ust-golden-notes-civil-law

CIVIL LAW 2018 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. 2018Edition. 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. No. ____________ Printed in the Philippines July 2018. ACADEMIC YEAR 2018-2019 CIVIL LAW STUDENT COUNCIL NIKKI MEI Q. KO PATRICIA S. HIDALGO MARLO S. NEPOMUCENO LYODYCHIE Q. CAMARO GENHIS B. ALUNDAY JOSHUA B. UROLAZA KRIZELLE R. RUIZ JHAYPEE D. GUEVARRA PRESIDENT INTERNAL VICE PRESIDENT EXTERNAL VICE PRESIDENT SECRETARY TREASURER AUDITOR PUBLIC RELALTIONS OFFICER CHIEF OF STAFF BAR OPERATIONS CLARA LOUISSE J. YUMANG NINO JOSEPH B. PIO RODA JERREMIAH KRIZIAH B. BATALLER CHRISTINE JOYCE P. ANDRES KRIZA NINA B. MALALUAN MARYLOU RENZI OLOTEO ELOUISA ANN DC. CARREON CIARI T. MENDOZA NICOLE MARIE A. CORTES ELISHA ELAINE D. BAYOT JOSEPHINE ANG PATRICIA MAE D. GUILLERMO RAFAEL JEROME M. MENDOZA MARSHAN DEINN S. GUALBERTO NICOLE C. MABANAG MON FRANCIS A. TOLENTINO KIER JOHN V. UY MICHAEL EARVIN R. SABADO JUSTIN SANTIAGO L. BELTRAN GLENN MATTHEW C. MANLAPID JAMES ROOS L. TAN VAN ANGELO K. RESPICIO JOCHRIS DANIEL Z. GUADS CLARICE ANGELINE V. QUESTIN JANN PATRICIA M. TORRES CHAIPERSON VICE-CHAIRPERSON SECRETARY ASST. SECRETARY ASST. SECRETARY HEAD, PUBLIC RELATIONS OFFICER ASST. HEAD, PUBLIC RELATIONS OFFICER ASST. HEAD, PUBLIC RELATIONS OFFICER HEAD, FINANCE COMMITTEE ASST. HEAD, FINANCE COMMITTEE ASST. HEAD, FINANCE COMMITTEE HEAD, HOTEL ACCOMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMODATIONS COMMITTEE ASST. HEAD, HOTEL ACCOMODATIONS, COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE LOGISTICS COMMITTEE SENIOR MEMBER SENIOR MEMBER SENIOR MEMBER ATTY. AL CONRAD B. ESPALDON ADVISER ACADEMICS COMMITTEE EDREA JEAN V. RAMIREZ MARIELLA A. MARASIGAN ARIANNA LAINE T. SARMIENTO MARIA ANGELICA J. HADLOC MAICA A. PRUDENTE GENA MYRTLE P. TERRE JED NATHANIEL GONZALEZ LAURISSE MARIE T. PERIANES CIARI T. MENDOZA SECRETARY GENERAL ASST. SECRETARY GENERAL EXECUTIVE COMMITTEE EXECUTIVE COMMITTEE EXECUTIVE COMMITTE EXECUTIVE COMMITTEE LAYOUT ARTIST LAYOUT ARTIST COVER DESIGN ARTIST CIVIL LAW COMMITTEE JOSHUA BARRIETA CIVIL LAW COMMITTEE HEAD MARHEN CASTRO ALOI RENZ SANTOS GABRIELLEE LEAÑO JORESA DE LA ROSA ASST. HEAD, LAND TITLES AND DEEDS ASST. HEAD, OBLIGATIONS AND CONTRACTS ASST. HEAD, TORTS ASST. HEAD, PARTNERSHIP, AGENCY, TRUST MEMBERS MARIA KRISTINA FABON GAIL ANN DIOLA MARY LOUISE LEONARDO KIM ANGELI P. SOBREPENA LORANE BASBAS ALYSSA ABIGAEL C. GOMEZ JAIRUS BERNANDEZ JENINAH CALIMLIM MARLO NEPOMUCENO ADRIAN LOUIS SIAYNGCO MIKA JEZA ITURIAGA ATTY. ALDEN FRANCIS C. GONZALES ATTY. KATLYN ANNE AGUILAR-BILGERA ATTY. RIGOR PASCUAL Advisers FACULTY OF CIVIL LAW UNIVERSITY OF SANTO TOMAS ACADEMIC OFFICIALS ATTY. NILO T. DIVINA DEAN REV. FR. ISIDRO C. ABAÑO, O.P. 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. GADANIA, R.G.C. GUIDANCE COUNSELOR OUR DEEPEST APPRECIATION TO OUR MENTORS AND INSPIRATION JUSTICE OSWALDO AGCAOILI JUDGE PHILIP A. AGUINALDO DEAN AUGUSTO K. ALIGADA ATTY. RUBEN F. BALANE ATTY. VINCENT Z. BOLIVAR ATTY. ENRIQUE V. DELA CRUZ, JR. ATTY. AMADO PAOLO C. DIMAYUGA ATTY. IRVIN JOSEPH M. FABELLA ATTY. RAFAELITO M. GARAYBLAS ATTY. ALDEN FRANCIS C. GONZALES ATTY. RENE B. GOROSPE JUDGE GEORGINA D. HIDALGO ATTY. JESUSA LAPUZ-GAUDIANO 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. CARLA E. SANTAMARIA-SEÑA ATTY. MAURICIO C. ULEP ATTY. RIGOR PASCUAL ATTY. KATLYN ANNE AGUILAR-BILGERA For being our guideposts in understanding the intricate sphere of Civil Law. -Academics Committee 2018 DISCLAIMER THE RISK OF USE OF THIS BAR REVIEW MATERIAL SHALL BE BORNE BY THE USER TABLE OF CONTENTS *Based on 2018 Bar syllabus PART I – GENERAL PRINCIPLES I. II. Effect and Application of Laws (Civil Code) .................................................................................................................1 Conflict of Laws (Private International Law) .......................................................................................................8 Human Relations (Arts. 19-22, Civil Code) ................................................................................................................ 20 PART II - PERSONS AND FAMILY RELATIONS I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. Persons and Personality (Civil Code) ........................................................................................................................... 24 Marriage (Family Code) ........................................................................................................................................................27 Legal Separation (Family Code) ....................................................................................................................................... 50 Rights and Obligations Between Husband and Wife (Family Code)........................................................... 57 Property Relations of the Spouses (Family Code)................................................................................................. 58 The Family (Family Code) ...................................................................................................................................................76 1. The family as an institution................................................................................................................................... 76 2. The family home ........................................................................................................................................................77 Paternity and Filiation (Family Code).......................................................................................................................... 79 Adoption ........................................................................................................................................................................................89 A. Domestic Adoption Act of 1998 (R.A. No. 8552) .................................................................................................. 89 1. Who can adopt ............................................................................................................................................................89 2. Who can be adopted .................................................................................................................................................91 3. Effects of rescission ..................................................................................................................................................91 B. Inter-Country Adoption Act of 1995 (R.A. No. 8043) ......................................................................................... 93 1. When allowed..............................................................................................................................................................93 2. Who can adopt ............................................................................................................................................................93 3. Who can be adopted .................................................................................................................................................94 C. Distinction between domestic adoption and inter-country adoption ........................................................ 95 Support (Family Code) ..........................................................................................................................................................98 Parental Authority (Family Code) ............................................................................................................................... 102 Emancipation (Arts. 234 and 236, Family Code, as amended by R.A. No. 6809 which lowered the age of majority) ...................................................................................................................................................................... 108 Retroactivity of the Family Code (Art. 256) ........................................................................................................... 108 Funerals (Arts. 305-310, Civil Code) .......................................................................................................................... 109 Use of Surnames ..................................................................................................................................................................... 110 Absence ....................................................................................................................................................................................... 114 A. Art. 41, Family Code ....................................................................................................................................................... 114 B. Art. 381-389, Civil Code................................................................................................................................................ 115 C. Art. 390-392, Civil Code (Presumption of Death) ............................................................................................. 115 PART III - PROPERTY I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. Characteristics ........................................................................................................................................................................ 118 Classification ............................................................................................................................................................................ 118 Ownership ................................................................................................................................................................................. 124 Accession .................................................................................................................................................................................... 129 Quieting of Title or Interest in and Removal or Prevention of Cloud over Title or Interest in Real Property ...................................................................................................................................................................................... 145 Co-ownership ........................................................................................................................................................................... 147 Possession ................................................................................................................................................................................. 156 Usufruct ....................................................................................................................................................................................... 171 Easements .................................................................................................................................................................................. 182 Nuisance...................................................................................................................................................................................... 196 Modes of Acquiring Ownership ..................................................................................................................................... 198 Donations ................................................................................................................................................................................... 199 PRESCRIPTION I. II. III. IV. Definition ....................................................................................................................................................................................207 Acquisitive and Extinctive Prescription .................................................................................................... 210 Instances when prescription is not allowed .......................................................................................................... 213 Prescription or limitation of actions ..........................................................................................................................213 PART IV - OBLIGATIONS AND CONTRACTS I. II. III. IV. V. Definition, Elements.............................................................................................................................................................215 Sources of Obligation ...........................................................................................................................................................216 Nature and Effects of Obligations .................................................................................................................................219 Kinds of Obligations .............................................................................................................................................................231 A. Pure and Conditional......................................................................................................................................................231 B. Obligations with a Period .............................................................................................................................................234 C. Alternative Obligations .................................................................................................................................................235 D. Joint and Solidary Obligations....................................................................................................................................239 E. Divisible and Indivisible Obligations ......................................................................................................................241 F. Obligations with a Penal Clause ................................................................................................................................242 Extinguishment of Obligations ......................................................................................................................................243 A. Payment or Performance .............................................................................................................................................244 B. Loss of the Thing Due.....................................................................................................................................................251 C. Condonation or remission of debt............................................................................................................................253 D. Confusion or merger of rights of creditor and debtor..................................................................................... 254 E. Compensation....................................................................................................................................................................255 F. Novation...............................................................................................................................................................................259 CONTRACTS I. II. III. IV. V. VI. VII. VIII. Essential Requisites .............................................................................................................................................................267 Objects, Cause and Form of Contracts .......................................................................................................................273 Reformation of Instruments............................................................................................................................................276 Interpretation of Contracts ..............................................................................................................................................278 Rescissible Contracts ...........................................................................................................................................................280 Voidable Contracts ................................................................................................................................................................283 Unenforceable Contracts ...................................................................................................................................................285 Void and Inexistent Contracts ........................................................................................................................................287 Natural Obligations ................................................................................................................................................................................290 Estoppel.........................................................................................................................................................................................................291 PART V - SALES I. II. III. IV. V. VI. VII. VIII. Nature and Form of Contract ..........................................................................................................................................294 Capacity to Buy or Sell ........................................................................................................................................................301 Obligations of the Vendee .................................................................................................................................................305 Obligations of the Vendor .................................................................................................................................................306 Effects of the Contract when the Thing Sold has been lost ............................................................................ 316 Breach of Contract .................................................................................................................................................................317 A. Recto Law: sale of movables on installment (Articles 1484-1486, Civil Code).................................... 317 B. Maceda Law: sale of immovable on installment (RA 6552) ......................................................................... 319 Extinguishment of Sale .......................................................................................................................................................328 Assignment of Credits .........................................................................................................................................................331 PART VI - LEASE I. General Provisions ................................................................................................................................................................339 A. Lease of Things .................................................................................................................................................................339 II. III. B. Lease of Work and Services ........................................................................................................................................ 341 Rights and Obligations of Lessor and Lessee ........................................................................................................ 346 Special Rules for Lease of Rural/Urban Lands ..................................................................................................... 354 PART VII - PARTNERSHIP I. II. III. IV. V. VI. Contract of Partnership ..................................................................................................................................................... 357 Rights and Obligations of Partnership...................................................................................................................... 372 Rights and Obligations of Partners Among Themselves ................................................................................ 372 Obligations of Partnership/Partners to Third Persons.................................................................................. 377 Dissolution and Winding Up ........................................................................................................................................... 379 Limited Partnership ............................................................................................................................................................ 384 PART VIII - AGENCY I. II. III. IV. V. Definition ................................................................................................................................................................................... 387 Nature, Form and Kinds of Agency .............................................................................................................................. 387 Obligations of the Agent .................................................................................................................................................... 392 Obligations of the Principal ............................................................................................................................................. 398 Modes of Extinguishment ................................................................................................................................................. 400 PART IX - TRUST I. II. Definition ................................................................................................................................................................................... 401 Kinds of Trust .......................................................................................................................................................................... 403 A. Express Trust .................................................................................................................................................................... 403 B. Implied Trust..................................................................................................................................................................... 404 PART X - CREDIT TRANSACTIONS I. II. III. IV. V. VI. Loan ............................................................................................................................................................................................... 407 Deposit ......................................................................................................................................................................................... 420 Guaranty and Suretyship .................................................................................................................................................. 427 Pledge, Mortgage and Antichresis, Chattel Mortgage (include Act 1508)............................................ 437 Quasi-Contracts ...................................................................................................................................................................... 462 Concurrence and Preference of Credits ................................................................................................................... 465 PART XI - SUCCESSION I. II. III. IV. General Provisions ............................................................................................................................................................... 471 Testamentary Succession/Wills ................................................................................................................................... 474 Legal or Intestate Succession ......................................................................................................................................... 511 Provisions Common to Testate and Intestate Succession ............................................................................. 516 PART XII - LAND TITLES AND DEEDS I. II. III. IV. V. I. II. Torrens System (General Principles) ........................................................................................................................ 523 Original Registration ........................................................................................................................................................... 532 Subsequent Registration ................................................................................................................................................... 555 A. Voluntary Dealings ......................................................................................................................................................... 555 B. Involuntary Dealings...................................................................................................................................................... 558 Non-registrable Properties ............................................................................................................................................. 561 Dealings with Unregistered Lands .............................................................................................................................. 562 PART XIII - TORTS AND DAMAGES Book I - Torts/Quasi-Delicts Definitions, Elements .......................................................................................................................................................... 565 The Tortfeasor ........................................................................................................................................................................ 566 III. Legal Injury ................................................................................................................................. 575 IV. Classification of Torts..........................................................................................................................................................575 A. Negligent Torts .................................................................................................................................................................575 B. Intentional Torts ..............................................................................................................................................................580 C. Strict Liability ....................................................................................................................................................................587 The Concepts and Doctrines of Res Ipsa Loquitur, Last Clear Chance, Proximate Cuase, Damnum Absque Injuria, Presumption of Negligence, Vicarious Liability ................................................................ 590 V. I. II. III. IV. V. VI. VII. VIII. Book II - Damages General Provisions ................................................................................................................................................................598 Actual and Compensatory Damages ...........................................................................................................................601 Moral Damages........................................................................................................................................................................606 Nominal Damages ..................................................................................................................................................................609 Temperate or Moderate Damages ...............................................................................................................................610 Liquidated Damages.............................................................................................................................................................610 Exemplary or Corrective Damages ..............................................................................................................................611 Damages in Case of Death .................................................................................................................................................612 GENERAL PRINCIPLES compliance (Tañada v. Tuvera, G.R. No. L-63915, December 29, 1986). GENERAL PRINCIPLES Indispensability of publication EFFECT AND APPLICATION OF LAWS Law GR: All laws are required to be published in full. It is a rule of conduct formulated and made obligatory by legitimate power of the state (Diaz, 2013). 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). Effectivity of laws 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)]. XPNs to the Publication Requirement: O-R-L-I 1. 2. 3. Effectivity depends on whether or not the law has provided a specific date for its effectivity: 4. 1. If date is specified– Upon the lapse of the said period following its complete publication and not before. 2. 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). XPNs to the XPNs: D-E-P Administrative rules and regulations that require publication: 1. The purpose of which is to implement or enforce existing laws pursuant to a valid Delegation; 2. Penal in nature; 3. It diminishes Existing rights of certain individuals. a. 15th day - If the law declares that it shall become effective “15 days after its publication” b. 16th day - If the law declares that it shall be effective “after 15 days following its publication” 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. NOTE: Circulars issued by the Monetary Board are required to be published if they are meant not to merely “fill in details” of the Central Bank Act. As a rule, circulars which prescribe a penalty for violations should be published before coming into effect. 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. 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. “Unless it is otherwise provided” provision on effectivity of laws Where to publish 1. 2. The clause "unless it is otherwise provided" 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 legislator may make the law effective immediately upon approval, or on any other date without its previous publication. Official Gazette; or Newspaper of general circulation in the Philippines Newspaper of general circulation For a newspaper to be considered of general circulation: 1. It must be published within the court’s jurisdiction; 2. It must be published at regular intervals for disseminating local news and general information; 3. It has a bona fide subscription list of paying subscribers; and 4. 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). --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, which has authority and jurisdiction to conduct the preliminary investigation. DOJ claims that it has Publication requirement Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day 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). 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. The 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 1 Civil Law 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. Honasan counters that said circular is ineffective as it was never published. Is OMB-DOJ Circular No. 95-001 ineffective because it was not published? promotion to second-level courts to those judges who have served in their current positions for at least five years. 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. 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). --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. In the last week of November 1997, petitioners were personally given copies and were informed that it shall be enforced in January 1998. 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. 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 1. 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. 2. Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mining companies. 3. Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hongkong. 4. Administrative Order No. SOSPEC 89-08-01 issued by Philippine International Trading Corporation regulating applications for importation from the People’s Republic of China. 5. 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. 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 law? A: NO. R.A 8792 – Electronic 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. 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). 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). --Exceptions to the publication requirement 1. An interpretative regulation; 2. A regulation that is merely internal in nature; and 3. 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). --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. The Judicial and Bar Council (JBC) then informed him that he was not included in the list. The JBC’s decision upheld its long-standing policy of opening the chance for UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 2 GENERAL PRINCIPLES Mistake of fact v. Mistake of law IGNORANCE OF THE LAW BASIS Presumption of knowledge of laws GR: Everyone is conclusively presumed to know the law. Hence, ignorance of the law excuses no one from compliance therewith (NCC, Art. 3). Want of knowledge pertains to 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). XPNs: a. b. c. Nature of Mistake Mistake upon a doubtful or difficult question of law may be the basis of good faith [NCC,Art. 526 (3)]. 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). 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). Defense MISTAKE OF FACT Want of knowledge of some fact or facts constituting or relating to the subject matter on hand. 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. When some facts which really exist are unknown or some fact is supposed to exist which really does not exist. Occurs when a person having full knowledge of the facts come to an erroneous conclusion as to its legal effects. Good faith is an excuse. 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? NOTE: The possession of the antichretic credit as possession in good faith since a difficult question of law was involved – antichresis. In this case, the parties were not very knowledgeable of the law (Kasilag v. Rodriguez, G.R. No. 46623, December 7, 1939). Laws covered 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). 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 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). --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 Non-applicability to foreign laws 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 See case of Brinkman (?) G.R. No. 193707 December 10 2014In 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, October 11, 2010). 3 Civil Law 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? 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). 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 so elementary. Not to know it constitutes gross ignorance of the law (Miaque v. Judge Pamonag, A.M. No. MTJ-02-1412, March 28, 2003). --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? 6. 7. 8. Emergency laws; When Expressly provided; Penal laws favorable to the accused provided, the accused is not a habitual delinquent. XPNs to the XPNs: 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). NOTE: In case of doubt, laws apply prospectively. Non-retroactivity of laws vis-à-vis judicial decisions 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. Judicial decisions have no retroactive effect. When a doctrine of the Supreme Court is overruled and a different view is adopted, the 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). Lex prospicit, non respicit 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. The Chinese marriage was not adequately proved (Estate of Boo v. Gee, G.R. No. 18081, March 3, 1922). --RETROACTIVITY OF LAWS 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) Retroactivity clause of the Family Code (2005, 2010 Bar) Laws shall have no retroactive effect, unless the contrary is provided (NCC, Art. 4). 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). 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). MANDATORY AND PROHIBITORY LAWS Mandatory law Retroactive effect of laws 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). GR: Laws shall have no retroactive effect (lex prospicit, non respicit). XPNs: (T-I-N-C-R-E-E-P) 1. 2. 3. 4. 5. Prohibitory law Tax laws; Interpretative statutes; Laws creating New substantive rights; Curative statutes; Remedial/procedural; UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES A law or a provision in a statute is said to be prohibitory when it forbids a certain action (Black’s Law Dictionary, 2009). 4 GENERAL PRINCIPLES Permissive law a. b. c. 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). Violation of Mandatory or Prohibitory Laws Unwaivable rights GR: Acts executed against the provisions of mandatory or prohibitory laws shall be void(NCC, Art. 5). 1. 2. 3. XPNs: When the law: 1. Itself authorizes its validity (e.g. lotto, sweepstakes); Makes the act valid but punishes the violator (e.g. Marriage solemnized by a person not authorized to do so);Makes the act merely voidable; 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). 2. 3. 4. 4. 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. Waiver of rights 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 can‘t waive the loan if B owes C and B has no other assets). 2. If the right is: a. A natural right, such as right to life; b. Inchoate, such as future inheritance. 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: 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. 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 by law, and does not contravene public policy (Cruz & Co., Inc. v. HR Construction Corp., G.R. No. 187521,March 14, 2012). 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 3. Political rights. 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 2. Right to live and right to future support. Right to personality and family rights. Right to future inheritance. 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). WAIVER OF RIGHTS 1. Rights of personality or human rights; Family rights; and Patrimonial rights: i. Real rights; ii. Personal rights (Rabuya, 2009). 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, equal protection of laws, freedom of contract, trial by jury) (Pineda, 2009). Requisites of a valid waiver 1. 2. 3. 4. 5. 5 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; When formalities are required, they must be complied with. Civil Law Revival of repealed law --- BASIS Q: A student was granted a scholarship but agreed not to transfer to another school unless he would refund all the benefits he derived out of his scholarship. Is the stipulation valid? Why? Manner of Repeal A: NO. It is void because it is contrary to public policy and morals (Cui v. Arellano University, G.R. L-15127, May 30, 1961). --REPEAL OF LAWS It is the abrogation of an existing law by a legislative act (Black’s Law Dictionary, 2009). Effect of Repeal 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 (NCC, Art. 7, 1st par.). XPNs: 1. 2. The laws cover the same subject matter; and The latter is repugnant to the earlier (Rabuya, 2009). 3. 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). 2. There is an express declaration. There is a clear, necessary and irreconcilable conflict. 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). Instances of implied repeal 1. The 1st law is revived unless otherwise provided. 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. 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. Requisites of an implied repeal 1. 2. IMPLIED REPEAL If the 1st law is repealed by implication by the 2nd law and the 2nd law is repealed by the 3rd law. Conflict between general and special laws Ways of repealing laws 1. 2. EXPRESS REPEAL If the 1st law is expressly repealed by the 2nd law and the 2nd law is repealed by the 3rd law. The 1st law is NOT revived unless expressly provided so. 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-951167, February 9, 2010). JUDICIAL DECISIONS Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines (NCC, Art. 8). (1994 BAR) 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 (Rabuya, 2009). 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. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 6 GENERAL PRINCIPLES Doctrine of Stare Decisis obligatory, formed by repetition of acts uniformly observed as a social rule. 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. Necessity of proving customs GR: A custom must be proved as a fact, according to the rules of evidence (NCC, Art. 12). However, when in the light of changing conditions, a rule has ceased to be beneficial to the society, courts may depart from it. XPN: Courts may take judicial notice of a custom if there is already a decision rendered by the same court recognizing the custom. Obiter Dictum An opinion entirely unnecessary for the decision of the case and thus, are not binding as precedent. (Lhuillier v. British Airways, G.R. No. 171092, March 15, 2010, DEL CASTILLO, J.) Requisites before such custom could be considered a source of right 1. 2. 3. DUTY TO RENDER JUDGMENT Rendering of judgment by reason of silence of law 4. 5. 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) 6. Plurality of acts; Uniformity of acts; General practice by the great mass of the people of the country or community; Continued practice for a long period of time; General conviction that the practice is the proper rule of conduct ; Conformity with law, morals or public policy (Tolentino, 1987). Application of customs in civil cases However, in criminal prosecutions, the judge must dismiss the case if a person is accused of a non-existent crime following the maxin “nullum crimen, nulla poena sine lege” (Rabuya, 2009). In civil cases, customs may be applied by the courts in cases where the applicable law is: a. Silent b. Obscure c. Insufficient 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. Guidelines on rendition of decisions under Art. 9 NOTE: Provided said customs are not contrary to law, public morals, etc. 1. Non-applicability of customs in criminal cases 2. 3. 4. 5. 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; Decisions of foreign courts; Opinions of known authors and professors; Applicable rules of statutory construction; Principles formulated in analogous cases. 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). LEGAL PERIODS Computation of period PRESUMPTION AND APPLICABILITY OF CUSTOM 1. Presumption in case of doubt in the interpretation of laws Year – 12 calendar months (CIR v. Primetown Property Group, Inc., G.R. No. 162155, August 28, 2007). 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.” 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) In case of silence, obscurity or insufficiency of the law with respect to a particular controversy 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.” 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. Customs Customs are rules of conduct, legally binding and 7 Illustration: One calendar month from Civil Law 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 January 31, 2008 to January 31, 2009 (Rabuya, 2009). Functions of private international law 1. 2. 3. 2. 3. 4. 5. 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; Night time – from sunset to sunrise; Week – 7 successive days regardless of which day it would start; Calendar week – Sunday to Saturday. Elements of Conflict of laws 1. 2. If the last day falls on a Sunday or a legal holiday If the act to be performed within the period is: Two views: 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. 1. Monist school – Both subjects are essentially the same, because they manifest a single concept of law, ultimately addressed to the same individual. 2. Dualist School – This school of thought differentiates private and public international law in the following manner: Private International Public International law law As to nature Municipal in character International in 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. PRIVATE INTERNATIONAL LAW GENERAL PRINCIPLES Private international law It is a part of municipal law of a state which directs its courts and administrative agencies, when confronted with a legal problem involving foreign element, whether or not they should apply the foreign law. 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) Sources of Philippine conflict rules 1. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Primary function is to determine whether the law or judgments of other state/s will govern and if so the extent if its recognition or application in the forum. (Coquia, 2000) Private International Law v. Public International law 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. 2. 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. NOTE: In the computation of period, the first day shall be excluded, and the last day included. 1. 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) 8 Family Code Arts. 10, 21, 26, 35, 36, 37, 38, 80, 96, 184, and 187 CONFLICT OF LAWS 2. 3. 4. 5. 6. Civil Code Arts. 14, 15, 16, 17, 815, 816, 818, 819, 829, 1039, 1319, and 1753 Penal Code Art. 2 Corporation Code Sec. 133 – Doing business without a license 1987 Constitution Art. IV and Art. 5, Sec. 1 Rules of Court Rule 14 and 39, Sec. 48; Rule 131, Sec. 3 (n); Rule 132, Secs. 24 and 25. Forum Non Conveniens It refers to the refusal to assume jurisdiction because it would prove inconvenient for the forum. Grounds for dismissal of the case on the basis of forum non conveniens 1. 2. Territoriality Principle 3. 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) 4. 5. Nationality principle 6. 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) 7. Evidence and witnesses may not be readily available in the forum; Court dockets of the forum are already clogged that would hamper the speedy administration of justice; The matter can be better tried and decided in another forum; To curb the evils of forum shopping; The forum has no particular interest in the case, as when the parties are not citizens of the forum or are residents elsewhere; Inadequacy of the local judicial machinery in effectuating the right sought to be enforced; and Difficulty in ascertaining the foreign law applicable. When can internal or domestic law be applied Lex rei sitae 1. Real property as well as personal property is subject to the law of the country where it is situated. (NCC, Article 16) 2. 3. 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) Law of the forum expressly so provides in its conflicts rule; Proper foreign law has not been properly pleaded and proved; Case involves any of the exceptions to the application of the foreign law. Instances: 1. JURISDICTION AND CHOICE OF LAW JURISDCTION 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 2. If the court is faced with a case involving a foreign element, it should first determine: 1. 2. 3. 4. Whether it has jurisdiction over the case; If it has no jurisdiction, it should be dismissed on that ground; If it has jurisdiction, the court will determine whether it should assume jurisdiction, or it should dismiss the case on the ground of forum non-convenience; and Once the court has determined it has jurisdiction over the case, it will next determine whether to apply the internal law of the forum or apply the proper foreign law. 9 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; and e. Involves real or personal property situated in the forum. When the application of the foreign law, judgment or contract: a. May work undeniable justice to the citizens/residents of the forum; and b. May work against vital interests & national security of the state of the forum. Civil Law Doctrine of Processual Presumption of Law Comity – It is the recognition which one state allows 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) 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 takejudicial notice of them. Like any other fact, they must be alleged and proved. Kinds: a. Comity based on reciprocity; and b. Comity based on the persuasiveness of the foreign judgment. 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) 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. 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. 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. 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. How to prove a foreign law Under Sections 24 and 25 of Rule 132 of the Rules of Court, a writing or document may be proven as a public or official record of a foreign country by either: 1. 2. An official publication; or A copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine Foreign Service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. CHOICE OF LAW Important questions that choice-of-law problems seeks to answer 1. 2. What legal system should control a given situation where some of the significant facts occurred in two or more states; and To what extent should the chosen system regulate the situation. (Saudi Arabian Airlines v. CA, G.R. No. 122191, October 8, 1998) CHARACTERIZATION CONFLICT RULES These are provisions found in our own law which govern factual situations possessed of 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 manner indicated in the provision. (Sempio-diy, 2004) 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. Kinds of conflict rules 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. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 1. One-sided Rule – indicates Philippine law will apply; when e.g., Articles 15 and 818 of the Civil Code only apply to Filipinos. 10 CONFLICT OF LAWS 2. All-sided Rule – indicates when foreign law is to be applied. 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., G.R. No. 112573, February 9, 1995) 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 conflits rule. (Saudi Arabian Airlines v. CA, G.R. No. 122191, October 8, 1998) Steps in characterization 1. 2. 3. 4. 5. 6. 7. The determination of facts involved; The characterization of factual situation; The determination of conflicts rule which is to be applied; The characterization of the point of contact where the connecting factor; The characterization of the problem as procedural or substantive; The pleading and proving of the proper foreign law; and The application of the proper foreign law to the problem. (Paras, 1990) 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) Q: A (a Filipino construction firm) and the Iraqi Government entered into a service contract for the construction of building in Iraq. The service contract contained no express choice of the law that would govern it. The contract was secured by a performance bond issued by B (a domestic corporation). For A’s faliure to complete the project, B paid the bond. B claimed reimbursement but A failed to pay. Thus a case was filed. Should Philippine law govern in determining B's default? Theories of Personal Law 1. Nationality Theory or Personal Theory – The status and capacity of a person are determined by the law of his nationality or national law. (Sempio-Diy, 2004) NOTE: The Philippines follows the Nationality Theory. A: YES. 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 B 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) 2. Domiciliary Theory or Territorial Theory – The status and capacity of a person are determined by the law of his domicile (Ibid.). 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. --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? 1. 2. 