. (NCC, Art. 640) Easement for drawing Water or for watering animals (NCC, Arts. 640-641); This is a combined easement for drawing of water and right of way. It is an easement which gives right to make water flow thru intervening estates in order that one may make use of said water. However, unlike the easement for drawing water or for Requisites for easement for watering cattle 269 Property watering animals, the existence of the latter does not necessarily include the easement of aqueduct. Q: The original developer of Happy Glen Loop (HGL) loaned from T. P. Marcelo Realty Corporation. HGL failed to settle its debts so he assigned all his rights to Marcelo over several parcels of land in the subdivision. Marcelo represented to lot buyers that a water facility is available in the subdivision. Marcelo sold the lot to Liwag who subsequently died. The wife of Liwag demanded the removal of the overhead water tank over the parcel of land contending that its existence is merely tolerated. HGL Homeowners Association refused the demand contending that they have used continuously the facility for more than 30 years. Is there an established easement for water facility in the lot? Requisites for easement of aqueduct 1. Indemnity must be paid to the owners of intervening estates and to the owners of lower estates upon which waters may filter or descend. NOTE: The amount usually depends on duration and inconvenience caused. 2. 3. If for private interests, the easement cannot be imposed on existing buildings, courtyards, annexes, out- houses, orchards or gardens but can be on other things, like road, provided no injury is caused to said properties. A: YES. The water facility is an encumbrance on the lot of the Subdivision for the benefit of the community. It is continuous and apparent, because it is used incessantly without human intervention, and because it is continually kept in view by the overhead water tank, which reveals its use to the public. The easement of water facility has been voluntarily established either by Marcelo, the Subdivision owner and the original developer of the Subdivision. For more than 30 years, the facility was continuously used as the residents’ sole source of water. (Liwag vs Happy Glen Loop Homeowners Association, Inc., G.R. No. 189755, July 4, 2012) There must be a proof: a. That the owner of the dominant estate can dispose of the water; b. That the water is sufficient for the use which it is intended; c. That the proposed course is the most convenient and least onerous to third persons and the servient estate; and d. That a proper administrative permission has been obtained. (Paras, 2008) Right of the owner of the servient estate to fence EASEMENT OF RIGHT OF WAY (1996, 2005, 2010 BAR) The easement of aqueduct does not prevent the owner of the servient estate from closing or fencing it, or from building over the aqueduct in such manner as not to cause the owner of the dominant estate any damage, or render necessary repairs and cleanings impossible. (NCC, Art. 645) Easement of right of way is the right granted to a person or class of persons to pass over the land of another by using a particular pathway therein, to reach the former’s estates, which have no adequate outlet to a public highway subject, however to payment of indemnity to the owner of the land burdened by the right. (Pineda, 2009) G. Easement for the Construction of a Stop Lock or Sluice Gate (NCC, Art. 647) Right of way It may refer either to the easement itself, or simply, to the strip of land over which passage can be done. (Paras, 2008) To make these structures in the bed of a stream from which they needed water for irrigation or improvement of the dominant estate will be drawn, it is required that the dominant owner pays the riparian owners where the structures will be constructed for the damages caused to the latter and to other irrigators who may sustain damages also. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Q: May the easement of right of way be acquired by prescription? A: Easement of right of way cannot be acquired 270 Civil Law by prescription because it is discontinuous or intermittent. (Ronquillo, et al. v. Roco, G.R. No. L10619, February 28, 1958) right of way. Dayum demanded that Demit pay for the area encroached or demolish the wall fence and portion of the house which have been encroaching. Demit contends that as owner of Lot A and B, he is equally entitled to the road of right of way and proposed to buy the portion. Is the contention of Demit correct? Q: What kind of servitude in favor of the government is a private owner required to recognize? A: The only servitude which he is required to recognize in favor of the government are: A: NO. As the owner of the servient estate, Dayum retained ownership of the road right of way even assuming that said encumbrance was for the benefit of Lots of Demit. The latter could not claim to own even a portion of the road right of way because Art. 630 of the Civil Code expressly provides that "[t]he owner of the servient estate retains ownership of the portion on which the easement is established, and may use the same in such manner as not to affect the exercise of the easement." (Sps. Mercader v. Sps. Bardilas, G.R. No. 163157, June 27, 2016) 1. The easement of a public highway; 2. Private way established by law; or 3. Any government canal or lateral that has been pre-existing at the time of the registration of the land. NOTE: If the easement is not pre-existing and is sought to be imposed only after the land has been registered under the Land Registration Act, proper expropriation proceedings should be had, and just compensation paid to the registered owner. (Eslaban v. Vda De Onorio, G.R. No. 146062, June 28, 2001) Q: What if the property is not the shortest way but will cause the least damage to the servient estate? Requisites for easement on right of way (POON-D) (1996, 2005, 2010 BAR) A: The way which will cause the least damage should be used even if it will not be the shortest. 1. The easement must be established at the point least Prejudicial to the servient estate (NCC, Art. 649); 2. Claimant must be an Owner of enclosed 3. There must be no adequate Outlet to a public highway [NCC, Art. 649, (1)]; 4. The right of way must be absolutely Necessary not mere convenience; 5. The isolation must not be Due to the claimant’s own act (NCC, Art. 649); and 6. There must be payment of proper Indemnity. The easement of right of way shall be established at the point least prejudicial to the servient estate and where the distance from the dominant estate to a public highway is the shortest. In case of conflict, the criterion of least prejudice prevails over the criterion of shortest distance. Mere Inconvenience is not a Justification for a Right of Way Thus, it was held that where the petitioner could have access to Sucat Road (Paranaque) through the Lombos Subdivision from which he acquired his lot and not from Gatchalian Realty Inc., he cannot claim any right of way from the latter. (Ramos vs. Gatchalian Realty, Inc., G.R. 75905, 154 SCRA 703) Least prejudicial to the servient estate (1996, 2000, 2005, 2010 BAR) “Least prejudicial” in determining the right of way means it is the shortest way and the one which will cause the least damage to the property to the servient estate in favor of the dominant estate. Legal Easement, Consent Q: Lots A and B are owned by Demit while Lot C is owned by Dayum. Lot C has an existing right of way. After inspection of the area, it has been found out that a fence and portion of the residential house owned by Demit have encroached a part of Dayum’s Not Dependent Upon The existence of a legal easement does not depend upon the consent of the servient owner or owners 271 Property Claimant must be an owner of enclosed immovable or with real right road connecting with David’s subdivision. Is David entitled to an easement of right of way through the subdivision of Nestor which he claims to be the most adequate and practical outlet to the highway? Adequate outlet The convenience of the dominant estate has never been the gauge for the grant of compulsory right of way. To be sure, the true standard for the grant of the legal right is "adequacy." Hence, when there is already an existing adequate outlet from the dominant estate to a public highway, as in this case, even when the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. (Dichoso v. Marcos, G.R. No. 180282, April 11, 2011; Alicia B. Reyes v. Spouses Francisco S. Valentin and Anatalia Ramos, G.R. No. 194488, February 11, 2015, as penned by J. Leonen) A: 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 an access road to the rice fields which he was supposed to purchase according to his own representation when he applied for a license to establish the subdivision. (Floro v. Llenado, G.R. No. 75723, June 2, 1995) When Adequate Outlet to a Public Highway is Available Through Water If the outlet to a highway is through water, like a river, lake or sea, and the same is not dangerous to cross nor do they pose grave inconvenience, the right of way should not be granted. Q: 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 1km longer. Who should prevail? (2000 BAR) If the waterway is dangerous and to construct a bridge over it is too expensive, it is as if there is no available outlet to the highway. In which case, right of way is grantable. Determination of proper indemnity to the servient estate A: ROMULO will prevail. Under Art. 650, the easement of right of way shall be established at the point least prejudicial to the servient estate and where the distance from the dominant estate to a public highway is the shortest. In case of conflict, the criterion of least prejudice 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. If the passage is: 1. 2. Two instances where indemnity is not required Q: David owns a subdivision which does not have access to the highway. When he applied for a license to establish the subdivision, he represented that he will purchase a rice field located between his land and the highway, and develop it into an access road. However, when the license was granted, he did not buy the rice field, which remained unutilized. Instead, he chose to connect his subdivision with the neighboring subdivision of Nestor, which has access to the highway. When Nestor and David failed to arrive at an agreement as to compensation, Nestor built a wall across the UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Continuous and permanent – The indemnity consists of the value of the land occupied plus the amount of damages caused to the servient estate; and Temporary – Indemnity consists in the payment of the damage caused. 272 1. When a piece of land acquired by sale, exchange or partition is surrounded by other estates of the vendor, exchanger or co-owner. In such case he shall be obliged to grant a right of way without indemnity (NCC, Art. 652); or 2. When a piece of land acquired by donation surround the estate of the donor or grantor. In such case, the donee or grantee shall be obliged to grant a right of way without indemnity. (NCC, Art. 653 (2)) Civil Law NOTE: If it is the land donated that is surrounded by the estate of the donor or grantor, although the latter is obliged to grant a right of way, he can demand the required indemnity. (NCC, Art. 652) NOTE: Said extinguishment is NOT automatic. There must be a demand for extinguishment coupled with tender of indemnity by the servient owner. Q: Emma bought a parcel of land from Equitable-PCI Bank, which acquired the same from Felisa, the original owner. Thereafter, Emma discovered that Felisa had granted a right of way over the 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? (2001 BAR) Granting of Right of Way, Without Indemnity When the vendor sells a parcel of land and this land is surrounded by other estates of said vendor and is without access to a public highway, the vendor is obliged to grant a right of way without demanding an indemnity. This rule equally applies to an exchange of property, or partition of property in coownership. The exchanger, or the co-owner shall have the same obligation as the vendor. Measurement for the easement of right of way A: The complaint for cancellation of easement of right of way must fail. 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 of the NCC. Under Art. 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. The width of the easement shall be that which is sufficient for the needs of the dominant estate. (NCC, Art. 651) Q: Can a dominant owner demand a driveway for his automobile? A: YES, due to necessity of motor vehicles in the present age. Liability for repairs and taxes Temporary easement of right of way 1. As to repairs, the dominant owner is liable for necessary repairs; 2. As to proportionate share of the taxes, it shall be reimbursed by said owner to the proprietor of the servient estate. This applies only to permanent easements. (NCC, Art. 654) If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise thereon scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. (NCC, Art. 656) Special causes of extinguishment of right of way Easement of right of way for the passage of livestock or sevidumbres pecurias 1. The opening of a public road giving access to isolated estate; or 2. When the dominant estate is joined to another estate (such as when the dominant owner bought an adjacent estate) which is abutting a public road, the access being adequate and convenient. (NCC, Art. 655) Governed by the ordinances and regulations relating thereto and in their absence, by the usages and customs of the place. Maximum width: Both cases must substantially meet the needs of the dominant estate. Otherwise, the easement may not be extinguished. 1. Animal path – 75 meters; 273 Property 2. Animal trail – centimeters; and 37 meters and 50 whenever: 1. There is a window or opening in the dividing wall of the buildings; 2. Dividing wall is on one side straight and plumb on all its facement, and on the other, it has similar conditions on the upper part but the lower part slants or projects outward; 3. Entire wall is built within the boundaries of one of the estates; 4. The dividing walls bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others; 5. The dividing wall between courtyards, gardens and tenements is constructed in such a way that the coping sheds the water upon only one of the estates; 6. The dividing wall, being built by masonry, had stepping stones, which at certain intervals project from the surface of one side only, but not on the other; or 7. The lands enclosed by fences or live hedges adjoin others which are not enclosed. 3. Cattle – 10 meters (unless to the old Civil Code, vested rights has been acquired to a greater width). (Paras, 2008; NCC, Art. 657) EASEMENTS OF PARTY WALL Easement of party wall The easement of party wall is also called servidumbre de medianera. Party wall defined Is a wall erected on the line between the adjoining properties belonging to different persons, for the use of both estates. (Pineda, 2009) Governed by: 1. The Civil Code; 2. Local ordinances and customs; and 3. The rules co-ownership. (NCC, 658) In all these cases, the ownership is deemed to belong exclusively to the owner of the property which has in its favor the presumption based on any of these signs. (NCC, 660) Q: Is the easement of party wall really an easement or is it a case of co-ownership? Right to Increase Height of Party Wall A: While it is called an easement by the law, the law in some articles refers to it as a case of coownership or part-ownership. (NCC, Articles 662, 665, 666) The truth is that, it is a compulsory kind of co-ownership (FORGED INDIVISION) where the shares of each owner cannot be separated physically (otherwise the wall would be destroyed), although said shares may in a sense be materially pointed out. Thus, each co-owner owns the half nearest to him. (Paras, 2008) Every part-owner of a party has the right to increase the height of the party wall subject to the following conditions: 1. The same shall be done at his expense; 2. He shall pay for any damage which may be caused by his work, even though such damage may be temporary; and 3. If the party wall cannot bear the increased height, the owner desiring to raise it shall be obliged to reconstruct it at his own expense, if it be necessary to make it thicker, he shall give space required from his own land. (NCC, 664) The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary: 1. In dividing walls of adjoining buildings up to the point of common elevation; 2. In dividing walls of gardens or yards situated in cities, towns, or in rural communities; or 3. In fences, walls and live hedges dividing rural lands. (NCC, Art. 659) Repairs and Maintenance of a Party Wall GR: The expenses for construction and repairs of party walls shall be shouldered by all the owners of the party wall. XPN: If a part owner renounces his part ownership on the party wall. The renunciation must be absolute and total because the It is understood that there is an exterior sign, contrary to the easement of party wall UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 274 Civil Law easement of party wall is indivisible. the window is on one’s own wall, still the easement would be positive if the window is on a balcony or projection extending over into the adjoining land. (Paras, 2008) NOTE: The owner of the building or structure supported by a party wall who desires to demolish such building or structure, may RENOUNCE his part ownership of the wall. The cost of all repairs and works necessary to prevent any damage which the demolition may cause to the party wall on this occasion shall be borne by him. Negative — If the window is thru one’s own wall, that is, thru a wall of the dominant estate. (NCC, Art. 668, par. 2) Therefore, the time for the period of prescription should begin from the time of notarial prohibition upon the adjoining owner. “Formal prohibition’’ or “formal act’’ (under the old Civil Code, Art. 538) means not merely any writing, but one executed in due form and/or with solemnity — a public instrument. (Laureana A. Cid v. Irene P. Javier, et al., G.R. No. L-14116, June 30, 1960) EASEMENT OF LIGHT AND VIEW No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. (NCC, Art. 667) XPN: Even if the window is on the wall of the dominant estate, still easement of light and view would be POSITIVE if the window is on the balcony or extension extending over the land of the servient estate. A window or opening in the dividing wall of buildings is an exterior sign which rebuts the presumption that the wall is a party wall; one part-owner may not, therefore, make any window or opening of any kind thru a party wall without the consent of others. Thus, the period of prescription for the acquisition shall be counted from the time of: The easement of LIGHT — “Jus luminum” The opening is for the purpose of admitting light and not for viewing. 1. Opening of the window, if through a party wall; or 2. The formal prohibition upon the proprietor of the adjoining land, if window is through a wall on the dominant estate. (as in the case of small windows, not more than 30 cm. square, at the height of the ceiling joist, the purpose of which is to admit light, and a little air, but not VIEW). (Paras. 