11 In matters of status, a person is usually considered by the forum as exclusively its own national. His additional foreign nationality is disregarded. In case litigation arises in third country, the law most consistently applied is that of the country of which the person is not onl a Civil Law national but where he also has his domicile or habitual residence, or in the absence thereof, his residence. candidacy have elected Philippine citizenship thus terminating his dual citizenship. 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…,” thus the filing sufficed to renounce his American citizenship. (Mercado v. Manzano & COMELEC, G.R. No. 135083 May 26, 1999) Theory of effective nationality A third state shall recognize exclusively in its territory either the nationality of the country of 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 Laws, Art. 5) --Q: Cruz was born in Tarlac, of Filipino parents making him a natural-born citizen of the Philippines. However, he lost his Philippine citizenship when he was enlisted in the U.S. Marine Corps and took an oath of allegiance to the U.S.A, thereby becoming an American citizen. Cruz reacquired his Philippine citizenship through repatriation under R.A. 2630. He ran for and was elected as the Representative of the Second District of Pangasinan in the 1998 elections. He won over Bengson III. Subsequently, Bengson filed a disqualification case with the HRET claiming that respondent Cruz was not qualified to become a member of the House of Representatives since he is not a natural-born citizen as required under Art. VI, Sec. 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? --Q: What are the effects of marriages of: 1) a citizen to an alien; and 2) an alien to a citizen 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 natural-born 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, Sec. 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 naturalborn 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. --Q: Is dual citizenship a ground for disqualification from running for any elective position under the Local Government Code? A: NO. Dual citizenship is different from dual allegiance. The phrase “dual citizenship” in R.A. 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. Also, Manzano upon filing his certificate for UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 12 CONFLICT OF LAWS 142840. May 7, 2001) Rules in determining the domicile of a person DOMICILE A minor follows the domicile of his parents. (Imelda Romualdez-Marcos v. Comelec, G.R. No. 119976, September 18, 1995) It is the place with 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. His domicile of origin is that of his parents at the time of his birth. Domiciliary or Territorial Theory/Lex Domicilii If the child is legitimate 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. Fundamental principles of domicile 1. 2. 3. 4. 5. 6. No person shall be without a domicile; A person cannot have two simultaneous domiciles; Every natural person, as long as he is free and sui juris, may establish and change his domicile at his pleasure; A domicile, once acquired, is retained unless a new one is gained; 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; 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) 3. 4. 1. 2. His domicile of origin is that of the mother at the time of his birth. If the child is legitimated The domicile of his father at the time of his birth controls. MINORS If legitimate, the domicile of both parents. In case of disagreement, that of the father, unless there is a judicial order to the contrary. 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 case of remarriage of the surviving parent, still, his/her domicile determines the constructive domicile of the minor child. 4. 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 non-revertendi” (intent not to return to the original abode). 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: Legal classifications of domicile 1. If the child is illegitimate RULES IN DETERMINING ONE’S CONSTRUCTIVE DOMICILE Essential requisites needed in order to acquire a domicile of choice 1. 2. If parents are separated, the domicile of the custodial parent. Domicile of origin – It is the domicile of a person’s parents at the time of birth. Constructive domicile – It is the 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. MARRIED WOMEN 1. The constructive If the marriage is valid domicile of the wife is 13 Civil Law Q: Echiverri filed a petition to exclude Asistio from the permanent list of voters of Caloocan City on the ground that Asistio is not a resident of thereof as the address stated in the latter’s Certificate of Candidacy for Mayor in 2010 elections did not exist. In defense, Asistio alleged that he mistakenly relied on the address stated in the contract of lease with his lessor. Should Asistio be excluded from the permanent list of voters for failure to comply with the residency required by law? the domicile of both spouses, unless the law allows the wife to have a separate domicile for valid and compelling reasons. 2. If there is legal separation, the wife can have her own domicile of choice. If the marriage is voidable If the marriage is void A: NO. The residency requirement of a voter is at least one year in the Philippines and at least six months in the place where the person intends to vote. 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. 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. 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. However, after annulment, the wife can freely select her own domicile of choice. The wife can have a domicile separate from the husband. OTHER PERSONS His domicile is the one he had possessed prior to Convict or prisoner his incarceration. Soldiers Public officials or employees abroad (diplomats, etc.) 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) 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? FAMILY LAW AND PERSONAL CAPACITY Applicable Civil Code provisions 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. 1. To successfully effect a change of domicile, petitioner must prove an actual removal or an actual change of domicile; and 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 the absence of clear and positive proof, the domicile of origin should be deemed to continue. (Agapito Aquino V. COMELEC, Move Makati, Mateo Bedon and Juanito Icaro, G.R. No. 120265, September 18, 1995) --UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 2. 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) and 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 Arts. 35(1), (4), (5) and (6), 36, 37, and 38. (FC, Art. 26) GR: Under Art. 26 of the FC, all marriages solemnized outside the Philippines in accordance with the laws 14 CONFLICT OF LAWS in force in the country where they were solemnized and valid there as such, are also valid in the Philippines. XPN: If the marriage is void under Philippine law, then marriage is void even if it is valid in the country where the marriage was solemnized, viz: 1. 2. 3. 4. 5. 6. 7. Marriage between a Filipino and foreigner ABROAD Those contracted by any party below 18 years of age even with the consent of parents or guardians; [FC, Art. 35 (1)] Those bigamous or polygamous marriages not falling under Art. 41, FC; [FC, Art. 35 (4)] Those contracted through mistake of one contracting party as to the identity of the other; [FC, Art. 35 (5)] Those subsequent marriages that are void under Art. 53, FC; [FC, Art. 35 (6)] 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) Incestuous marriage; (FC, Art. 37) and Void ab initio marriages for reasons of public policy. (FC, Art. 38) Marriage between a Filipino and a foreigner in the PHILIPPINES Alien woman who marries a Filipino husband Law that governs the personal relations of the spouses GR: The personal relations of the spouses are governed by the national law of the husband. Effect of laws, judgments promulgated or conventions agreed upon in a foreign country on Philippine prohibitive laws XPN: Change of nationalities of the spouses — governing law. (NCC, Art. 15) Effects: 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 foreign country. 1. 2. XPN: Art. 26(2) of the FC on mixed marriages where the foreigner obtained a divorce decree abroad and was thereby capacitated to remarry. 3. 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. 2. 3. 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. If the husband alone changes his nationality after the marriage – The law of the last common nationality of the spouses would govern. If the spouses retain their different nationalities after the marriage – National law of both spouses should govern. CONTRACTS The extrinsic or formal validity of contracts is governed by lex loci celebrationis or lex loci contractus. (NCC, Art. 17) Requirements for the application of Art. 26(2) of the FC 1. If the marriage is valid under the national law of one spouse while void under the national 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). The national law of the Filipino — Philippine law should be followed — otherwise the country’s public policy would be violated. Ipso facto becomes a Filipino citizen if she possesses none of the disqualifications for naturalization. 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 The divorce obtained by the alien spouse must capacitate him or her to remarry. (Rabuya, 2009) Lex loci contractus It means “the law of the contract;” the law that governs the intrinsic validity of a contract. It may be determined either through; 1. Law that governs the validity of marriage in case of mixed marriages 2. 15 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. Civil Law such declaration in the bill of lading. Law that governs the validity of contracts Contract Barter, sale, donation Extrinsi c validity Capacity of parties Intrinsic validity Lex situs Lex situs Lex situs Contract for air transportation (Warsaw Convention) 1. The liability of the airline in case of death, injury to passengers, or loss or damage to cargo is governed by Warsaw Convention. 2. If there was malice, gross negligence, or bad faith, or improper discrimination, carrier is liable for damages beyond those limited by Warsaw Convention. Lease of property: creates real rights Lex situs Lex situs Lex situs Lease of property: does not create real rights Lex loci celebrati onis Personal law of the parties Lex voluntatis or lex loci intentionis NOTE: If a contract involves encumbrance of property, real or personal, apply lex situs. If personal contracts, law on contracts will apply. SUCCESSION Pledge, chattel mortgage, real estate mortgage, antichresis Applicable Civil Code provisions Lex situs Lex situs Contract of loan: mutuum Lex loci celebrati onis Personal law of the parties Contract of loan: commodatum Lex situs Lex situs Lease of service, agency, guaranty, suretyship NOTE: Agency to alienate or encumber real property is governed by lex situs Contract of transportation or carriage (render of services) Lex situs 1. Lex loci voluntatis or lex loci intentionis Lex situs Lex loci celebrati onis Personal law of the parties Lex loci voluntatis or lex loci intentionis Lex loci celebrati onis Personal law of the parties Lex loci voluntatis 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) NOTE: Capacity to succeed is governed by the national law of the decedent. (NCC, Art. 1039) 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) 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) Liability for loss, destruction, deterioration of goods in transit: law of destination of goods. (NCC, Art. 1753) 3. If COGSA applies, limitation on liability applies, unless the shipper declares value of goods and inserts UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Real property as well as personal property is subject to the law of the country where it is situated. 16 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) CONFLICT OF LAWS 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) 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. 4. 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 referrance back and apply the local law. 3. Follow the Theory of Desisment – 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) --- NOTE: This has the same result as the acceptance of the renvoi doctrine but the forum court is to desist applying the foreign law. (Ibid.) 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. 4. Make use of the Foreign Court Theory – whatever the foreign court will do respecting the case, the forum court will do likewise. --Double Renvoi --- It is what occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. (Sempio-diy, 2004) Evidence necessary for the allowance of wills probated outside the Philippines 1. 2. 3. 4. 5. Transmission Due execution of the will in accordance with the foreign laws; The testator has his domicile in the foreign country and not in the Philippines; The will has bee admitted to probate in such country; The fact that the foreign tribunal is a probate court; and The laws of the foreign country on procedure and allowance of wills. (Suntay v. Suntay, G.R. No. 132524, December 29, 1998) It is the process of applying the law of a foreign state through the law of a second foreign state. It is not the same as renvoi because renvoi involves two laws while transmission involves three laws. (Paras, 1990) Renvoi v. Transmission RENVOI 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 conlict rules and not from internal rules. --- Transmission Deals with 3 or more countries Deals with “referring back” Deals with “referring across” or “transmitting” --- Q: Linnie, an American citizen from Texas, died in the Philippines, leaving certain properties therein and in the U.S. In her will, she left her entire estate to her husband, Charles but upon Charle’s death, the entire estate shall be turned over to her brother and sister. Magno was appointed as the estate’s administratrix. When Charles died, Magno was temporarily appointed as the administratrix of his estate. When Charles’ will was later found, a petition for probate was filed for the said will. Then, PCIB took over the Q: What will the Court do if it is confronted with a case with a “Renvoi” Problem? A: 1. Renvoi Deals with 2 countries Reject the renvoi – If the conflict rules of the 17 Civil Law administration of Charles’ estate. The two administrators (PCIB and Magno) differed in the law that must govern the settlement of Linnie’s estate. What law shall apply Philippine law or Texas law? the decedent. CRIMES Territoriality Principle A: The SC remanded the case back to the lower court. Both parties failed to adduce proof as to the law of Texas. Further, the SC 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. 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 The SC, 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). --- 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 extra-territoriality is Art. 2 of the RPC. --- Q: Can a will executed by a foreigner abroad be probated in the Philippines although it has not been previously probated and allowed in such foreign country? 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. 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 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) --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. REVOCATION OF WILLS 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. Rules if a person dies testate 1. 2. 3. 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. 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. 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. Law of the place where the will was made; or b. Law of the place where the testator had his domicile at the time of revocation. Universality Principle A state has extraterritorial jurisdiction over all crimes regardless of where they are committed or who committed them, whether nationals or nonnationals. 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. Bigamy is punishable only when committed in the Philippines Rule if a person dies intestate Our penal laws apply to all crimes committed within Philippine territory. Consequently, crimes Follow lex nationali or the law of the nationality of UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 18 CONFLICT OF LAWS 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. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT TORTS GR: Lex loci delicti comissior the law of the place where the tort was committed will govern. 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. Obligation Theory The tortiuous act gives rise to an obligation, which is transitory and follows the person committing the tortiuous act and may be enforced wherever he may be found. (Coquia, 2000) 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. Recognition of foreign judgment The defendant or the respondent is presenting the foreign judgment merely as a defense, on the basis of res judicata. Enforcement of foreign judgment The plaintiff or petitioner wants the court to positively carry out and make effective the foreign judgment. Invokes merely the sense of justice. Implies an act of sovereignty. Needs no proceeding or action but implies that the same has already been filed against the defendant who is invoking the foreign judgment. Requires a separate action brought precisely to make the foreign judgment effective. Recognition is a passive effect of foreign judgment. Enforcement is an active recognition and implementation of the foreign judgment from the local court, rendering the foreign judgment and seeking its enforecement by the sheriff on accordance with the Rules of Court. If the Philippines has no concern or interest in the application of the internal law, and the other State has 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. Requisites for recognition or enforcement of a foreign judgment 1. 2. 3. 4. 5. 6. 7. 8. 19 The defendant must have been given reasonable notice and opportunity to be heard; There is adequate proof of foreign judgment; 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; It must not be barred by prescription both in the state where it was promulgated and where it is sought to be enforced; If it is for a sum of money, it must be fixed; It must not be contrary to the public policy or good morals of the country where it is to be enforced; It must not have been obtained by fraud, collusion, mistake of fact or law; It must be a judgment in civil or commercial matters, including questions of status, not on a criminal, revenue, or administrative matter; and Civil Law 9. The state where it was obtained allows recognition or enforcement of Philippine judgments. 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) Effects of a final judgment or order of a foreign tribunal or court sought to be enforced in Philippine Courts 1. 2. --- In case the judgment is upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and In case it is 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. Q: Does the second paragraph of Article 26 of the Family Code extend to aliens the right to 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 Art. 26 of the FC 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 Sec. 48, Rule 39 of the ROC which provides for the effect of foreign judgments. 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, fraud 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. The CA concluded that it was only Picazo Law Office is 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 the Special Sixth Division of the CA. Did the special CA Division gravely abuse its discretion in considering the Orders of the HongKong Court appointing liquidators for LIRL involved enforcement and recognition of a foreign judgment? --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) 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 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. 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES HUMAN RELATIONS Abuse of right (2006 BAR) 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. 20 HUMAN RELATIONS This principle is based upon the famous maxim summum jus summa injuria (the abuse of a right is the greatest possible wrong) (Arlegui v. CA, G.R. No. 126437, March 6, 2002). 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. 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) Every person who, contrary to law, wilfully or negligently causes damage to another shall indemnify the latter for the same (NCC, Art. 20). The said article provides for a general sanction – indemnification for damages (Pineda, 2009). (1996, 2006, 2009 Bar) Elements of abuse of right (L-B-P-A) 1. 2. 3. 4. There is a Legal right or duty; Such duty is exercised in Bad faith; It is for the sole intent of Prejudicing or injuring another; 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). Contra Bonus Mores (1996, 1998, 2006, 2009 Bar) Principle of Damnum Absque Injuria Any person who wilfully 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). 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. Guitierrez, G.R. No. 140420, February 15, 2001). 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 1. 2. There can be damage without injury in those instances in 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.) 3. There is an act which is legal; Such act is contrary to morals, good customs, public order or policy; It is done with intent to injure. Civil liability for moral negligence Article 19, 20 and 21 in the enforcement and sanctions of abuse of right 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). While Art. 19 lays down the rule of conduct for the government of human relations, it does not provide a remedy (Rabuya, 2006). 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). 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). 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. 21 Civil Law Breach of promise to marry the complainant — who around 36 years of age, and as highly enlightened as a former high school teacher and a life insurance agent are supposed to be — when she became intimate with him, than a mere apprentice pilot, 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. L14628, September 30, 1960). --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. 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: 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). Where the woman is a victim of abduction and rape, and thereafter the accused promised to marry her to avoid criminal liability but later reneged on his promise (Buñag, Jr. v. CA, G.R. No. 101749, July 10, 1992). 3. 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). 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. 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 wilful 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). 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? --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? 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 vehicle. 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 201) (Del Castillo, J.). 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 is approximately 10 years younger than UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 22 HUMAN RELATIONS Concept of a prejudicial question Accion In Rem Verso 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) 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). 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 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) Requisites (E-L-W-A) 1. 2. 3. 4. Elements 1. The previously instituted civil action involves an issue similarly or intimately related to the issue raised in the subsequent criminal action; and 2. The resolution of such issue determines whether or not the criminal action may proceed. The defendant has been Enriched; The plaintiff has suffered a Loss; The enrichment of the defendant is Without just or legal ground; and The plaintiff has no other Action based on contract, quasi-contract, crime or quasi-delict. 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 v. Solutio Debiti 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). Suspension of Proceedings 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) Accion in rem verso v. Unjust Enrichment 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) Liability without fault or negligence 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). PRE-JUDICIAL 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 shall promulgate and which shall not be in conflict with the provisions of this Code. (Article 36, NCC) 23 Civil Law Status PERSONS AND FAMILY RELATIONS The status of a person is the legal condition or class to which one belongs in a society. (1 del Viso 32, 2 Sanchez Roman 110) 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). Civil personality 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). Persons v. Things A person is the subject of legal relations A thing is the object of legal relations RESTRICTIONS ON CAPACITY TO ACT Personality is the aptitude to be the subject, active or passive, of juridical relations. One is a person, while one has personality (Rabuya, 2006). Restrictions on capacity to act (M-I-D-I-P-C) (NCC, Art. 38) Kinds of persons 1. 2. 1. Natural – Human beings and have physical existence Juridical – Artificial persons and product of legal fiction 2. 3. Juridical capacity v. Capacity to act BASIS Definition Acquisition Loss In relation to the other Limitation JURIDICAL CAPACITY Fitness to be the subject of legal relations (Art. 37). Inherent (co-exists with the natural person). Only through death. Can exist without capacity to act. None. Minority - State of a person who is under the age of legal majority which is eighteen years of age; Insanity – State of a person whose mental faculties are diseased; Deaf-mute – Lacking sense of hearing and the inability to speak; NOTE: Only deaf-mutes who do not know how to write are declared by law incapable of giving consent. CAPACITY TO ACT 4. Power to do acts with legal effect (Art. 37). 5. 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; Prodigality – A spendthrift or squanderer; NOTE: Prodigality per se doesn’t 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. Through the fulfillment of specific legal activities. Through death and other causes. 6. Cannot exist w/o juridical capacity. Civil Interdiction – An accessory penalty imposed upon an accused who is sentenced to a principal penalty not lower than reclusion temporal. NOTE: The following are the effects of civil interdiction: 1. Deprivation of parental or marital authority; 2. Deprivation of the right to be the guardian of the person and property of a ward; 3. Deprivation of his property by act inter vivos; and 4. Deprivation of the right to manage one's properties (Revised Penal Code, Art. 34). Art. 38 (restriction) Art. 39 (modification/ limitation), among others. 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). They do not exempt the incapacitated person from certain obligations. Circumstances that modify or limit capacity to act (FC, Art. 39) 1. 2. 3. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 24 Insanity; Prodigality; Age; Persons and family relations 4. 5. 6. 7. 8. 9. 10. 11. Imbecility; Deaf-Mute; Family Relations; Alienage Trusteeship; Penalty; Insolvency; and Absence. 250 under certain conditions. Rights of the conceived child Since a conceived child has a provisional personality even while inside the mother’s womb, it is entitled to the following rights: (S-A-D) a. Right to Support b. To be Acknowledged c. To receive Donations (Rabuya, 2009) 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)] Right to be acknowledged A conceived child has the right to be acknowledged even if it is still conceived. A child, upon being conceived, becomes a bearer of legal rights and is capable of being dealt with as a living person. The fact that it is yet unborn is no impediment to the acquisition of rights provided it be born later in accordance with law (De Jesus v. Syquia, G.R. No. L-39110, November 28, 1933). BIRTH Determination of personality 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). (1999, 2003, 2008 BAR) Although as yet unborn, it is given by law a provisional personality of its own for all purposes favorable to it, as explicitly provided in Article 40 of the Civil Code of the Philippines (Qumiguing v. Icao, G.R. No. 26795, 31 July 1970). 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. DEATH Acquisition of personality through birth Civil personality ceases depending upon the classification of persons GR: Actual/Permanent Personality– Personality begins at birth, not at conception. 1. 2. XPN: Presumptive/Temporary – The law considers the conceived child as born (Conceptus pro natohabetur) Natural persons – by death 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 foetus with an intra-uterine life of: 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. 1. 2. Complete delivery It means the cutting of the umbilical cord from the mother’s womb. 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, apply. If no successional rights are involved – Rule 131, Sec. 3 (jj) of the Rules of Court applies (Presumption of survivorship). NOTE: Both are to be applied only in the absence of facts. --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 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 25 Civil Law 1. There are two or more persons; 2. They perish in the same calamity; 3. It is not shown who died first; and 4. There are no particular circumstances from which it can be inferred that one died ahead of the other. 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? A: NO, Wilma cannot successfully claim that Willy had a hereditary share in his father’s estate. The presumption under the survivorship rule under the Rules of Court is that the survivorship shall be determined from the probabilities resulting from the strength and age of the sexes according to the following rules: Two persons “who are called to succeed each other” are presumed to have died at the same time, in the absence of proof as to which of them died first (NCC, Art. 43). This presumption of simultaneous death applies in cases involving the question of succession as between the two who died, who in this case, are mutual heirs, being father and son. Age/Sex of decedents at the time of death Decedent Decedent B A Under 15 Under 15 Above 60 Above 60 --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) Under 15 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. Above 15 BUT under 60 Above 15 BUT under 60 Under 15 OR over 60 Between 15 and 60 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. 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. 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). --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. COMPARISON OF ART. 43 AND RULE 131 OF THE RULES OF COURT SURVIVORSHIP RULE UNDER THE NEW CIVIL CODE If there is doubt as to who died first between 2 or more persons who are called to succeed each other, as to which of them died first: 1. Burden of Proof: Whoever alleges the death of one prior to the other has the burden of proving such claim. 2. Absent such proof: Presumption is they died at the same time. There shall be no transmission of successional rights [Sec. 3(kk), Rule 131, Rules of Court]. (1998, 1999, 2000, 2008, 2009 Bar) Conditions in the application of the survivorship rule It applies when the following conditions are present: 1. The parties are heirs to one another; 2. There is no proof as to who died first; and 3. There is doubt as to who died first. 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 surviving biological father of the baby, be entitled to claim the proceeds of the life insurance on the life of Marian? (2008 Bar) PRESUMPTION ON SURVIVORSHIP UNDER THE RULES OF COURT Requisites UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Above 60 Who is presumed to have survived Older Younger Under 15 (younger) Different sexes – male Same sex – Older Between 15 and 60 26 Persons and family relations 250 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). A: a) b) c) YES. An unborn child may be designated as the beneficiary in the insurance policy of the 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. 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). 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. Marriage v. Ordinary contract BASIS Nature 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. --Domicile of juridical persons 1. 2. Governing Law Right of the parties to stipulate 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. MARRIAGE UNDER FAMILY CODE 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). Capacity to contract MARRIAG E a. Special contract b. Sui generis contract c. Social instituti on Law on marriage GR: Not subject to stipulatio n XPN: Property relations in marriage settlement s. Legal capacity is required. NATURE OF MARRIAGE Marriage as an inviolable social institution 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 27 Gender requireme nt Contractin g parties must only be two persons of opposite sexes. Dissolutio Dissolved ORDINAR Y CONTRAC T Merely a contract Law on contracts The parties are free to stipulate subject to certain limitation. Minors may contract through their parents or guardians or in some instances, by themselve s. Contracti ng parties may be two or more persons regardless of sex. Can be Civil Law n by agreement only by death or annulmen t, never by mutual agreement . dissolved through express provision of the law, through expiration of the term for which the contract was entered into, or by mutual agreemen t by the parties concerned . ESSENTIAL REQUISITES OF A VALID MARRIAGE (1996, 2009 Bar) 1. 2. Legal capacity of the contracting parties who must be a male and a female; Consent freely given in the presence of the solemnizing officer (FC, Art. 2). Legal capacity of the parties to marry 1. 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 same 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). Evidence of Marriage 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). 2. Sex – between male and female 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).insert GR NO The following may be presented as proof of marriage: (a) testimony of a witness to the matrimony, (b) the couple’s public and open cohabitation as husband and wife after the alleged wedlock, (c) the birth and baptismal certificate of children born during such wedlock, and (d) the mention of such nuptial in subsequent documents (Sarmiento v. CA, G.R. No. 96740, March 25, 1999). 3. 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. Valid II. Void III. Voidable Other requirements needed for the validity of such marriage depending upon the age of the contracting party I. VALID MARRIAGES ADDITIONAL REQUIREMENTS The requisites for a valid marriage are provided by law. AGE 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). 18 to 21 years old Parental consent and Marriage counseling 22 to 25 years old Parental advice and Marriage counseling Absence of the additional requirement of parental advice 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). UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 28 Persons and family relations 250 FORMAL REQUISITES OF A VALID MARRIAGE (C-A-L) (1996, 2009 Bar) 1. 2. 3. Common-law marriages are not recognized in the Philippines A common-law marriage, otherwise referred to as a livein relationship, is one where the man and the woman just live together as husband and wife without getting married (Paras, 2016). Marriage Ceremony Authority of the solemnizing officer Valid marriage License, except in a marriage of exceptional character (FC, Art. 3). Common-law marriages recognized in England and the United States [of America] have never been and are not still recognized in the Philippines (Enriquez v. Enriquez, No. 3474, September 20, 1907). EFFECT OF ABSENCE OF REQUISITES Effect in the status of marriage (1995, 1996, 1999, 2008 Bar) Validity of marriage by proxy Status of Marriage in case of: 1. 2. It depends on the place of celebration of the marriage: Absence of any of the essential requisites - Void ab initio (FC, Art. 4). Absence of any of the formal requisites – Void ab initio(FC, Art. 4). 1. 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. XPNs: Valid even in the absence of formal requisite: a. Marriages exempt from license requirement b. Either or both parties believed in good faith that the solemnizing officer had the proper authority [FC, Art. 35 (2)]. 3. 4. Defect in essential requisites – Voidable (FC, Art. 4). Irregularity in formal requisites - Valid, but the party responsible for such irregularity shall be civilly, criminally or administratively liable (FC, Art. 4). 2. That which takes place with the: 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. 3. “If valid where celebrated, it is also valid here.” This is the doctrine of “lex loci celebrationis”, the law of the place of celebration (Paras, 2016). If performed abroad – Whether it is allowed or not depends upon the law of the place where the marriage was celebrated (lex loci celebrationis). 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). 1. MARRIAGE CEREMONY 1. If performed in the Philippines – No, it is not allowed, hence the marriage is void. 2. SOLEMNIZING AUTHORITY Persons authorized to solemnize marriage (1994 1995, 1999 BAR) The following are the persons authorized to solemnize marriage depending upon the circumstances: Their personal declaration that they shall take each other as husband and wife; and In the presence of not less than 2 witnesses of legal age. 1. No particular form of ceremony or religious rite for solemnization of the marriage is required by law (FC, Art. 6). Under ordinary circumstances(FC, Art. 7): a. Incumbent judiciary member – Provided, It 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 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). 29 Civil Law official to administrative (Rabuya, 2009). b. c. d. liability 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. Priest, rabbi, imam or minister of any church/religious sect 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 – Provided at least one of the parties belongs to such church or religious sect. Consul general, consul or vice-consul – Provided both parties are Filipinos and marriage takes place abroad in the country where the consul holds office (FC, Art. 10). Mayors (LGC, Arts. 444 and 445) – including “Acting Mayor” The local civil registrar is given the original of the affidavit which takes the place of a marriage license (Paras, 2016). 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). Authorized venues of marriage GR: Must be solemnized publicly within the jurisdiction of the authority of the solemnizing officer: 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. a. b. c. Marriages in articulo mortis: a. Ship captain or airplane chief – provided the marriage is performed: i. During voyage, even during stopovers ii. Between passengers or crew members (FC, Art. 31). b. XPNs: 1. 2. Marriage at the point of death; Marriage in remote places; 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) 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. Such authority may be exercised not only while the ship is at sea or the plane is in flight but also during stop-overs at ports of call (Rabuya, 2009). Military commander of a unit who is a commissioned officer – provided the marriage is performed (FC, Art. 32): i. In absence of chaplain; ii. Within zone of military operation; iii. Between members of the armed forces or civilians. A marriage solemnized by a judge outside of his jurisdiction is valid 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 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-961088, July 19, 1996). Duty of the solemnizing officer in a marriage in articulo mortis 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). UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Chambers of the judge or in open court; Church, chapel or temple; or, Office of the consul-general, consul or vice-consul (FC, Art. 8). 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. 30 Persons and family relations 250 Exception to the rule requiring authority of the solemnizing officer Persons authorized to issue the marriage license The marriage license is issued by the local civil registrar of the city or municipality where either contracting party habitually resides (FC, Art. 9). 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)]. Obtaining a marriage license in a place other than where either party habitually resides is a mere irregularity. 3. MARRIAGE LICENSE Requirement in the application for 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. 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. 5. Full name of the contracting party; Place of birth; Age and date of birth; Civil status; 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). The requirement and issuance of marriage license is the State’s demonstration of its involvement and participation in every marriage (Rabuya, 2009). 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). Validity of marriage license 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). FOREIGN NATIONAL Additional requirement for foreign national applicants 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. 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. Effect of lack of parental advice In case a party who is required by law to obtain parental advice or undergo marriage counselling fails to do so, the issuance of marriage license is suspended for 3 months from the completion of publication of the application (FC, Art. 15). 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). Marriage without the required certificate of legal capacity to marry is valid Status of marriages celebrated during the suspension of the issuance of marriage license 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). The status of the marriage if the parties get married within the said 3-month period depends: 1. If the parties did not obtain a marriage license – the marriage shall be void for lack of marriage license. 2. 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. 31 Civil Law marriage (Manzano v. Sanchez, AM No. MTJ-00-1329, March 8, 2001). EXCEPTIONS TO MARRIAGE LICENSE REQUIREMENT --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? Marriages exempt from the license requirement (MARCO) 1. Marriages among Muslims or members of ethnic cultural communities – Provided they are solemnized in accordance with their customs, rites or practices (FC, Art. 33); 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); c. Within zones of military operation (FC, Art. 32). Marriages in Remote places (FC, Art. 28) 2. 3. A: a) Remote Place - no means of transportation to enable the party to personally appear before the local civil registrar (Rabuya, 2009). 4. Marriages between parties Cohabiting for at least 5 years and without legal impediment to marry each other (FC, Art. 34); Marriages solemnized Outside the Philippines where no marriage license is required by the country where it was solemnized. 5. 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. Requisites for the 5-year cohabitation as an exception to the marriage license requirement (2002, 2008 BAR) 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. b. b) Exclusivity – the partners must live together exclusively, with no other partners, during the whole 5-year period. 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. NOTE: The five-year period of cohabitation must have been a period of legal union had it not been for the absence of marriage. 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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 anytime within the 5 years. It should be a period of legal union had it not been for the absence of the marriage. 32 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 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). --- 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 Persons and family relations 250 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) 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. 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”. 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. MARRIAGE CERTIFICATE 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). Marriage license v. Marriage certificate BASIS Nature Requisite of Marriage MARRIAGE LICENSE Authorization by the state to celebrate marriage. Formal requisite of marriage. MARRIAGE CERTIFICATE Best evidence of the existence of the marriage. Marriages between Filipinos solemnized abroad in accordance with the law in force in said country Neither essential nor formal requisite of marriage. 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: 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? 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: 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: 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). Requirements to prove a foreign marriage 1. 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). 2. 33 The existence of the pertinent provision of the foreign marriage law. The celebration or performance of the marriage in accordance of said law. Civil Law Requirements for the application of par. 2 of Art. 26 of the Family Code 1. 2. defense of an action." Since the divorce was a defense raised by respondent, the burden of proving the pertinent foreign law validating it falls squarely upon him. Courts cannot take judicial notice of foreign laws. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative (Garcia v. Recio, G.R. No. 138322, October 2, 2001). 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 The divorce obtained by the alien spouse must capacitate him or her to remarry (Rabuya, 2009). 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). --Q: Suppose in a valid mixed marriage the foreign spouse obtained a divorce decree abroad and was capacitated to remarry. 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? A: a. 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: If a foreigner who was divorced seeks to obtain a marriage license in the Philippines, what should he do? 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. L68470, October 8, 1985). 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). b. 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, October 5, 2005). --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? 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). II. VOID MARRIAGES 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). --Burden of proof in recognition of foreign divorce Marriages that are void ab initio(1993, 2004, 2005, 2006 BAR) 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 Burden of proof lies with "the party who alleges the existence of a fact or thing necessary in the prosecution or UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 34 Persons and family relations 250 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; “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 12. Common-law marriages. 1. (Silverio v. Republic, G.R. No. 174689, October 22, 2007). 2. 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: 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 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). --Marriage where one or both of the parties are below 18 years of age is VOID ABSENCE OF ANY ESSENTIAL OR FORMAL REQUISITES OF MARRIAGE Such marriage is void for lack of legal capacity even if the parents consented to such marriage (Sempio-Dy, 1995). Marriage between Filipinos who are of the same sex is VOID 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 For a marriage to be valid, it must be between persons of opposite sexes. If the national law of the foreigner recognizes 17 year old persons to be capacitated to marry, then their marriage is valid, otherwise it is void. 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). --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) Effect of lack of authority of solemnizing officer GR: The marriage is void ab initio. 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 --- 35 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). Civil Law 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? 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 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) 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). --Mistake to render the marriage void 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, 2009). 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. 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). 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). 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). Requisites of Psychological Incapacity (1996, 1997, 2002, 2006 Bar) a. 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, 2009). b. c. Proof of Psychological Incapacity The root cause of 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. Constitutional provision on marriage vis-à-vis validity of declarations of nullity of marriage based on psychological incapacity Q: Does a petition or 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Juridical antecedence– Must be rooted in the history of the party antedating the marriage, although overt manifestations may arise only after such marriage. Gravity – grave enough to bring about the disability of the party to assume the essential marital obligations. Permanence or Incurability – must be incurable or, if curable, the cure should be beyond the means of the parties involved. NOTE: Expert evidence may be given by qualified psychiatrists and clinical psychologists. 36 Persons and family relations 250 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, 2009) 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). In Marcos v. Marcos, the SC 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). Guidelines set by the Court to aid it in its disposition of cases involving psychological incapacity Instances where allegations of psychological incapacity were not sustained 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. Burden of proof to show the nullity of the marriage belongs to the plaintiff; 2. 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 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. 3. 4. 5. 6. 7. 8. 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 6, 2017) 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). 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) 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 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) --- 37 Civil Law --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, were 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? Q: Marivi filed a petition for declaration of nullity of marriage based on psychological incapacity. Both expert witnesses concluded that there was no chance of a successful marriage in a dysfunctional union when there is double psychological incapacity. The husband was suffering from “inadequate personality disorder related to masculine strivings associated with unresolved oedipal complex,” while Marivi was found to be suffering from a “personality disorder of the mixed type, histrionic, narcissistic with immaturity”. Do the findings of both expert witnesses warrant the declaration of nullity of marriage? A: No. Even granting that both parties did suffer from personality disorders as evaluated by the expert witnesses, the court found that the conclusions reached by these expert witnesses do not irresistibly point to the fact that the personality disorders which plague the spouses antedated the marriage; that these personality disorders are indeed grave or serious; or that these personality disorders are incurable or permanent as to render the parties psychologically incapacitated to carry out and carry on their marital duties. What can be inferred from the totality of evidence, at most, is a case of incompatibility. (Lontoc-Cruz v. Cruz , G.R. No. 201988, October 11, 2017) (Del Castillo, J.). A: YES. The Court held that B was indeed psychologically incapacitated as they relaxed the previously set forth guidelines with regard to 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.” Expert opinion considered as decisive evidence as to psychological and emotional temperaments. 