2008) Openings at height of ceiling joints to admit light (NCC, Art. 669) The easement of VIEW — “Servidumbre prospectus” The opening is for the purpose of viewing. (as in the case of full or regular windows overlooking the adjoining estate) (Incidentally, although the principal purpose here is VIEW, the easement of light is necessarily included, as well as the easement of altius non tollendi [not to build higher for the purpose of obstruction. (Paras, 2008) When the distances in Art. 670 are not observed, the owner of a wall which is not a party wall can make an opening for the purpose of admitting light and air, but NOT for view. Restrictions for making an opening for light and air When easement of light and view is positive and when negative 1. The size must not exceed 30-centimeter square; 2. The opening must be at the height of the ceiling joists or immediately under the ceiling; 3. There must be an iron grating imbedded in the wall; and 4. There must be a wire screen. Positive — If the window is thru a party wall. (NCC, Art. 668, par. 1) Therefore, the period of prescription commences from the time the window is opened. NOTE: The mere opening of the window does not create the easement; it is only when after a sufficient lapse of time the window still remains open, that the easement of light and view is created. (NCC, Art. 668, par. 1) Moreover, even if If the wall becomes a party wall – A part owner can order the closure of the opening because no part owner may make an opening through a 275 Property party wall without the consent of the others; it can also obstruct the opening unless an easement. measured in cases of direct views from the outer line of the wall when the openings do not project, from the outer line of the latter when they do, and in cases of oblique view from the dividing line between the two properties. (NCC, Art. 671) The openings allowed by Art. 669 are for the purpose of admitting light; hence they can be made only in the walls of buildings. Where buildings are separated by a public way or alley (NCC, Art. 672) NOTE: Art. 669 refers to restricted windows. The distance provided in Art. 670 is not compulsory where there is a public way or alley provided that it is not less than three meters wide, the minimum width is necessary for the sake of privacy and safety. Direct and oblique views (NCC, Articles 670671) Articles 670 and 671 deal with regular, full windows. NOTE: The width of the alley is subject to special regulations and ordinances. Direct view - It is that which is obtained from a wall parallel to the boundary line, such that from the opening in such wall it is possible to see the adjoining tenement without the necessity of putting out or turning one's head side. A private alley opened to the use of the general public falls within the provision of Art. 672. Where easement of direct view had been acquired (NCC, Art. 673) NOTE: When windows are opened at a distance less than that prescribed by Art. 670 from the boundary lines, they constitute unlawful openings, however, it is not necessary always that the wall sustaining the opening and the dividing line be exactly and geometrically parallel. Whenever the easement of direct view has been acquired by any such title, there is created a true easement. The owner of the servient estate cannot build thereon at less than a distance of three meters from the boundary line. Oblique view - It is obtained from a wall at an angle with the boundary line; in order to see the adjoining tenement, it is necessary to turn one's head to the left or to the right. NOTE: The title used in Art. 673 refers to any modes of acquiring easements: 1. 2. 3. 4. Restrictions as to easement of views 1. Direct Views: The distance of two (2) meters between the wall and the boundary must be observed; and The distance may be increased or decreased by stipulation of the parties provided that in case of decrease, the minimum distance of two meters or sixty centimeters prescribed in Art. 670 must be observed, otherwise it is void. The said distances involve considerations of public policy and the general welfare; hence, they should not be rendered ineffective by stipulation. 2. Oblique Views: (Walls perpendicular or at an angle to the boundary line) must not be 60 cm to the nearest edge of the window. (NCC, Art. 670) Any stipulation to the contrary is void. (NCC, Art. 673) And the owner who opened them may be ordered by the court to close them. EASEMENT OF DRAINAGE OF BUILDINGS Prescription may still be acquired as a negative easement after ten years from the time of notarial prohibition. The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land or on a street or public place, and not on the land of his neighbor, even though the adjacent land The distance referred to in Art. 670 shall be UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Contract; Will; Donation; or Prescription. 276 Civil Law may belong to two or more persons, one of whom is the owner of the roof. Even if it should fall on his own land, the owner shall be obliged to collect the water in such a way as not to cause damage to the adjacent land or tenement. (NCC, Art. 674) No person shall build any aqueduct, well, sewer, furnace, forge, chimney, stable, depository of corrosive substances, machinery, or factory which by reason of its nature or products is dangerous or noxious, without observing the distances prescribed by the regulations and customs of the place, and without making the necessary protective works, subject, in regard to the manner thereof, to the conditions prescribed by such regulations. These prohibitions cannot be altered or renounced by stipulation on the part of the adjoining proprietors. (NCC, Art. 678) NOTE: Art. 674 does not establish servitude but merely regulates the use of one's property. Easement to receive falling rain waters (NCC, Art. 675) The owner of a tenement or a piece of land, subject to the easement of receiving water falling from roofs, may build in such manner as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs, and in such a way as not to cause any nuisance or damage whatever to the dominant estate. NOTE: The owner must take necessary protective works or other neighboring estates. Planting of trees Art. 679 establishes a negative easement. It provides the minimum distances of trees and shrubs from the boundary line. They shall be regulated by the local ordinances and in the absence thereof, by the customs of the place, and in default thereof, by Art. 679. Easement giving outlet to rainwater where house surrounded by other houses Requisites: Distance in Planting of Trees under Article 679 of the New Civil Code. 1. There must be no adequate outlet to the rainwater because the yard or court of a house is surrounded by other houses; 2. The outlet to the water must be at the point where egress is easiest, and establishing a conduit for drainage; and 3. There must be payment of proper indemnity. (NCC, Art. 676) 1. The distance authorized by local ordinances or customs of the place, if any; or 2. If there are no ordinance or custom: a. Ownership of Rainwater b. Pursuant to the provision of the Water Code of the Philippines, the, rain waters falling on private lands shall belong to the State. At least two (2) meters from the dividing line of the estate in case of tall trees; and At a distance of at least 50 centimeters in case of shrubs or small trees. Remedy In Case Of Violation In case of violation of the law, ordinances, or customs, and the neighboring landowners can demand the removal of the trees illegally planted. This remedy also applies to trees which have grown spontaneously, that is, without any thought of planting them in the tenement of the servient owner. INTERMEDIATE DISTANCES AND WORKS FOR CERTAIN CONSTRUCTIONS AND PLANTINGS No constructions can be built, or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto. (NCC, Art. 677) Intrusions of branches neighboring estate NOTE: Art. 677 establishes an easement in favor of the State. The general prohibition is dictated by the demands of national security. or roots into Q: Can the adjoining estate cut the roots and the branches without the consent of the owner of the tree? Construction of aqueduct, well, sewer, etc. 277 Property A: Right to cut roots can be exercised without notice to the owner of the trees. BUT as to the branches, it is necessary to ask that they be cut, and if the owner of the tree does not do so voluntarily, the court may authorize the neighboring owner to cut them. General Rule; Exception The owner of a parcel of land is the owner of its surface and everything under it. As such, he has the right to construct any works thereon or make any plantations and excavations which he may deem proper. (Art. 437) Q: Does this right prescribe? As limitation, he cannot do so to the detriment of servitudes. Further, he must observe the requirements of special laws and ordinances. A: The right to cut does not prescribe so long as the owner tolerates the branches and roots invading his tenement. BUT the moment the owner of the tenement demanded that the branches be cut off and the owner of the tree refuses to do so, the prescription starts to run. Lateral Support This is the support on the vertical side of a land, the removal of which may cause the land to crumble or slide. Fruits naturally falling upon adjacent land Q: Who owns the fruits which fall from the adjacent land? Subjacent Support This is the horizontal support underneath a land or building the removal of which may cause the sinking or crumbling of the land or building. A: Such fruits belong to the owner of the adjacent land to compensate him for the inconvenience causes by the branches of trees extending over his land. Note however that for the adjacent owner to be entitled to the fruits they must not only fall upon his land but the falling must occur naturally. ‘ Lateral’ Distinguished from ‘Subjacent’ The support is lateral when both the land being supported and the supporting land are on the SAME PLANE; when the supported land is ABOVE the supporting land, the support is subjacent. (Paras, 2008) NOTE: If the fruits fall on public property, the owner of the tree retains ownership. EASEMENT AGAINST NUISANCE Remedies for violation of Art. 684 Easement against nuisance is a negative easement because the proprietor or possessor is prohibited to do something which he could lawfully do were it not for the existence of the easement. However, a nuisance involves any act or omission which is unlawful. 1. Claim for damages for injuries sustained; or 2. Injunction. NOTE: Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void. (NCC, Art. 685) NOTE: The easement against nuisance is not an easement at all but a restriction upon the ownership and not every limitation on the right of ownership is an easement. Notice to owners of adjacent lands Any proprietor intending to make any excavation contemplated in Articles 684-686 shall notify all owners of adjacent lands. LATERAL AND SUBJACENT SUPPORT Proprietor prohibited dangerous excavations from making The notice is mandatory except where there is actual knowledge of the proposed excavation. No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support. (NCC, Art. 684) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES NOTE: The legal easement of lateral and subjacent support are NOT only applicable for buildings already constructed at the time of the excavations but also to future buildings that 278 Civil Law may be constructed on the adjoining lands. Art. 690) Expenses for work required for use and preservation of the easement. VOLUNTARY EASEMENT An easement is voluntary when it is established by the will of the owners. If the owner of the servient estate has bound himself to pay for the cost of the work needed for the use and preservation of the easement, and wants to free himself from such obligations, he may simply renounce or abandon his property in favor of the owner of the dominant state. Persons who may constitute voluntary easement Voluntary easements may be constituted by the owner possessing capacity to encumber property. If there are various owners, all must consent; but consent once given is not revocable. Q: Mr. Bong owns several properties in Pasig City. He decided to build a condominium named Flores de Manila in one of his lots. To fund the project, he obtained a loan from the National Bank (NB) secured by a real estate mortgage over the adjoining property which he also owned. NOTE: Third persons are not bound by a voluntary easement unless the same is duly recorded with the proper authorities. Q: For whose favor are voluntary easements established? A: 1. 2. During construction, he built three pumps on the mortgaged property to supply water to the condominium. After one year, the project was completed and the condominium was turned over to the buyers. However, Mr. Bong failed to pay his loan obligation to NB. Thus, NB foreclosed the mortgaged property where the pumps were installed. During the sale on public auction of the mortgaged property, Mr. Simon won in the bidding. When Mr. Simon attempted to take possession of the property, the condominium owners, who in the meantime constituted themselves into Flores de Manila Inc. (FMI), claimed that they have earlier filed a case for the declaration of the existence of an easement before the Regional Trial Court (RTC) of Pasig City and prayed that the easement be annotated in the title of the property foreclosed by NB. FMI further claimed that when Mr. Bong installed the pumps in his adjoining property, a voluntary easement was constituted in favor of FMI. Will the action prosper? (2014 BAR) Predial servitudes: a. For the owner of the dominant estate; and b. For any other person having any juridical relation with the dominant estate, if the owner ratifies it. Personal servitudes: a. For anyone capacitated to accept. Q: How are voluntary easements created and what are the governing rules for such? A: 1. 2. If created by title (contract, will, etc.), the title governs; and If acquired by prescription, it is governed by the manner or form of possession. NOTE: In both cases, the Civil Code will only apply suppletorily. When consent is necessary A: NO, the action will not prosper. The essence of a mortgage is that it immediately subjects the property upon which it is imposed, and whoever the possessor may be, to the fulfillment of the obligation for whose security it was constituted. There was no voluntary easement in this case because at the time the water pumps were constructed, the subject lot where the water pumps were constructed and The owner of a property in usufruct may create easements thereon without the consent of the usufructuary provided the rights of the latter are not impaired. (NCC, Art. 689) NOTE: Consent of both the naked owner and the beneficial owner is necessary for the creation of perpetual voluntary easement. (NCC, 279 Property the condominium belong to the same person. No one can have an easement over his own property. Even of the assumption that an easement was created in favor of FMI that alone will not defeat the right of the mortgagee to enforce the security if the debtor defaults. (Bogo- Medellin v. CA, G.R. No. 124699, July 31, 2003) Condition of the act Act complained of is already done which caused the injury to plaintiff Abatement Abatement is not available as a remedy. The remedy is action for damages. NUISANCE A nuisance is any act, omission, establishment, business, condition of property, or anything else which: 1. Injures or endangers the health or safety of others; 2. Annoys or offends the senses; 3. Shocks, defies or disregards decency or morality; 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. (NCC, Art. 694) (2005, 2006 BBAR) NOTE: Nuisance is wrongful in itself due to the injury caused, regardless of the presence or absence of care, while negligence creates liability due to want of proper care resulting to another’s injury. (Pineda, 2009) Kinds of Nuisance Nuisance vs. Trespass NUISANCE Use of one’s own property which causes injury to another the property, right or interest of another, and generally results from the commission of an act beyond the limits of the property affected. Injury is consequential. 1. As to the number of persons affected: (2005 BAR) TRESPASS a. Public (or common) – One that affects a community or neighborhood or any considerable number of persons although the extent of the annoyance, danger or damage upon individuals may be unequal (Suarez, 2011); and b. Private – one which affects individual or few persons only. Direct infringement of another’s right or property. Injury is direct and immediate. 2. NOTE: An encroachment upon the space of another’s land, but not upon the land itself is considered a nuisance, and not trespass. Basis Liability is based on lack of proper care or diligence. NUISANCE Liability attaches regardless of the degree of care or skill exercised to avoid the injury UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 280 an Other classification: a. Nuisance per se – That kind of nuisance which is always a nuisance. By its nature, it is always a nuisance all the time under any circumstances regardless of location or surroundings It is an act, occupation, or structure which unquestionably is a nuisance at all times and under any circumstances, regardless of its location or surroundings b. Nuisance per accidens – That kind of nuisance by reason of location, surrounding or in a manner it is Nuisance vs. Negligence NEGLIGENCE There is a continuing harm being suffered by the aggrieved party by the maintenance of the act or thing which constitutes the nuisance. Abatement without judicial proceedings is allowed to suppress the nuisance. Civil Law conducted or managed It is an act, occupation, or structure that may become a nuisance by reason of circumstances, location, or surroundings; c. Temporary – That kind which if properly attended does not constitute a nuisance; d. Permanent – That kind which by nature of structure creates a permanent inconvenience; e. Continuing – That kind which by its nature will continue to exist indefinitely unless abated; f. Intermittent – That kind which recurs off and on and may be discontinued anytime; g. Attractive Nuisance – One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. July 14, 2006) Q: Boracay West Cove, applied for a zoning compliance covering the construction of a three-storey hotel over a parcel of land in Malay. The Zoning Administrator denied the application on the ground that the proposed construction site was within the “no build zone”. The Office of the Mayor issued EO 10, ordering the closure and demolition of Boracay West Cove’s hotel. Boracay West Cove countered that the hotel cannot summarily be abated because it is not a nuisance per se. Is the hotel classified as a nuisance per se? A: NO. The litmus test in determining if it’s a nuisance is the property’s nature and conditions. The hotel cannot be considered as a nuisance per se since this type of nuisance is generally defined as an act, occupation, or structure, which is a nuisance at all times and under any circumstances, regardless of location or surrounding. Here, it is merely the hotel’s particular incident––its location––and not its inherent qualities that rendered it a nuisance. Otherwise stated, had it not been constructed in the no build zone, Boracay West Cove could have secured the necessary permits without issue. (Aquino v. Mun.of Malay Aklan, G.R. No. 211356, September 29, 2014) ATTRACTIVE NUISANCE Nuisance per se vs. Nuisance per accidens PER SE As a matter of law. Need only be proved in any locality. May be summarily abated under the law of necessity. One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. (Jarco Marketing Corp. v. CA, G.R. No. 129792, December 21, 1999) PER ACCIDENS As a matter of fact. Depends upon its location and surroundings, the manner of its conduct or other circumstances. May be abated only with reasonable notice to the person alleged to be maintaining or doing such nuisance. Basis for liability The attractiveness is an invitation to children. Safeguards to prevent danger must therefore be set up. NOTE: The abatement of a nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons or property. Hence, it cannot be closed down or transferred summarily to another location. (Parayno v. Jovellanos, G.R. No. 148408, Elements of attractive nuisance 1. It must be attractive; and 2. Dangerous to children of tender years. Q: Is a swimming pool an attractive 281 Property nuisance? Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it. (NCC, Art. 696) A: GR: A swimming pool or water tank is not an attractive nuisance, for while it is attractive, it is merely an imitation of the work of nature. Hence, if small children are drowned in an attractive water tank of another, the owner is not liable even if there be no guards in the premises. (Hidalgo Enterprises v. Balandan, et. al, G.R. No. L-3422 June 13, 1952) Extra-judicial abatement (2002 BAR) Requisites of extra-judicial abatement (BAR VID) XPN: Swimming pool with dangerous slide characteristics 1. The nuisance must be especially Injurious to the person affected; 2. No Breach of peace or unnecessary injury must be committed; 3. Demand must first be made upon the owner or possessor of the property to abate the nuisance; 4. Demand is Rejected; 5. Abatement is Approved by the district health officer and executed with the assistance of the local police; and 6. Value of the destruction does not exceed P3,000 NOTE: The doctrine of attractive nuisance does not generally apply to bodies of water, artificial as well as natural in the absence of some unusual condition or artificial feature other than the mere water and its location. PUBLIC NUISANCE AND PRIVATE NUISANCE Remedies against public nuisances 1. Prosecution under the RPC or any local ordinance; 2. Civil action; or 3. Abatement, summarily and without judicial proceeding. (NCC, Art. 699) NOTE: Abatement is the exercise of police power which includes the right to destroy property regarded as a public health or safety, and there is no obligation to give compensation. An extra-judicial abatement can only be applied for if what is abated is a nuisance per se and not nuisance per accidens. NOTE: A private person may file for a civil action against a public nuisance if the latter is injurious to him. Thus, insofar as he is concerned, the nuisance becomes a private nuisance which affects him in a special way, different from that sustained by the public in general. Liability for damages in case of extrajudicial abatement of nuisance The private person or a public official extrajudicially abating a nuisance is liable for damages to the owner othe thing abated, if he causes unnecessary injury or if an alleged nuisance is later declared by courts to be not a real nuisance. (NCC, Art. 707) Remedies against private nuisances 1. Civil action; or 2. Abatement, summarily and without judicial proceedings. (NCC, Art. 705) NOTE: The right to question the existence of a nuisance does not prescribe; it is imprescriptible. NOTE: Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. Q: Respondent Ernesto Lardizabal (Ernesto) filed a complaint for demolition, before the City Engineer's Office of Baguio City (City Engineer's Office), questioning the ongoing construction of a residential structure and garage extension by petitioners on a parcel of land. Upon investigation, the City However, it is indispensable that the procedure for extra-judicial abatement of a public nuisance by a private person be followed. (NCC, Art. 706) UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 282 Civil Law Engineer's Office found out that the construction had no building permit. Consequently, the City Mayor issued Demolition Order No. 5. Aggrieved, petitioners moved for a reconsideration of DO No. 05, but was denied by the City Mayor. Thus, they were prompted to file a complaint for injunction and prohibition with the RTC. Should DO No. 5 be enjoined? 1. 2. 3. 4. 5. 6. 7. Occupation; Law; Donation; Tradition; Intellectual creation; Prescription; or Succession; NOTE: Registration of a property does is not a mode of acquiring ownership. It merely confirms the existence of one’s ownership over a property with notice to the whole world. (Bautista v Dy Bun Chin, 49 O.G. 179) A: YES. The following shall be subject for summary Eviction: (1) New squatter families whose structures were built after the affectivity of RA 7279; and (2) Squatter families identified by the LGU in cooperation with the Presidential Commission of the Urban Poor (PCUP), Philippine National Police (PNP) and accredited Urban Poor Organization (UPO) as professional squatters or members of squatting syndicates as defined in the Act. In this case, petitioners cannot be considered as new squatters, since, although their structures were built after March 28, 1992, they or their predecessors-in-interest had occupied, and were claimants of the subject property long before the said date. Neither have they been identified by the LGU as professional squatters nor members of a squatting syndicate. Thus, since petitioners do not fall under the coverage of the said IRR, the issuance of DO No. 05 had no legal basis at the onset. Classification ownership 1. c. Mode v. Title MODE Directly and immediately produces a real right. Cause Proximate cause Essence of the right which is to be created or transmitted. TITLE Serves merely to give the occasion for its acquisition or existence. Means Remote cause Means whereby that essence is transmitted. b. c. d. Mode – it is a way or process of acquiring or transferring ownership. The process may either be original or derivative. of acquiring Occupation (NCC, Art. 713); Intellectual Creation (NCC, Art. 721); and Acquisitive Prescription. (NCC, Art. 1106) Derivative – Are those which arise or depend upon a pre-existing or preceding right or title of another person: a. MODES OF ACQUIRING OWNERSHIP modes Original – Those which do not arise or depend upon any pre-existing right or title of another person: a. b. 2. of Law; e.g. hidden treasure (NCC, Art. 438), improvements on the land of another (NCC, Art. 445), alluvium (NCC, Art. 457), abandoned riverbeds (NCC, Art. 461), falling fruits into the tenement of another (NCC, Art. 681) Donation (Art. 725) Succession mortis causa (NCC, Art. 774); and “Tradition (delivery) as a consequence of certain contracts” like sale, agency, partnership, mutuum, assignment barter. Pure tradition does not transfer ownership such as in deposit or commodatum. (Pineda, 2009) TRADITION It is defined as legal delivery. It has a cause which is the title by reason of which the delivery was made. It always produces an effect – the acquisition of ownership by the person to whom the delivery is made. Title – is a jural act or deed which is not sufficient by itself to transfer ownership. Modes of acquiring ownership (OLD TIPS) (2007 BAR) Classes of Tradition 283 Property 1. 2. Real Or Actual Tradition – This contemplates the actual delivery of the thing from the hand of the grantor to the hand of the grantee if the thing is a personality. If it is a realty, it is manifested by certain possessory acts executed by the grantee with the consent of the grantor such as by taking over the property; by entering it and occupying it. succession where inheritance is transferred upon death of the decedent. g. Constructive Tradition – The delivery of the thing is not actual but representative or symbolical in essence. But must be the intention to deliver the ownership. a. Traditio symbolica – it consists in the delivery of certain symbols or things representing the thing being delivered such as keys or titles b. Traditio Instrumental – It consists in the delivery of the instrument of conveyance to the grantee by the grantor c. Traditio Longa Manu – It consists in the pointing of the thing (movable property) within sight, by the grantor to the grantee but which at the time of the transaction, the thing could not be placed yet in the possession of the grantee. d. Traditio Brevi Manu – It consists in the grantee’s continuation of his possession over the thing delivered but now under a title of ownership. This is exemplified in the case of a lessee who had purchased the property leased to him and thereafter continues to possess it as the owner thereof e. f. OCCUPATION Occupation is the acquisition of ownership by seizing corporeal thing that have no owner, made with the intention of acquiring them, and accomplished according to legal rules. (Paras, 2008) (1997, 2007 BAR) Requisites of occupation 1. There must be Seizure of a thing; 2. Which must be a Corporeal personal property; 3. Which must be Susceptible of appropriation by nature; 4. The thing must be Without an owner; and 5. There must be an Intention to acquire ownership. Occupation vs. Possession BASIS As regards acquisition of ownership Traditio Constitutum Possessorium – It consists in the owner’s continuous possession of the property he had sold to another person, and his present possession thereof is no longer that of an owner but under another capacity like a lessee, pledgee, depository, etc. It is the opposite of Tradicion Brevi Manu. As to property involved As regards ownership of the thing by another As regards the intent to acquire Tradicion By Operation of Law – It consists in the delivery of the thing by operation of law such as the intestate UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES Quasi-Tradition – It consists in the delivery of incorporeal property like rights and credits done through the (a) placing titles of ownership in the hands of the grantee or his representative; or (b) by allowing the grantee to make use of the rights with the consent of the grantor 284 OCCUPATION Mode of acquiring ownership. Involves only corporeal personal property. Requires that the object be without an owner. There must be an intent to acquire ownership. POSSESSION Merely raises the presumption of ownership when exercised in the concept of owner. Any kind of property. The property may be owned by somebody. May be had in the concept of a mere holder. Civil Law escaped become res nullius again. As regards possession May not take place without some form of possession. May exist without occupation. As to period Short duration. Generally, longer. As to leading to another mode of acquisition Cannot lead to another mode of acquisition. May lead to another modeprescription. Straying Domesticated Animals Domesticated animals, if they got strayed and were caught by another, the owner may still claim them from the captor within 20 days reckoned from the date of occupation by the latter. Failure to do so, they shall belong to the captor who kept them. Domesticated as distinguish from Domestic Animals Things susceptible of occupation 1. Things that are without an owner – Res nullius; abandoned; Domesticated animals are wild animals but after capture had been tamed and become accustomed and friendly to people. On the other hand, Domestic Animals or tame animals are those born, bred and raised under the care of men. NOTE: Stolen property cannot be subject of occupation. 