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) Q: Benjamin and Maria were married. When they started living together, Maria noticed that Benjamin was dishonest, unreasonably extravagant at the expense of the family’s welfare, extremely vain physically and spiritually, and a compulsive gambler. It was also alleged that Benjamin was guilty of infidelity and unable to render any help, support or assistance to Maria. As a consequence, Maria was compelled to work doubly hard as she was the sole breadwinner of the family. It was also averred that at the time of the filing of this petition for declaration of nullity of marriage, Benjamin was confined in a rehabilitation institution and the attending psychiatrist made the diagnosis that he was a pathological gambler. Benjamin however, disputes the said allegations. He contends that the family home where Maria and their children were living was his own capital property; that his shortcomings as mentioned by Maria do not pertain to the most grave and serious personality disorders that would satisfy the standards required to obtain a decree of nullity of marriage. Should there marriage be declared void ab initio? 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)? 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 has 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 strait-jacket, forcing all sizes to fit into and be bound by it. In the abovementioned case, A: NO. In the case at bar, the evidence at hand failed to establish that Benjamin’s psychological incapacity was grave, serious and incurable as defined by jurisprudential parameters since Benjamin has a job; provided money for the family from the sale of his property; provided the land where the family home was built on; and lived in the family home with Maria and their children (Singson v. Singson G.R. No. 210766, 08 January 2018) (Del Castillo, J.). UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 38 Persons and family relations 250 the Supreme Court is not suggesting the abandonment of Molina. It simply declares that there is a need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. NOTE: Regardless of whether the relationship between the parties is legitimate or illegitimate. Void marriages by reason of public policy (1999, 2007, 2008 Bar) --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) Marriages between: 1. 2. 3. 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). --- 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. 4. 5. 6. 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. 7. 8. 9. Nagger Gay or Lesbian Congenital sexual pervert Gambler Alcoholic (2006 Bar) i. Adopted and Illegitimate child of the adopter; ii. Step brother and step sister; iii. Brother-in-law and sister-in-law; iv. 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 ex-girlfriend Sandra. Can Julian and Thelma get married? (2007 BAR) 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). --- A: The marriage between stepbrother and stepsister is void. However, under the FC, the marriage may be valid. --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) 3. INCESTUOUS MARRIAGES b. 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, kills 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: 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). a. 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). 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. 39 Civil Law Bigamous Marriage --- vinculum in the first nuptial subsists (Mercado v. Tan, G.R. No. 137110, August, 2000; Te v. CA, G.R. No. 126746, November 29, 2009). 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 judgment rendered in the proper proceedings (RPC, Art. 349). Special cases when subsequent marriage is allowed 1. 2. NOTE: The same applies to polygamy. Requisites for validity of subsequent marriage under Art. 41 under the Family Code (B-A-D) 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). Before the celebration of the subsequent marriage: 1. 2. 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). --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 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) 3. 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; There is judicial Declaration of presumptive death in a summary proceeding in accordance with Article 253 of the Family Code. 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. 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. --Q: May a person contract a valid subsequent marriage before a first marriage is declared void ab initio by a competent court? That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is 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 well-founded belief that the absentee is dead; 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. It is also for the protection of the State. The law regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community (Eduardo Manuel v. People, G.R. No. 165842, November 29, 2005). 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. 2008-20-SC, March 15, 2010). --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 UNIVERSITY OF SANTO TOMAS 2018 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) Finality of judicial declaration of presumptive death GR: The order of the trial court granting the petition for judicial declaration of presumptive death under Article 40 Persons and family relations 250 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). 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 obtains knowledge that the spouse absent has reappeared? 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). 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). 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: 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 on June 15, 2007. Subsequently, Ricardo remarried. 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). 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). Celerina claimed that she learned about Ricardo’s petition only sometime in October 2008 when she could no longer avail the remedies of new trial, appeal, petition for relief, or other appropriate remedies. Thereafter, on November 17, 2008, she filed a petition for annulment of judgment before the CA on the grounds of extrinsic fraud and lack of jurisdiction. She argued that she was deprived her day in court when Ricardo, despite his knowledge of her true residence, misrepresented to the court that she was a resident of Tarlac City when, in fact, she never resided there. As a result of Ricardo’s misrepresentation, she was deprived of any notice of and opportunity to oppose the petition declaring her presumptively dead. The CA dismissed Celerina’s petition for annulment of judgment for being a wrong mode of remedy and ruled that the proper remedy was to file a sworn statement before the civil registry, declaring her reappearance in accordance with Article 42 of the Family Code. Was the CA correct? Termination of Subsequent Bigamous Marriage 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 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. Mere filing of an affidavit of 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 have 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 wellfounded 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 A: NO. A petition to declare an absent spouse 41 Civil Law 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). --Q: When are marriages void? non-bigamous beyond the territorial jurisdiction of the solemnizing officer, are all irregularities which do not affect the validity of the marriage. --JUDICIAL DECLARATION OF NULLITY OF MARRIAGE subsequent Necessity of Judicial Declaration of Nullity of Marriage 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. 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). Before he contracts a subsequent marriage, he must first comply with the requirement provided for in Art. 52, viz: 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 recording in the civil registries and registries of properties of the following: 1. Judgment of annulment; 2. Partition; 3. Distribution of properties, and, 4. Delivery of presumptive legitimes. --Q: Ana Rivera had a husband, a Filipino citizen like her, who was among the passengers on board a commercial jet plane which crashed in the Atlantic Ocean ten (10) years earlier and had 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) 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 (G.R. No. 122749, Valdez v. Gomez- Valdez, July 31, 1996; Albano, 2013). 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) 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. 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. 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. 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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-ininterest in the settlement of the estate. 42 Persons and family relations 250 However, with respect to nullity of marriage cases commenced before the effectivity of A.M. No. 02-1110 and marriages celebrated during 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). --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 marriage license? 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). --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. A: NO. A petition to declare the marriage void due to 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). --- 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). EFFECTS OF JUDICIAL DECLARATION OF NULLITY OF MARRIAGE Q: Is the declaration of nullity of marriage applied prospectively? 1. A: NO, it retroacts to the date of the celebration of the marriage. Status of the Children(1990, 2010 Bar) GR: (Children conceived and born outside a valid marriage or inside a void marriage are Illegitimate.) 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). --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. 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). --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 43 2. XPNs: i. Legitimate if the marriage is void: 1. On the ground of psychological incapacity of either or both parties; 2. Due to the non-compliance with the requirements set forth under Article 52 of the Family Code ii. 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). iii.Legitimate if the children were conceived or born of the subsequent marriage under Article 53 (FC, Art. 54, 2nd sentence). Property Relations GR: Either Article 147 or 148 (CoOwnership) of the Family Code will apply. XPN: If the subsequent marriage is void due to non- compliance with Article 40 of the Family Code, the property relations of the void subsequent marriage will either be absolute community or conjugal partnership of gains. Civil Law 3. Donations Propter Nuptias 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. GR: Donations propter nuptias are revocable at the instance of the donor. XPNs: a. If the donation propter nuptias is embodied in a marriage settlement, the donation is void under Article 86 par. 1 of the Family Code; b. If the subsequent marriage is judicially declared void by reason of Article 40 of the Family Code, the donation remains valid; XPN: If the marriage is declared void by the 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. Effects of Decree of Annulment XPN to the XPN: If the donee spouse contracted the marriage in bad faith, all donations are revoked by operation by law. c. 4. 1. 2. 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. 3. Designation as Beneficiary in Insurance Policy 4. If the subsequent marriage is judicially declared to 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 5. 6. Right to inherit a. Intestate Succession: The parties cannot inherit from each other by way of intestate succession since they are no longer considered as spouses; b. 2. 6. 5. GR: It shall remain valid. XPN: If the donee spouse acted in bad faith, the donor may revoke the donation. Testate Succession: GR: Any Testamentary provision by one in favor of the other shall remain valid. 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 (.) 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. 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 Parental Authority and Custody of Children UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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 whether or not the designation is revocable; The spouse who contracted the marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession; Donation propter nuptias. 44 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. The final judgment of nullity or annulment shall provide the following: 2. 3. 4. 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 Persons and family relations 250 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). Forms of presumptive legitime a. b. c. Cash Property 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. 2. 3. 4. Judgement of Annulment Partition Distribution of properties; and Delivery of presumptive legitime 45 Civil Law Void v. Voidable marriages VOID MARRIAGE BASIS Status of marriage Petition filed Who may file Void ab initio Valid until annulled Declaration of Nullity of Marriage Annulment of Marriage GR: Solely by the husband or wife. GR: Offended Spouse XPNs: Any real party in interest, only in the following cases: 1. Nullity of marriage cases commenced before the effectivity of A.M. No. 02-11-10 - March 15, 2003. 2. Marriages celebrated during the effectivity of the Civil Code (De Dios Carlos v. Sandoval, G.R. No. 179922, December 16, 2008). 3. 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) 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 Children Property Judicial Declaration 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 Prescriptive period How may be impugned VOIDABLE MARRIAGE Either directly or collaterally Judicial declaration is necessary GR: Illegitimate; Legitimate 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 GR: Property relations are governed by rules on co-ownership 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, shall be dissolved and liquidated (FC, Art. 43 (2), in relation to Art. 50). GR: There is no necessity to obtain a judicial declaration XPN: For purposes of remarriage, one is required. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 46 GR: Governed by rules on absolute community XPN: Unless another system is agreed upon in marriage settlement Necessary Persons and family relations 250 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, 2006). Simply, a voidable marriage is valid until it is annulled (Paras, 2016). 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.). Circumstances constituting FRAUD under Art. 45(3) (1996, 1997, 2002, 2003, 2006 Bar) 1. Determination of the unsoundness of mind as a ground for annulment 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 transmitted disease, regardless of nature, existing at the time of marriage; or Concealment of drug addiction, habitual alcoholism, homosexuality and lesbianism (FC, Art. 46). 2. 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, 2006). 3. 4. Fraud as a ground for annulment Fraud, as distinguished from fraud as a ground for annulment of contracts, refers to the non-disclosure or concealment of some facts deemed material to the marital relations (Rabuya, 2009). No other misrepresentation or deceit as to character, 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) Voidable marriages and its ratification GROUND (1999, 2003, 2006, 2007, 2009 Bar) 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 Either party was of unsound mind RATIFICATION Contracting party who failed to obtain parental consent: Through free cohabitation after attaining the age of 21. 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. WHO MAY FILE By the party WHEN TO FILE contracting 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 XPN: Any relative, guardian or person having legal charge of the insane During a lucid interval or after regaining sanity Insane spouse 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 Injured party 47 Within 5 years after the discovery of fraud Civil Law fraud Vices of consent such as force, intimidation or undue influence Impotence (impotencia copulandi) and afflicted with STD found to be serious and appears to be incurable 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 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. Within 5 years after the celebration of marriage --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 premarital relationship with a close relative of his. According to her, the "non-divulgement to her of such pre-marital secret" constituted fraud in obtaining her consent w/in 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? d. Legal Separation b. 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). --- c. --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 voidable? (2002 BAR) 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) A: If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they will: 1. Not constitute grounds for declaration of nullity (FC, Art. 36). 2. Not constitute grounds to render the marriage voidable (FC, Arts. 45 and 46); and 3. Constitute grounds for legal separation (FC, Art. 55). --Vitiated consent as a ground for annulment of marriage A: Declaration of Nullity of Marriage Annulment of Marriage 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES a. full knowledge of the drug addiction; The case is filed within five (5) years from discovery. There should be no condonation or consent to the drug addiction; The action must be filed within five (5) years from the occurrence of the cause. Drug addiction arises during the marriage and not at the time of marriage. There is vitiation of consent when: 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.” 48 Persons and family relations 250 --Requisites of affliction of a SEXUALLY TRANSMITTED DISEASE (STD) as a ground for annulment Intimidation – “There is intimidation when one of the contracting parties is compelled by a reasonable and well- grounded fear of an 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,). 1. 2. a. b. c. 3. 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. 4. --- A threat to enforce one's claim through competent authority however, if the claim is just or legal, does not vitiate consent. Q: Yvette was found to be positive for HIV virus, considered sexually transmissible, serious and incurable. Her boyfriend Joseph was aware of her condition and yet married her. After two (2) years of cohabiting with Yvette, and in his belief that she would probably never be able to bear him a healthy child, Joseph now wants to have his marriage with Yvette annulled 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? Impotence or physical incapacity 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) Requisites for impotence to be a ground for annulment of marriage 1. 2. 3. 4. 5. One of the parties is afflicted with STD; STD must be: Existing at the time the marriage is celebrated; Serious; Apparently Incurable; The other spouse is not aware of the other’s affliction; and, The injured party must be free from STD. A: NO. Concealment of a sexually transmitted disease may annul the marriage if there was fraud existing in 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). --Art. 45 v. 46 of the FC on STD as ground for annulment 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. Presumption of potency of one spouse GR: Presumption is in favor of potency. XPN: Doctrine of triennial cohabitation. ARTICLE 45 Affliction ARTICLE 46 Concealment Ground for Annulment The act of concealing The fact of being because it constitutes afflicted fraud Doctrine Triennial cohabitation If after 3 years of living together with her husband, the wife remained a virgin, the husband is presumed to be impotent (Rabuya, 2009). The husband will have to overcome this presumption. Concealment Not necessarily Necessary Nature of the Disease Must be serious and Does not have to be incurable serious and incurable 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 other men or women (Sempio Diy, 1995). --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. PRESENCE OF PROSECUTOR Role of the prosecutor or Solicitor General in cases of annulment and judicial declaration of nullity 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 not 49 Civil Law 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). 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 by: 1. 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). 2. 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). GROUNDS FOR LEGAL SEPARATION (FC, ART. 55) (1997, 2002, 2003, 2006, 2007 Bar) 1. 2. Actions prohibited in annulment and declaration of absolute nullity of marriage cases 3. 1. Compromise; 2. Confession of judgment; 3. Stipulation of facts; 4. Summary judgment; and 5. Judgment on the pleadings. 4. 5. 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. 6. 7. 8. 9. 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: 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; Lesbianism or homosexuality of respondent; and NOTE: It must exist after celebration of marriage 10. Abandonment of petitioner by respondent without justifiable cause for more than 1 year. --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) Support of the spouses; Support and custody of the common children; Visitation rights of the other parent (FC, Art.49). LEGAL SEPARATION 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. 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. --Q: Lucita left the conjugal dwelling and filed a Nature of legal separation UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Repeated physical violence or grossly abusive conduct against petitioner, common child, child of petitioner; 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; Drug addiction or habitual alcoholism of respondent; NOTE: It must exist after celebration of marriage PENDENCY OF ACTION 1. 2. 3. 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). 50 Persons and family relations 250 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? c. d. 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 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. f. Acts considered as acts of violence under R.A. 9262 1. Causing, threatening to cause, or attempting to cause physical harm to the woman or her child; 2. Threatening to cause the woman or her child physical harm; 3. Attempting to cause the woman or her child physical harm; 4. Placing the woman or her child in fear of imminent physical harm; 5. Attempting to compel or compelling the woman or her child to: 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. Attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by: a. Force, or b. Threat of force; c. Physical, or Other harm, or d. Threat of physical or other harm; 7. 8. Intimidation directed against the woman or child. 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: a. b. 9. 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 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: i. Force, or ii. Threat of force; iii. Physical harm, or iv. 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: a. Stalking or following the woman or her child in public or private places; b. Peering in the window or lingering outside the residence of the woman or her child; c. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; d. Destroying the property and personal belongingness or inflicting harm to animals or pets of the woman or her child; and e. Engaging in any form of harassment or violence; 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. Protection Order A protection order under R.A. 9262 is an order 51 Civil Law issued under this act for the purpose of preventing further acts of violence against a woman or her child and granting other necessary relief. years from the time of the occurrence of the cause (FC, Art. 57).. 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). 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. Failure to interpose prescription as a defense 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. L10699, 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. Who may file Petition for Protection orders 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; 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) a. Does Rosa have legal grounds to ask for legal separation? b. Has the action prescribed? (1994 Bar) A: a. YES, the abandonment of Rosa by Ariel for more than one (1) year is a ground for legal separation unless upon returning to the Philippines, Rosa agrees to cohabit with Ariel which is allowed under the Muslim Code. In this case, there is condonation. 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. 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. DEFENSES Grounds for denial of separation (2006 Bar) 1. 2. 3. 4. 5. 6. 7. 8. petition for legal 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. L-31429, January 31, 1972); Reconciliation of the spouses during the pendency of the case (FC, Art. 56). Prescriptive period for filing a petition for legal separation An action for legal separation shall be filed within five UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 52 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). 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). Persons and family relations 250 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. Effect of death of a party before entry of judgment 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. 02-11-11SC). RECONCILIATION EFFORTS Effect of death of a party after entry of judgment 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). 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. 02-11-11-SC). --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? CONFESSION OF JUDGMENT Rule in rendering a judgment of legal separation based upon a stipulation of facts or confession of judgment 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). 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. 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). EFFECTS OF LEGAL SEPARATION 1. Filing of petition for legal separation Who may file When to file Where to file 2. Husband or wife Within 5 years from the time of the occurrence of the cause 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 3. 4. 5. EFFECTS OF FILING A PETITION FOR LEGAL SEPARATION (FC, ART. 61) 6. 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. 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 favour 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; 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 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 NOTE: Prescriptive period: 5 years from finality of decree of legal separation 7. 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). 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, 53 Civil Law what will happen to a child below the age of seven? Is the rule absolute? 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). --Q: Which of the following remedies, 1. Declaration of nullity of marriage, 2. Annulment of marriage, 3. Legal separation, and/or 4. Separation of property, 2. 3. 4. 5. A: a. b. d. LEGAL SEPARATION The wife may file an action for legal separation. The husband’s sexual infidelity is a ground for legal separation (FC, Art. 55). 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), Art. 101]. LEGAL SEPARATION, AND SEPARATION OF PROPERTY The wife may file an action for legal separation on the ground of repeated physical violence on her person [FC, Art. 55(1)]. 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. --Effect to the donations made by the spouses to each other If the wife discovers after the marriage that her husband has “AIDS”? If the wife goes abroad to work as a nurse and refuses to come home after the expiration of her three-year contract there? If the husband discovers after the marriage that his wife has been a prostitute before they got married? If the husband has a serious affair with his secretary and refuses to stop notwithstanding advice from relatives and friends? If the husband beats up his wife every time he comes home drunk? (2003 Bar) 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. 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. 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). EFFECTS OF RECONCILIATION SEPARATION OF PROPERTY 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. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES NONE 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). e. Can an aggrieved spouse avail himself/herself of: 1. c. 54 As to the Decree: During the pendency of the case: LS proceedings terminated at whatever stage After the issuance of the decree: Final decree of LS to be set aside (FC, Art. 66). 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). 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. Persons and family relations 250 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. 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. The properties to be contributed anew to the restored regime; 2. Those to be retained as separated properties of each spouse; and 3. 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 thereby be terminated at whatever stage. 55 Civil Law Difference of Declaration of Nullity of Marriage, Annulment and Legal Separation BASIS DECLARATION OF NULLITY OF MARRIAGE ANNULMENT LEGAL SEPARATION Marriage bond Dissolved Dissolved No effect, marriage bond remains GR: Illegitimate Legitimate Status of children XPN: Children conceived or born of marriages before declaration of nullity under Arts. 36 and 53 of the FC considered 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 coownership. Property relations ACP/CPG shall be dissolved & liquidated.[FC, Art.43(2)] 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 XPN: Marriages declared void under Article 40 which shall be liquidated in accordance with Article 43 par. 2 (Valdes v. RTC, G.R. No. 122749. July 31, 1996). If there are none, the children of the guilty spouse by a previous marriage, or In default of children, the innocent spouse. GR: Donations propter nuptias are revocable at the instance of the donor Donations propter nuptias XPN: ii. If the donation propter nuptias is embodied in a marriage settlement, the donation is void under Article 86 par. 1 of the FC. iii. If the subsequent marriage is judicially declared void by reason of Art. 40 of the FC, the donation remains valid 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. XPN to the XPN: 1. If the donee spouse contracted the marriage in bad 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 Succession 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. 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)]. Testate Succession: If one spouse contracted the marriage in bad UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 56 Persons and family relations 250 GR: Any Testamentary provision by one in favor of the other shall remain valid XPN: 1. If the subsequent marriage is rendered void by non- compliance 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 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 faith, he shall be disqualified to inherit from innocent spouse by testate and intestate succession [FC, Art.43(5)] 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 RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE ESSENTIAL OBLIGATIONS 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), b. Observe mutual love, respect, fidelity, and c. Render mutual help and support 2. NOTE: In case of disagreement the Court shall decide. 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 from her coercively or violently (People v. Jumawan, G.R. No. 187495, April 21, 2014). Therefore: a. 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). Fix the family domicile (FC, Art. 69); 3. Jointly support the family (FC, Art. 70); a. Expenses shall be paid from the community property, b. In the absence thereof from the income or fruits of their separate properties, c. In the absence or insufficiency thereof from their separate properties 4. 5. Manage the household (FC, Art. 71); Not to neglect duties, or commit acts which tend to bring danger, dishonor, or injury to family (FC, Art. 72); Either spouse may practice any legitimate profession/business, even without the consent of the other. 6. NOTE: The other spouse may object on valid, serious and moral grounds. In case of disagreement, the court shall decide whether: a. b. The right to sexual intercourse 57 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 enforced against the Civil Law separate property of the spouse who has not obtained consent. (FC, Art. 73 as amended by R.A. 10572) a. b. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. c. Other obligations of spouses 1. Exercise the duties and enjoy the rights of parents; 2. Answer for civil liability arising from injuries caused by children below 18; 3. Exercise parental authority over children’s property (Republic v. CA, Molina, G.R. No. 108763, February 13, 1997). 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). Rule on waiver of rights over the share in the community or conjugal property GR: Cannot be waived during the marriage. XPN: In case of judicial separation of property. Essential marital obligations cannot be compelled by court 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. 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. Property regime governing the property relations of spouses in the absence of marriage settlement or when regime agreed upon is void (1992, 1995, 2005 Bar) XPN: Giving support. (Arroyo v. Arroyo, G.R. No. L-17014, August 11, 1921) Reasons when the Court may exempt one spouse from living with the other a. b. 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 because Art. 119 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). --Q: Marriage being a contract, may the parties enter into stipulations which will govern their marriage? If one spouse should live abroad. Other valid and compelling reasons. NOTE: The Court shall not grant the exemption if it is not compatible with the solidarity of the family. PROPERTY RELATIONS OF THE SPOUSES The property relations shall be governed by the ff. in the stated order: 1. Property relation agreed and embodied in the marriage settlement; 2. Provisions of the FC; and 3. Local custom (FC, Art. 74). Commencement of Property Regime 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). 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. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void (FC, Art. 88). Laws that will govern the property relations of the spouses 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). 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 XPN: Lex rei sitae applies: UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 58 Persons and family relations 250 properties during their marriage. It is also called as Ante-nuptial Agreement (Sempio-Diy, 1995). GR: Everything stipulated in the settlements or contracts in consideration of the marriage shall be rendered void. Requisites of a valid Marriage Settlement (FC, 9 a. b. c. d. XPN: Those stipulations not dependent upon, or are not made in consideration of, the marriage, subsist. In Writing; Signed by the parties; Executed before the celebration of marriage; Registration (to bind 3rd persons) DONATION PROPTER NUPTIAS OR DONATION BY REASON OF MARRIAGE (FC, ART.88) The provisions in the marriage settlement must be in accordance with law, morals or public policy; otherwise such agreement is void (Paras, 2008). 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. 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 formalities of the donation propter nuptias follows the same formalities as set forth in the law on donations. NOTE: Donations of future property are governed by provisions on testamentary succession and formalities of wills. Donation propter nuptias (DPN) v. Ordinary Donation 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). B A S I S As to forma lities Additional requirements for validity of the MS FACTUAL SITUATION ADDITIONAL REQUIREMENT If one of both of the parties are: The ff. must be made a party to the MS, otherwise the MS is void: 18-21 years old As to inclusi on of prese nt prope rty 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. The requisites for a valid MS must be present; 2. There must be judicial approval; 3. Subject to the provisions of Arts. 66, 67, 128, 135, and 136 of FC. As to inclusi on of Effect on the ante-nuptial agreement in case the marriage is not celebrated (FC, Art. 81) 59 DONATIO N PROPTER NUPTIAS Donations of future property are governed by the provisions on testamentary succession and the formalities of wills [FC, Art. 82(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. 84) Future property may be included, ORDINARY DONATION Governed by Title III, Book III of the NCC. There is no limit except that the donor shall leave sufficient property for his support and that of all relatives entitled to support from him (NCC, Art. 750) and further no legitimes of compulsory heirs shall be impaired. (NCC, Art. 752) Future property cannot be Civil Law future prope rty Revoc ation provided the donation is mortis causa. [NCC, Art. 84(2)] Grounds for revocation are found in Art. 86 of FC. included. (NCC, Art. 751) 5. 6. Grounds for revocation are found in law in donations. Grounds for filing an action for revocation of a DPN and their respective prescriptive periods 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) Requisites for Donation Propter Nuptias a. b. c. Made before celebration of marriage; Made in consideration of the marriage; and Made in favor of one or both of the future spouses. Requisites if the DPN is made by one spouse in favor of the other 1. 2. 3. GROUNDS (FC, Art. 86) There must be a MS stipulating a property regime other than AC; Donation in the MS be not more than 1/5 of the present property; and There must acceptance by other spouse. 1. Marriage celebrated. Rule regarding DPN made between spouses 2. Marriage is judicially declared void. 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 shall be entitled to the excess (FC, Art. 85). Donations that may be revoked by the donor (FC, Art. 86) A donation by reason of marriage may be revoked by the donor in the following cases: GR: Marriage is not celebrated or is judicially declared void ab initio. 4. From the time the marriage was not solemnized on the fixed date (FC, Art. 1149). Revoked by operation of law. 5 yrs Finality of judicial declaration of nullity (if action is to recover property). Time the donor came to know that the required parental consent was not obtained. Marriage takes place without the required consent of parents or guardians. Marriage is annulled and donee acted in bad faith. Upon legal separation, the donee being the UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES PRESCRIPTIVE PERIOD (reckoning point) 5 yrs 5 yrs XPN: donations made in the marriage settlements 3. not Ground for nullity: Contracte d subseque nt marriage before prior marriage has been judicially declared void. Any other grounds. 3. Marriage took place without consent of parents or guardian, when required by law. 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. 2. is XPN: Those automatically rendered void by law. 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. 1. guilty spouse. If with a resolutory condition which was complied with. Donee has committed an act of ingratitude. 60 Persons and family relations 250 4. Marriage is annulled and donee acted in bad faith. 5 yrs 5. Upon legal separation (LS), donee being the guilty spouse. 5 yrs 6. Donation subject to resolutory condition which was complied with. 7. Donee committed an act of ingratitude. Finality decree. II. III. IV. V. of The rule against donation to one another between the spouses does 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). Time decree of L.S has become final. 5 yrs Happening of the resolutory condition. 1 yr From donor’s knowledge of the commission of an act of ingratitude. Acts of ingratitude: (FC, Art. 765) 1. 2. Commission of an offense against the person, honor or property of the donor, his wife or his children under his parental authority; 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. 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. Undue refusal to support the donor when he is legally or morally bound to give such support. DONATIONS DURING THE 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. XPN: Moderate gifts on the occasion of any family rejoicing. The aforementioned rules also apply to common law spouses (Matabuena v. Cervantes, G.R. No. L28771, March 31, 1971). PROPERTY RELATIONS OF SPOUSES Different property regimes which may be adopted by future spouses I. Absolute Community of Property (ACP); 61 Civil Law ACP v. CPG v. CSOP ABSOLUTE COMMUNITY OF PROPERTY When spouses: 1. Adopt it in a marriage settlement; 2. Do not choose any economic system; or 3. Adopted a different property regime and the same is void. CONJUGAL PPARTNERSHIP OF GAINS When applicable 1. When the future spouses adopt it in a marriage settlement. 2. If the marriage is celebrated under the New Civil Code and they have not adopt any economic system. COMPLETE SEPARATION OF PROPERTY 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. 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 liquidation of Upon dissolution of the partnership, the community property, what is the separate properties of the divided equally between the spouses are returned and only the spouses or their heirs is the net net profits of the partnership are remainder 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. Grounds for revival of former property regime 1. 2. 3. 4. 5. 6. 7. 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES life of spouse who had been separated in fact for at least 1 year; Spouses agree to revive their former property regime. Grounds for transfer of administration of the exclusive property of each spouse When one spouses: 1. Is sentenced to penalty with civil interdiction; 2. Becomes fugitive from justice or is hiding as an accused in a criminal case; 3. Is judicially declared absent 62 Persons and family relations 4. 250 Becomes guardian of another 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). 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). I. ABSOLUTE COMMUNITY OF PROPERTY (ACP) 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 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 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) 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. Laws that govern the absolute community of property 1. 2. Family Code Civil Code provisions on co-ownership 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 (Pan Pacific Industrial Sales Co., Inc. v. CA, G.R. No. 125283, February 10, 2006). Properties included in the absolute community 1. a. b. 2. 3. 4. All the property owned by the spouses: At the time of the celebration of the marriage; or Acquired thereafter; Property acquired during the marriage by gratuitous title, if expressly made to form part of the community property by the donor, testator or grantor; Jewelry or properties with monetary value; Winnings in gambling. 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). Properties excluded in the Absolute Community 1. 2. 3. 4. Property acquired during the marriage by gratuitous title and its fruits as well as income thereof unless the grantor expressly provide they shall form part of the community property; Property for personal and exclusive use of either spouse but jewelleries 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). Presumption of community inclusion in the A. CHARGES UPON AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY PROPERTY Charges upon the ACP 1. The support of a. The spouses b. Their common children c. Legitimate children of either spouse; NOTE: Support of illegitimate children of either spouse is chargeable to exclusive property of the illegitimate parent (FC, Art. 197). 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). 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 63 2. All debts and obligations contracted during the marriage by: a. the designated administrator-spouse for the benefit of the community b. by both spouses c. by one spouse with the consent of the other; 3. Debts and obligations contracted by either spouse without the consent of the Civil Law 4. 5. 6. 7. other to the extent that the family may have been benefited; All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (2007 Bar) NOTE: For ante-nuptial debts, those contracted by one spouse without the consent of the other during the marriage and those contracted by the administrator-spouse, 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. b. c. d. e. f. All taxes, liens, charges and expenses including minor repairs upon ACP or CP. Expenses to enable either spouse to commence/complete a professional, vocational or other activity for self-improvement. 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. 8. 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; 9. Payment, in case of absence or insufficiency of the exclusive property of the debtor-spouse, of: 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; Expenses of litigation between spouses unless the suit is found to be groundless. For illegitimate For illegitimate children, children, support from support from separate separate property of property of person person obliged to give obliged to give support. support. In case of In case of insufficiency insufficiency or absence or absence of separate of separate property, property, CP shall ACP shall advance advance support, support, chargeable to chargeable to share of share of parent upon parent upon liquidation, liquidation. but only after obligations in Art. 121 have been covered (FC, Art. 21). Taxes and expenses for Taxes and expenses for preservation during mere preservation marriage upon separate during marriage upon property of either separate property of spouse used by family. either spouse, regardless of whether used by the family because the use and enjoyment of separate property of the spouses belong to the partnership. 1. Ante-nuptial debts are For ante-nuptial debts, chargeable to ACP if same as ACP but in case they redounded to the of insufficiency of benefit of family. separate property, obligations enumerated 2. Personal debts not in Art. 121 must first be redounding to benefit satisfied before such of the family such as debts may be NOTE: The payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community 10. 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 v. CPG as to charges ACP (FC, Art. 84) CPG (FC, Art. 121) Support of the spouses, their common children, and legitimate children of either spouse. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Debts and obligations contracted during marriage: 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 (Rul) benefit to family is presumed. 64 Persons and family relations liabilities incurred by reason of crime or quasi-delict are chargeable to the separate property of the debtor spouse. 250 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; 4. During the pendency of the legal separation case, the court may designate either of the spouses as sole administrator. chargeable to the CP (FC, Art. 12). 3. In case of insufficiency of separate property, chargeable to ACP but considered advances deductible from the share of the debtorspouse upon liquidation. --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. After the marriage, is the debt still the responsibility of such individual? (2007 Bar) NOTE: But such powers do not include: 1. Disposition; 2. Alienation; or 3. Encumbrance of the conjugal community property. 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. or "Court authorization" in the sale of conjugal properties 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). --Insufficiency of the community property to cover liabilities 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). Disagreement in the administration of community property (FC, Art. 96) In case of disagreement, the decision of the husband shall prevail but subject to recourse to the court by the wife for proper remedy. GR: The spouses shall be solidarily liable for the unpaid balance with their separate properties. NOTE: Prescriptive period for recourse is within 5 years from the date of the contract implementing such decision. 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 debtorspouse. (FC, Art. 94 [9]) Sale or Disposition of 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). B. OWNERSHIP, ADMINISTRATION, ENJOYMENT AND DISPOSITION OF THE ABSOLUTE COMMUNITY PROPERTY Administration of Community Property GR: The administration of community property belongs to both spouses jointly. 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. 65 Civil Law 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. 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 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). --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) 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. Receivership; 2. Judicial separation of property; 3. Authority to be the sole administrator of the absolute community (FC, Art. 101). Presumption of Abandonment 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. --Q: Does the prohibition cited above include lease by the husband over properties of the community of property without the consent of the wife? 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 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). 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, 2008). Prohibition against the sale of property between spouses GR: Spouses cannot sell property to each other. 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). --Donation of a community property by a spouse 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 SC 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). 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) GR: Such separation does not affect the regime of absolute community UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 66 Persons and family relations 250 C. DISSOLUTION OF ABSOLUTE COMMUNITY REGIME common children; 6. Adjudication of conjugal dwelling and custody of common children (FC, Art. 102). Dissolution of Absolute Community Property (2009 BAR) Applicable procedure in the dissolution of the ACP in case the marriage is terminated by death Absolute Community Property is terminated by: (FC, Art. 99) Community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. 