2. 3. 4. 5. Animals that are the object of hunting and fishing (NCC, Art. 713); Q: When can land be the object of occupation? Hidden treasures – Only if the there is no known owner thereof. This is possible only if the treasure is found in places or things without owners (NCC, Art 718); Abandoned movables abandoned when: – A thing A: It depends. 1. If without an owner, it pertains to the State (Regalian Doctrine). is a. The expectation to recover is gone (spes recuperandi); and b. The intent to return or have it returned is given up (spes rivertandi). 2. If abandoned and the property is private, it can be the object of occupation. 3. And if the land does not belong to anyone, it is presumed to be public. Ownership of land cannot be acquired by occupation Swarm of bees that has escaped from its owner, under certain conditions (NCC, Art. 716); 6. Domesticated animals that have escaped from their owners, under certain conditions (NCC, Art. 716); 7. Transfer of pigeons to another breeding place without fraud or artifice (NCC, Art. 717); and 8. Transfer of fish to another breeding place without fraud or artifice. (NCC, Art. 717) When the land is without owner, it pertains to the State. The State need not acquire abandoned lands by occupation because once the requisites of abandonment had been fulfilled; automatically, the reversion operates. (Pineda, 2009) Abandoned land (one with an owner before) becomes patrimonial land of the State susceptible of acquisition thru acquisitive prescription. (Paras, 2008) Prescription vs. Occupation Acquisition of ownership over a wild animal by occupation PRESCRIPTION Derivative mode – somebody else was the owner. Wild animals are considered res nullius when not yet captured. After its capture, animals that 285 OCCUPATION Original mode – no previous owner. Property Longer period of possession is required. NOTE: Future property means anything which the donor cannot dispose of at the time of the donation. (NCC, Art. 751) (2009 BAR) Shorter period. DONATION XPN: In donation propter nuptias, however, the Family Code allows a donation of future property between future spouses. Donation is an act of pure liberality whereby a person disposes gratuitously of a thing or right in favor of another who accepts it. (NCC, Art. 725) Donation of future inheritance or the inchoate right to inherit Requisites of donation (ACID) Future inheritance or the inchoate right to inherit cannot be donated because it is future property. 1. Donor must have Capacity to make the donation; 2. He must have donative Intent (animus donandi); 3. There must be Delivery in certain cases; and 4. Donee must Accept or consent to the donation during the lifetime of the donor and of the donee in case of donation inter vivos (NCC, Art. 746); whereas in case of donation mortis causa, acceptance is made after donor’s death because they partake of a will. (NCC, Art. 728) Q: May a property, the acquisition of which is subject to suspensive condition, be donated? A: YES, because once the condition is fulfilled, it retroacts to the day the contract is constituted. [NCC, Art. 1187(1)] Donation of ownership and usufruct Ownership and usufruct of a property may be donated to different persons separately. However, all the donees are required to be living at the time of donation. (NCC, Art. 756) Essential features or elements of a true donation 1. Alienation of property by the donor during his lifetime, which is accepted; 2. Irrevocability by the donor of the donation; 3. Animus Donandi (donative intent); and 4. Consequent impoverishment of the donor (diminution of his assets). Limitation on the amount that can be donated 1. If the donor has forced heirs, he cannot give or receive by donation more than what he can give or receive by will; 2. If the donor has no forced heirs, donation may include all present property provided he reserves in full ownership or in usufruct: CHARACTERISTICS EXTENT TO WHICH DONOR MAY DONATE PROPERTY It may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. (NCC, Art. 750) a. b. NOTE: The limitation applies only to simple, remunerative, and modal donations but not to onerous ones, which are governed by the law on contracts. (De Leon, 2006) Future properties as subject of donation (2003 BAR) Future properties cannot be subject of donations. Donations cannot comprehend future properties. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES The amount necessary to support him and those relatives entitled to support from him; Property sufficient to pay the donor’s debt contracted prior to the donation. RESERVATIONS AND REVERSIONS Effect if the donor violates the requirement for reservation under NCC, Art. 750 286 Civil Law A donation where the donor did not reserve property or assets for himself in full ownership or in usufruct sufficient for his support and all relatives legally dependent upon him is not void. It is merely reducible to the extent that the support to himself and his relatives is impaired or prejudiced. (Pineda, 1999) demandable debt. Remuneratory (Second kind) 1. Consideration for future services; or 2. Donor imposes 1. Onerous – Same certain form of that of conditions, contracts. limitations or 2. Gratuitous – Same charges upon form of that of the donee, donations. whose value is inferior to the donation given. Onerous Imposes upon the donee a reciprocal obligation; Burdens, Same as that of charges or services contracts. are equal or greater in value to that of the donation. Reversion in donation It is a condition established in the deed of donation which has for its effect the restoration or return of the property donated to the donor or his estate or in favor of other persons who must be living at the time of the donation for any cause or circumstances. (NCC, Art. 757) NOTE: If the reversion is in favor of other persons who are not all living at the time of the donation, the reversion stipulated shall be void, but the donation shall remain valid. KINDS OF DONATION 1. 2. 3. Kinds of donation according to perfection or extinguishment According to motive or cause: a. Simple; b. Remuneratory (1st kind); c. Remuneratory (2nd kind): Conditional or Modal donations; or d. Onerous donations. As to perfection or extinguishment: a. Pure; b. With a condition; or c. With a term. According to effectivity: a. Inter vivos (NCC, Art. 729); b. Mortis causa (NCC, Art. 728); or c. Propter nuptials. 1. Pure donation – It is one which is not subject to any condition; 2. Conditional –It is one wherein the donor imposes on the donee a condition dependent on the happening of a future event or past event unknown to the parties; and 3. With a Term – It is one wherein the donor imposes on the donee a condition dependent upon the happening of a future and certain event. Effect of illegal or impossible conditions Kinds of donation according to motive or cause Like in testamentary dispositions (Art. 873), only the illegal or impossible conditions are disregarded. The donation itself remains valid. PURPOSE FORM Simple (2007 BAR) Same to that of forms Pure liberality in donations. Remuneratory (First kind) (2007 BAR) To reward past merits, services rendered by the Same to that of forms donee to the donor in donations. provided the same do not constitute a DONATION INTER VIVOS It is a donation which takes effect during the lifetime of the donor. Limitations imposed by law in making donations inter vivos 1. 287 Donor must Reserve sufficient means for his support and for his relatives who are Property entitled to be supported by him (NCC, Art. 750); 2. Donation cannot comprehend Future property except donations between future husband and wife (FC, Art. 84); and 3. No person may give by way of donation More than he may give by will. NOTE: It partakes of the nature of testamentary provisions and governed by the rules on succession. (NCC, Art. 728) Donation mortis causa must comply with the formalities prescribed by law for the validity of wills Donation mortis causa must comply with the formalities prescribed by law for the validity of wills, otherwise, the donation is void and would produce no effect. That the requirements of attestation and acknowledgment are embodied in two separate provisions of the Civil Code (Articles 805 and 806, respectively) indicate that the law contemplates two distinct acts that serve different purposes. An acknowledgment is made by one executing a deed, declaring before a competent officer or court that the deed or act is his own. On the other hand, the attestation of a will refers to the act of the instrumental witnesses themselves who certify to the execution of the instrument before them and to the manner of its execution. (Echavez v. DCDC, G.R. No. 192916, October 11, 2010) Some inter vivos donations The following donations have been held to be inter vivos: 1. A donation where the causes of revocation have been specified; 2. A donation where the donor reserved for himself a lifetime usufruct of the property, for if he were still the owner, there would be no need of said reservation; 3. A donation where the donor warrants the title to the thing which he is donating — there would be no need of warranty if he is not transferring the title; 4. Some mortis causa Donations The following have been held to be mortis causa: Where the donor immediately transferred the ownership, possession and administration of the property to the donee, but stipulated that the right of the donee to harvest and alienate the fruits would begin only after the donor’s death. (But if what had been transferred in the meantime was only the administration of the property, the donation is mortis causa); 5. Where the donor stated that while he is alive, he would not dispose of the property or take away the land “because I am reserving it to him (the donee) upon my death.” (The Court held this to be inter vivos because in effect, he had already renounced the right to dispose of his property); and 6. A donation where the donees “should not as yet get the possession until our demise,” the administration remaining with the donor spouses, or either one surviving. 