1. Death of either spouse; If no judicial proceeding is instituted, the surviving spouse shall, judicially or extra-judicially, liquidate the community property within 1 year from the death of the deceased spouse (FC, Art. 103). 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. Consequences of failure to liquidate within 1 year 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). 1. The reason for the law is that, the law seeks to protect the children's interest in the first marriage (Albano, 2013). 2. 3. 4. 5. 2. 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). 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. The proceeds, product, fruits and income of their separate properties; 2. Those acquired by either or both of them through: a. Effort; b. Chance. 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). Commencement of CPG D. LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS AND LIABILITIES CPG shall commence at the precise moment when the marriage ceremony is celebrated. Procedure in case of dissolution of ACP 1. 2. 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. 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). Law that governs the conjugal partnership Inventory of all properties of the ACP, listing separately the communal properties from exclusive properties of each spouse; 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). 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. 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). --- 3. Delivery to each spouse of his/her remaining exclusive properties; 4. Equal division of net community assets Unless there is: a. An agreement for a different proportion; or b. A voluntary waiver of such share; 5. Delivery of the presumptive legitimes of the Q: Spouses Manuel and Martha acquired a parcel of land in Quezon City. After some time, the spouses separated de facto, and no longer communicated 67 Civil Law with each other. Manuel thereafter discovered that Martha had previously sold the property to Titan Construction Corporation for P1.5 Million. Manuel alleged that the sale executed by Martha in favor of Titan was without his knowledge and consent, and therefore void. May the court order the reconveyance of the property to the spouses? 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: YES. The property is part of the spouses' conjugal partnership. Under Article 160 of the Civil Code, which is the law in force at the time of the celebration of the marriage, all property of the marriage is presumed to belong to the conjugal partnership, unless it is proved that it pertains exclusively to the husband or to the wife. In the absence of Manuel's consent, the Deed of Sale is void. Further, under Article 124 of the Family Code, the administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. (Titan Construction v. David, G.R. No. 169548, March 15, 2010) (Del Castillo, J.). 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 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) EXCLUSIVE PROPERTY OF THE SPOUSES (FC, ART. 109) 1. 1. Those brought into the marriage as his/her own; 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 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 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 neither it will apply if the property is partly owned by a spouse and partly owned by a third person. 2. 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. Those acquired by right of redemption, barter or exchange with exclusive UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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. 68 Accession– If the cost of the improvement and the value of the improvement isequal to or less than the value of the principal property, the entire property becomes the exclusive property of the respective spouse. 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. A: 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 Persons and family relations 250 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. --Presumption of inclusion of property in the Conjugal Partnership of Gains 6. 7. Property bought through installment (FC, Art. 118) Requisites: 1. Property is bought on installment prior to the marriage; and 2. Paid partly from exclusive funds and partly from conjugal funds. 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. XPN: Unless the contrary is proved. Rules in determining ownership: 1. If full ownership was vested before the marriage – it shall belong to the buyer spouse. 2. If full ownership was vested during the marriage – it shall belong to the conjugal partnership. 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. 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. --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? CONJUGAL PARTNERSHIP PROPERTY A: CONJUGAL. In this case, the provisions of the NCC would apply since the purchase took place before the FC took effect. Under Art. 160 of the NCC, all property of the marriage is 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 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). --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 as evidence their marriage contract and the initial tax declaration over the property. Composition of CPG (1995, 1998, 2004, 2005, 2008 Bar) (FC, Art. 117) 1. Those acquired by onerous title during the marriage with conjugal funds; NOTE: Requisites: a. Acquisition is made during marriage, b. Thru onerous title, c. At the expense of common fund; 2. 3. 4. 5. Livestock in excess of what was brought to the marriage; Those acquired by chance such as winnings in gamblings and bettings (FC, Art. 117). the 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; 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. Share of either spouse in hidden treasure; Those acquired through occupation such as hunting or fishing; A: RECOVERY IS NOT WARRANTED. The rule is all property of the marriage is 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, 69 Civil Law 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. 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). A. CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP OF GAINS (CPG) 1. 2. 3. 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 (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 4. 5. 6. 7. 8. 9. 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). --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? 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. A: THEY ARE CONJUGAL PROPERTIES. Whether a property is conjugal or not 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. H and X’s cohabitation cannot work to the detriment of W as 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). --Q: Suppose a property was acquired by one spouse while they were living separately, is this property conjugal or not? Charges: 1. Personal debts of either spouse contracted before the marriage which did not redound to the benefit of the family; 2. Support of the illegitimate children of either spouse; 3. Fines and indemnities arising from delicts and quasi- delicts. 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) --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: 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). UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Support of the spouses, their common children and the legitimate children of either spouse; Debts and obligations contracted by one without the consent of the other to the extent that 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 self- improvement courses; Expenses of litigation between the spouses unless the suit is found to be groundless (FC, Art. 121). A: NO. Unlike in the system of absolute community 70 Persons and family relations 250 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). --B. ADMINISTRATION OF THE CONJUGAL PARTNERSHIP OF GAINS (ART. 124) 3. 4. D. LIQUIDATION OF THE CONJUGAL PARTNERSHIP ASSETS AND LIABILITIES 1. 2. 3. 4. 5. 6. GR: The right to administer the conjugal partnership belongs to both spouses jointly. 7. 8. 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. But such powers do not include: 1. Disposition; 2. Alienation; or 3. Encumbrance of the community property. conjugal Annulment or Declaration of Nullity; Judicial separation of property during marriage (FC, Art. 126). 9. 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; 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 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). Support to the surviving spouse and to the children during liquidation 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 inventories 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). or NOTE: The sale of conjugal property without the consent of the husband is void. If one spouse is incapacitated or otherwise unable to assume 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. Death of either spouse; 2. Legal separation; 71 Civil Law Liquidation of community property in the absence of a judicial settlement proceeding (FC, Art. 130) Instances when separation of property is allowed (FC, Art. 134) 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. 2. Sufficient causes for judicial separation of property III. COMPLETE SEPARATION OF PROPERTY (CSOP) 1. Civil interdiction of the spouse of petitioner; 2. Judicial declaration of absence; 3. Loss of parental authority as decreed by the court; 4. Abandonment or failure to comply with family obligation; (2003 Bar) 5. Administrator spouse has Abused authority; 6. 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. Effects if the community property is not liquidated (FC, Art. 130) 1. Any disposition or encumbrance made by the surviving spouse involving community property of the terminated marriage shall be void. 2. 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. 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 the grant of the decree of judicial separation of property. Effects of judicial separation of property between spouses The system of complete separation of property will govern the property relations between the spouses only in the following cases: 1. 2. 3. 1. 2. 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 4. 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. 3. 4. Rights of the spouses under the regime of separation of property 1. Each spouse shall own, dispose of, administer, possess, and enjoy his or her own separate property, without need of the consent of the other. 2. 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). Marriage settlement Family Code in supplemental character (FC, Art. 149) Kinds of separation of property 1. 2. As to extent: (FC, Art. 144) a. Total b. Partial – In this case, the property not agreed upon as separate shall pertain to the absolute community. Liabilities of the spouses for family expenses under the regime of separation of property (FC, Art. 146) GR: Both spouses shall bear the family expenses in proportion to their income. As to kinds of property: (FC, Art. 144) a. Present property b. Future property c. Both present and future property UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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. 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) Rules governing the regime of separation of property 1. 2. By agreement through marriage settlement By judicial order XPN: In case of insufficiency or default thereof, to the current market value of their separate properties. 72 Persons and family relations 250 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. If the separation of property is for a sufficient 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. 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 (a) By agreement Requisites: 1. By means of a public instrument; 2. To be recorded in the registry of property of the place where the property is located. (b) By order of the court upon petition Based on these grounds: 1. Other spouse becomes the guardian of the other; 2. The other spouse is judicially declared an absentee; 3. Other spouse is sentenced to a penalty which carries with it civil interdiction; or 4. Other spouse becomes fugitive from justice or hiding as an accused in a criminal case (FC, Art. 142). 73 Civil Law IV. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE BASIS ART. 147(1997, 2000, 2006, 2009, 2010 BAR) 1. Parties without legal impediment to marry; 2. Void marriage on the ground of psychological incapacity. Applicability As to requisites ART. 148(1992, 1998, 2000, 2006, 2009 Bar) With legal impediment caused by: 1. Adulterous relationships 2. Bigamous/polygamous marriages 3. Incestuous void marriages under Art. 37 4. Void marriages by reason of public policy (FC, Art. 38). 1. The man and the woman must be capacitated 1. to marry each other; 2. live exclusively with each other as husband and wife; and 3. their union is without the benefit of marriage 2. or their marriage is void (Mercado-Fehr v. Fehr, G.R. No. 152716, October 23, 2003 Salas, Jr. v. Aguila, G.R. No. 202370, 2013). Owned in equal shares 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 Belongs to party Belongs to such party Property exclusively upon proof of 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, work or industry and owned by them in equal shares. Presumption If one party did not participate in acquisition: presumed to have contributed through care and maintenance of family and household (Buenaventura v. Buenaventura, G.R. No. 127358, March 31, 2005). 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: Forfeiture Proof of actual contribution 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 if proof to the contrary. If one of the parties is validly married to another, his/her share in the co-ownership shall accrue to the ACP or CPG existing in the marriage. 1. their common children If the party who acted in BF is not validly 2. in case of default of or waiver by any or all of married to another or if both parties are in BF, the common children or their descendants, such share be forfeited in manner provided in each vacant share shall belong to the respective the last par. of Art. 147 surviving descendants 3. In the absence of descendants, such share shall belong to the innocent party. Not necessary Necessary Property regime in case the marriage is declared null and void on the ground of psychological incapacity 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. The property relation between the parties is 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 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). UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 74 Persons and family relations 250 presumed to have been obtained through their joint efforts. 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. 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. --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: 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. 1. Declaring the marriage null and void; 2. Dissolving the regime of Absolute Community of Property; and 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. 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. 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) Co-ownership under Art. 148 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). --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? 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. 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 judgement 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: 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 co-ownership. 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 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 co-ownership 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). --- 75 Civil Law their home and the boy. In their 20 years of cohabitation they were able to acquire real estate assets registered in their names as co-owners. Unfortunately, Bert died of cardiac arrest, leaving no will. Bert was survived by his biological siblings, Joe and the boy. prove co-ownership. Without proof of actual contribution from either or both spouses, there can be no co-ownership under Article 148 of the Family Code (Go-Bangayan v. Bangayan, Jr., G.R. No. 201061, July 3, 2013). --Retroactive application of Art. 148 of the Family Code a. 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? b. 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. Although the adulterous cohabitation 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). --THE FAMILY UNDER THE FAMILY CODE A: a. 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. THE FAMILY AS AN INSTITUTION b. NO, because 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? Being the foundation of the nation, it is a basic social institution which public policy cherishes and protects. (FC, Art. 149). 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 Rules to remember: UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Family relations include: 1. Between husband and wife; 2. Between parents and children; 3. Among other ascendants and descendants; 4. Among brothers and sisters, whether of the full or half-blood (FC, Art. 150). A suit between a brother-in-law and a sister-in-law 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). 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). 1. 2. 3. 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) 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 76 Persons and family relations 250 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 Employee v. Mayor, A.M. No. P- 02-1564, November 23, 2004). 6. 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). Requisites before a suit between members of the same family may prosper 1. 2. 3. 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). 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). NOTE: Property that is subject of a conditional sale on instalments where ownership is reserved by the vendor to guarantee payment of the purchase price may be constituted as a FH. This rule shall not apply to cases which may not be subject of compromise under the Art. 2035 of the New Civil Code. Beneficiaries of a Family Home (FC, Art. 154) 1. 2. 3. 4. 5. 6. The following cannot be compromised: 1. 2. 3. 4. 5. 6. 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). 1. They must be among the relationships enumerated in Art. 154 of the Family Code; 2. They live in the FH; and 3. 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 Lucasstill resides in the premises, the family home continues until the minor beneficiary becomes of age. Is the contention of Carlito tenable? (2014 Bar) 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). Constitution of Family Home (FH) The FH is deemed constituted on a house and lot from the time it is occupied as a family residence FC, (Art. 153). Guidelines in the constitution of the Family Home 2. 3. 4. 5. 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 support. Requisites to be considered as beneficiary (FC, Art 156) 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. 151 of the Family Code must be strictly construed (Gayon v. Gayon, G.R. No. L-28394, November 26, 1970). 1. (FC, Arts. 147 and 148) It continues despite death of one, both spouses, or an unmarried head of the family for 10 years or as long as there is a minor beneficiary (FC, Art 159). 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; 77 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 requisites, he cannot, however, directly claim legal support from his grandmother, Leonora because the person primarily obliged to give him support is his father Civil Law Carlito. Thus, the partition may be successfully claimed by Leonora and Danilo. effectivity of the FC, then it must have been constituted either judicially or extra-judicially as provided under Arts. 225, 229-231 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. 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). --NOTE: This enumeration may include the in-laws where the FH is constituted jointly by the husband and wife. But the law definitely excludes maids and overseers. 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, 2010). 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). Exemption of Family Home must first be set up and proved 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: 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). XPN: Under Art. 155 of the Family Code: 1. Debts due to laborers, mechanics, architects, builders, material men and others who rendered service or furnished materials for the constitution of the building; 2. Non-payment of Taxes; 3. Debts incurred Prior to its constitution; 4. Debts secured by Mortgages on the premises before or after such constitution. NOTE: Exemption is limited to the value allowed in the Family Code. Requisites for the creditor to avail of the right to execute (FC, Art 159) Rule for the family home to be exempted from execution 1. 3. If the FH was constructed before the UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 78 1. He must be a judgment creditor; 2. 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. Persons and family relations 250 Procedure in exercising the right to execute 1. 2. 3. 4. (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 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 judgement where the debt or liability was incurred before the effectivity of the FC ? Creditor must file a motion in the court proceeding where he obtained a favorable judgment for a writ of execution against the FH; 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; If the creditor proves that the actual value exceeds the maximum amount, the court will order its sale in execution; If the FH is sold for more than the value allowed, the proceeds shall be applied as follows: a. The obligations enumerated in Art. 155 of the Family Code must be paid b. The judgment in favor of the creditor will be paid, plus all the costs of execution 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 FX 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). --NOTE: The Family Code does not have a retroactive effect. Thus, prior to August 5, 1988, the procedure mandated by the Old Civil Code had to be followed for a Famly 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) 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 innthe sale, alienation, donation, assignment or encumbrance of the FH The following must give their written consent: 1. The person who constituted the FH; 2. The spouse of the person who constituted the FH; 3. Majority of the beneficiaries of legal age. 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 extra-judicially, 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 (Gomez-Salcedo, et al. v. Sta. Ines, et al., G.R. No. 132537, October 14, 2005). NOTE: In case of conflict, the court shall decide. Limitations on Family Home 1. 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 3. 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. 2. 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. 79 Civil Law child (FC, Art. 164). Filiation is the civil status of a child with regard to his parents. Rights of legitimate children (FC, Art. 174) Filiation may be by nature or adoption, legitimate or illegitimate. 1. 2. NOTE: Paternity or filiation is established by clear and convincing evidence (Constantino v. Mendez, G.R. No. 57227, May 14, 1992). 3. Classifications of filiation (2009 Bar) I. II. Natural a. Legitimate – conceived OR born within a valid marriage b. Illegitimate – conceived AND born outside a valid marriage Presumption of legitimacy (2006, 2008, 2010 Bar) 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. 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). 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 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 v. Maglaya, G.R. No. 153798, September 2, 2005). I. NATURAL A. LEGITIMATE CHILDREN Legitimate child 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. --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? 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). Requisites for a child conceived by artificial insemination to be considered legitimate (FC, Art. 166 no. 3) 1. 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; To be entitled to the legitimate and other successional rights granted to them by Art. 174 of the Family Code. The artificial insemination is made on the wife, not on another woman; 2. 3. 4. 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 80 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 the child of nature or biological child of the couple (Rabuya, 2009). --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 Persons and family relations 250 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. 1. 2. A: a) What is the filial status of Laica? 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) Prescripti on 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 the problem, 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. --Action to impugn legitimacy v. Action to claim legitimacy BASIS Reme dy ACTION TO IMPUGN LEGITIMACY (FC, Art. 166) Action to impugn legitima cy or illegiti macy GR: Husband Real party in interes t XPNs: Heirs, in cases where: 1. Husband died before the expiration of the period for bringing the action; 2. Husband died after filing the ACTION TO CLAIM LEGITIMAC Y (FC, Art 173) Action to claim legitimac y (compuls ory recogniti on) GR: Child complain t, without having desisted; 3. Child was born after the death of husban d. 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 Must be filed within 5 years. GR: During the lifetime of the child XPN: Lifetime of the putative father In cases where the action is for the recognition of illegitimate child by “open and continuous possession” of the status. Person/s who may attack the legitimacy of the child GR: Only the husband can contest the legitimacy of the child. 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. 2. XPNs: Heirs of the child, in cases where: 1. Child died in state of insanit y 2. Child died during minority 3. 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) 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. NOTE: 81 Civil Law XPN: If the birth was: 1. 2. Before 180 days after the solemnization of the subsequent marriage, provided it is born within300 days after termination of former marriage 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). 2. 180 days after the celebration of the subsequent marriage, even though it be born within 300 days after the termination of the former marriage. Grounds in impugning legitimacy of a child (FC, Art. 166) Legitimacy of the child may be impugned only on the following grounds: 1. 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. Physical incapacity of the husband to have sexual intercourse with his wife, b. The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible, or c. Serious illness of the husband which absolutely prevented intercourse; 2. 3. 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; 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: UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Subsequent marriage –if a child is born: 82 Persons and family relations 250 Illustrations: 1. 180th day takes place before 300th day Former marriage terminated 180th day from solemnization of subsequent marriage Subsequent marriage solemnized Born during this period: Conceived during Subsequent Marriage Born during this period: Conceived during Former Marriage 2. 180th day takes place after 300th day Former marriage terminated 300th day from termination of former marriage Subsequent marriage solemnized 3. B. ILLEGITIMATE CHILDREN (2005, 2009, 2010 Bar) 1. Children conceived and born outside a valid marriage: 2. Children born of couples who are not legally married or of common law marriages; 3. Children born of incestuous marriage; 4. Children born of bigamous marriage; 5. Children born of adulterous relations between parents; 6. Children born of marriages which are void for reasons of public policy under Art. 38, Family Code; 7. Children born of couples below 18 8. 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. 180th day from solemnization of subsequent marriage Born during this period: Conceived during Subsequent Marriage Born during this period: Conceived during Former Marriage 4. They shall be entitled to support in conformity with the FC, PROVIDED, only as to the separate property of the parent 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). Also, under the R.A. 9255, the illegitimate child has the option to use the surname of the father. Republic Act 9255 Rights of an illegitimate child (1990, 2003, 2006, 2009, 2010 Bar) 1. 2. 300th day from termination of former marriage This act provides that illegitimate children may optionally use the father’s surname provided that: 1. Filiation has been recognized by the father through the record of birth appearing in the civil register 2. Admission in public document OR They shall use the surname of the mother; They shall be under the parental authority of the mother; 83 Civil Law private handwritten instrument is made by the father 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. NOTE: Provided that the father has the right to institute an action before the regular courts to prove nonfiliation during his lifetime. 2. 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). ESTABLISHING ILLEGITIMATE FILIATION (1995, 1999, 2005, 2010 Bar) --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. If you were the judge, how would you rule? 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 Q: Spouses Alfredo and Candelaria Aguilar died intestate leaving two parcels of land. After their deaths, one Rodolfo Aguilar filed a case, claiming that he is the sole heir of the spouses and that the titles of the land were stolen by one Siasat. Siasat claims that Rodolfo is not the real son of the Spouses but a mere stranger; she also claimed that as the niece of the Spouses she shall inherit the land. Rodolfo presented his school records, Alfredo Aguilar’s SSS Form, a public instrument subscribed and made under oath by Alfredo Aguilar during his employment, which bears his signature and thumb marks and indicating that Rodolfo, who was born on March 5, 1945, is his son and dependent, and a Certification of the Bacolod City Civil Registry that the records from 1945-1946 were destroyed. Has Rodolfo sufficiently proved his filiation? A: 1. If I were the judge, I will not allow the action for recognition filed after the death of the putative father. Filiation of illegitimate children, like legitimate children is established by: (1) Record of birth appearing in the civil register or a final judgment; (2) An admission of legitimate filiation in a public document or in a private handwritten instrument signed by the parent concerned; AND IN THE ABSENCE THEREOF, Filiation may be proved by: (3) The open and continuous possession of the status of a legitimate child; OR (4) Any other means allowed by the Rules of Court or by special laws. (Aguilar v. Siasat, citing the case of De Jesus v. Estate of Dizon, G.R. No. 200169, 28 January 2015) (Del Castillo, J.). 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, provided that 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 84 A: Yes. 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. In addition, there’s a presumption that children born in wedlock are legitimate. In this case, petitioner was born on March 5, 1945, or during the marriage of Alfredo Aguilar and Candelaria Siasat-Aguilar and before their respective deaths. In addition, Alfredo Aguilar’s SSS Form E-1 satisfies the requirement for proof of filiation and relationship to the Aguilar spouses under Article 172 of the Family Code; by itself, said document constitutes an “admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.” This sufficiently proved petitioner’s status as the legitimate son of Spouses Aguilar. (Aguilar v. Siasat, G.R. No. 200169, 28 January 2015). (Del Castillo, J.) --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? A: To allow the child to adopt the surname of his mother’s second husband, who is not his father, Persons and family relations 250 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). --- directly affected may impugn the legitimation that took place. --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) II. JUDICIAL 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. 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). 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 Only children conceived and born outside of wedlock of parents who, at the time of 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 (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; The subsequent valid marriage of the parents. --- 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 85 Civil Law RIGHTS OF LEGITIMATE AND ILLEGITIMATE CHILDREN NOTE: Legitimated children shall enjoy the same rights as legitimate children. (FC, Art. 179) BASIS LEGITIMATE CHILDREN ILLEGITIMATE CHILDREN Bear the surname of either the mother or the father under R.A. 9255 Surname Support Legitime Period for filing action for claim of legitimacy or illegitimacy Transmissibility of right to file an action to claim legitimacy Bear the surnames of both parents (mother and father) Receive support from: 1. Parents; 2. Ascendants; and 3. In proper cases, brothers and sisters under Art. 174 of the Family Code. NOTE: Under the amendatory provisions of RA 9255, the use of illegitimate father's surname is permissive and not obligatory (Rabuya, 2008). Receive support according to provision of Family Code Full Legitimes and other successional rights under the New Civil Code Share is equivalent to ½ of the share of a legitimate child His/her whole lifetime regardless of type of proof provided under Art. 172 of the Family Code For primary proof: his/her whole lifetime Yes No Yes No right to inherit ab intesto from legitimate children and relatives of father and mother under Art. 992, New Civil Code (Iron Curtain Rule). Right to inherit ab intesto Person/s who may file for claim illegitimate filiation 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). GR: The right of claiming illegitimacy belongs to the child XPN: The right is transferred to his heirs when: 1. During minority or 2. In a state of insanity. 3. After commencing the action for illegitimate filiation 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) Prescription of action to claim legitimacy or illegitimacy GR: The right of claiming legitimacy belongs to the child An action must be brought: 1. By the child – during his lifetime 2. By his heirs – within 5 years should the child dies during minority, in a state of insanity or after commencing the action for legitimacy XPN: The right is transferred to his heirs when the child dies: 1. During minority or 2. In a state of insanity. 3. 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. NOTE: Questioning legitimacy may not be collaterally attacked. It can be impugned only in a direct action UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES For secondary proof: only during the lifetime of the alleged parent However, if the action for illegitimacy is based on 86 Persons and family relations 250 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. Kinds of proof of filiation (1995, 1999, 2010 Bar) 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 Mirasol Baring and Randy B. Perla, G.R. No. 172471, November 12, 2012). Proof of filiation has two kinds (FC, Art 172, 1st par): 1. Primary proof consists of the ff.: a. Record of birth appearing in civil registrar or final judgment; NOTE: A will which was not presented for probate sufficiently establish filiation because it constitutes a public document or private handwritten instrument signed by the parent concerned. 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. 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: (1) incapability of sexual relations with the mother due to either physical absence or impotency, or (2) 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). --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? 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. 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). Rules in proving filiation GR: Primary proof shall be used to 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). --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? XPN: In absence of primary proof, secondary proof may be resorted to. 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 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 87 Civil Law 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) his parents is legitimate (Concepcion v. CA, G.R. No. 123450, August 31, 2005). --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). --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: 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? In said birth certificate, it was indicated that her birth was recorded as the legitimate child of Ramon and Van Bolatis, and contains as well the word “married” to reflect the 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? 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). --- 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. AngelesMaglaya, G.R. No. 153798, September 2, 2005). --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 plaintiffminor is the child of the defendant with the plaintiff- minor's mother. Was the trial court correct in holding such? 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 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. --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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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 88 Persons and family relations 250 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; Cabatania v. CA, G.R. No. 124814, October 21, 2004). 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 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 Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005). 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. 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. --- Preference in adoption (AID) 1. Adoption by the extended family; 2. Domestic Adoption; 3. Inter-Country Adoption. 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. Is the trial court correct? I. DOMESTIC ADOPTIONACT (R.A. 8552) 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. WHEN ALLOWED Adoption need NOT be a last resort A: 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. 1. 2. 3. B. WHO CAN ADOPT Filipino citizens; Aliens; Guardians with respect to their ward. NOTE: A guardian may only adopt his ward after termination of guardianship and clearance of his financial accountabilities. Qualifications of a Filipino who may adopt (Section 7 (a) Article 3, RA 8552) 1. Of legal age; 2. In possession of full civil capacity and legal rights; 3. Possesses good moral character; 4. Has not been convicted of any crime involving moral turpitude; 5. Emotionally and psychologically capable of caring for children; 6. Who is in a position to support and care for his/her children in keeping with the means of the family; and 7. GR: at least sixteen (16) years older than the 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). --- 89 Civil Law adoptee XPN: a. b. --Q: Spouses Esteban decided to raise their two nieces, Faith and Hope, both minors as their own children after their parents died in a vehicular accident. Ten years after, Esteban died. Maria later on married her boss Daniel, a British National who had been living in the Philippines for 2 years. With the permission of Daniel, Maria filed a petition for the adoption of Faith and Hope. She did not include Daniel as her co- petitioner because for Maria, it was her former husband Esteban who has raised the kids. If you are the judge, how will you resolve the petition? (2014 BAR) Adopter is the biological parent of the adoptee; or Adopter is the spouse of the adoptee's parent. NOTE: A reading of Arts. 27 and 28 of P.D. 603 clearly shows that the temporary residence of the adopting parents in a foreign country does not disqualify them from adopting (Nieto v. Magat, G.R. No. L-62465, May 24, 1985). Qualifications of an alien who may adopt (Section 7 (b), Article 3, RA 8552) 1. 2. 3. 4. Possesses same qualifications as those enumerated for Filipino adopters; His country has diplomatic relations with the Philippines; His government allows the adoptee to enter his country as his adopted child; He has been certified by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in their country; A: I will dismiss the petition. The husband and wife must jointly adopt and there are only three recognized exceptions to the joint adoption: 1) one spouse seeks to adopt the legitimate child of the other; 2) if one spouse seeks to adopt his or her own illegitimate child; 3) if the spouses are legally separated. The case of Maria and Daniel does not fall under any of the exceptions, accordingly the petition by the wife alone should be dismissed. --Q: Spouses Primo and Monina Lim, childless, were entrusted with the custody of two minor children, the parents of whom were unknown. Eager to have children of their own, the spouses made it appear that they were the children’s parents by naming them Michelle P. Lim and Michael Jude Lim. Subsequently, Monina married Angel Olario after Primo’s death. She decided to adopt the children by availing the amnesty given under R.A. 8552 to those individuals who simulated the birth of a child. She filed separate petitions for the adoption of Michelle, then 25 years old and Michael, 18. 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 petitions for adoption? GR: Has been living in the Philippines for at least 3 continuous years prior to the application for adoption and maintains such residence until adoption decree has been entered. XPNs: i. He is a former Filipino who seeks to adopt a relative within the 4th civil degree of consanguinity or affinity; ii. He is married to a Filipino and seeks to adopt jointly with his spouse a relative within the 4 th degree of consanguinity or affinity; iii. He is married to a Filipino and seeks to adopt the legitimate or illegitimate child of his Filipino spouse. Rule on Joint Adoption of Spouses GR: Husband and wife shall adopt jointly (Sec. 7, Article 3, RA 8552) A: YES. Section 7, Art. 3 of R.A. 8552 reads: Sec. 7 – Husband and wife shall jointly adopt x x x. XPNs: a. One spouse seeks to adopt the legitimate son or daughter of the other; b. One spouse seeks to adopt his own illegitimate son or daughter, provided, that the other signifies his consent 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. NOTE: In seeking to adopt his own illegitimate son or daughter, the law requires that the consent of the spouse of the adopter must be given to such adoption. The law is clear. There is no room for ambiguity. 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 If on the other hand, the spouse would adopt the illegitimate son or daughter of the other, joint adoption is still mandatory c. Spouses are legally separated. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 90 Persons and family relations 250 P. Lim, In Re: Petition for Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos. 168992-93, May 21, 2009). --Joint adoption when the adoptees are already emancipated Necessity of written consent for adoption under domestic adoption The written consent of the following is necessary for adoption: a. Biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; b. Adoptee, if ten (10) years of age or over; c. 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; d. Legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; e. Spouse, if any, of the person adopting or to be adopted. (Sec. 9, Art. 3, RA 8552) 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) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) 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. C. 1. 2. 3. 4. 5. 6. ADOPTEE --- 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). 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. This grandmother died however, and 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? 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 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). --Effects of Domestic Adoption Child A child is any person below 18 years old (Sec. 3, Art. 1, RA 8552) Child legally free for adoption A child voluntarily or involuntarily committed to the DSWD as dependent, abandoned or neglected pursuant to the provisions of the Child and Youth Welfare Code maybe subject of Inter-Country Adoption; provided that in case of a child shall be made not earlier that six (6) 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. 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). NOTE: The prohibition against physical transfer shall not apply to adoption by a relative or children with special medical conditions. (Rabuya, 2006). XPN: In cases where the biological parent is the spouse of the adopter; 1. Deemed a legitimate child of the adopter (Sec. 17, Article 5, RA 8552); 91 Civil Law 2. 3. 4. 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). 1. If adoptee is still a minor or is incapacitated – Restoration of: a. Parental authority of the adoptee’s biological parents, if known; or b. 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; 5. Vested rights acquired prior to judicial rescission shall be respected. (Sec. 20, Art. 6, RA 8552) --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. 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. The adopter cannot seek the rescission of the adoption but he may disinherit the adoptee. Grounds upon which an adoptee may seek judicial rescission of the adoption (S-A-R-A) When the adopter has committed the following: 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; Abandonment and failure to comply with parental obligations; 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, d. 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? Can Jon and Jane legally marry? (2008 Bar) Grounds by which an adopter may disinherit adoptee a. b. c. d. e. f. g. h. 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; Leads a dishonorable or disgraceful life. 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. Effects of rescission of the adoption under the Domestic Adoption Act of 1998 (R.A. 8552) UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 92 Persons and family relations 250 b. 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. YES. Andrew can claim support from all of them, except from Sandy, who is not his legitimate, illegitimate or adopted child. YES. Amy, Jon, Ryan, Vina and Wilma can ask support from each other because they are halfblood 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. YES. Jon and Jane can legally marry because they are not related to each other. Jane is not a daughter of Andrew. --- c. d. e. h. i. Necessity of written consent for adoption in intercountry adoption The written consent of the following is necessary for adoption: 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 InterCountry 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) 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). A. WHEN ALLOWED --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) 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, RA 8043) a. b. B. WHO MAY ADOPT Any alien; Filipino citizen, both permanently residing abroad. 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. Qualifications needed for a Filipino or alien to adopt (Sec. 9, Article 3, RA 8043) At least 27 years old and 16 years older than the child to be adopted at the time of the application unless: 1. 2. and the Philippine Laws; Comes from a country with which the Philippines has diplomatic relations and adoption is allowed under his national law; Possesses all the qualifications and none of the disqualifications under the law or other applicable Philippine laws. adopter is the parent by nature of the child; adopter is the spouse of the parent by nature of the child to be adopted b. If married, his spouse must jointly file for adoption; c. Has the capacity to act or assume all rights and responsibilities of parental authority; d. Not been convicted of a crime involving moral turpitude; e. Eligible to adopt under his national law; f. In a position to provide for proper care and support and give necessary moral values; g. Agrees to uphold the basic rights of the child mandated by the UN convention of rights of Child 93 While the petition for adoption was filed in 1990, it was considered refiled upon the effectivity of R.A. 8552. This is the law applicable, the petition being 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 affinity, Sonny, an alien, is not qualified to adopt because he is neither a former Filipino citizen nor married to a Filipino. One of them not being qualified to adopt, their petition has to be denied. However, if they have been residents of the Philippines 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. Civil Law C. ADOPTEE Only a legally free child may be adopted provided the following are submitted: a. Child study; b. Birth certificate/ foundling certificate; c. Deed of VoluntaryCommitment/Decree of Abandonment/Death Certificate of parents; d. Medical evaluation or history; e. Psychological evaluation; and f. Recent photo. Child A child is any person below 15 years old (Sec. 3, RA 8043). 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. 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: a. b. Adoption by relative; Child with special medical condition. 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 Trial custody 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 1. 2. If unsatisfactory – the relationship shall be suspended by the board and the foreign adoption agency shall arrange for the child’s voluntary care. 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. NOTE: The child shall be repatriated as a last resort if found by the ICAB to be in his/her interests. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 94 Persons and family relations 250 Dictinction Between Domestic Adoption Act and Inter-country Adoption Act Governing body DOMESTIC ADOPTION ACT (R.A. 8552) DSWD INTER-COUNTRY ADOPTION ACT (R.A. 8043) Inter-country Adoption Board (ICAB) When may adoption be resorted to 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). Who may adopt 1. 1. Any FILIPINO CITIZEN (regardless of where residing) a. Of legal age; b. At least sixteen (16) years older than the adoptee, (may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent; c. FILIPINO CITIZEN permanently residing abroad may file an application for inter-country adoption of a Filipino child if he/she: a. b. In possession of full civil capacity and legal rights; d. Of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children; and e. Who is in a position to support and care for his/her children in keeping with the means of the family. c. d. e. 2. Any ALIEN possessing the same qualifications as above stated for Filipino nationals, Provided; a. That he/she has been living in the Philippine 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; f. g. h. b. That his/her country has diplomatic relations with the Republic of the Philippines; c. He/she has been certified by his/her diplomatic or consular office or any 95 i. Is at least twenty-seven (27) years of age; At least sixteen (16) years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent; Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; Has not been convicted of a crime involving moral turpitude; Is in a position to provide the proper care and support to give the necessary moral values and example to all his children including the child to be adopted; If married, his/her spouse must jointly file for the adoption; Is eligible to adopt under his/her national law; 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 the provisions of this Act; Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly Civil Law appropriate government agency that he/she has the legal capacity to adopt in his/her country; d. j. That his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter; and e. That the requirements on residency and certification to adopt in his/her country may be WAIVED for the following: i. ii. 2. authorized and accredited agency and that adoption is allowed under his/her national laws; and Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws. ALIEN with above qualifications A former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or iii. 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. Who may be adopted a. b. c. d. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 3. The GUARDIAN with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities (Sec. 7) 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 96 a. b. Filipino children [Sec. 3(a)]; 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 Persons and family relations 250 e. f. Venue Trial Custody Rescission 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). Petition for adoption shall be filed with Family Court of the province or city where the prospective adoptive parents reside (Rule on Adoption, Sec. 6) Takes place in the Philippines Only upon petition of adoptee, never by adopters (Sec.19). Welfare Code may be the subject of Inter-Country Adoption xxx (Sec. 26). Either with the Philippine RTC having jurisdiction over the child, or with the Inter-country Board through an 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 inter-country adoption shall immediately transmit the petition to the board for appropriate action (Sec. 30). 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: 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 97 Civil Law may terminate the pre-adoptive relationship. SEC. 48. NEW PLACEMENT FOR CHILD. In the event of termination of the pre-adoptive 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. Rules on support of illegitimate children of either spouse SUPPORT _________________________________________________________________ 1. 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) ACP or CP- For the support of the following: a. b. c. Characteristics of support (PRIMPEN) 1. 2. 3. 4. 5. 6. 7. 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. Support comprises everything indispensable for: a. Sustenance; b. Dwelling; c. Clothing; d. Medical attendance; e. Education – includes schooling or training for some profession, trade or vocation, even beyond the age of majority; f. Transportation – includes expenses going to and from school, or to from place of work. Separate property of person- For the support of the following: a. b. Illegitimate children; Legitimate ascendants; c. Descendants, whether legitimate or illegitimate; Brothers and sisters, whether legitimately or illegitimately related (Rabuya, 2009). d. PERSONS OBLIGED TO SUPPORT Persons obliged to support each other (2008 Bar) 1. Spouses; NOTE: The spouse must be the legitimate spouse in order to be entitled to support Kinds of support 3. 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. It depends upon the property regime of the spouses. Legal – required or given by law; Judicial– required by court; May be: a. Pendente lite b. In a final judgment Conventional – by agreement. 2. 3. 4. 5. Legitimate ascendants & descendants; Parents and their legitimate children, and the legitimate and illegitimate children of the latter; Parents and their illegitimate children, and the legitimate and illegitimate children of the latter; Legitimate brothers and sisters whether full or half- blood (FC, Art. 195). NOTE: Brothers and sisters not UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 98 Persons and family relations 250 legitimately related 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, in this case, the illegitimate brother or sister has no right to be supported (FC, Art. 196;Rabuya, 2009). --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 Children From the community property b. The liability to support should be observed in the following order: a. Spouse; b. Descendants in the nearest degree; c. Ascendants in the nearest degree; d. 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? 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). 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). 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: Sources of Support SOURCES OF SUPPORT During Marriage From the community property Pending Litigation Spouses After Litigation ACP GR: From the community property assets GR: XPN: If Art. 203 applies, that if the claimant spouse is the guilty spouse, he/she is not entitled to support. to support 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. o obligation From the separate properties of the spouses Liability to support (FC, Art. 199) A: a. From the community property 1. 2. 3. 4. N The spouse; The descendants in the nearest degree; The ascendants in the nearest degree: and The brothers and sisters. 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. XPN: If there is Legal Separation. In which case, the court m ay require the guilty spouse to give support. 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). --Q: Marcelo and Juana called Dr. Arturo to their house to render medical assistance to their daughter-inlaw 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? 99 Civil Law A: HER HUSBAND, not her father and mother- in-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). 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 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). --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? SUPPORT DURING MARRIAGE LITIGATION 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). 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. Effect of adultery of the wife Adultery of the wife is a valid defense in an action for support. 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. --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. 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. 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 (Amacen v. Baltazar, G.R. No. L-10028, May 28, 1958). --AMOUNT Amount shall be in proportion to the resources or means of the giver and to the necessities of the recipient (FC, Art. 201). 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 Lim v. Cheryl Lim, G.R. No. 163209, October 30, 2009). --- UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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). WHEN DEMANDABLE The obligation to give support is demandable from the time the person who has a right to receive support needs it for maintenance. The support shall be paid only from the date of judicial or extrajudicial demand. 100 Persons and family relations 250 property obtained as support cannot be attached nor be subject to execution to satisfy any judgment against the recipient. 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. 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. Effect of Reaching Age of Majority 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). NOTE: Contractual support shall be subject to adjustment whenever modification is necessary due to changes in circumstances beyond the contemplation of the parties. --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? MANNER OF PAYMENT 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 a decision based on grounds not alleged in the petition is void on the ground of no jurisdiction. 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). Payment by Third Person Under Article 208 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. The obligation to reimburse under this article is one that likewise arises from quasi-contract. As 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). 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. OPTIONS Options given to persons giving support a. b. To give a fixed monthly allowance; or To receive and maintain the recipient in the giver’s home or family dwelling (FC, Art. 204). If support is given by a stranger without the knowledge of the person obliged to give support; GR: The stranger reimbursement shall have the right 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 right? of 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 plea (Lacson v. Lacson, et al., G.R. No. 150644, August 28, 2006). XPN: Unless it appears that he gave it without any intention of being reimbursed (FC, Art. 206). 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). ATTACHMENT 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 so? Attachment or execution of the right to receive support (FC, Art. 208) GR: The right to receive support and any money or 101 Civil Law 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). PARENTAL AUTHORITY 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” (SempioDiy, 1995). Parental authority includes 1. 2. --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? 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; 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). 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). 3. 4. 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). If the child is illegitimate, parental authority is with the mother. --Q: Can DNA testing be ordered in a proceeding for support without violating the constitutional right against self-incrimination? NOTE: 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). 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). Moreover, it has mostly been in the areas of legality of searches and seizure and in the infringement of privacy of communication where the constitutional right to privacy has been critically at issue. Visitation rights It is the right of access of a noncustodial parent to his or her child or children. 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) --- UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Caring for and rearing of such children for civic consciousness and efficiency; Development of their moral, mental and physical character and well-being (FC, Art. 209). Who are entitled of visitation rights 1. 102 The non-custodial parent in cases of: a. Legal separation; b. Separation de facto; c. Annulment; d. Declaration of nullity on the ground of psychological incapacity or failure to Persons and family relations 250 2. comply with the requirements of Article 52; Illegitimate father over his illegitimate child. v. San Jose-Lacson, G.R. No. L-23482, August 30, 1968). “Compelling Reasons” 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). --- 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. Q: Carlitos Silva and Suzanne Gonzales had a livein relationship. They had two children, namely, Ramon Carlos and Rica Natalia. Silva 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? Insanity Abandonment Neglect Drug addiction Affliction with a communicable disease Maltreatment of the child Immorality Unemployment Habitual drunkenness 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). Exercise of parental authority in case of absence, death, remarriage of either parent, or legal or de facto separation of parents a. A: GR: NO. 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). --Parental preference rule b. c. Absence or death of either parent – parent present shall continue exercising parental authority 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). 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 years of age except when the parent chosen is unfit. 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: The relevant Philippine law on child custody for spouses separated in fact or in law (Art. 213, 2nd par.) is also undisputed: “no child under seven years of age shall be separated from the mother x x x.”(This statutory awarding of sole parental custody to the mother is mandatory, grounded on sound policy consideration, subject only to a narrow exception not alleged to obtain here.) Clearly then, the Agreement’s object to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law. 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). NOTE: Tender-Age Presumption 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) The paramount consideration in matters of custody of a child is the welfare and well-being of the child. 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 103 Civil Law 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. Can Bonifacia exercise substitute parental authority over Valerie and Vincent? --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 The parent who has been deprived of the rightful custody of the child may resort to the remedy of habeas corpus (Salientes v. Abanilla, G.R. No. 162734, August 29, 2006). --- 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. 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 livein partner raped Valerie several times. (But Valerie, being now of major age, is no longer a subject of this guardianship proceeding). 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). 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, G.R. No. 132223, June 19, 2001). --Special Parental Authority (2003, 2004, 2005, 2010 Bar) 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. Order of substitute parental authority 1. Surviving Grandparent; 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 coexists with the parents’ parental authority. 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). Persons who may exercise special parental authority (FC, Art. 218) 2. Oldest brother or sister, over 21 years unless unfit or disqualified; 3. Actual Custodian over 21 year unless unfit or disqualified (FC, Art. 216); 4. 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). --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 common-law wife, Helen G. Belmes. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES a. b. c. d. The school; School administrators; School teachers; Individual, entity or institution engaged in child care. 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. NOTE: The nature of the liability of persons having 104 Persons and family relations 250 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) Rule on the parent’s duty of representation 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. Substitute parental authority vis-à-vis Special parental authority SUBSTITUTE PARENTAL AUTHORITY Exercised in case of: (DAU) 1. 2. 3. Death Absence, or Unsuitability of parents. XPN: A guardian ad litem may be appointed by the court to represent the child when the best interest of the child so requires. SPECIAL PARENTAL AUTHORITY 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 parents temporarily relinquish parental authority over the child to the latter. Scope of the parent’s right to discipline the child (FC, Art. 223) Persons exercising parental authority may: 1. 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 child care or in children’s homes duly accredited by the proper government agency. NOTE: Such commitment must not exceed 30 days. EFFECTS OF PARENTAL AUTHORITT UPON THE PERSON OF THE CHILDREN Limitations on the exercise of the right to discipline the child and its consequences Right to Child’s Custody Persons exercising such right are not allowed to: 1. Treat the child with excessive harshness or cruelty; or 2. Inflict corporal punishment. 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 (Sagala-Eslao v. CA, G.R. No. 116773, January 16, 1997). Otherwise, the following are its consequences: 1. Parental authority may be suspended; 2. Parent concerned may be held criminally liable for violation of RA 7160 (Special Protection of Children against Abuse, Exploitation and Discrimination Act) Parents’ right to custody of the child GR: Parents are never deprived of the custody and care of their children. CHILD ABUSE LAW (R.A. 7610) SEC.10 Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. – XPNS: 1. For cause; NOTE: the law presumes that the child’s welfare will be best served in the care and control of his parents. 2. a. If in consideration of the child’s welfare or well- being, custody may be given even to a non-relative. Basis for the duty to provide support Family ties or relationship, not parental authority. b. NOTE: The obligation of the parents to provide support is not coterminous with the exercise of parental authority. 105 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. 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, Civil Law c. d. e. 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. 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 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. 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. Any person who shall use, coerce, force or intimidate a street child or any other child to: 1. 2. 3. 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 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: 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). 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. Liability of persons exercising special parental authority over the child (FC, Art. 219) 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES They are principally and solidarily liable for damages caused by the acts or omissions of the child while under their supervision, instruction or custody. 106 Persons and family relations 250 NOTE: Parents, judicial guardians or those exercising substitute parental authority over the minor are subsidiarily liable for said acts and omissions of the minor. Legal guardianship can be exercised by the father or mother, jointly, without need of court appointment over the property of an unemancipated child. NOTE: In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary (FC, Art. 229). --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? 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 responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. 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. Necessity of posting a bond by the parents 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. NOTE: The bond shall not be less than 10% of the value of the property or annual income. (FC, Art. 225) Rules regarding the use of the child’s property (Art. 226, FC) 1. The property of minor children shall be devoted to their support and education unless the title or transfer provides otherwise. 2. The parents have the right to use only the fruits and income of said property for the following purposes: a. Primarily, to the child’s support; b. Secondarily, to the collective daily needs of the family. Rule on lease of property belonging to minor children 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). --- 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. XPNs: Court authorization is required if: 1. If the lease will be recorded in the Registry of Property; 2. If the lease is for a period of more than one year, because this is already deemed an act of dominion. EFFECTS OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILDREN 107 Civil Law SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY Loss of parental authority over the minor under the Child Abuse Law (RA 7610) Grounds for Termination of Parental Authority 1. 2. 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. Permanently: a. Death of parents; b. Emancipation of the child; c. Death of child (FC, Art. 228). Temporarily:– it may be revived a. Adoption of the child; b. Appointment of general guardian; c. Judicial declaration of abandonment of the child in a case filed for the purpose; d. Final judgment divesting parents of parental authority; e. Incapacity of parent exercising parental authority; f. Judicial declaration of absence or incapacity of person exercising parental authority (FC, Art. 229). Corporal punishment It is the infliction of physical disciplinary measures to a student. This is absolutely prohibited under the Family Code (Sta. Maria, 2010). 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). NOTE: In case of temporary termination of parental authority, parental authority may be revived thru a court judgment (Rabuya, 2009). Grounds for suspension of Parental Authority 1. 2. 3. 4. 5. 6. Gives corrupting orders, counsel or example; Treats child with excessive harshness and cruelty; Subjects/allows child 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. EMANCIPATION It is the release of a person from parental authority whereby he becomes capacitated for civil life. 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 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. 1. Parental authority over the person and property of the child is terminated. 2. Child shall be qualified and responsible for all acts of civil life, save exceptions established by existing 3. Contracting marriage shall require parental consent until the age of 21. 4. 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. If the ground for suspension of parental authority is civil interdiction, the suspension is automatic so as its reinstatement. Revocation of suspension of Parental Authority and its revival The suspension may be revoked and parental authority revived by filing a case for the purpose, or in the same proceeding if the court finds that the cause therefore had ceased and will not be repeated. RETROACTIVITY OF FAMILY CODE GR: The Code shall have retroactive effect (FC, Art. 256). Transfer or renunciation of Parental Authority GR: Parental authority and responsibility are Inalienable and may not be transferred and renounced. XPN: In cases authorized by law. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES XPN: When retroactivity would prejudice vested rights. (2005, 2010 Bar) Vested right Some right or interest in property that has 108 Persons and family relations 250 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. --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? FUNERALS General Guidelines: 1. Duty and right to make arrangements in funerals in accordance with Art. 199, FC: a. Spouse; b. Descendants in the nearest degree; c. Ascendants in the nearest degree; d. Brothers and sisters. 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. 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 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. Prescinding 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: 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). Funeral shall be: a. In keeping with the social position of the deceased; 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). 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 property (NCC, Art. 310). --Q: Adriano and Rosario are married to each other. However, their marriage turned into 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 Fe is entitled to the remains of Adriano? A: The law gives the right and duty to make funeral arrangements to Rosario, she being the surviving legal 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 109 Civil Law 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. Under the amendatory provisions of R.A. 9255, the use of the illegitimate father’s surname is PERMISSIVE and not obligatory. (Rabuya, 2009) Conceived prior to Father’s to annulment of marriage Conceived Mother’s after annulment of marriage 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. Article 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). Rule with regard to the use of surname of a married woman FACTUAL SURNAME TO BE CIRCUMSTANCE OF USED THE WIFE Valid marriage 1. First name and (before husband dies) maiden name (Her (NCC, Art. 370) maiden first name and surname) (FC, Art. 370) + husband’s surname. 2. First name + husband’s surname 3. Husband’s full name + prefix indicating that she is his wife (e.g., Mrs.) 4. Retain the use of her maiden name USE OF SURNAMES Rule with regard to the use of surname by a child who is (1) legitimate, (2) legitimated, (3) adopted and (4) illegitimate CHILD SURNAME TO BE USED CONCERNED Legitimate Legitimated Natural child Father’s acknowledged by both parents Natural children by legal fiction Natural Recognizing parent child acknowledged by only one parent Adopted Adopter’s Illegitimate Mother’s or father’s if requisites of R.A. 9255 are complied with. NOTE: An illegitimate child shall have the "option" to use the surname of the father in the following instances: 1. If his/her filiation has been expressly recognized by the father through the record of birth appearing in the civil register; or 2. When an admission of paternity is made by the father in a public document or private handwritten instrument (Art. 176, FC, as amended by R.A. 9255) UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Marriage is annulled (NCC, Art. 371) Wife is the guilty party Wife is the innocent party Legally separated (NCC, Art. 372) Widowed spouse (NCC, Art. 373) 110 *Use of husband’s surname is not a duty but merely an option for the wife. Shall resume using her maiden name Choices: 1. Resume using her maiden name 2. Continue using husband’s surname Unless: a. Court decrees otherwise; b. She or the former husband is married again to another person 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. Persons and family relations Divorced (at least if they allow it later or for those who got divorced during the Japanese occupation) 250 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? Choices same as widowed spouse. Grounds for change of name which have been held valid 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. 1. One has continuously used and been known since childhood by a Filipino name and was unaware of alien parentage; 2. The change results as a legal consequence, as in legitimation; 3. There is a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anyone; 4. The change will avoid confusion; 5. 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). 6. The name is: a. Ridiculous, b. Extremely difficult to write or pronounce, c. Dishonorable. --Q: Can a person change his registered first name and sex on the basis of a sex reassignment? 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. 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). 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). --Procedural requirements for a petition for change of name 1. 2. 3. Identity of names and surnames 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). 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. 2. Add a middle name or the mother's surname, or Add the Roman Numerals II, III, and so on (NCC, Art. 375). NOTE: No person can change his name or surname without judicial authority (NCC, Art. 376). 3 years 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). Elements of usurpation of name 1. 2. 3. --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 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 1. 111 Civil – insofar as private persons are concerned: a. Injunction b. Damages Civil Law 2. Criminal – prejudiced. when public affairs are illegitimate child Stephanie. Stephanie has been using her mother's middle name and surname. He prayed that Stephanie's 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? NOTE: If the purpose of the usurpation is to conceal ones 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 Anti-Alias Law. Use of another’s name is not always actionable 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 9255 (An Act Allowing Illegitimate Children to Use the Surname of Their Father) is silent as to what middle name a child may use. 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. 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: a. Modesty b. Desire to avoid unnecessary trouble c. Other reason not prohibited by law or morals. 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. MIDDLE NAME 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. 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 illegitimate child have a middle name? NOTE: The Supreme Court granted the petition for 2 reasons: 1. The adopted child's continued use of her mother's surname as her middle name will maintain her maternal lineage; and 2. 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 Astorga Garcia, G.R. No. 148311, March 31, 2005). --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, 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). --Q: Honorato filed a petition to adopt his minor UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 112 Persons and family relations 250 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? 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. 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. b. 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 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). Alternative Answers: It may be noted that the problems does 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. 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 exhusband. Gianna’s birth certificate, which was signed by both Andy and Aimee, registered the status of Gianna as “legitimate”, her surname carrying that of Andy’s, and that her parents were married to each other. If the problem is intended only for purpose of determining whether factual changes are in order, then the answers are: a. A change from “legitimate” to “illegitimate” is proper upon proof of lack of marriage between Andy and Aimee. b. If the child is considered illegitimate, then she should follow the surname of her mother. c. 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”; and 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) 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. 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. 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 113 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 Civil Law marriage. 2. --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 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. L51201, May 29, 1980). 3. Order of preference in the appointment of a representative 1. 2. ABSENCE DECLARATION OF ABSESNCE Kinds of absence Requisites (NCC, Art. 384): Physical Absence Legal Absence 1. 3 Stages of Absence 1. 2. 3. 2. 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). 1. 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. Person who may ask for the declaration of absence (NCC, Art. 385) 1. 2. 3. 4. When a person disappears from his domicile His whereabouts are unknown and: a. he did not leave any agent; or b. 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 Spouse present; Heirs instituted in a will; Relatives who may succeed by intestacy; Persons who may have over the property of the absentee some right subordinated to the condition of his death. Effectivity of judicial declaration of absence Judicial declaration of absence takes effect six (6) months after its publication in a newspaper of general circulation. They may petition the Court for the appointment of a representative to represent the absentee in all that may be necessary. 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) Duty of the Court after appointing the representative The Court shall: 1. Take the necessary measures to safeguard the rights and interests of the absentee; UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES The absentee have 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. Absence may be judicially declared if (NCC, Art. 387): Provisional absence 1. 2. Spouse present, except, when legally separated. In the absence of spouse, any competent person (NCC, Art. 383). NOTE: The administrator of the absentee's property shall be appointed in accordance with the same order. 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). 1. 2. Specify the powers, obligations, and remuneration of the representative; Regulate the powers, obligations and remuneration according to the circumstances by the rules concerning guardians (NCC, Art. 382). 114 Persons and family relations 250 ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE Administration of the property of the absentee ceases when (NCC, Art. 389): 2. 3. 1. 2. 3. 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. Presumption of death of absentee under an extraordinary presumption The absentee presumed to have died under an extraordinary presumption at the time of disappearance. PRESUMPTION OF DEATH e.g. when the calamity took place. Kinds: 1. 2. 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. --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. Q: May a petition for the declaration of presumptive death be the subject of a judicial 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. --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 well-grounded belief that her husband Arturo was already dead as required under Article 41 of the Family Code. Rules in ordinary presumption of death (NCC, Art. 390) 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. 2. Disappearance at the age of seventy six (76) years or older, after an absence of five (5) 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). Presumption of death of absentee under an ordinary presumption a. 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. b. 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. Person on board a vessel lost during a sea 115 A: a) Was the RTC correct in dismissing the petition based on Article 41 of the Family Code? Will the petition for declaration of presumptive death, therefore, prosper? 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 Law b) 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 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. 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 2018 GOLDEN NOTES 116 Persons and family relations 250 Declaration of presumptive death for purpose of contracting subsequent marriage v. Opening succession and declaration of absence under the Rules of Court DECLARATION OF PRESUMPTIVE DEATH FOR THE PURPOSE OF: CONTRACTING SUBSEQUENT OPENING OF SUCCESSION MARRIAGE Applicable laws NCC, Arts. 390-396 Arts. 41-44, Family Code Who may file petition Absentee’s co-heirs, heirs, assigns, representative or successors-in-interest Spouse present 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 well-founded belief that the absent spouse was already dead XPN: 2 consecutive years absence of spouse – In case of 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 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. 117 DECLARATION OF ABSENCE Rule 107, Rules of Court 1. Spouse present; 2. Heirs instituted in the will; 3. Relatives who will succeed by intestacy; or 4. Those who have over the property of the absentee some right subordinated to the condition of his death (Sec. 2, Rule 107). 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: 1. From his disappearance and without any news about the absentee; or 2. 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 generally cannot be appropriated. PROPERTY 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). CHARACTERISTICS 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) [R.A. 7170, as amended, Sec. 2(j)]. Property It refers to all things which are or may be the object of appropriation considered as either real or personal property (NCC, Art. 414). 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). CLASSIFICATIONS OF PROPERTY NOTE: Property does not only cover material things because it mentions of rights which could either be classified as real or personal right. 1. As to 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; and b. Inalienable. 4. As to individuality a. Specific property; and b. Generic property. 5. As to susceptibility to touch a. Tangible; and b. Intangible. 6. As to susceptibility to substitution a. Fungible; and b. Non fungible. 7. As to accession a. Principal; and b. Accessory. 8. As to existence a. Existing or present property (res existentes); and b. Future property (res futurae). 9. As to consumability a. Consumable; and b. Non-consumable. 10. As to divisibility a. Divisible; and b. Indivisible. Q: Are the rights under the Bill of Rights considered as property? A: NO. They are not susceptible of appropriation. Requisites for a thing to be considered as property (USA) 1. 2. 3. Utility – Capacity to satisfy human wants; Substantivity/ Individuality – It has a separate and autonomous existence. It can exist by itself and not merely as a part of a whole (Paras, 2008). Appropriability Susceptibility to ownership/possession, even if not yet actually appropriated. Properties NOT susceptible of appropriation 1. Common things (res communes) – 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 XPN: Those that may be appropriated under certain conditions in a limited way. e.g. Electricity 2. Not susceptible due to physical impossibility e.g. Sun 3. Not susceptible due to legal impossibility e.g. Human body CLASSIFICATION OF PROPERTY BY MOBILITY REAL OR IMMOVABLE PROPERTY (1995, 1997, 2007 Bar) Categories of immovable property: Real properties are categorized by:(NIDA) 1. Nature – Those which cannot be carried from place to place; 2. Incorporation – Those which are attached to an immovable in a fixed manner and considered as 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 118 PROPERTY 3. 4. an integral part thereof, irrespective of its ownership; 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 Analogy – Classified by express provision of law. 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). Requisites for a building to be the subject of a chattel mortgage IMMOVABLE BY NATURE AND INCORPORATION 1. Par. 1, Art. 415. Land, buildings, roads and constructions of all kinds adhered to the soil. 2. Parties mutually agreed to consider the house a personal property; and That no innocent third party is prejudiced. 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. Land By its very nature is immovable property. In whatever transaction land is involved, it is always immovable. A building, subjected to a chattel mortgage cannot be sold extrajudicially (Pineda, 2009). A truckful 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). Par. 2, Art. 415. Trees, plants and growing fruits, while they are attached to the land or form an integral part of an immovable. Building Trees and plants GR: A building is always immovable whether built in one’s own land or rented. Trees may be either be: 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. 2. A personal property. 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. The moment trees are detached or uprooted from the land it is considered as personal property. Effect of demolition of a house NOTE: In case of uprooted timber, they are still not considered as personal property because timber is an integral part of the timber land. 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). Growing fruits Mortgage of a building erected on a land belonging to another 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. A building, by itself, may be mortgaged apart from the land on which it was built even if a 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). XPN: Growing fruits still attached to the soil may be treated as personal property for purposes of: 1. 2. 3. A building can be the subject of a chattel mortgage Sale of the whole or part of the crops Attachment and execution; and Applying the provisions of the Chattel Mortgage Law (Rabuya, 2008). IMMOVABLE BY INCORPORATION When the parties have so expressly designated, especially when it is considered that the property 119 Civil Law 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. 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. Res vinta These are immovables by incorporation, which when separated from the immovable, regain their condition as movable. Requisites for machinery to be considered real property (COTE) 1. Steel towers are personal properties 2. 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 Assessment Appeals v. Meralco, G.R. No. L-15334, January 31, 1964). IMMOVABLE BY INCORPORATION & BY DESTINATION Machinery placed by a tenant 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. Placed by the owner or (by the tenant) as agent of the owner; and With the intention of attaching them permanently even if adherence will not involve breakage or injury. 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. 3 distinguished from Par. 4 Cannot be separated from the immovable without breaking or deterioration. Need not be placed by the owner. Real property by incorporation. a Equipment and living quarters of the crew permanently attached are immovable properties Requisites PAR. 3 by 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.) “Placed by the owner” 2. or 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). 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. 1. The industry or work must be Carried on in a building or on a piece of land; and 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 c. Be Essential and principal to the industry or work, and not merely incidental thereto. PAR. 4 Can be separated from the immovable without breaking or deterioration. Equipment of a transportation classified as personal property Must be placed by the owner of the immovable, or by his agent whether express or implied. 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. Real property by incorporation and destination. UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES business Machines must be essential and principal elements in the industry and must directly meet the needs of said 120 PROPERTY industry. It does not include movables which are merely incidentals, without which the business can still continue or carry on their functions. Cages are not included It will be considered as personal property since they can be moved from one place to another. 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 these equipments (Mindanao Bus Co. v. City Assessor and Treasurer, G.R. No. L-17870, September 29, 1962). Par. 7, Art. 415. Fertilizer actually used on a piece of land. Fertilizers in sacks are not included Machineries bolted or cemented on real property mortgaged 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 it is already placed in the land and can never be separated from it. 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. Par. 8, Art. 415. Mines, quarries and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant. When immovable property by nature may be treated as a chattel Mines- These aremineral lands where excavations are done to extract minerals such as gold, ores etc. 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). 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 (Pineada, 2009). Effect of temporary separation of movables from the immovables to which they are attached There are two views; 1. They continue to be regarded as immovable; and 2. Fact of separation determines the condition of the objects thus recovering their condition as movables. 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 Machines though essential and principal elements of the industry are personal properties when provided in the lease agreement 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). The machines should be deemed personal property pursuant to the Lease Agreement – is good only insofar as the contracting persons are concerned. Hence, while the parties are bound by the Lease Agreement, 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). Floating platform is an immovable property 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). 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. Vessels are considered personal property under 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 These are immovables by destination. They are considered as real property if adhered to the soil in a permanent manner. The animals in the houses are considered part of the immovable. 121 Civil Law Customs at the port of entry (Code of Commerce, Art. 585). Tests to determine whether a property is a movable property (MES) Par. 10, Art. 415. Contracts for public works and servitudes and other real rights over immovable property. a. b. These are immovables by analogy. e.g. Contract over a construction of a bridge PERSONAL OR MOVABLE PROPERTY 1995 Bar c. Movable properties (SOFTSS) 1. 2. 3. 4. 5. 6. Movables Susceptible of appropriation which are not included in Art. 415; Real property which by any Special provision of law considers as personalty; e.g.Growing crops under the Chattel Mortgage Law Forces of nature which are brought under the control of science ; e.g. Electricity generated by electric powers, solar light for batteries power. 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); Obligations and actions which have for their object movables or demandable sums; and Shares of stock of agricultural, commercial and industrial entities, although they have real estate (NCC, Art. 417). 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. CLASSIFICATION OF PROPERTY BY NATURE Properties classified according to consumability 1. 2. Properties classified according to susceptibility to substitution 1. 2. Interest in business is a personal property Fungible property – That property which belongs to a common genus permitting its substitution; and Non- fungible property – That property which is specified and not subject to substitution. NOTE: As to whether a property is fungible or non-fungible is determined by the agreement of the parties and not on the consumability of the thing. 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). CLASSIFICATION OF PROPERTY BY OWNERSHIP 1. The business of providing telecommunication is a personal property 2. 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. 3. 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, 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). UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Consumable property – That which cannot be used according to its nature without being consumed or being eaten or used up; and Non-consumable property – That which can be used according to its nature without being consumed or being eaten or used up. In relation to the State a. Public Dominion; and b. Patrimonial. In relation to political subdivisions/local government unit a. Public use; and b. Patrimonial. In relation to private persons a. Owned individually; and b. Owned collectively. 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. L2832, November 24, 1906). PUBLIC DOMINION It means ownership by the public in general. It may also mean properties or things held by the State by 122 PROPERTY regalian right. 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. Charging of fees does not remove property as public dominion 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). 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. Kinds of property of public dominion (USD) 1. 2. 3. For public Use; Intended for public Service and not for public use; and For the Development of the national wealth (NCC, Art. 420). PRIVATE OWNERSHIP Properties in private ownership of private persons or entities (NCC, Art.425) Characteristics of properties of public dominion (ULEP-ROB) 1. 2. 3. 4. 5. 6. 7. All properties not belonging to the State or its political subdivision are properties of private ownership pertaining to private persons, either individually or collectively. 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. Patrimonial property of the State 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. An executive or legislative act is necessary to reclassify property into patrimonial. The conversion cannot be inferred from non-use. Properties for public service and properties for the development of national wealth 1. 2. 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. Public service –Itdepends on who pays for the service. If paid for by the political subdivision, public; if for profit, patrimonial; and National wealth – It isstill property for public use under the regalian doctrine. 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 to make it patrimonial property must be definite. Abandonment cannot be inferred from the non-use alone (Laurel vs Garcia, G.R. No. 92013, July 25, 1990). Property of municipal corporations 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). 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). Sewage system of a city is a patrimonial property NOTE: All other property possessed by any of them are patrimonial. It is property of the city, purchased with private 123 Civil Law 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). 1. Full ownership – Includes all the rights of an owner; NOTE: Naked ownership + Usufruct 2. Private ownership of land prohibited to Aliens; KRIVENKO DOCTRINE Naked ownership – Ownership where the rights to the use and to the fruits have been denied; NOTE: Full ownership – Usufruct 3. General Rule: Aliens have no right to acquire any public or private agricultural, commercial or residential lands in the Philippines. 4. XPN: Aliens may only acquire such lands by hereditary succession(Krivenko vs Registry of deeds, G.R. No. L-630, November 15, 1947). Sole ownership – Ownership is vested in only one person; and Co-ownership– Ownership is vested in two or more persons. There is Unity of the property, and plurality of the subjects. Characteristics of ownership 1. Effect of a subsequent sale by the disqualified alien vendee to a qualified Filipino citizen 2. 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. 3. 4. Elastic – Power/s may be reduced and thereafter automatically recovered upon the cessation of the limiting rights; General – The right to make use of all the possibilities or utility of the thing owned, except those attached to other real rights existing thereon. Exclusive – There may be two or more owners, but only one ownership; Independent – Other rights are not necessary for its existence; and Perpetual – Ownership lasts as long as the thing exists. It cannot be extinguished by non-user but only by adverse possession. Thus, the subsequent transfer of the property to qualified Filipinos may no longer be impugned 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). 5. 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). Attributes of ownership JUS UTENDI, FRUENDI, ABUTENDI, VINDICANDI, DISPODENDI, POSSIDENDI, ACCESIONES 1. 2. 3. 4. 5. 6. 7. Regalian Doctrine:All lands not otherwise appearing to be clearly within private ownership are presumed to be owned by the state (Pineda, 2009). Reversion- An action where the ultimate relief sought is to revert the land back to the government under the Regalian Doctrine (Pineda, 2009). Lease merely follows the property as a lien or encumbrance Q: Palado, owner of a building containing commercial spaces for lease, sold his property to One Network bank. Baric, a former tenant of Palado, filed a case for forcible entry against Palado and One Network. Baric claims he should be paid the cost of the renovations made in the leased commercial space and damages as well. May a buyer in good faith be held liable for forcible entry? OWNERSHIP It 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. A: NO. OneNetwork Bank is not prohibited from acquiring the property even while the forcible entry case was pending, because as the registered owner of the subject property, Palado may transfer his title at any time and the lease merely follows the property as a lien or encumbrance. Any invasion or violation Kinds of ownership UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Right to enjoy (jus utendi); Right to the fruits (jus fruendi); Right to abuse (jus abutendi); Right to dispose (jus dispodendi); Right to recover (jus vindicandi); Right to accessories (jus accessiones); and Right to possess (jus possidendi). 