1. Where the donor has reserved (expressly or impliedly) the option to revoke the donation at any time before death, even without the consent of the donee; 2. Where the donation will be void if the transferee dies ahead of the transferor. 3. If before the donor’s death, it is revocable at his will; 4. If the donor retains full or naked ownership and control over the property while he is still alive; 5. If what was in the meantime transferred to the done was merely the administration of the property; and 6. If title will pass only after donor’s death. Donation inter vivos vs. Donation mortis causa BASIS DONATION MORTIS CAUSA As to when it takes effect These are donations which are to take effect upon the death of the donor. UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES 288 INTER VIVOS Takes effect during the lifetime of the donor, MORTIS CAUSA Takes effect upon donor’s death. Civil Law the doubt should be resolved in favour of donation inter vivos, rather than mortis causa to avoid uncertainty as to the ownership of the property subject of the deed of donation. independentl y of his death. As to cause or consideratio n Cause is donor’s pure generosity. In contemplatio n of donor’s death without intention to dispose of the thing in case of survival. On predecease Valid if donor survives the done. Void if donor survives. On revocability Generally irrevocable except for grounds provided for by law. On formalities On when acceptance is made On when property is conveyed to the done On tax payable Must comply with the formalities of donations. Acceptance during donor’s lifetime. ONEROUS DONATIONS (2007 BAR) Onerous donation is a donation given for which the donor received a valuable consideration which is the equivalent of the property so donated. (Pineda, 2009) Samples of Onerous Donations Where the condition is to take care of the donor’s family in the future (Carlos v. Ramil, G.R. No. 6736, September 5, 1911); or where the donee must take care of the donor’s funeral expenses. Thus, even if real property is involved, it is not essential to have a public instrument. (Manalo v. De Mesa, G.R. No. L-9449, February 12, 1915) Always revocable at any time and for any reason before the donor’s death. Must comply with the formalities of a will. Kinds of onerous donations 1. Totally onerous – When the burden is equal to or greater than the value of the property donated; and 2. Partially onerous – When the burden is less than the value of the donation (Pineda, 1999). After donor’s death. Property completely conveyed to the done. Property retained by the donor while he is still alive. Donor’s tax Estate tax Laws that apply to onerous donations 1. 2. Test in Determining Whether the Donation is Mortis Causa or Inter Vivos Totally onerous – Rules on contracts. Partially onerous a. Portion exceeding the value of the burden – simple donations; and b. Portion equivalent to the burden – law on contracts. (Pineda, 1999) Rules of contract govern the onerous portion of donation; rules of donation only apply to the excess, if any. Since the donation imposed on the donee the burden of redeeming the property for value, the donation was onerous. As an endowment for a valuable consideration, it partakes of the nature of an ordinary contract; hence, the rules of contract will govern and Art. 765 of the New Civil Code finds no application with respect to the onerous portion of the donation. Insofar as the value of the land exceeds the redemption price paid for by the donee, a donation exists, and the legal provisions on donation apply. (Calanasan v. Sps. Dolorito, G.R. No. 171937, November 15, 2013) What is controlling is the nature of the act and its effectivity. If the act is one of disposition, and effective independently of the donor’s death, it is a donation inter vivos. If it is one of deposition, but its effectivity is dependent upon the death of the donor, it is a mortis causa donation. NOTE: The title given to a deed of donation is NOT a determinative factor which makes the donation inter vivos or mortis causa what is controlling is the provision stated in the deed and must be read in its entirety. If there is doubt on the nature of the donation, 289 Property Donation is perfected from the moment the donor knows of the acceptance by the donee. (NCC, Art. 734) HOW MADE AND ACCEPTED Persons who must accept the donation The donation is perfected, not from the time of acceptance but from the time of knowledge by the donor that the donee has accepted (the knowledge may of course be actual or constructive). If there is no acceptance, the donation will be null and void. The donee must accept the donation personally, or through an authorized person with a special power for the purpose, or with a general and sufficient power, otherwise, the donation shall be void. (NCC, Art. 745) (2010 BAR) Reason for the need for an acceptance FORMALITIES FOR DONATION OF REAL/PERSONAL Because the donee may not want to accept the donor’s liberality or if donation is onerous, he may not agree with the burden imposed. Formalities required for donation 1. Rule prior to knowledge of acceptance Prior to learning of the acceptance, there is as yet no perfected donation (no donation at all), hence, the donor may give the property to somebody else, for he has not really parted with the disposition of the property. As regards movable property: (1998, 2000, 2007 BAR) a. With simultaneous delivery of property donated: i. For P5,000 or less – May be oral/written ii. For more than P5,000 – Written in public or private document b. When the donation and the acceptance are in the same instrument If the donation and the acceptance are in the same instrument, containing the signatures of both donor and donee, it is understood that there is already knowledge of the acceptance, hence, the donation is already perfected. 2. Donations made to incapacitated persons Donations made to incapacitated persons shall be void, though simulated under the guise of another contract or through a person who is interposed. (NCC, Art. 743) If the donation is pure and simple and does not require written acceptance, the minors can accept the donation by themselves. Acceptance may be made: i. In the same instrument; or ii. In another public instrument, notified to the donor in authentic form, and noted in both deeds. Otherwise, donation is void. Q: The Roman Catholic Church accepted a donation of a real property located in Lipa City. A deed of donation was executed, signed by the donor, Don Mariano, and the donee, the Church, as represented by Fr. Damian. Before the deed could be notarized, Don Mariano died. Is the donation valid? (2014 BAR) If the donation needs written acceptance, it may be accepted by their guardian or legal representatives. (NCC, 741) PERFECTION OF DONATION UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES As regards immovable property: (1993, 2000, 2010 BAR) a. Must be in a public instrument specifying i. The property donated; and ii. The burdens assumed by the done. b. Persons who must accept the donation made in favor of a minor Without simultaneous delivery: i. The donation and acceptance must be written in a public or private instrument (Statute of Frauds), regardless of value. Otherwise, donation is unenforceable. 