124 PROPERTY of Baric's rights as lessee was committed solely by Palado, and One Network Bank may not be implicated or found guilty unless it actually took part in the commission of illegal acts, which does not appear to be so from the evidence on record (One Network Rural Bank, Inc. v. Baric, G.R. No. 193684, March 5, 2014)(Del Castillo, J.) 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). REMEDIES TO RECOVER POSSESSION Legal remedies to recover possession of one’s property 1. 2. Personal property – Replevin Real property a. Accion Interdictal; i. Forcible entry; or ii. Unlawful detainer. b. Accion Publiciana; or c. Accion Reinvindicatoria. Requisites of accion reinvindicatoria 1. 2. 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 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? 3. Ancillary remedies common to both a. Writ of preliminary mandatory injunction; or b. Writ of possession. RECOVERY OF POSSESSION OF MOVABLE PROPERTY Replevin It is the remedy when the complaint prays for the recovery of the possession of personal property. 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. 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). 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: 1. 2. Identity of property; and Plaintiff’s title to the property. Effect of non-registration of the contract of lease Forcible Entry; or Unlawful detainer. 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). 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). Q: Spouses Magtanggol managed and operated a gasoline station on a 1,000 sq.m. lot which they leased from Francisco Bigla-awa. The contract was for a period of three years. When the contract expired, Francisco asked the spouses to peacefully vacate the premises. The spouses 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. 125 Civil Law ignored the demand and continued with the operation of the gasoline station. deprived thereof by the defendant. One month after, Francisco, with the aid of a group of armed men, caused the closure of the gasoline station by constructing fences around it. Was the act of Francisco and his men lawful? Why? (2014 Bar) As to when one year period is counted from One year period is generally counted from the date of actual entry of the land. 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. 1. a)Force; b)Intimidation ; c)Strategy; d)Threat; or e)Stealth. 2. Unlawful Detainer Possession is inceptively lawful but becomes illegal from the time defendant unlawfully withholds possession after the expiration or termination of his right thereto. 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). 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). Q: Josephine filed an Application for Registration of Title by virtue of a Deed of Absolute Sale. She claimed the benefits of Chapter VIII of Commonwealth Act No. 141 (1936), because she and her predecessor-in-interest have been in open, continuous, public, peaceful and adverse possession of the land since time immemorial. The OSG, on the other hand, averred that the muniments of title and tax payment receipts submitted by Josephine do not constitute competent or sufficient evidence of a bona fide acquisition of the subject lot, or of the petitioner’s open, continuous, exclusive and notorious possession and occupation thereof in the concept of owner since June 12, 1945 or prior thereto. Can the application of Josephine be approved? As to necessity of demand No previous demand for Demand is jurisdictional the defendant to vacate if the ground is nonis necessary. payment of rentals or failure to comply with the lease contract. As to necessity of proof of prior physical possession A: NO. In land registration cases, the applicant has the burden to show that he or she is the real and absolute owner in fee simple of the land sought to be registered. It is also important to bear in mind that one who seeks registration of title must prove his or her claim with well-nigh incontrovertible evidence. Plaintiff must prove that Plaintiff need not have he was in prior physical been in prior physical possession of the possession. premises until he was UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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. As to when possession became unlawful Possession of the defendant is unlawful from the beginning as he acquired possession by; (FISTS) One year period is counted from the date of last demand or last letter of demand. REQUISITES FOR RECOVERY OF PROPERTY DISTINCTION BETWEEN FORCIBLE ENTRY AND UNLAWFUL DETAINER Forcible Entry NOTE: The fact that petitioners are in possession of the lot does not automatically entitle them to remain in possession (Ganilla v. CA, G.R. No. 150755, June 28, 2005). 126 PROPERTY In any event, in the absence of other competent evidence, tax declarations do not conclusively establish either possession or declarant’s right to registration of title. In this case, petitioner miserably failed to show that she is the real and absolute owner in fee simple of the land sought to be registered (Josephine Wee v. Republic of the Philippines,G.R. No. 177384,December 8, 2009)(Del Castillo, J.) possessor. Reasons why the plaintiff is NOT allowed to rely on the weakness of defendant’s title Enforceable against the whole world. 1. 2. 3. 4. Enforceability 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. Enforceable only against the original debtor or his transferee charged with notice of the personal rights Limit Limited by usefulness, value or productivity of the thing. No such limitation. Extinguishment Extinguished by loss or destruction of the thing Not so extinguished. Claim for damages may still be pursued-in case of loss or destruction of the thing. REAL v. PERSONAL RIGHTS LIMITATIONS ON THE RIGHT OF OWNERSHIP Real Right (Right of Personal Right (Right possession; to possess; possessionis) possidendi) Creation Created by both title Created by title alone. and mode directly It is not directly over a thing. created over a thing but is exercised through another against whom the action is to be brought. Object Generally corporeal or Incorporeal or tangible. Object is intangible. Object specific property or covers all the present thing. and future property of the debtor (NCC, Art. 2236). a. b. Subjects One definite a. active subject (e.g. owner) b. One indefinite passive subject which is the whole world Right of pursuit is therefore available. Real right follows its object in the hands of any Those imposed by the: (SLOG-C2-SO) 1. 2. 3. 4. 5. An active subject (creditor); and 6. A definite passive subject (debtor). 7. 8. 127 State in the exercise of: a. Power of taxation; b. Police power; and c. Power of eminent domain. Law; a. Legal easements (i.e., easements of waters and of right of way) and b. The requirement of legitime in succession; Owner himself; a. Voluntary easement b. Mortgage c. Pledge d. Lease; Grantor of the property on the grantee, either by: a. Contract b. Donation or c. Will; Those arising from Conflicts of private rights Those which take place in accession continua; Constitution - On the prohibition against the acquisition of private lands by aliens; 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 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). Civil Law PRINCIPLE OF SELF-HELP hedges or by any other means provided that in so fencing the property, no servitude or easement constituted thereon should be impaired(Pineda, 2009). 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. 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). Requisites of the Principle of Self-Help (RODA) 1. 2. 3. 4. Reasonable force used Such force is used by the owner or lawful possessor There is no delay Actual or threatened physical invasion or usurpation of the property. This principle authorized the destruction of property which is lesser in value to avert the danger poised to another property of greater value. Right of self-help exercised by third person Requisites of Doctrine of State of Necessity 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). 1. 2. 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. Test of reasonableness Disputable presumption of ownership 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). There is disputable presumption of ownership when a person is in actual possession of the property under the claim of ownership (Pineda, 2009). Resort of the owner rebutting the presumption German Management's drastic action of bulldozing and destroying the crops of private respondents on the basis of the doctrine of self-help was unavailing because the doctrine of self-help 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). Under Art. 433 the remedy is judicial process to recover the property of the person. Requisites to prove claim of ownership 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. 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). “Sic utere tuo ut alienum non laedas” The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person (NCC, Art. 431). Property owner can use his property in any manner he desires provided he does not injure the rights of otherssic utere tuo ut alienum non laedas (Pineda, 2009). 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. Limitation on the right of the owner to enclose or fence one’s land or tenement Presumably, the landowners’ right extends to such height or depth where it is possible for them to obtain some benefit or enjoyment, and it is Every owner may enclose or fence his land or tenement by means of walls, ditches, live or dead UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES Proper identification of the property; and Title must be clear, strong and credible (Pineda, 2009). 128 PROPERTY extinguished beyond such limit as there would be no more interest protected by law (Napocor v. Ibrahim, G.R. No. 168732, June 29, 2007). The finder is not entitled to the hidden treasure if it was deliberately searched. (1976 Bar) HIDDEN TREASURE 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). 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). Nature and ownership of the old notes and coins “Other precious objects” 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 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) Under the ejusdem generis rule, the phrase should be understood as being similar to money or jewelry. Oil or gold NOT considered as hidden treasure These are natural resources. The Regalian Doctrine applies and not the provisions on hidden treasure. Rule regarding discovery of hidden treasure (NCC,Art. 438 in relation to Art. 718) 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. NOTE: Bills and notes found are not hidden treasures. The owner can be traced through the serial numbers. 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). 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) 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). 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. Requisites in order that the finder be entitled to any share in the hidden treasure (ACTA) 1. 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). 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). “By chance” 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. 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). Yamashita treasure The State is entitled to 75% share and the finder to 25% (PD 7056-A). 129 Civil Law Accession is NOT a mode of acquiring ownership 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. 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. Pratus sequitor ventrem – offspring follows the mother Reason: Accession presupposes a previously existing ownership by the owner over the principal. Fundamentally, accession is a right implicitly included in ownership, without which it will have no basis or existence (Paras, 2008). 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. NOTE: In general, the right to accession is automatic (ipso jure), requiring no prior act on the part of the owner or principal. ACCESSION DISCRETA The right of accession with respect to what is produced by the property. When fruits are deemed to exist To the owner belongs the: 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). 1. 2. Civil fruits accrue daily and are considered personal property and may be pro-rated; and Natural and industrial fruits, while still growing, are considered as real property; ordinarily, they cannot be pro-rated. Ownership of fruits GR: Fruits belong to the owner (NCC, Art. 441). 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). 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). Meaning of third person One who is NOT the owner, builder, planter or sower. NOTE: Only such as are manifest or born are considered as natural or industrial fruits. With respect to animals, it is sufficient that they are in the womb of the mother, although unborn (NCC, Art. 444). GENERAL RULLES OF ACCESSION Accession exists only if separation is not feasible. Otherwise, separation may be demanded. Existence of the fruit ACCESSION CONTINUA 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. It is the right pertaining to the owner of a thing over everything incorporated or attached thereto either naturally or artificially; by external forces. 1. Animal young UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 130 Immovable roperty a. Accession industrial i. Building; ii. Planting;and iii. Sowing. b. Accession natural PROPERTY 2. i. Alluvium; ii. Avulsion; iii. Change of course of rivers; and iv. Formation of islands. Movable property a. Adjunction; b. Mixture; and c. Specification. 1. 2. 3. Rule on ownership regarding accession industrial Basic principles in accession continua(BADONGE) 1. 2. 3. 4. 5. 6. 7. 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. 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. 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. 2. When the doer is in good faith the rule is modified; or 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. 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. FOR IMMOVABLES ACCESSION INDUSTRIAL Bad Faith- A person who is aware that there exists in his title or mode of acquisition any flaw which invalidates it. Three kinds of industrial endeavors (BPS) 1. Building – Erecting a structure or construction of any kind, with roof for residential, office, social, commercial or other purposes; 2. Planting – Setting into the soil or land seeds or seedlings of trees such as mangoes, coconuts, etc; 3. Sowing – The act of scattering or spreading of germinated seeds indiscriminately or evenly through hand or mechanical device. NOTE: Good faith is always presumed; and upon him who alleges bad faith on the part of the possessor rests the burden of proof. Maxims in connection with accession industrial 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. Owns fruits provided he pays planter expenses for production, gathering and preservation (NCC, 131 Civil Law 1). Art. 443). Standing Crops Planter in GF Reimbursed for expenses, for production, gathering and preservation (NCC, Art.443). Planter in BF Loses what is built, planted or sown without right to indemnity (NCC, Art 449). Planter Landowner Owns fruits provided he pays planter expenses for production, gathering and preservation (NCC, Art. 443). Entitled to reimbursement for the necessary expenses of preservation of the land. (NCC, Art. 452). Owns fruits (NCC, Art. 449). 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). Owns fruits provided he pays planter expenses for production, gathering and preservation (NCC, Art. 443). Standing Crops Planter in GF Reimbursed for expenses, for production, gathering and preservation (NCC, Art.443). Planter in BF Loses what is built, planted or sown without right to indemnity (NCC, Art 449). Planter Landowner Owns fruits provided he pays planter expenses for production, gathering and preservation (NCC, Art. 443). Entitled to reimbursement for the necessary expenses of preservation of the land. (NCC, Art. 452). 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 Owner of Materials Good faith Good faith Acquire building etc. after paying indemnity for value of materials (NCC, Art. 447) (1999 Bar). Bad faith Good 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 1. Receive indemnity for value of materials; or 2. Remove materials if w/o injury to works, plantings or constructions (NCC, Art. 447). 1. Be indemnified for value of materials and damages; or 2. Remove materials, w/ or w/o injury and be indemnified for damages (NCC, Art. 447). Bad faith 132 PROPERTY 1. Acquire w/o paying indemnity and right to damages (NCC, Art 445 and 449, by analogy); and 2. Pay necessary expenses for preservation. (NCC, Articles 452 and 546). 1. Lose materials w/o being indemnified and pay damages (NCC, Articles 445 and 449, by analogy); ans 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). Rule when the land owner is NOT the builder, planter or sower Land Owner Builder, Planter, Sower and Owner of Materials Good faith Good faith If the Land Owner: He can either: (NCC, Art. 448) (1992, 1996, 2000, 2001 Bar). 1. 2. Acquire improvements after paying indemnity for: a. Necessary expenses; and b. Useful expenses which could either be: a. Original costs of improvements; or b. Increase in the value of the whole (NCC, Articles 443 and 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. 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) . 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). 2. 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. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the In such case, he shall pay reasonable rent. terms thereof. 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). Good faith 1. The land owner can either: a. b. c. 2. Bad faith 1. Acquire improvements without paying indemnity and collect damages (NCC, Articles 445, 449 and 451). Order the demolition of work or restoration to former condition and collect damages in both 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). 2. 3. Lose improvements without right to be indemnified unless the latter sells the land (NCC, Art. 449)(1996, 2000 Bar). Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid (NCC, Articles 452 and 546). Pay damages to land owner (NCC, Art. 451). 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). He cannot compel the builder planter or sower to buy the land. Good Faith 1. Receive indemnity for improvements and receive damages; or 2. Remove them in any event and receive damages (NCC, Aricles 454 and 447). 133 Civil Law The reason why said article (NCC, Art. 447) applies 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 Builder, Planter, Sower Good faith Good faith Owner of Materials Good faith Pay value of materials to its owner He shall answer subsidiarily for their value without paying damages(NCC, Art. 455). and only in the event that the one who a. Collect value of materials made use of them has no property with primarily from builder, planter, and which to pay (NCC, Art. 455). sower, subsidiarily from land owner (NCC, Art. 455); or If the Land Owner: and 1. Acquires the improvement, Builder, b. Remove the materials only if He can either: (NCC, Art. 448) w/o injury to the work Planter, or Sower may demand 1. Acquire improvements after paying constructed, or without the from the landowner the value of the indemnity for: plantings, constructions or materials and labor (NCC, Art 455). a. Necessary expenses; and works being destroyed (NCC, b. Useful expenses which could And he has the right to retain the thing Art. 447). either be: (and cannot be required to pay a. Original costs of rent) until indemnity is paid (NCC, NOTE: Landowner is subsidiarily improvements; or liable only if he Art. 546). b. Increase in the value of the appropriates/acquires the whole (NCC, Art. 546 & 443). If the useful improvements can be improvements. removed without damage to the 2. Sell the land to builder and planter or principal thing, the possessor in collect rent from sower unless the good faith may remove them, unless value of the land is considerably the person who recovers the greater than the building etc., in which possession exercises the other case, the builder and planter shall pay (NCC, Articles 547 and 447); or rent. 2. Sells the land or rents it, Builder or The parties shall agree upon the terms of Planter cannot be obliged to buy the the lease and in case of disagreement, land if its value is considerably the court shall fix the terms thereof. 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). UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 134 PROPERTY Good faith Good faith If the Land Owner: Land Owner can either: (NCC, Art. 448) 1. 2. Acquire improvements after paying 1. Acquires the improvement, indemnity for: Builder, Planter, or Sower has the a. Necessary expenses; and right to retain the thing (and b. Useful expenses which could cannot be required to pay rent) either be: until indemnity is paid (NCC, Art. a. Original costs of 546). improvements; or b. Increase in the value of the If the useful improvements can be whole (NCC, Articles 546 and removed without damage to the 443). principal thing, the possessor in good faith may remove them, Sell the land to builder and planter or unless the person who recovers collect rent from sower unless the the possession exercises the other value of the land is considerably (NCC, Art. 547); or greater than the building etc., in which case, the builder and planter shall pay 2. Sells or rents it, Builder or Planter rent. cannot be obliged to buy the land if its value is considerably more than The parties shall agree upon the that of the building or trees. terms of the lease and in case of disagreement, the court shall fix the In such case, he shall pay reasonable terms thereof. rent. Without subsidiary liability for cost 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). 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. Good Faith 1. 2. 3. 4. Bad Faith Option to: 1. a. Acquire improvements without paying indemnity and collect damages (NCC, Articles 445 and 449); b. Order the demolition of work or 2. 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 3. (NCC, Art. 450); Lose improvements without right to be indemnified unless the landowner sells the land (NCC, Art. 449); 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 Pay necessary expenses for having both acted in good faith (De preservation (NCC, Art. 452 & 546); Leon, 2006). and 4. 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). Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid (NCC, Articles 452 and 546); Has right to demand damages from both (NCC, Art. 451); Not subsidiarily liable to the owner of the materials because as to him, the two acted in bad faith (De Leon, 2006). Bad Faith Pay damages to land owner (NCC, Art. 451). 135 Civil Law Bad faith Bad faith Bad faith Same as though both acted in good faith (in pari delicto)( NCC, Art. 453). Bad faith Good faith If he pays the owner of the materials, 1. Acquires improvements after paying plants or seeds: indemnity and damages, unless the latter decides to remove (NCC, Art. 454, 447 & 443); and i. He may demand from the landowner the value of the 2. Cannot compel builder, planter and materials and labor (NCC, Art 455) sower to buy land. and shall also be obliged to the reparation of damages (NCC, Art. 447); or ii. Remove the materials in any event, with a right to be indemnified for damages (NCC, Articles 454 and 447). 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 1. 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). Bad faith Pay value of materials to its owner (NCC, Art. 455) Good faith 1. 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). and If the Land Owner: 1. Land Owner can either: (NCC, Art. 448) Acquires the improvement, Builder, Planter, or Sower may demand from the landowner the value of the materials and labor (NCC, Art 455). 1. Acquire improvements after paying indemnity for: And he has the right to retain the thing (and a. Necessary expenses, and cannot be required to pay rent) until b. Useful expenses which could either indemnity is paid (Art. 546). be: i. Original costs Ifofthe useful improvements can be removed improvements without damage to the principal thing, ii. Increase in the value of the the possessor in good faith may remove whole (NCC, Articles 546 and them, unless the person who recovers 443). the possession exercises option 2 (NCC, Articles 547 and 447); 2. Sell the land to builder and planter or collect rent from sower unless the value of 2. Sells or rents it, Builder or Planter the land is considerably greater than the cannot be obliged to buy the land if its building etc., in which case, the builder and value is considerably more than that of planter shall pay rent. the building or trees. The parties shall agree upon the terms of the In such case, he shall pay reasonable rent. lease and in case of disagreement, the court shall fix the terms thereof. 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). Good faith Bad faith Good faith 1. 1. Option to: UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 1. Lose improvements without right to be indemnified unless the landowner sells the land (NCC, Art. 136 Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (NCC, Art. 455); or PROPERTY a. Acquire improvements without paying indemnity and collect damages (NCC, Art. 445 & 449); 2. 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 3. collect damages in both cases (NCC, Art. 450)(2008 Bar). 4. 2. Pay necessary expenses for preservation (NCC, Articles 452 and 546); and 3. Subsidiarily materials. liable to owner 449); 2. Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid (NCC, Art. 452 & 546); Remove materials in any event if builder, planter, sower acquired materials. Pay value of materials to its owner plus damages (NCC, Art. 455); and Pay damages to land owner (NCC, Art. 451). of Bad faith Good faith If he pays the owner of the materials, 1. Acquires improvements after paying plants or seeds: indemnity and damages, unless the builder, planter or sower decides to remove (NCC, Art. 454, 447 & 443); and 1. He may demand from the landowner the value of the 2. Cannot compel builder, planter and materials and labor (NCC, Art. 455) sower to buy land. and shall also be obliged to the reparation of damages (NCC, Art. 447); or 2. Remove the materials in any event, with a right to be indemnified for damages (NCC, Articles 454 and 447). 137 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). Civil Law When there is good faith on the part of both the owner of the land and the builder, planter or sower third person may file a third party complaint against land owner. The owner of the land only has the options of paying the value of the building or selling the land. 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. L175, April 30, 1946). 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. 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 under Art. 445. 2. 3. 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). Options available to the landowner if crops are planted in good faith in his property (2000 Bar) 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). Being an innocent purchaser for value of a land does not prove innocence of the claim of encroachment upon another person’s lands Q: Upon verification by surveyors, Martinez was informed that the fence of Las Brisas overlaps its property, it sent multiple requests and letters notifying Las Brisas of the said encroachment and demanded that the latter cease and desist from unlawfully holding portions of its land. Las Brisas maintained that it was a buyer in good faith and continued to develop the disputed portion of land, despite the demands sent by Martinez. Having claimed that it was a buyer in good faith; may it also claim to be a builder in good faith? 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) 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). A: NO. Las Brisas' sole defense that they purchased their property in good faith and for value; does not squarely address the issue of encroachment or overlapping since it did not present evidence contradicting such claim. To repeat, while petitioners may have been innocent purchasers for value with respect to their land, this does not prove that they are equally innocent of the claim of encroachment upon respondent's lands (Pen Development Corp. v. Martinez Leyba Inc. G.R. No. 211845, August 9, 2017)(Del Castillo, J.) 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) 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 UNIVERSITY OF SANTO TOMAS 2018 GOLDEN NOTES 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, and assume the relation of lessor and lessee; In Ignacio v. Hilario, G.R. L-175, April 30, 1946, 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 theimprovement 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. A: Since the lot owner Y is deemed to be in bad faith 138 PROPERTY (Art. 453), X as the party in good faith may (a) remove the house and demand 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. construction thereof. To do otherwise would unjustly enrich the new owner of the land. Pending complete reimbursement, may the spouses Nuguid benefit from the improvement? 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: CCI and Spouses Nanol entered into a Contract to Sell of a house and lot in favor of the latter. Spouses Nanol introduced improvements to these lots. However, they failed to pay the monthly amortization fees. CCI then opted to cancel the contract. Are Spouses Nanol entitled to a reimbursement for the improvements they introduced? The builder is entitled to a refund of the expenses he incurred and not on the market value of the improvement (2000 Bar) A: YES. The facts established that CCI was aware of the improvements introduced by Spouses Nanol. Thus, Spouses Nanol are deemed to have been in good faith when they built the structures in those lots (Communities Cagayan Inc. v. Sps. Nanol, G.R. No. 176791, November 14, 2012)(Del Castillo, J.) 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. 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) NOTE: The case of Pecson v. CA, G.R. No. 115814, May 26, 1995 is not applicable. 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 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. (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. 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? 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. A: YES. The Church and the NHA, both acted in 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). 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 Q: A squatter, X, is sought to be evicted by landowner Y, seeks reimbursement from latter for the improvements he made on property, while Y demands the value of all 139 the the the the Civil Law 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) 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). 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. ACCESSION NATURAL ALLUVION Alluvium or alluvion (2001, 2003, 2008, 2009 BAR) 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). What are the buyers' options or legal rights with respect to the they expenses incurred in improving the property under circumstances? (2015 Bar) 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. 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 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. Riparian owner He is the owner of the land adjoining rivers. Accretion v. Alluvium Accretion is the process whereby the soil is deposited while alluvium is the soil deposited. Requisites of accretion When there is bad faith on the part of both the owner of the land and the builder, planter or sower 1. 2. 3. Q: The Municipality brought the 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? Deposit be gradual and imperceptible; Resulted from the effects of the current of the water; and The land where the accretion takes place is adjacent to the banks of a river If all the requisites are present, the riparian owner is automatically entitled to the accretion. 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 140 PROPERTY included 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). The rule on alluvion does not apply to man-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). Requisites (NAPA) 1. 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. 2. 3. 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; The change must be Abrupt or sudden; The change must be Permanent; and NOTE: The rule does not apply to temporary overflowing of the river. If the deposit is brought about by sea water 4. There must be Abandonment by the owner of the bed. 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. NOTE: Abandonment pertains to the decision not to bring back the river to the old bed. Registration Effect when the river bed is abandoned 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. 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). Failure to register 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). 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. Under the Water Code, the government or the riparian owner may return the river back to the original bed (P.D. 1067, Art. 58). 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. 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). 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. 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). 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). Alluvium v. Avulsion (2001 Bar) NOTE: This rule does not apply to lakes. CHANGE IN THE COURSE OF THE RIVER 141 ALLUVIUM Gradual and imperceptible. AVULSION Sudden or abrupt process. Soil cannot be identified. Identifiable and Civil Law verifiable. Belongs to the owner of the property to which it is attached. Belongs to the owner from whose property it was detached. Merely an attachment. Detachment followed by attachment. LOCATION If formed on the sea Within territorial waters. Outside territorial waters. 2. 3. State First country to occupy. If formed on lakes or navigable/ floatable rivers Requisites of avulsion (CAI) 1. OWNER State Transfer is caused by the Current of a river, creek, or torrent; Transfer is sudden or Abrupt; and The portion of the land transported is known or Identifiable. If formed on non-navigable/non-floatable rivers Nearer in margin to Owner of nearer one bank. margin is the sole owner. 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. If equidistant. Island divided longitudinally in halves. Rule on acquisition of titles over an avulsion 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? GR: Original owner retains title. 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: 1. 2. Abandonment; or 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. A: EDUAVE has a better right to the land. The land in question is an island that appears in a nonfloatable 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). 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 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. 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. If uprooted trees have been transplanted by the owner of the land which the trees may 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). MOVABLES Different kinds of accession continua as regard movables 1. 2. 3. ISLANDS Adjunction or conjunction; Mixture; and Specification. Adjunction Rules on ownership with regard to formation of islands It is the process by virtue of which two movable 142 PROPERTY 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). 2. Requisites of adjunction (2BUS) 3. 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; Owner of the principal acted in Bad faith (NCC, Art. 469). There is adjunction when there are: Rights of owners over the thing in adjunction 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. 1. Classes of adjunction or conjunction 1. 2. 3. 4. 5. OWNER OF THE ACCESSORY Good faith Acquire 1. Receive payment for accessory and value of accessory; or pay owner of the 2. GR: Demand accessory for its separation provided value; or the thing suffers no Demand injury. separation PRINCIPAL Painting (pintura); Engraftment - Like setting a precious stone on a golden ring; Writing (escritura); Weaving; and Soldering- Joining a piece of metal to another metal a. Ferruminacion - Principal and accessory are of the same metal; or b. Plumbatura – Different metals (NCC, Art. 468) 2. provided the thing suffers no injury. Good faith Ownership of the resulting object Acquire accessory w/o paying the owner of accessory and entitled to damages. 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. Tests to determine the principal 1. 2. 3. 4. Bad faith That of greater value; If two things are of equal value – That of greater volume; 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 That which has greater merits, utility and volume if things (NCC, Art. 468). 1. 2. 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). Bad faith Lose accessory and pay damages. Good faith 1. Receive payment and damages; or 2. Have accessory separated with or without injury to principal and receive damages. Have the things separated, even though there is injury to the principal and pay damages. Bad faith Same as though both acted in good faith. Indemnity It is made either by: Ownership when the adjunction involves three or more things 1. 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. 2. Delivery of a thing equal in kind and value; or Payment of its price including the sentimental value (NCC, Art. 471). 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). Separation of things is allowed in the following cases: 1. Pay value of accessory and pay damages; or XPN: If accessory is more precious than principal, he may demand separation with or without injury to the thing. Separation without injury; 143 Civil Law GR: Appropriate the thing transformed and pay the owner of the materials for its value. Kinds of mixtures (COM-CON) 1. 2. Commixtion – mixture of solids; and Confusion – mixture of liquids 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. Rules regarding mixtures First Owner Second Owner 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). Good faith By will of only one owner/ by chance 1. Receive payment for 1. Appropriate new value of his work; or thing and pay the 2. Appropriate the new maker for the work; thing and pay the or owner of materials 2. Receive payment for for its value. value of materials. 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 the mixture) First owner will lose his part on the mixture and pay damages to the second owner. Bad faith Good faith Good faith 1. Lose the new thing 1. Appropriate the new and pay damages to thing without paying owner of the and receive damages; materials; or or 2. Pay value of NOTE:Not materials and available if the damages to owner of new thing is the materials. more valuable than materials for scientific or artistic reasons. Second owner will acquire entire mixture and entitled to damages. Good faith Bad faith (caused the mixture) As if both acted in GF, because the 2nd owner in GF was the one who caused the ratification, because the first owner. Receive payment for value of materials. As if both acted in GF, since the first owner is in BF and the second owner who caused the mixture in GF in a way ratifies the BF of firstowner. 2. Receive payment for the value of materials and damages. Adjunction, mixture and specification distinguished Specification (NCC, Art. 474) ADJUNCTION 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 Maker (M) Owner of Materials (OM) Good faith 144 MIXTURE SPECIFICATION Involves at least two things. Involves at least two things. May involve one thing (or more) but form is changed, Accessory follows the principal. Co-ownership results. Accessory follows the principal. Things joined retain their nature. Things mixed or confused may either retain or lose The new object retains or preserves the nature of the PROPERTY their respective natures. original object. Requisites for an action to quiet title (LCDR) 1. QUIETING OF TITLE NOTE: He need not be in possession of said property (NCC, Art.477). 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). 2. 3. 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). 4. There must be Cloud in such title; 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 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. Persons who may file an action to quiet title 1. 2. An action for quieting of title is essentially a common law remedy grounded on equity (Dionisio Mananquil, et al. v. Roberto Moico; G.R. No. 180076, November 20, 2012). 3. Registered owner; A person who has an equitable right or interest in the property; or The State. Q: Petitioners Chung et al are descendants of Rafael Mondragon by his first wife, Eleuteria Calunia while Jack Daniel Mondragon is Rafael’s descendant by his second wife Andrea Baldos. When Andrea dies, his son Fortunato Mondragon inherited the land; and when the latter died; his son Jack Daniel entered into possession and enjoyment thereof. In 2000, Jack Daniel sold a portion of the land to Regis-Schmitz. Chung et al filed an action to quiet title on the ground that Jack Daniel had no right to sell a portion of the land. May the action to quiet title prosper? Nature of the action to quiet title An action to quiet title is quasi in rem – an action concerning real property where judgment therein is enforceable only against the defeated party and his privies. Classifications of actions 1. Plaintiff must have a Legal or equitable title to, or interest in the real property which is the subject matter of the action; Remedial action – one to remove cloud on title; and Preventive action – one to prevent the casting of a (threatened) cloud on the title. Only real properties can be subject of an action for quieting of title (Pineda, 2009). A: NO. Here, it is evident that the title belongs to Andrea Baldos, Rafael’s second wife. The land could not have belonged to Rafael and thus could not belong to petitioners. Petitioners do not possess legal or equitable title to the land (Chung et al v. Mondragon, G.R. No. 179754, November 21, 2012)(Del Castillo, J.) QUIETING OF TITLE : REQUIREMENTS Q: Petitioners filed a civil case for quieting title 2. Scope of the action to quiet title 145 Civil Law with damages against Sta. Monica. Petitioners claim to be the successors and transferees-ininterest of Torres, the supposed owner of an unregistered land in Baguio which Torres declared for tax purposes in 1918. In 2000, Sta. Monica began to erect a fence on the subject property claiming to be the owner of a large portion thereof. Sta. Monica, on the other hand claims that petitioners have no cause of action, that their title is a valid and subsisting title; that the case for quieting title constitutes a collateral attack on the title of their property and that petitioners have no title to the property and are mere illegal occupants thereof. May the action to quiet title prosper? 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 follows; a) Ordinary prescription- 10 years b) Extraordinary prescription- 30 years. A: NO. Legal title denotes registered ownership while equitable title means beneficial ownership. Petitioners do not have legal or equitable title to the subject property. There are no certificates of title in their respective names. By stating that they are in the process of applying to purchase the subject property from the government, they admitted that they have no equitable title, to the very least, to prosecute a case for quieting title(Residents of Lower Atab & Teachers’ Village v. Sta. Monica Industrial Development Corporation, G.R. No. 198878, October 15, 2014)(Del Castillo, J.) Requisites for existence of a cloud (ATP) 1. NOTE: They must appear valid or effective – and extraneous evidence is needed to prove their invalidity or ineffectivity. 2. 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-(O-20449), 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 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? 3. 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. 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. 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). Action to quiet title v. Action to remove cloud on title ACTION TO ACTION TO REMOVE QUIET 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 instrument, property involved. 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. Rules in actions for quieting of title 1. There is an Apparently valid or effective instrument; As to nature of the action Remedial in nature, Preventive in nature, to involving a present remove a cloud which adverse claim. maybe used for future actions. As to nature of claims 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; 146 PROPERTY 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. Plaintiff declares his Plaintiff asserts own own claim and title and claim and declares at the same time that the claim of the indicates the source and defendant is nature of defendant’s unfounded and calls claim pointing its defect on the defendant to and prays for the justify his claim on the declaration of its property that same validity. may be determined by the 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). CHARACTERISTICS OF CO-OWNERSHIP IN GENERAL 1. 2. 3. 4. 5. 6. 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). Legal effect of co-ownership Co-ownership creates rights in favor of each one of the co-owners with respect to the property owned in common. PRESCRIPTION OR NON-PRESCRIPTION OF ACTION The rights of a co-owner can be viewed in two senses: 1. Prescriptive periods for bringing an action to quiet title 2. 1. 2. Plurality of subjects or owners; There is no mutual representation by the co-owners; It exists for the common enjoyment of the co-owners; There is a single object which is not materially divided; It has no distinct legal personality; and 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. Plaintiff in possession – Imprescriptible; or Plaintiff not in possession – a. 10 years (ordinary) or b. 30 years (extra-ordinary). His right over the thing owned in common is limited by the other co-owner’s concomitant rights; or 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. Requisites of co-ownership (PUS) Imprescriptibility of action to quiet title 1. 2. It is imprescriptible if plaintiff is in possession. If not, it prescribes within period for filing accion publiciana or accion reinvidicatoria. 3. 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. Plurality of owners; Unity of object, which is an undivided thing or right; and Each co-owner’s right must be limited only to his ideal Share of the physical whole. 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). 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. L21450, April 15, 1968). Rules to govern in co-ownership a. b. c. An action filed within the period of limitations may still be barred by laches (NCC, Articles 1431, 1433 and 1437). Contracts; Special provision of law; and Provisions of the civil code. Co-ownership v. Joint tenancy CO-OWNERSHIP JOINT OWNERSHIP Tenancy in common Joint Tenancy As to the extent of ownership C0-OWNERSHIP There is co-ownership whenever the ownership of an 147 Civil Law Each co-owner is the Each joint owner owns owner of his own ideal the whole thing. share. As to disposition Each co-owner may Joint owner may not dispose of his undivided dispose of his own share share without the other without the consent of co-owners’ consent. all the rest, because he really has no ideal share. No public instrument is needed even if the object of the co-ownership is an immovable. 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. As to transfer of shares in case of death Upon the death of a co- Upon the death of a joint owner, his ideal share owner, his share goes to goes to his heirs. the other joint owners by accretion. A sale of the entire property by one co-owner 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). As to minority or legal disability In case of a minor who The legal disability of is a co-owner, this does one joint owner benefits not benefit the others the others. for the purpose of prescription. Prescription Prescription will continue to run among co-owners. Q: Is there such a thing as perpetual coownership? A: NO. Any of the co-owners may demand partition any time. Prescription will not run among them. No co-owner ought to be compelled to stay in a coownership 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). Co-ownership v. Partnership CO-OWNERSHIP No legal personality ORDINARY PARTNERSHIP Has legal personality. 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). Can be created without the Can be created only formalities of a contract by contract, express or implied By contract or by will. 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 co-ownership (Avila v. Sps. Arabat, G.R. No.141993, March 17, 2006). By contract only. Agreement to exist for No term limit is set more than 10 years is void. by law. No mutual representation. There is mutual representation. Not dissolved by the death/incapacity of a coowner. Dissolved by death or incapacity of a partner. 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. A partner cannot be substituted without the consent of the others. For collective enjoyment. For profit. May be made in any form except when real property is contributed. Duration of the co-ownership (2000, 2002, 2008 Bar) 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). Profits may be stipulated upon; Share of the co-owners in the benefits and charges arising from the co-ownership (e.g., profit-sharing agreements). 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 148 PROPERTY stipulation in a contract to the contrary shall 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 co-ownership. Interests are presumed equal, unless the contrary is proved (NCC, Art. 485, par. 2). 