290 Civil Law A: The donation is VOID. The donation of an immovable property must be in a public instrument in order for it to be valid. In this case, the donor died even before the notarization of the deed of donation. Hence, it does not satisfy the requirement of being in a public instrument for the donation to be valid. entrusted to them, for the simple reason that they are not the owners thereof. Status of a donation of ward’s property by a guardian It is believed that such a donation, if made in the guardian’s name is null and void. On the other hand, if made by the guardian in the name of, and with the consent of the ward, it would be valid provided judicial permission is obtained. This is particularly true if the donation benefits, in some way, the ward. QUALIFICATIONS OF DONOR/DONEE DONOR Any person who has capacity to contract and capacity to dispose of his property may make a donation. (NCC, Art. 735) His capacity shall be determined as of the time of the making of donation. (NCC, Art. 737) NOTE: When the donation is clearly in the interest of the beneficiaries, it would be contrary to the spirit and intent of the law to say it cannot be done. The term “person” who could make donations refers to natural and artificial persons with legal personalities. With respect to artificial persons, they must be authorized by their Articles to donate. DONEE All those who are not specially disqualified by law. NOTE: “Making of donation” shall be construed to mean perfection of the donation, otherwise if “making” means “giving,” Art. 737 would in some cases be inconsistent with Art. 734 which states that “the donation is perfected from the moment the donor knows of the acceptance by the donee.” To avoid a contradiction, the rule may be stated thus: “at the time the donation is perfected, both the donor and the donee must be capacitated.” Q: May an unborn child be a donee or a donor? Status of a donation incapacitated person NOTE: If the conceived child did not become a person, the donation is null and void. An unborn child cannot be a donor because it is essential for a person to be able to make a donation, he must have full civil capacity. made by A: An unborn child may be a donee but not a donor. As a donee, donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born. (NCC, Art. 742) an Following the laws in contracts (which are of suppletory application to simple donations) said donations should be merely considered voidable. The same answer should be given in case there was vitiated consent (as in the case of fraud or intimidation). When a person is “specially disqualified’’ to accept a donation A: YES, because at the age of 17, a person of sound mind can already make a valid will. “Specially disqualified’’ does not refer to those incapacitated to contract like minors or those of unsound mind, but to people such as those mentioned in Art. 739 and husbands and wives with respect to immoderate donations from each other (donations of spouses inter se). Donation by a guardian or trustee Natural and juridical persons may be donees Guardians and trustees may of course donate their own properties, unless they are otherwise disqualified by the law, but not the property Since the law does not distinguish, both natural and juridical persons may become donees. An unregistered partnership may become a donee Q: May an emancipated minor by himself make donation mortis causa? 291 Property because it is a juridical or artificial person despite its non-registration. But the conjugal partnership itself, not being natural or juridical, cannot be a donee. Instead, the donation should be given by the stranger to the husband and wife, the share of the husband being credited to his capital, and that of the wife being considered part of her paraphernal property. and NOTE: The presumption that the donations was made in fraud of creditors arises when the donor has not left sufficient assets to pay his debts, at the time of donation. c. EFFECT OF DONATION/LIMITATIONS The donee shall not be liable beyond the value of donation received. DOUBLE DONATIONS IN GENERAL Rights and actions the donee acquires There is double donation when the same thing has been donated to two or more persons. The donee is subrogated to the rights and actions which in case of eviction would pertain to the donor. The rule on double sale under Art. 1544 of NCC shall be applicable. Rule: First in time, stronger in right Liability of donors for eviction of hidden defects 1. 1. If the donation is simple or remunerative, donor is not liable for eviction or hidden defects because the donation is gratuitous, unless the donor acted in bad faith; and 2. If the donation is onerous, the donor is liable on his warranty against eviction and hidden defects but only to the extent of the burden. 2. If no inscription, one who first took possession in good faith. In absence thereof, one who can present oldest title. Rules regarding the liability of the donee to pay the debts of donor 1. EXCESSIVE/INOFFICIOUS Where donor imposes obligation upon the donee, (NCC, Art. 758) the donee is liable: a. b. Rule in case of an excessive or inofficious donation To pay only debts previously contracted; and For debts subsequently contracted only when there is an agreement to that effect. 1. A donor may not donate more than what he can give by will. If he donates more than what he cannot give by will, the donation will become excessive and to insist on it, the legitime of the compulsory heirs will be impaired. Legitime is reserved for the compulsory heirs and the same cannot be impaired or disposed of by the testator; and NOTE: But he is not liable for debts in excess of the value of donation received, unless the contrary is intended. 2. 2. The donee cannot receive by way of donation more than what he may receive by will. If the donee can receive by donation (devise or legacy) more than what the testator is allowed by law to give, the donation is inofficious and it may be suppressed totally or reduced as to its excess. Where there is no stipulation regarding the payment of debts (NCC, Art. 759): a. b. Donee is generally not liable to pay donor’s debts; Donee is responsible only if donation has been made in fraud of creditors; UNIVERSITY OF SANTO TOMAS 2021 GOLDEN NOTES If movable, one who first takes possession in good faith. If immovable, one who first recorded in the registry of property in good faith. 292 Civil Law 8. To an Attesting witness to the execution of donation, if there is any, or to the spouse, parents or children or anyone claiming under them (NCC, Art. 1027); 9. To the Priest who heard the confession of the donor during the latter’s last illness, or the minister of the gospel who extended spiritual aid to him during the same period (NCC, Art. 1027); or 10. To a Physician, surgeon, nurse, health officer or druggist who took care of the donor during his/her last illness. (NCC, Art. 1027) IN FRAUD OF CREDITORS Remedy in case of donations executed in fraud of creditors The creditors may rescind the donation to the extent of their credits. The action is known as accion pauliana. (NCC, Art. 1381) NOTE: If the donor did not reserve enough assets to pay his creditors whom he owed before the donation, the donation is presumed to be in fraud of creditors. REVOCATION OR REDUCTION (1991, 2003, 2006 BAR) VOID DONATIONS Donations prohibited by law (1990, 2000 BAR) (LAW SCRA POP) GROUNDS FOR REVOCATION AND REDUCTION Prohibition on donation inter vivos 1. Grounds for revocation of donation By persons guilty of Adultery or concubinage at the time of donation (NCC, Art. 739); 1. a. The action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence. (NCC, Art. 739) 2. b. c. Those made between persons found guilty of the same Criminal offense, in consideration thereof (NCC, Art. 739); NOTE: The phrase “found guilty of same offense” does NOT refer only to concubinage and adultery. 3. Under Art. 760 Those made to a public Officer or his wife, descendants and ascendants, by reason of his office; 2. Under Art. 764 – When the donee fails to comply with any of the conditions which the donor imposed upon the donee. 3. Under Art. 765 – By reason of ingratitude a. If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority; b. If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or act has been committed against the donee himself, his wife or children under his authority; or c. If he unduly refuses him support when the donee is legally or morally bound Relative Incapacity to Succeed: 4. 5. 6. 7. By individuals, associations or corporations not permitted by Law to make donations (NCC, Art. 1027); By a Ward to the guardian before the approval of accounts (NCC, Art. 1027); By Spouses to each other during the marriage or to persons of whom the other spouse is a presumptive heir (FC, Art. 87); To Relatives of such priest, etc. within the fourth degree, or to the church to which such priest belongs (NCC, Art. 1027); 293 Birth of a donor’s child or children (legitimate, legitimated, or illegitimate) after the donation, even though born after his death; Appearance of a donor’s child who is missing and thought to be dead by the donor; or Subsequent adoption by the donor of a minor child. Property to give support to the donor. imposed in the donation. A judicial action is essential if the donee refuses to return the property, or pay its value to the donor, or to latter’s heirs or assigns. However, the action must be filed within the prescriptive period fixed by law, otherwise, it will be barred. (De Luna vs. Abrigo, GR No. L-57455, January 18,1990) NOTE: The list of grounds for revocation by reason of ingratitude under Art. 765 is exclusive. Grounds for reduction of donation The same grounds for revocation under Art. 760. The donation shall be reduced insofar as it exceeds the portion that may be freely disposed of by will, taking into account the whole estate of the donor at the time of the birth, appearance, or adoption of a child. (NCC, Art. 761) The breach of the condition in the donation causes the automatic revocation. All the donor has to do is to formally inform the donee of the revocation. Judicial intervention only becomes necessary if the donee questions the propriety of the revocation. Even then, judicial intervention is required to merely confirm and not order the revocation. Hence, there can be no 10-year prescriptive period to file an action to speak of. When the donee does not contest the revocation, no court action is necessary. (Province of Camarines Sur vs Bodega Glassware, G.R. No. 194199, March 22,2017) Revocation of perfected donations Once a donation is perfected, it cannot be revoked without the consent of the donee except on grounds provided by law. (NCC, Articles 760, 764 and 765) Q: Can the creditors of the deceased file an action for reduction of inofficious donation? Revocation or reduction is NOT automatic. The emergence of the circumstances enumerated in Art. 760 do not automatically revoke or reduce the donation. The revocation or reduction is authorized only if the amount or value of the property donated exceeds the disposable free portion. A: NO. Only compulsory heirs or their heirs and successors in interest may sue for reduction of

3-2021-UST-Golden-Notes-Civil-Law

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