6. One who is merely related by affinity to the decedent does not become a co-owner of the latter’s property Q: Leon Roldan, married to Rafaela Menez, is the owner of a 3,120-square meter parcel of land (subject property) in Kalibo, Aklan covered by Original Certificate of Title No. (24071) RO-630 (OCT RO-630). Leon and Rafaela died. Among the succeeding heirs was Teodora VillanuevaFrancisco (Teodora). Since there was no partition yet, the succeeding heirs held the property in coownership. After some time, however, Teodora’s husband Lucimo effected a repudiation of coownership when he executed an Affidavit of Ownership of Land, obtained a new tax declaration exclusively in his name, and informed the succeeding heirs – before the Lupon Tagapamayapa – of his 1943 purchase of the property. Was Lucimo’s act of repudiating the coownership valid? Q: JM and Kris are siblings. Kris is engaged in developing subdivisions and is frequently out of the country. Kris opened a joint savings account at BPI with JM as the other party in the account. Kris executed a Special Power of Attorney in favor of JM giving him the power to manage and use the funds for his projects in the country. JM withdrew P1,000,000 from the joint savings account and deposited in his own account for the reason that he is going to use it for the subdivision project in Marikina. Upon knowledge of this withdrawal, Kris demanded the return of the withdrawn cash as there was no project in Marikina that needs funding. Kris claims that he has all the right to recover the money. Is his contention correct? A:YES. Under a joint account setup, the depositors are joint owners or co-owners of the said account, and their share in the deposits shall be presumed equal, unless the contrary is proved, pursuant to Art.485 of NCC. Nevertheless, as between the account holders, their right against each other may depend on what they have agreed upon, and the purpose for which the account was opened and how it will be operated. A: NO. One who is merely related by affinity to the decedent does not inherit from the latter and cannot become a co-owner of the decedent’s property. Consequently, he cannot effect a repudiation of the co-ownership of the estate that was formed among the decedent’s heirs. While it may be argued that Lucimo Sr. performed acts that may be characterized as a repudiation of the co-ownership, the fact is, he is not a co-owner of the property. Indeed, he is not an heir of Gregoria; he is merely Antipolo’s son-in-law, being married to Antipolo’s daughter Teodora(Ining v. Vega,G.R. No. 174727, August 12, 2013) (Del Castillo, J.) JM’s right to obtain funds from the subject account was conditioned on the necessity of funds for Kris' projects. Admittedly, at the time he withdrew the amount of P1,000,000 from the subject account, there was no project being undertaken for Kris. While JM is a co-owner of the subject account as far as the bank is concerned — and may, thus, validly deposit and/or withdraw funds without the consent of his co-depositor, Kris — as between him and Kris, his authority to withdraw, as well as the amount to be withdrawn, is circumscribed by the purpose for which the subject account was opened(Apique v. Fahnenstich, GR No 205705, August 5, 2015). RIGHT OF CO-OWNERS General rights of each co-owner as to the thing owned in common (USA-COPE-P) 1. SOURCES OF CO-OWNERSHIP (LOST-C²) 1. 2. 3. 4. 5. By Chance or fortuitous event – e.g.Hidden treasure 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 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). 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. 149 Each co-owner may bring an Action for ejectment (NCC, Art. 487); Civil Law 8. NOTE: Action for ejectment covers; forcible entry, unlawful detainer, accion publiciana, quieting of title, accion reivindicatoria, and replevin. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Q: Armando and Agapito Alano, Jr. are brothers who purchased a residential house but the title was not immediately transferred to them. Agapito. died leaving his wife and 4 children who registered the title to the property solely in their own names. Thereafter, the said property was sold by the children in favor of Lydia. Slumberworld, Inc., represented by Lydia as treasurer, obtained from Maunlad Savings and Loan Association, Inc. a loan secured by a Real Estate Mortgage over the subject property. Armando sought for the issuance of a new title in his name for his one-half share of the property and the nullification of real estate mortgage insofar as his one-half share is concerned. Is there a valid mortgage in so far the share of Armando is concerned? To Compel other co-owners to contribute to expenses for preservation of the thing (NCC, Art. 488) and to the taxes; To Oppose to any act of alteration (NCC, Art. 491) even if beneficial to the co-owners; To Protect against acts of majority which are prejudicial to the minority (NCC, Art. 492, par. 3) To Exercise legal redemption; To ask for Partition (NCC, Art. 494); 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 coownership (NCC, Art.488); 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); Right to full ownership of his part and fruits. (NCC, Art.493); Right to alienate, assign or mortgage own part; except personal rights like right to use and habitation (NCC, Art.493); Right of pre-emption; Right to be adjudicated thing (subject to right of others to be indemnified); and 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). A: NO. It is a doctrine that no one can give what he does not have and under Article 493 of the Civil Code, a co-owner can alienate only his pro indiviso share in the co-owned property, and not the share of his co-owners. Thus, the mortgage in favor of Maunlad Savings and Loan Association, Inc. is null and void insofar as the ½ share of petitioner in the subject property is concerned (Alano v. Planters Development Bank, G.R. No. 171628, June 13, 2011. Rights of a co-owner to third parties 1. Duties/liabilities of co-owners 1. 2. 3. 4. 5. 6. 7. After partition, duty to render mutual accounting of benefits and reimbursements for expenses. Share in charges proportional to respective interest; stipulation to contrary is void; Pay necessary expenses and taxes – May be exercised by only one co-owner; Pay useful and luxurious expenses – If determined by majority; Duty to obtain consent of all if thing is to be altered even if beneficial; resort to court if nonconsent is manifestly prejudicial; 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; No prescription to run in favor of a co-owner as long as he recognizes co-ownership; Assignees or creditors of the co-owners may take part in the divisionof the thing owned in common and object to its 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 oppositionpresented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity (NCC, Art. 497). 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 Borromeo’s action for ejectment against Resuena is deemed to be instituted for the benefit of all coowners of the property (Resuena v. CA, G.R. No. 128338, March 28, 2005). 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; Co-owners cannot ask for physical division if it would render thing unserviceable; but can terminate co-ownership; Consent of the co-owners is not required to bring an action for ejectment The law does not require that consent of the coowners must be first secured before one of them can bring an action for ejectment. 150 PROPERTY Alteration (2008 Bar) If the case does not prosper: 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). GR: The other co-owners are NOT bound by the judgment. XPN: If they were also served with summons, even as unwilling plaintiffs. Alteration includes the act by virtue of which a coowner changes the thing from the state in which the others believe it should remain. It is not limited to material charges. A suit for ejectment CANNOT be brought by one coowner 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. Acts of administration v. Acts of alteration RIGHT TO PROPERTY OWNED IN COMMON v. FULL OWNERSHIP OVER HIS/HER IDEAL SHARE 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. Two restrictions in the enjoyment of this right: a. The co- ownership shall not be injured; and b. The exercise shall not prevent the other coowners from using the property according to their own rights. 2. ACTS OF ADMINISTRATION ACTS OF ALTERATION Refer 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, change 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. Transitory in character. Permanent Do not affect the substance or form. Affect or relate the substance or essence of the thing. In relation to the right of a co-owner, they require the consent of the majority who represents the controlling interest. Require the consent of all co-owners. Can be exercised by the co-owners through others. Must be exercised by the co-owners themselves. 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. Co-owner’s right to use the property 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 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. NOTE:If one co-owner alone occupies the entire house without opposition from the other co-owners, and there is no lease agreement, the other co-owners cannot demand the payment of rent. Effect of alteration without the express or implied consent of co-owners Determination of the purpose of the property 1. 2. 3. Purpose stipulated in the agreement, express or implied; In default thereof, its puropose ordinarily adapted based on its nature; or In default thereof, the use for which it was formerly intended. The co-owner who makes the alteration shall: 1. 2. 3. ACTS OF ALTERATION 151 Lose what he has spent; Be obliged to demolish the improvements done; and Pay for the loss and damages the community property or other co-owners may have suffered. Civil Law NOTE: Estoppel will operate against the co-owners 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. acquire it through prescription (acquisitive prescription); NOTE: 10 years ordinary prescription, 30 years extra-ordinary partition. Conversion 7. 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. 8. NOTE: The right to ask for partition CANNOT be waived or renounced permanently. Such waiver or renunciation is void. Q: X, Y, Z are siblings who inherited a 1O-storey building from their parents. They agreed in writing to maintain it as a co-owned 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 coownership 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) RIGHT TO PARTITION Rights of co-owners as to the ideal share of each(FARTS) 1. 2. 3. 4. Each has Full ownership of his part and of his share of the fruits and benefits; Right to Alienate, dispose or encumber; Right to Renounce part of his interest to reimburse necessary expenses incurred by another co-owner; Right to enter into Transaction affecting his ideal share; and A: Y and Z ARE PARTLY CORRECT. If the co-owners agree to keep the thing undivided, such agreement shall govern provided the period shall not exceed ten years. In this case, the agreement to keep the thing undivided shall be valid at the most for 10 years (NCC, Art. 494). NOTE: The transaction affects only his ideal share not that of the other co-owners. 5. When co-owners may agree that it be Allotted to one of them reimbursing the others; and If they cannot agree, they may Sell the thing and distribute the proceeds. Q: A, a co-owner of a parcel of land, died intestate leaving his wife, B, and his alleged adopted daughter, C. C asserts her part of ownership over the parcel of land by anchoring her claim on her questionable adoption. The RTC denied C’s contention, but upon appeal, the CA granted it and remanded the case to the lower court to proceed with partition. Is the CA correct? Right to Substitute another person in its enjoyment, except when personal rights are involved. 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). A: NO. C is not proven to be a co-owner of the subject parcel of land. C failed to sufficiently prove the validity of her adoption status; thus, disqualifying her from exercising the right to partition. Right to demand partition GR: Every co-owner has the right to demand partition (NCC, Art. 494) (2000, 2002, 2008 Bar). Partition speaks of two phases:the first relates to the determination of the rights of the parties to the property held in common. The second concerns the physical segregation of each party's just share in the property held in common. Failing to satisfy the first phase of partition, the second phase, thus, cannot be availed of (Oribello v. Court of Appeals, GR No 163504, August 5, 2015). 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 Q: A,B,C owns parcels of land in common. A and C died without partitioning the property. B subsequently died. The heirs of B by his first wife now claims that the parcels of land are owned by them in common with the heirs by his second wife but the latter does not give them any share in the fruits thereof. Hence, they asked for partition but the heirs by his second wife refused without valid reasons. The latter averred that they do not 152 PROPERTY object to a partition provided that the same should be made only with respect to B’s share. They contended that they already own the shares of A and C in the subject land by virtue of the Deed of Absolute Sale that A and B executed in their favor. RTC ordered partition. CA affirmed but ordered that the partition shall only be with respect to B’s property. Is the CA correct? Example of acts of repudiation: filing of an action to: 1. Quiet title; or 2. 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). A: YES. A and C had the right to alienate their pro indiviso shares even without the knowledge or consent of their co-owner B because the alienation covered the disposition of only their respective interests in the common property. The aggregate area of the subject property is 100,352 sq.m., it follows that A,B,C each has a share equivalent to 33,450.66 sq. m. portion thereof. Accordingly, when A and C sold their shares to the heirs by B’s second wife, the latter became co-owners with B. Perforce, upon B's death, the only area that his heirs by his first and second wife, are entitled to and which may be made subject of partition is only 33,450.66 sq.m. portion of the property. According to Article 493 of the Civil Code, each co-owner "shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved," but "the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the coownership (Tabasondra v. Constantino, G.R. No. 196403, December 07, 2016). 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? 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 coheirs, 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 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). Prescription (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). Notice of the proposed partition to creditors and/or assignees The law does not require that a notification be given but: 1. XPN: Co-owner's possession may be deemed adverse to the cestui que trust or the other co-owners provided the following elements must concur: 1. 2. 3. 2. If notice is given – it is their duty to appear to concur /oppose, otherwise creditor’s claims are deemed waived; and If no notice is given – creditors and/or assignees may still question the partition madeon ground of fraud or for being prejudicial to existing rights. 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). 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). NOTE:Prescription begins to run from the time of repudiation. GR: A partition already executed or implemented CANNOT be impugned. Impugning partition already implemented 153 Civil Law 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). XPNs: 1. 2. In case of fraud, regardless of notification and opposition; or In case partition was made over their objection even in absence of fraud (NCC, Article 497). 2. Useful expenses incurred for the preservation of the realty in order that it may produce the natural, industrial, and civil fruits it ordinarily produce 3. Ornamental expenses add value to the thing only for certain persons in view of their particular whims, neither essential for preservation nor useful to everybody in general. Remedies available to co-owners where the coowned property cannot be physically divided without rendering it useless or unserviceable (NCC, Art. 498) 1. 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). Acts of preservation (NCC, Art.489) Rights of third persons that are not affected by partition (MRS-P) 1. 2. Acts of preservation may be made in the property of the co-ownersat the will of one of the co-owners, but he must, if practicable, first notify the others of the necessity of such repairs. Rights of: a. Mortgage; b. Servitude; and c. Any other Real rights existing before partition. Acts requiring the majority consent of the coowners 1. 2. 3. Personal rights pertaining to third persons against the co-ownership (NCC, Art. 499). 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). 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. There is no majority unless the resolution is approved by the co-owners who represent the controlling interest in the object of the co-ownership [NCC, Art. 492(2)]. Rights of third persons in case of partition (NCC, Art. 499) 1. 2. 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. WAIVER A co-owner may opt not to contribute to the expenses for the preservation of the property GR:YES, by renouncing his undivided interest equal to the amount of contribution. RIGHT TO CONTRIBUTION FOR EXPENSES XPN: If the waiver or renunciation is prejudicial to the co-ownership, otherwise he cannot exempt himself from the contribution (NCC, Art. 488). Expenses which the co-owners can be compelled to contribute NOTE: The value of the property at the time of the renunciation will be the basis of the portion to be renounced. Only necessary expenses. Useful expenses and those for pure luxury are not included. Necessary expenses, useful expenses, expenses of pure luxury defined 1. Management; Enjoyment; and Improvement or embellishment. and Failure or refusal of a co-owner to contribute pro rata to his share in expenses NOT tantamount to renunciation Necessary expenses are those made for the preservation of the thing, or those without There must be an express renunciation, otherwise he 154 PROPERTY is required to reimburse the others for the expenses they incurred. Status of the sale by a co-owner Effect of renunciation 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 co-owner 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). 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 obligation (i.e. from sum of money to interest in the coownership). Consequently, the consent of the other co-owner who made the advances is necessary (Tolentino, 2013). TERMINATION/EXTINGUISHMENT Consent of unpaid creditor Extinguishment of Co-ownership(CALSTEP) 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. 1. 2. 3. 4. 5. 6. 7. 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 co-owner. If two or more co-owners want to redeem, they may do so in proportion to the shares they respectively have. Consolidation or merger in one co-owner; Acquisitive prescription in favor of a third person or a co-owner who repudiates; Loss or destruction of thing co-owned; Sale of thing co-owned; Termination of period agreed upon; Expropriation; or Judicial or extra-judicial Partition. EFFECT OF PARTITION 1. Effect of redemption by a co-owner 2. Redemption of the whole property by a co-owner 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). It confers upon the co-owner exclusive title over the property adjudicated to him (NCC, Art. 1091); and 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. RIGHTS AGAINST INDIVIDUAL CO-OWNERS IN CASE OF PARTITION Right of legal redemption cannot be exercised when there is no co-ownership Obligations of co-owners upon partition (WARD) 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 co-ownership 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. 2. 3. 4. A co-owner cannot alienate the shares of his other co-owners Mutual Accounting for benefits received, fruits and other benefits (in relation to Art. 1087 of NCC); Mutual Reimbursements for expenses; Indemnity for Damages caused by reason of negligence/fraud; and Reciprocal Warranty for defects of title and quality of the portion assigned to the coowner (NCC, Articles. 500-501). PARTITION IN CASE CO-OWNERS CANNOT AGREE 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, 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). Partition is effected (1998 Bar): 1. 2. By agreement between the parties; or By judicial proceedings(NCC, Art. 496). Rule in case the co-owners cannot agree in the partition 1. 155 If realty is involved, an action for partition (Rule 69, Rules of Court) against the co- Civil Law 2. owners may be filed; and In case of personalty 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. Object of possession GR: All things and rights susceptible of being appropriated (NCC, Art. 530). XPNs: 1. 2. 3. 4. Rule in case the co-owners cannot agree as to the partition of a thing which is essentially indivisible 1. 2. Firstly, the property may be allotted to one of the co-owners, who shall indemnify the other;or Otherwise,it shall be sold, and the proceeds distributed (NCC, Art. 498). Degrees of possession 1. Possession with no right or title (Grammatical Degree) – Possessor knows that his possession is wrongful. 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. 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. 4. With a title in fee Simple (Dominium Possession) – Arises from ownership; highest degree of possession; perfect possession. Acts of co-ownership 1. 2. 3. 4. 5. Ejectment – any of the co-owners may file such action. Administration – majority of the co-owners shall decide. Improvements – majority of the co-owners shall take part. Alteration – all of the co-owners must agree. Preservation – any of the co-owners can do so. POSSESSION It refers to the holding of a thing or the enjoyment of a right (NCC, Art. 523)(2007 Bar). Requisites of possession (EPAV) 1. 2. 3. 4. CLASSES OF POSSESSION Existence of the thing or right; Possession in fact or holding or control of a thing or right; Animus possidendi or the deliberate intention to possess; and Possession is by Virtue of one’s own right, either as an owner or as a holder. 1. According to the name used as to its existence a. b. Right TO Possession v. Right OF Possession Right TO Possession Right OF Possession Jus possidendi Jus possessionis An incident or attribute of ownership over a thing. An independent right, separate from ownership. e.g. The owner of a house is entitled to possess it. Res communes; Property of public dominion; Easement; and Prohibited by law. 2. According to the concept of possession a. e.g. The lessee of a property, who is not the owner thereof, is entitled to possess it for the period of the lease. b. 156 In one’s own name – possessor claims the thing for himself (NCC, Art. 524). 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. 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); 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. PROPERTY 525). owner. 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. Possession does not confer ownership. There can be possession without ownership. There can be possession in concept of both owner and holder or in either. 3. b. 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). 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 Possession In bad faith – possessor is aware of the invalidating defect in his own title(NCC, Art. 526). 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. Tax declarations are not conclusive evidence of ownership 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 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). According to extent of possession a. b. Actual possession – occupancy in fact of the whole or at least substantially the whole property; and 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 possession? the doctrine of constructive A: The possession of a part is a possession of the whole. To be considered in possession, one 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). ACQUISITION OF POSSESSION Requisites of constructive possession 1. 2. 3. 4. Modes of acquiring possession 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. 1. By Material occupation (detention) of a thing or the exercise of a right (quasi-possession); 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 Possession v.occupation POSSESSION Apply to properties whether with or without an owner. There can be no occupation without ownership. Person declared as the owner of a certain property may still not be entitled to its possession According to the condition of the mind(2008 Bar) a. Occupation confers ownership. OCCUPATION Applies only to property without an 157 Civil Law than ownership, continues to possess it under a new title, now of ownership. 2. Requisites: a. Intent to possess for another the “principal”; b. Capacity of the “principal” to possess; and c. Ratification by “principal.” By Subjection of the thing/right to our will which does not require actual physical detention or seizure; and 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). This includes: a. Traditio longa manu – delivery by consent or mere pointing. b. Traditio simbolica – delivery of a mere symbol (e.g.key) placing the thing under the control of the transferee. 3. By constructive possession or proper Acts and legal Formalities established by law such as succession, donation, execution of public instruments (NCC, Art. 531). 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). Essential elements of acquiring possession 1. 2. Corpus – Refers to the existence of the thing and its holding; and Animus – Refers to the intent to possess the thing. Effects Actual possession distinguished constructive possession from If the father or decedent was in bad faith, it does notnecessarily mean that the son was also in bad faith. The sonis 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 becounted only from the date of the decedent’s death. 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). NOTE: If the father had been in GOOD FAITH,the article is not applicable, for the son would not ‘‘suffer.” Insuch a case, the possession of the father in GOOD FAITH isadded to the possession of the son in GOOD FAITH, and wecannot say that the effects of possession in good faith shallcommence only from the decedent’s death (Paras, 2008). 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. Acquisition of minors or incapacitated persons Requisites: a. Capacity to possess; b. Intent to possess; and c. Object must be capable of being possessed. 2. 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). Through an authorized person – Acquisition of possession through a legal representative as provided by law or by appointing an agent. 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). Requisites: a. Intent to possess for principal; b. Authority or capacity to possess (for another) of the representative or agent; and c. Principal has intent and capacity to possess 3. Nature of minors or incapacitated persons’ possession 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.” Possession is allowed only in those matters where they have capacity to act (as in the case of physical seizure of resnullius or donation of personal property simultaneously delivered to them) and NOT possession where juridical acts are imperative 158 PROPERTY 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). counted from the date of the demand to vacate (Pro-Guard v. Tormil,G.R. No. 176341, July 07, 2014)(Del Castillo, J.). Q:As early as 1916, Mari’s father declared his ownership over a parcel of land, with an area of 897 square meters, for tax purposes. He took possession of the same by delineating the limits with a bamboo fence, planting various fruit bearing trees and bamboos and constructing a house thereon. In 1989, Arsenio Olegario caused the amendment of his tax declaration they previously filed in 1947 for the 50-square meter property to reflect an increased area of 341 square meters. Mari filed a complaint against Olegario contending that they were deprived of property, but the latter alleged that prescription has set in. Did Olegario acquire ownership through prescription? Acts which do not give rise to possession (FATV) 1. 2. 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). (2001, 2009 Bar) A:No. The Olegarios did not acquire ownership over the disputed lots by acquisitive prescription. Possession, to constitute the foundation of acquisitive prescription, must be possession under a claim of title or must be adverse. Acts of a possessory character performed by one who holds the property by mere tolerance of the owner are clearly not in the concept of an owner and such possessory acts, no matter how long continued, do not start the running of the period of prescription (Olegario v. Mari, G.R. No. 147951, December 14, 2009)(Del Castillo, J.) Through Force or intimidation as long as there is a possessor who objects thereto (NCC, Art. 536). NOTE: Impliedly, if at first there was objection but later on such objection ceases, the possession begun by force or intimidation may be acquired (Paras, 2008). Through acts executed clandestinely and without the knowledge of the possessor NOTE:Clandestine possession by itself is hidden or disguised possession 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). 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 althoughthere was permission at first, the permission was subsequently withdrawn, and abandonment has resulted. Butthis must be proved by clear and convincing evidence;(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). 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. His status is analogous to that of a lessee or tenant whose term of lease has expired but whose occupancy continued by tolerance of the owner. In such a case, the date of unlawful deprivation or withholding of possession is to be 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. XPN: a. 159 Co-possessors(since here, there is no conflict of interest, both of them acting as Civil Law b. co-owners, as in the case of property owned or possessed in common). there exists in his title or mode of acquisition any flaw which invalidates it (NCC, Art. 526) (2008 Bar). Possession in different concepts or different degrees(e.g.Both owner and tenant are possessors as a fact at the same time; the fi rst, 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). Requisites in order to be considered a possessor in good faith 1. 2. 3. Criteria in case there is a dispute of possession of two or more persons 1. 2. 3. 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. 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. 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. 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. If all of the above are equal, the fact of possession shall be judicially determined, and in the meantime, the thing shall be placed in judicial deposit (NCC, Art. 538). 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. 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). 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. Q: Atilano is the owner of eight parcels of land. Ernesto claims that before Atilano’s death, the latter sold to him these lands. Ernesto then filed a case of ejectment against Atilano’s heirs who refused to vacate the premises on the ground that the deed of sale was fictitious and not registered. May Ernesto eject Atilano’s heirs? a.) Who has a better right to the land? b.) Is Emma entitled to the improvements she introduced in the lot? 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). A: NO.In resolving the issue of possession in an ejectment case, the registered owner of the property is preferred over the transferee under an unregistered deed of sale. While Ernesto has in his favor deeds of sale over the eight parcels of land, these deeds were not registered; thus the title remained in the name of the owner and seller Atilano. When he died, the title passed to his heirs who should have been favored on the question of possession, being heirs who succeeded the registered owner of the properties in dispute(Endaya v. Villaos, G.R. No. 202426, January 27, 2016) (Del Castillo J.). b.) NO. The possessor in bad faith has neither 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). EFFECTS OF POSSESSION POSSESSOR IN GOOD FAITH Mistake upon a doubtful or difficult question of law A possessor is in good faith when he is not aware that 160 PROPERTY 3. Mistake upon a doubtful or difficult question of law (provided that such ignorance is not gross and therefore inexcusable) may be the basis of good faith (NCC, Art. 526) (2008 Bar). Ignorance of the law may be based on an error of fact. B.Thus, 1. 2. RIGHTS OF A POSSESSOR Right to be respected in possession 3. 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. 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). Rights of a possessor 1. 2. 3. 4. 4. 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). 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, till the case is fi nally 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 litigation of such possession (Paras, 2008). Requisites for the issuance of the writ: 1. “Every possessor’’ is protected under Art. 539, whether in the concept of owner or in the concept of holder. NOTE: An adverse possession of property by anotheris not an encumbrance in law, and does not contradictthe 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). 2. Legal Means for Restoration to Possession 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 notifi ed by the Court of the perfection of the appeal), only if: a. A.Reasons for requiring legal means; 2. The owner should go to court, and not eject the unlawful possessor by force. A tenant illegally forced out by the ownerlandlord may institute an action for forcible entry even if he had not been paying rent regularly. 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 reivindicatoria 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). Writ of preliminary mandatory injunction. Writ of preliminary mandatory injunction Possession contemplated by law is legal possession– thief cannot exercise possession. Such possession is exercised by every possessor–in good faith or bad faith. 1. To prevent a person from taking the law into his own hand. b. To prevent spoliation or a disregard of public order; To prevent deprivation of property without due process of law; and The lessee’s appeal is frivolous or dilatory; or The lessor’s appeal is prima facie meritorious (NCC, Art. 1674). Q: During his lifetime, Velasco acquired Lot A from spouses Sacluti and Obial evidenced by a 161 Civil Law 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 Padilla’s 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. Lessees or those merely permitted to occupy; b. 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); c. Antichretic creditors; d. Agents; e. Attorneys (regarding their client’s properties) f. Depositaries; and g. Co-owners (unless the co-ownership is clearly repudiated by unequivocal acts communicated to the other co-owners). a) Who has the better right of possession? b) Has the action already prescribed? A: a) The HEIRS OF VELASCO has 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. 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): 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). a. b. 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). Acquisitive prescription Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion (NCC, Art. 540). 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). Possession in the concept of an owner a. b. One must be in possession (actual or constructive). The possession must be in the concept of owner (not mere holder). 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). Presumptions in favor of a possessor (GCENCE) 1. 2. 3. 4. 5. 6. Possession in the concept of a holder 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 162 PROPERTY a. True and Valid Title c. Here, there was a mode of transferring ownership and the grantor was the owner. It is defined as a title which by itself is suffi cient to transfer ownership without the necessity of letting the prescriptive period elapse. 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. 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. NOTE: By “real property’’ and “movables’’, the law means only real or personal THINGS, not rights (Paras, 2008). b. Exclusive possession by a previous co-owner Colorable Title That title where, although there was a mode of transferring ownership, still something is wrong, because the grantor is NOT the 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). 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. Example of interruption in possession of the WHOLE thing (NCC, Art. 543) NOTE: It must be remembered that: 1. 2. 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. Ordinary prescription needs good faith and just title,hence in the example given, if B is in good faith, hemay 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 (titulocolorado), B may get ownership by prescription only after eight years. Example of Interruption in possession of PART of the thing (NCC, Art. 543) 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 toone-fifth. In case of real properties, the prescriptive periods are 10 years and 30 years respectively for ordinary and extraordinary prescription (Paras, 2008). c. NOTE:If A andB had co-possessed the land in equal shares, the co-possession of the remaining four-fifths will alsobe in equal shares. If A and B had copossessed in the proportion of 3 to 1, their shares in the remaining four-fi fths would also be in the proportion of 3 to 1. In other words, there is a PROPORTIONATE losing in the area possessed (Paras, 2008). 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. Presumption of Possession of Movables Found in an Immovable Rules to apply for civil interruption The “Rules of Court” applies (NCC, Art. 543): a. Civil interruption is produced by judicial summons to the possessor(NCC, Art. 1123); and b. Judicial summons shall be deemed not to have been issued, and shall not give rise to interruption: 1. If it should be void for lack of legal solemnities; 2. If the plaintiff should desist from the complaint orshould allow the proceedings to lapse; or 3. If the possessor should be absolved The possession of real property presumes that of the movables therein, as long as it is not shown or proved that they should be excluded(NCC, Art. 542)(2008 Bar). Applicability of the Article: a. Whether the possessor be in good faith or bad faith; b. Whether the possession be in one’s own name or in another’s; and 163 Civil Law from the complaint.In all these cases, the period of the interruption shall be counted FOR the prescription(NCC, Art. 1124). understood of course that he is entitled to the fruitsreceived BEFORE the conversion into BAD FAITH, forthen, he would still be in good faith(Paras, 2008). RIGHTS OF POSSESSOR TO FRUITS When natural considered received Possessor in good faith is entitled to the fruits received before the possession is legally interrupted. Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion(NCC, Art. 544). Right of a possessor in good faith to fruits already received First Paragraph: “A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.’’ b. c. d. industrial fruits are Second Paragraph:“Natural and industrial fruits are considered received from the time they are gathered or severed.” a. If at the time of legal interruption, the crops are still growing, the rule on pending crops, not that on gatheredcrops, should apply(NCC, Art. 545). b. If at the time of legal interruption, the crops have already been gathered, but are sold only after such interruption, the sale is immaterial, for the law requires only a gathering or severance, so Art. 544 applies. Natural and industrial fruits are considered received from the time they are gathered or severed. a. and When civil fruits are deemed to accrue 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 having contributed to the INDUSTRIAL WEALTH, unlike the owner, who by his presumed negligence, had virtually discarded his property. Fruits refer to natural, industrial, and civil fruits, not to other things. (If no actual fruits are produced, reasonablerents—civil fruits—must be given). Legal interruption happens when a complaint is filedagainst him and he receives the proper judicial summons (Art. 1123). All fruits accrued and received since saiddate must be turned over to the winner, that is, eitherthe owner or the lawful possessor adjudged as such bythe court. Before legalinterruption, the fruits received are his own. After the receipt of the judicial summons, the right to get the fruits not yet gathered ceases. 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 Third Paragraph:“Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion.’’ a. If civil fruits (like rents) are accrued daily, Art. 545 does not apply; and b. 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. RIGHT RE 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. 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). 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? 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 164 PROPERTY (NCC, Art 545) (2000, 2008 Bar). 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). 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 (For his crop needed a total of 6 months from planting to harvesting). How should said crops be divided between A and B? 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). 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). RIGHT TO BE REIMBURSED Sharing of expenses and charges a. b. NECESSARY AND USEFUL EXPENSE 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 thanthe owner, still he will be entitled to a reimbursement of LESS since his possession is shorter. The better rulewould be for the expenses to be borne in proportion to what each receives from the harvest) (NCC, Art. 443). Otherwise, unjust enrichment would result. 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 optionof 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). 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. 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 incurredon 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). Sample of necessary expenses a. b. Options of the owner in case there are pending fruits at the time good faith ceases 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. To pay the possessor in good faith indemnity for his cultivation expenses and charges and his share in the net harvest; or To allow A (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). Urgent repairs — reparacion urgentisima — are also necessary expenses. The following are NOT Necessary Expenses 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)]. a. 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 necessary expenses for production, gathering, and preservation of fruits (Art. 443). In the case of pending fruits, the principle of accession b. 165 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; A house constructed on land possessed by a stranger (not the owner), because the house cannot be said to preserve the Civil Law c. d. land(the house is USEFUL); 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 Unnecessary improvements on a parcel of land purchased at a sheriff’s auction sale, made just to prevent redemption from taking place(Paras, 2008). c. d. e. Rights of a possessor (in the concept of owner) as to the USEFUL expenses A. Rights of a possessor (in the concept of owner) as to the necessary expenses a. If in good faith — entitled to: 1. Refund; or 2. Retain premises until paid. b. If in bad faith — entitled ONLY to a refund (no right of RETENTION, as penalty). aggregate of noble impulses and lofty ideals” ; Those incurred for the making of artificial fishponds; Those incurred for the construction of additional rooms ina house, for use as kitchen, bathroom, stable, etc; Those incurred for clearing up land formerly thickly covered with trees and shrubbery (Paras, 2008). 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). If in GOOD faith. 1. Right to REIMBURSEMENT (of either the amount spent or the increase in value — “plus value” — atOWNER’S OPTION) (NCC, Art. 546). 2. Right of RETENTION (until paid) (NCC, Art. 546). 3. 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). NOTE: The possessor in good faith is entitled to both the fruits and expenses (necessary or useful), hence they do not compensate each other. B. Right of removal of necessary expenses 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: Improvements are so incorporated to the principal thing that their separation must necessarily reduce the value of the thing not curable by ordinary repairs. Useful expenses Those which increase the value or productivity of the property. Examples of useful expenses If in BAD faith. The possessor in BAD faith is NOT ENTITLED to any right regarding the useful expenses[BUT IN Angelesv. 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)]. Effect of voluntary surrender of property a. b. 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 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 166 PROPERTY the useful improvements he introduced provided that the useful improvements can be removed without damage to the principal thing (NCC, Art. 547). POSSESSOR IN BAD FAITH 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 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). “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). 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. Q: Who is a possessor in bad faith? EXPENSES FOR PURE LUXURY 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. 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). NOTE: No tacking of bad faith, unless the successors in interest had learned of the defect in the title and still purchased it. Luxurious expensesor expenses for pure luxury or mere pleasure (ornamental expenses)are expenses incurred for improvements introduced for pure luxury or mere pleasure. Bad faith is not transmissible from a person to another, even an heir is not affected by bad faith of the deceased predecessor. Right of the Possessor (in the Concept of Owner) as to FRUITS Examples of ornamental expenses a. b. c. Hand paintings on the wall of a house; A garage made of platinum; and Water fountains in gardens. a. 1. Gathered or severed or harvested fruits are his own (NCC, Art. 544); Rights of a Possessor (in the Concept of Owner) as to Luxurious or Ornamental Expenses a. b. 2. Pending or ungathered fruits — (prorating between possessor and owner of expenses, net harvest, and charges)(NCC, Art. 545). If in GOOD faith: In general, no right of refund or retention but can remove if no substantial injury is caused. However, owner has OPTION to allow: 1. 2. b. If in BAD faith: 1. 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 beingunjustly enriched (NCC, Arts. 549 and 443). Possessor to remove; or Or retain for himself (the owner) the ornament by REFUNDING the AMOUNT SPENT (NCC, Art.548). In BAD faith: In general, no right of refund or retention but can remove if no substantial injury is caused. However, owner has OPTION to allow: 1. 2. If in GOOD faith: 2. 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). Possessor to remove; or Retain for himself (the owner) the ornament by REFUNDING the VALUE it has at the TIME owner ENTERS INTO POSSESSION (NCC, Art. 549). NOTE: The costs of litigation over the property shall be borne by every possessor (NCC, Art. 550). “Every possessor’’ refers to one in good faith or bad faith, in 167 Civil Law 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 orthe person adjudged by the court to be lawfully entitledto possess (Paras, 2008). possession is legally interrupted (NCC, Art. 544). Improvements caused by nature or time Neither the possessor in good faith nor in bad faith isentitled to: a. Improvements caused by NATURE (like alluvium, etc.) b. Improvements caused by TIME (like the improved flavor of wine). 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. 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. Presumption of possession during intervening period As to liability in case of deterioration or loss No liability Always liable. 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). XPN: If due to his fraudulent act or negligence, or after service of summons. Requisites to constitute possession whether in good faith or in bad faith 1. 2. 3. those which the legitimate possessor 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). Possessor in good faith has the right of retention until he has been fully reimbursed Possessor has a title/mode of acquisition; There is a flaw or defect in said title/mode; and The possessor is aware or unaware of the flaw or defect. 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 Summary of rights of a possessor GOOD FAITH BAD FAITH As to fruits received Entitled to the fruits Shall reimburse the received before the fruits received and 168 PROPERTY and useful improvements made by him on the thing possessed (Ortiz v. Kayanan, G.R. No. L-32974, July 30, 1979). 3. 4. Principle of continuous possession 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). Additional Doctrines:  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 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 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). LOSS/TERMINATION OF POSSESSION Possession is lost through (PRADA) 1. 2. 3. 4. 5. Possession of another; Abandonment; Recovery of the thing by the legitimate owner; 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 Assignment – complete transmission of the thing/right to another by any lawful manner (NCC, Art. 555). 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). If a person loses possession for more than 10 years, he loses possession de jure, or the real 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. Assignment 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 possessionde facto and de jure are lost, and no action will allow recovery (Paras, 2008). Requisites 1. 2. 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). 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); 169 Civil Law c. Q:Does Art. 555 refer to both real and personal property? Possessor is in the concept of an owner. Possession of movable property acquired in good faith 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. GR:Doctrine of irrevindicability – The possession of movable property acquired in good faith is equivalent to title. NOTE: This is merely presumptive as it can be defeated by the true owner (NCC, Art. 559). LOSS OR UNLAWFUL DEPRAVATION OF A MOVABLE XPNs: A lost thing is one previously under the lawful possession and control of a person but is now without any possessor. 1. 2. When possession of movables is lost or not lost When the owner has lost; or Has been unlawfully deprived of a movable. In which case the possessor cannot retain the thing as against the owner, who may recover it without paying any indemnity 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 preciseor 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). 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)]. Duty of a finder of a lost movable (NCC, Art. 719) NOTE: An abandoned property is not considered as a lost thing (Pineda, 1999). 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. 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). Authorized public auction of lost movable NOTE: Art. 557 refers to possession of real property, and other real rights over real property (like easement or usufruct). 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. Acts of mere holder Awarding of the lost movable to the finder 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, unless he gave said holder express authority to do such acts, or ratifi es them subsequently (NCC, Art. 558). 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 incurred for the publication (NCC, Art. 719). FINDER OF LOST MOVABLE Duty of the owner who appeared Rule regarding the right of a possessor who acquires a movable claimed by another 1. If the possessor is in: 1. Bad faith – He has no right. 2. Good faith –He has presumed ownership. It is equivalent to title. 2. 3. Requisites: a. Possession in good faith; b. Owner has voluntarily parted with the possession of the thing; and 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); 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 Reimburse the expenses for publication if there was a public auction sale (Pineda, 1999). Summary of recovery or non-recovery principle 170 PROPERTY A. Owner MAY RECOVER WITHOUT REIMBURSEMENT: 1. From possessor in bad faith; or 2. 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). 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). B. Owner MAY RECOVER but should REIMBURSE: 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 suffi cient warning for the owner to come forward and claim the property. C. Estafa is considered as unlawful deprivation Q: Using a falsified manager's check, Justine, as the buyer, wasable to take delivery of a second hand car which she had just bought from United Car Sales Inc. The sale was registered with the Land Transportation Office. A week later, the seller learned that the check had been dishonored, but by that time, Justine was nowhere to be seen. It turned out that Justine had sold the car to Jerico, the present possessor who knew nothing about the falsified check. In a suit by United Car Sales, Inc. against Jerico for recovery of the car, plaintiff alleges it had been unlawfully deprived of its property through fraud and should, consequently, be allowed to recover it without having to reimburse the defendant for the price the latter had paid. Should the suit prosper? (1998 Bar) Owner CANNOT RECOVER, even if he offers to REIMBURSE (whether or not the owner had lost or been unlawfully deprived): 1. 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); 2. If owner “is by his conduct precluded from denying the seller’s authority to sell.” (ESTOPPEL)(NCC, Art. 1505); and 3. 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). 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. Q: Suppose recently stolen property is found in possession of A,is A presumed to be the thief? 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). Possession of wild animals Q: In order to contest the title of the possessor in good faith, what should the true owner do? 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). 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 A:The true owner should present suffi cient 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). 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). Rule when possessor has already become the owner 171 Civil Law 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). 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; Characteristics of usufruct (ENA) 1. Essential – Those without which it cannot be termed as usufruct: 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). a. 2. 3. Real right (whether registered in the registry of property or not); b. Constituted on property i. Real; ii. Personal; iii. Consumable; iv. Non-consumable; v. Tangible; vi. Intangible. c. Temporary duration; d. Purpose: to enjoy the benefits and derive all advantages from the object as a consequence of normal use or exploitation. Natural – That which ordinarily is present, but a contrary stipulation can eliminate it because it is not essential; a. The obligation of conserving or preserving the form and substance (value) of the thing.; and b. It is transmissible. Accidental – Those which may be present or absent depending upon the stipulation of parties a. Whether it be pure or a conditional usufruct; b. The number of years it will exist; c. Whether it is in favor of one person or several, etc. 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 (or prescriptive) – 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). 2. As to the number of beneficiary 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 Obligation to preserve the form and substance of the thing in usufruct 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. 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. 3. Asto the extent of object: a. Total – constituted on the whole thing b. Partial – constituted only on a part 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. 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. 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 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). 172 PROPERTY 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. land of another a building, when the land is considerably worth more in value than the building. Extent of Enjoyment NOTE: 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 Cause 2. The agreement of the parties or the title giving the usufruct. In case of deficiency, the provisions on Civil Code (NCC, Art. 565). Only those particular or specific use. A passive owner An active owner who allows the who makes the usufructuary to lessee enjoy. enjoy the object of usufruct. Repairs and Taxes Usufructuary pays for ordinary repairs and pays for annual charges and taxes on the fruits. Lessee is not obliged to pay for repairs/taxes unless agreed upon. Limitation on the use of property Usufructuary may lease the property to another but cannot alienate the thing itself. The lessee cannot constitute a usufruct on the property leased. Rules governing usufruct 1. All fruits, uses and benefits. Usufruct v. Lease BASIS USUFRUCT Always a real right. Nature of the right Creator of Right Owner or his agent. By law, contract, will of testator or by prescription. Origin RIGHTS OF USUFRUCTUARY LEASE Rights of the usufructuary as to the thing and its fruits (RIRICRES) 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. 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); NOTE: The usufructuary is entitled to the natural, industrial, and civil fruits that will accrue during the existence of theusufruct. May not be the owner, as in the case of a sublessor or a usufructuary. 2. 3. 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 4. 5. 6. 173 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. 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; Civil Law 7. To personally Enjoy the thing or lease it to another (NCC, Articles. 572-577) generally for the same or shorter period as the usufruct; termination reimburse the usufructuary of the of the ordinary cultivation expenses (NCC, Art. usufruct 545) out of the fruits received (NCC, Art. 443). The right of innocent third parties should not be prejudiced. NOTE: As to the thing itself, the usufructuary may lease the thing to another, even without the consent of the owner. 8. To Set-off the improvements he may have made on the property against any damage to the same (NCC, Art. 580). 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. Rule as to certain rights (rent, pension, benefits, rtc.) Aside from the right to the fruits, the usufructuary has the right to the enjoyment (use, not ownership) of: 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 benefi ts 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). a. b. c. 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). 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. When the expenses of cultivation and production exceeds the proceeds of the growing fruits Q: The law says that “as to hidden treasure which may be found on the wall or tenement, he (the usufructuary) shall be considered a stranger.” What does this mean? If the expenses exceed the proceeds of the growing fruits, the owner has no obligation to reimburse the difference (NCC, Art. 567). Limitations to Usufructuary Rights A:This means that the usufructuary, not being the landowner, is not entitled as owner, but is entitled as fi nder (to one-half of the treasure, as a rule, unless there is a contrary agreement) if he really is the fi nder. If somebody else is the finder, the usufructuary gets nothing (Paras, 2008). 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 Rights of a usufructuary on pending natural and industrial fruits(NCC, Art. 567) Fruits Growing: XPN: lease of rural lands which subsist during current agricultural year. Rights of the usufructuary a. Belong to the usufructuary; At the beginning of the usufruct At the Accessions (whether artificial or natural); Servitudes and easements; and All benefits inherent in the property (like the right to hunt and fish therein, the right to construct rain water receptacles, etc.). b. Not bound to refund to the owner the expenses of cultivation and production but without prejudice to the right of third persons. c. 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). Q: Can a usufruct be constituted on an encumbered or mortgaged land? 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 1. The usufructuary may construct and make improvements on the property as he may deem proper; XPN: If there’s an express prohibition Belong to the owner but he is bound to 174 PROPERTY (in Additionto the Usufruct) 2. 3. 4. Limitation: provided he does not 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). 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.). 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. Requisites before set-off can be made: NOTE:If the lessee should damage the 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). 1. b. Offsetting of damages and introduced by the usufructuary 2. 3. improvements Damage must have been caused by the usufructuary; Improvements must have augmented the value of the property; and Notice of intention to set-off. 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. A: Because there is no indemnity for improvements. Rights of the usufructuary as to the usufruct itself 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. 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? Lease, alienation and encumbrance of the property subject to usufruct a. the 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 MortgageLaw, Art. 106). Q: Why do improvements accrue to the owner? 2. to 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). If the damages exceed the value of the improvements, the usufructuary is liable for the difference as indemnity. 1. Rights with Reference USUFRUCTUARY RIGHTITSELF A: A usufructuary may lease the object held in usufruct. The owner of the property must respect the lease entered into by the usufructuary so long as Rights with Reference to the THING ITSELF 175 Civil Law 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 7-hectare 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). to replace them with new plants (NCC, Art. 575). NOTE: This is a SPECIAL usufruct. Rights 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. Transfer of the usufruct 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-terminous with the term of usufruct. BUT he must REPLACE them with new plants (for indeed, he was not the naked owner). Other SPECIAL usufructs Exercise of acts of ownership by a usufructuary a. Of periodical pension, income, dividends(NCC, Art. 570); b. Of woodland(NCC, Art. 577); c. Of right of action to recover real property, real right, or movable property(NCC, Art. 578); d. Of part of property owned in common(Art. 582); e. Of the entire patrimony of a person(NCC, Art. 598); f. On a mortgaged immovable(NCC, Art. 600); and g. On a fl ock or herd of livestock(NCC, Art. 591). GR: A usufructuary cannot exercise acts of ownership such as alienation or conveyance. XPNs: When what is to be alienated or conveyed is a: 1. 2. 3. Consumable; Property intended for sale; or Property which has been appraised when delivered (NCC, Art. 574). NOTE: If it has not yet been appraised or if it is not a consumable, return the same quality (mutuum). Abnormal usufruct on consumable things Special usufruct over a WOODLAND This is another instance of abnormal usufruct, and is sometimes referred to as a “quasi-usufruct” 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 nonconsumable 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). This is not a common or frequent usufruct because: a. b. A license is generally essential if one desires to gather forest products(Revised AdministrativeCode, Sec. 47). Obligations of the usufructuaryover a woodland RULES for this ‘QUASI-USUFRUCT’ a. b. Natural resources (including forest or timber lands) belong to the State (Regalian Doctrine under Art. XII, Sec. 3 ofthe 1987 Philippine Constitution); In the enjoyment of the usufruct, the usufructuary: 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: 1. Pay the APPRAISED value (if appraised when fi rst delivered); or 2. If there was no appraisal, return same kind, quality, and quantity OR pay the price current atthe termination of the usufruct (therefore not at theoriginal price or value). Usufruct on fruit-bearing trees and shrubs 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 176 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. b. In the cutting or felling of trees, he must — 1 Follow the owner’s habit or practices; 2. 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 PROPERTY 3. c. 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. If there be no customs, the only time the usufructuary can CUT DOWN trees will be for REPAIR orIMPROVEMENT, but here the owner must fi rst be informed (the owner, thus, does not need to consent). 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). Rights of usufructuary at the expiration of the usufruct 1. Cannot alienatethe trees (for the trees are not considered fruits) unless he is permitted, expressly or impliedly bythe 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 to recover the property held in usufruct 2. To bring the action, the usufructuary can DEMAND from the owner: a. Authority to bring the action (usually a special power of attorney); and b. Proofs needed for a recovery. OBLIGATIONS OF USUFRUCTUARY The usufructuary has obligations: 1. 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). a. 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. b. 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. 2. 3. Before the usufruct (like the making of inventory); During the usufruct (like taking due care of property); and Afterthe usufruct (like the duty to return and indemnify in the proper cases). 1.Before the usufruct (NCC, Art. 583) a. Make an inventory; and b. Give 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 physicalpossession and enjoyment of the property can be had, thusif 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). 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 coownership 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). 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). 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. b. 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 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). To retain the thing until reimbursement is made (NCC, Art. 612). Requirements for the inventory Administration (management); and Collection of fruits or interest (NCC, Art. 1. 177 The naked owner or representative must be previously notified; Civil Law 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 nonnotification, the inventory can go on but the naked owner may later on point out discrepancies and omissions in the inventory. 2. 3. Exemption of usufructuary from the obligation to give security Usufructuary may be exempt from the obligation to give security when: 1. Conditions of immovables must be described; and Movables must be appraised. 2. 3. 4. 5. NOTE: As a rule, no form is required, except when there are real properties. Expenses are to be borne by the usufructuary (Paras, 2008). When inventory is not required a. b. c. d. Waived; No one will be injured(NCC, Art. 585); Usufruct over rights; or Agreement of both parties. Caucion juratoria – “by virtue of a promise under oath” Effects of failure to post a bond or security 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. 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. The usufructuary takes an oath to take care of the things and restore them to its previous state before the usufruct is constituted: and b. The property subject to such cannot be alienated or encumbered or leased. 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. 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). Effects of failure to give security 1. Requisites before the caucion juratoria is allowed On the rights of the naked owner: a. b. c. 2. a. b. May deliver the property to the usufructuary; May choose retention of the property as administrator; and May demand receivership or administration of the real property, sale of movable, conversion or deposit of credit instruments or investment of cash or profits. c. d. 2.During the usufruct a. b. On the rights of the usufructuary: a. b. c. Cannot possess the property until he gives security; Cannot administer property; Cannot collect credits that have matured nor invest them; and c. d. e. XPN: if the court or naked owner consents; d. Proper court petition; Necessity for delivery of furniture, implements or house included in the usufruct; Approval of the court; and Sworn promise. f. May alienate his right to usufruct. 178 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; PROPERTY g. h. i. j. k. 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. the owner when the need for such repairs is urgent. Right of retention of the usufructuary 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. Charges or taxes which the usufructuary must pay 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). 1. 2. The annual charges (in the fruits); The annual taxes on the fruits; and Taxes imposed directly on the capital These shall be at the expense of the owner provided they are not annual (Paras, 2008). 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). Rules: a. Extraordinary repairs (NCC, Art. 593) b. It includes: 1. Those required by the wear and tear due to the natural use of the thing but not indispensable for its preservation. 3. 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) 2. After the usufruct/ at the termination a. b. c. Return the thing in usufruct to the naked owner unless there is a right of retention; Pay legal interest for the time that the usufruct lasts; and 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. Those caused by exceptional circumstances and are indispensable for its preservation. 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). 3. If paid by the naked owner, he can demand legal interest on the sum paid; or If advanced by the usufructuary, he shall recover the amount thereof at the termination of the usufruct [NCC, Art. 597(2)]. XPN: the usufructuary is not liable for deterioration due to: 1. Wear and tear; or 2. Fortuitous event. RIGHTS OF THE OWNER Rights of a naked owner and the limitations imposed upon him Those caused by exceptional circumstances but are not needed for its preservation. RIGHTS 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). NOTE: Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify 179 LIMITATIONS Alienation Can alienate the thing in usufruct. Alteration Cannot alter the form and substance. Enjoyment Cannot do anything prejudicial to the Civil Law usufructuary. Construction and Improvement Effect of the death of the naked owner on the usufruct 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. The usufruct does not terminate the usufruct. The naked owner’s rights are transmitted to his heirs. OBLIGATIONS OF THE OWNER 1. Alienation by naked owner 2. Since the jus disponendi and the title (dominium directum) reside with the naked owner, he retains the right to ALIENATE the property BUT — a. b. 3. 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 ordinarily pertains to the usufructuary). 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. Improper use of the thing by the usufructuary AcquisitivePrescription; NOTE: The use by a third person and not the non-use by the usufructuary. Mere non-use of the usufructuary does not terminate the usufruct The owner may demand the delivery of and administration of the thing with responsibility to deliver net fruits to usufructuary. XPN: unless it is also a renunciation. 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. 2. Total Loss of the thing; NOTE: If the loss is only partial, the usufruct continues with the remaining part. 3. 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) 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. 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. 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). 4. Termination of right of the person constituting the usufruct; 5. Expiration of the period or fulfilment of the resolutory condition; NOTE: If the usufructuary is a juridical person, the term should not exceed 50 years. 180 PROPERTY 6. Renunciation by the usufructuary; and 2. 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. 7. 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). Merger of the usufruct and ownership in the same person who becomes the absolute owner thereof (NCC, Art. 1275). Payment of insurance on a building held in usufruct (NCC, Art. 608) Other Causes of termination of usufruct a. b. c. d. e. f. 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). Annulment of the act or title constituting the usufruct; Rescission; Expropriation; Mutual withdrawal; Legal causes for terminating legal usufruct; or Abandonment or dissolution of juridical entity (e.g.corporation) granted with usufruct before the lapse of the period. 1.If the naked owner and usufructuary share in the premiums and the property is destroyed: 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 new building or rebuild, the naked owner gets the insurance indemnity but he should pay the interest thereon to the usufructuary (Paras, 2008). Usufruct cannot be constituted in favor of a town, corporation or association for more than 50 years 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). 2.If the naked owner alone pays the insurance indemnity and the usufructuary refused to share: a. Usufruct on a building and/or land concerned b. Rules: 1. If the usufruct is both on the building and the land but the building is destroyed in any manner whatsoever before the expiration of the period of usufruct: a. 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); b. 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). 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). 3. If the naked owner alone paid for the insurance but there is failure or omission on the part of the usufructuary to share: The effect is the same as if there was a sharing, but the usufructuary must 181 Civil Law reimburse the owner of the usufructuary’s share in the insurance premium. usufructuaries, and both must have been alive at the time of testator’s death. 4. If the usufructuary alone pays the insurance premium: a. b. EASEMENT OR SERVITUDE 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. The usufruct continues on the land for the remaining period (unless usufruct has been constituted on the building alone). It is an encumbrance imposed upon an immovable for the benefit of: 1. 2. Rule in case of expropriation of the property (NCC, Art. 609) In case the property held in usufruct is expropriated for public use: 1. 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. 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. NOTE: If the owner chooses the latter alternative, he shall give security for the payment of interest (NCC, Art. 609). 2. 3. 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) If both the naked owner and the usufructuary were separately given indemnity, each owns the indemnity given to him, the usufruct being totally extinguished. If the usufructuary alone was given the indemnity, he must give it to the naked owner and compel the latter to return either the interest or to replace the property. He may deduct the interest himself if the naked owner fails to object (Paras, 2008). Easement v. Servitude EASEMENT Effect of bad use of the property held in usufruct GR: Usufruct is not extinguished by bad use of the thing in usufruct. 3. Used in civil law countries. Real Real or personal The right enjoyed. Burden imposed upon another. 1. 2. Rules in case of multiple usufructs 2. SERVITUDE An English law term. Characteristics of easement (NICE LIAR) 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). 1. 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 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). 3. 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 constitution-donation of the usufruct (NCC, Art. 756); and If constituted successively by virtue of a last will, there should only be two successive 4. 5. 6. 182 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 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); PROPERTY 7. 8. It is enjoyed over Another immovable never on one’s own property; and A Real right but will affect third persons only when registered. 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. Essential qualities of easements 1. 2. 3. 4. 5. 6. Q: Is there such thing as judicial easement? 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. 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). Easement v.Usufruct PARTIES TO AN EASEMENT BASIS EASEMENT USUFRUCT 1. Constituted on On real property Real or personal 2. Use granted As to right of possession As to effect of death Nature of right Limited to a Includes all particular or uses and specific use of fruits. the servient estate. Dominant Estate v. Servient Estate No possessory Involves a right over an right of immovable possession in an immovable or movable. Not extinguished by death of dominant owner. Extinguished by death of usufructuary. SERVIENT ESTATE Immovable in favor of which, the easement is established. That property or estate which is subject to the dominant estate. Which the right belongs. Upon which an obligation rests. 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. As to Transmissible Transmissible transmissibility How it may be constituted DOMINANT ESTATE RIGHTS AND OBLIGATION OF THE OWNERS OF THE DOMINANT AND SERVIENT ESTATES Real right Real right whether or whether or not registered. not registered. May be constituted in favor, or, burdening, a piece of land held in usufruct. Dominant estate – refers to the immovable for which the easement was established; and Servient estate – the estate which provides the service or benefit. Cannot be constituted on an easement but it may be constituted on the land burdened by an easement. 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) 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. Q: Can there be an easement over a usufruct? 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. 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. But if the work is done badly, the dominant owner will be liable for damages that may be suffered by the servient owner. Q: Can there be a usufruct over an easement? 183 Civil Law Rights of the dominant owner (MARE) 1. 2. 3. 4. b. 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). 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 (NCC, Art. 615); and NOTE: For acquisitive prescription, the easement of aqueduct and easement of light and view are considered continuous. b. Obligations of the dominant owner (CANEC) 1. 2. 3. 4. 5. 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; and 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)]. 3. 4. 5. Rights of the servient owner (RMC) 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 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 c. He cannot Impair the use of the easement. He must Contribute to the necessary expenses in case he uses the easement, unless otherwise agreed upon [NCC, Art. 628(2)]. 6. CLASSIFICATIONS OF EASEMENT 1. 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). NOTE: Like any other contract, a 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). Obligations or limitations imposed on the servient owner (IC) 1. 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 b. The owner of the immovable whose property is subject to easement for the benefit of the dominant owner. 2. Discontinuous – Used at intervals and depend upon the acts of man. NOTE: The easement of aqueduct is always apparent, whether or not it can be seen (NCC, Art. 646). Servient owner 1. Personal – The easement is in favor of a community, or of one or more persons to whom the encumbered estate does not belonge.g. easement of right of way for passage of livestock (NCC, Art. 614). As to recipient of the benefit a. Real (or predial) – The easement is in favor of another immovable (NCC, Art. 613); and 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. 184 PROPERTY b. Negative – Prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. 5. e.g.Easement of light and view – where the owner is prohibited from obstructing the passage of light. 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. There are contrary stipulations; or b. The sign is removed before the execution of the deed(NCC, Art. 624). Computation of prescriptive period MODES OF ACQUIRING EASEMENT 1. a. By Title – the following easements may be acquired only by title: a. Continuous non-apparent easements; b. Discontinuous apparent easements; and c. Discontinuous non-apparent easements (NCC, Art. 622) (2005 Bar). b. NOTE:Continuous and apparent easements may be either positive or negative depending upon whether or not a “sufferance” or an “abstention” is to be made. NOTE: Title means:  It does not necessarily mean document.  It means a juridical act or law sufficient to create the encumbrance.  E.g.law, donation, testamentary succession, contract. a. b. 2. 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. 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. Prescription is a mode of acquisition, and is generally and ordinarily a title, but is not considered as such under Art. 620 which expressly makes it DISTINCT from title. NOTE: It is understood that there is an exterior sign contrary to the easement of party wall whenever: 1. There is a window or opening in the dividing wall of buildings; 2. Entire wall is built within the boundaries of one of the estates; 3. 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 4. The lands enclosed by fences or live hedges adjoin others which are not enclosed. By Prescription of 10 years (2009 Bar) 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). 3. By deed of Recognition 4. By Final judgment Positive easement – The 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. 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. 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). 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). MODES OF EXTINGUISHMENT OF EASEMENTS Easements are extinguished(MEN-CRR) (2001, 2010 Bar): 1. 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. 2. 185 By Merger in the same person of the ownership of the dominant and servient estates; By Non-user for 10 years; with respect to discontinuous easements, this period shall be computed from the day on which they Civil Law 3. 4. 5. 6. 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). (otherwise it might be confused with non-user). This is particularly true for discontinuous easements. 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). LEGAL EASEMENT Legal easements are those imposed by lawhaving for their object either public use of the interest of private persons. They shall be governed by thespecial laws and regulations relating thereto, and inthe absence thereof, by the Civil Code. Public legal easement Public legal easement is for public or communal use. Merger Private legal easement 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. Private legal easement is for the interest of private persons or for private use. It shall be governed by: 1. Where the merger is temporary or under resolutory condition, there is at most a suspension, but nit an extinguishment of the servitude. 2. 3. 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. NOTE: The merger must be absolute and complete, not temporary. In the latter’s case, there is only suspension of easement. Kinds of legal easements (WIND – PLWS) Non-user 1. Easement relating to Waters; Non-use must be due to voluntary abstention by the dominant owner, and not to fortuitous event, because the basis of this cause of extinguishment is a presumptive renunciation. 2. Easement relating to right of Way; 3. Easement of Party wall; NOTE: Reckoning point: Discontinuous – counted from the day they ceased to be used. 2. Continuous – counted from the day an act adverse to the exercise takes place. 1. Impossibility of use The impossibility of use only suspends the servitude until such time when it can be used again. Expiration 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, clear,specific 186 PROPERTY 4. Easement of Light and view; Subjacent Support PROP 5. Drainage of Building; EASEMENTS RELATING TO WATERS Different easements (NBREWAC) A. relating to waters: 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). 6. Intermediate distances and works for certain construction and plantings; NOTE: Art. 637 has already been superseded by Art. 50 of P.D. 1067 (Water Code of the Philippines). Limitations of the easement of natural drainage 1. 2. 7. Easement against Nuisance; and Dominant owner must not increase the burden but he may erect works to avoid erosion; and The servient owner must not impede the descent of water (but may regulate it). 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 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). 8. Easement relating to lateral and Subjacent support. Lateral Support B. Drainage of Buildings (NCC, Art. 674); C. Easement on Riparian banks for navigation, floatage, fishing, salvage, and tow path (NCC, Art. 638); Easement on Riparian Property 187 Civil Law 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). 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. 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). 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. Easement of a Dam (NCC, Artsicles 639 and 647); 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 watering animals, the existence of the latter does not necessarily includes the easement of aqueduct. A person may establish the easement of abutment or of a dam provided that: 1. 2. 3. 4. 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. Requisites for easement of aqueduct 1. He must seek the permission of the owner and in case of latter’s refusal, he must secure authority from the proper administrative agency. NOTE: The amount usually depends on duration and inconvenience caused. 2. 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. 3. 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). E. 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. Requisites for easement for watering cattle 1. 2. 3. 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). 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. 4. F. Indemnity must be paid to the owners of intervening estates and to the owners of lower estates upon which waters may filter or descend. Right of the owner of the servient estate to fence 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). 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 Aqueduct (NCC, Articles 642- 646); and G. 188 Easement for the Construction of a Stop Lock or Sluice Gate (NCC, Art. 647) PROPERTY 3. 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? 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). Requisites for easement on right of way (POOND)(1996, 2005, 2010 Bar) 1. 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. 136897, July 4, 2012). 2. 3. 4. 5. 6. The easement must be established at the point least Prejudicial to the servient estate (NCC, Art. 649); Claimant must be an Owner of enclosed immovable or with real right; There must be no adequate Outlet to a public highway [NCC, Art. 649, (1)]; The right of way must be absolutely Necessary not mere convenience; The isolation must not be Due to the claimant’s own act (NCC, Art. 649); and There must be payment of proper Indemnity. 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. EASEMENT OF RIGHT OF WAY 1996, 2005, 2010 Bar 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. 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 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? 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). Q: May the easement of right of way be acquired by prescription? 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). A: Easement of right of way cannot be acquired by prescription because it is discontinuous or intermittent (Ronquillo, et al. v. Roco, G.R. No. L10619, February 28, 1958). 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: 1. The easement of a public highway; 2. Private way established by law; or Q: What if the property is not the shortest way but will cause the least damage to the servient estate? 189 Civil Law A: The way which will cause the least damage should be used even if it will not be the shortest. 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). 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. Claimant must be an owner of enclosed immovable or with real right Q: The Heirs of Carlos filed before the RTC a complaint for easement of right-of-way against Sta. Lucia Realty and Development, Inc. They alleged that they were denied access from their property (an agricultural land) to the nearest public road and vice versa when Sta. Lucia developed the surrounding lands into a subdivision. To prove that they are entitled to a right-of-way, petitioners asserted their ownership of the property on the basis of a request for the issuance of certain documents made by Carlos with the DENR when he was still alive. However, they testified that Carlos also attempted to declare the property for taxation purposes, but his application was denied because a tax declaration was already issued to another. They also based their claim of ownership over the subject property on prescription. Are the heirs of Carlos entitled to demand an easement of rightof-way from Sta. Lucia? 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) A: NO. An easement of right-of-way may be demanded by the owner of an immovable or by any person who by virtue of a real right may cultivate or use the same. Carlos’ letter to the said DENR is just a request for the issuance of certain documents and nothing more. Moreover, while Carlos attempt to declare the subject property for taxation purposes was denied because a tax declaration was already issued to the Blancos. Likewise, the property is an unregistered public agricultural land. Thus, petitioners, in order to validly claim acquisition thereof through prescription, must first be able to show that the State has - expressly declared that the subject property is no longer retained for public service or the development of the national wealth or that the property has been converted into patrimonial. Consequently, without an express declaration by the State, the land remains to be a property of public dominion and hence, not susceptible to acquisition by virtue of prescription. In the absence of such proof of declaration in this case, petitioners' claim of ownership over the subject property based on prescription necessarily crumbles. Conversely, they cannot demand an easement of right-of-way from Sta. Lucia for lack of personality (Liwayway Andres, et al. vs. Sta. Lucia Realty & Development, Inc., G.R. No. 201405, August 24, 2015) (Del Castillo, J.). Q: Spouses dela Cruz are occupants of a parcel of land located at the back of Ramiscal’s property. They use as their pathway, to and from the nearest public highway from their property, a long strip of land owned by Ramiscal. They also enclosed such strip of land with a gate, fence, and roof. Ramiscal demanded that the spouses demolish the same. The spouses refused. Are the spouses entitled to a right of way? 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. A: NO. There is no voluntary nor legal easement established. The spouses failed to show that they entered into an agreement with Ramiscal to use the pathway. Art 649 provides that the easement of right of way is not compulsory if the isolation of the immovable is due to the proprietor’s own acts. Mere convenience for the dominant estate is not enough to serve as its basis. There should be no other adequate outlet to a public highway. Also, under Art. 649, it is the owner or any person who by virtue of a real right may cultivate or use any immovable surrounded by other immovable pertaining to other persons, who is entitled to demand a right of way through the neighboring estates. Here, the spouses fell short of proving that they are the owners of the supposed dominant estate (Eslaban v. Vda De Onorio, G.R. No. 146062, June 28, 2001). Q: David owns a subdivision which does not have an access to the highway. When he applied for a license to establish the subdivision, he Adequate outlet 190 PROPERTY 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 an access to the highway. When Nestor and David failed to arrive at an agreement as to compensation, Nestor built a wall across the 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? Liability for repairs and taxes 1. 2. Special causes of extinguishment of right of way 1. 2. 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). NOTE: Said extinguishment is NOT automatic. There must be a demand for extinguishment coupled with tender of indemnity by the servient owner. If the passage is: a. Continuous and permanent – The indemnity consists of the value of the land occupied plus the amount of damages caused to the servient estate; and b. Temporary – Indemnity consists in the payment of the damage caused. Q: Emma bought a parcel of land from EquitablePCI 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) Two instances where indemnity is not required 2. The opening of a public roadgiving access to isolated estate; or When the dominant estate is joined to another estate (such as when the dominant owner bought an adjacent estate) which is abutting a public rode, the access being adequate and convenient(NCC, Art. 655). Both cases must substantially meet the needs of the dominant estate. Otherwise, the easement may not be extinguished. Determination of proper indemnity to the servient estate 1. As to repairs, the dominant owner is liable for necessary repairs; 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). 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 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). 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. NOTE: If it is the land donated that is surrounded by the estate of the donor or gantor, although the latter is obliged to grant a right of way, he can demand the required indemnity (NCC, Art. 652). Temporary easement of right of way Measurement for the easement of right of way 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). 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. Easement of right of way for the passage of 191 Civil Law livestock or sevidumbres pecurias It is understood that there is an exterior sign, contrary to the easement of party wall whenever: Governed by the ordinances and regulations relating thereto and in their absence, by the usages and customs of the place. 1. 2. Maximum width: 1. Animal path – 75 meters; 2. Animal trail – 37 meters and 50 centimeters; and 3. Cattle – 10 meters (unless prior to the old Civil Code, vested rights has been acquired to a greater width) (Paras, 2008). 3. 4. EASEMENTS OF PARTY WALL 5. Easement of party wall The easement of party wall is also called servidumbre de medianera. 6. Party wall defined 7. This is a wall at the dividing line of estates. Coownership governs the wall, Hence the party wall is necessarily a common wall. However, not all common walls are party walls. For example, a handball wall owned by two brothers, on their common lot is a common wall, but is not a party wall. 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. EASEMENT OF LIGHT AND VIEW Governed by: 1. 2. 3. 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). The Civil Code; Local ordinances and customs; and The rules co-ownership. 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. Q: Is the easement of party wall really an easement or is it a case of co-ownership? A: While it is called an easement by the law, the law in some articles refers to it as a case of co-ownership 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 coowner owns the half nearest to him (Paras, 2008). The easement of LIGHT — Jus luminum (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). The easement of VIEW — “Servidumbre prospectus” (as in the case of full or regular windows overlooking the adjoining estate) (Incidentally, although the principal purposehere is VIEW, the easement of light is necessarily included, as well as the easement ofaltius non tollendi [not to build higher for the purpose of obstruction (Paras, 2008). The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary: 1. 2. 3. There is a window or opening in the dividing wall of the buildings; 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; Entire wall is built within the boundaries of one of the estates; 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; 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; 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 The lands enclosed by fences or live hedges adjoin others which are not enclosed. In dividing walls of adjoining buildings up to the point of common elevation; In dividing walls of gardens or yards situated in cities, towns, or in rural communities; or In fences, walls and live hedges dividing rural lands (NCC, Art. 659). When easement of light and view is positive and when negative Positive — If the window is thru a party wall (NCC, Art. 668, par. 1). Therefore, the period of prescriptioncommences from the time the window is opened. 192 PROPERTY 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 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). 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. 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. 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 shouldbegin from the time of notarial prohibition upon theadjoining owner. “Formalprohibition’’ 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., L-14116, June 30, 1960). Restrictions as to easement of views 1. 2. Thus, the period of prescription for the acquisition shall be counted from the time of: 1. 2. Direct Views: The distance of two meters between the wall and the boundary must be observed; and 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). Opening of the window, if through a party wall; or The formal prohibition upon the proprietor of the adjoining land, if window is through a wall on the dominant estate. NOTE: When windows are opened at a distance less than that prescribed by Art. 670 from the boundary lines, they constitute unlawful openings, and the owner who opened them may be ordered by the court to close them. Openings at height of ceiling joints to admit light (NCC, Art. 669) Prescription may still be acquired as a negative easement after ten years fromthe time of notarial prohibition. 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. The distance referred to in Art. 670 shall be 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). Restrictions for making an opening for light and air 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. Where buildings are separated by a public way or alley (NCC, Art. 672) 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. 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 party wall without the consent of the others; it can also obstruct the opening unless an easement. NOTE:The width of the alley is subject to special regulations and ordinances. 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 easement of direct view had been acquired (NCC, Art. 673) A private alley opened to the use of the general public falls within the provision of Art. 672. 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. NOTE: Art. 669 refers to restricted windows. Direct and oblique views (NCC, Articles 670-671) Articles 670 and 671 deal with regular, full windows. 193 Civil Law NOTE: The title used in Art. 673 refers to any modes of acquiring easements: 1. Contract; 2. Will; 3. Donation; or 4. Prescription. NOTE: Art. 677 establishes an easement in favor of the State. The general prohibition is dictated by the demands of national security. Construction of aqueduct, well, sewer, etc. 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. 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). EASEMENT OF DRAINAGE OF BUILDINGS 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 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). NOTE: The owner must take necessary protective works or other neighboring estates. Planting of trees NOTE: Art. 674 does not establish servitude but merely regulates the use of one's property. 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 to receive falling rain waters (NCC, Art. 675) Intrusions of branches or roots into neighboring estate 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. Q: Can the adjoining estate cut the roots and the branches without the consent of the owner of the tree? 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. Easement giving outlet to rain water where house surrounded by other houses Q: Does this right prescribe? Requisites: 1. There must be no adequate outlet to the rain water 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). 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. Fruits naturally falling upon adjacent land INTERMEDIATE DISTANCES AND WORKS FOR CERTAIN CONSTRUCTIONS AND PLANTINGS Q: Who owns the fruits which fall from the adjacent land? Construction and plantings near fortified places 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). 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 beentitled to the fruits they must not only fall upon his land but the falling must occur naturally. 194 PROPERTY NOTE: Third persons are not bound by a voluntary easement unless the same is duly recorded with the proper authorities. NOTE:If the fruits fall on public property, the owner of the tree retains ownership. EASEMENT AGAINST NUISANCE Q: For whose favor are voluntary easements established? 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. A: 1. 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. 2. Personal servitudes: for anyone capacitated to accept. 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. Q: How are voluntary easements created and what are the governing rules for such? LATERAL AND SUBJACENT SUPPORT A: 1. Proprietor prohibited from making dangerous excavations 2. 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). NOTE: In both cases, the Civil Code will only apply suppletorily. ‘Lateral’ Distinguished from ‘Subjacent’ When consent is necessary The support is lateralwhen both the land being supported and the supporting land are on the SAME PLANE; when the supported land is ABOVEthe supporting land, the support is subjacent (Paras, 2008). 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). Remedies for violation of Art. 684 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: Consent of both the naked owner and the beneficial owner is necessary for the creation of perpetual voluntary easement (NCC, Art. 690). Action for damages; or Injunction. 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:Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void (NCC, Art. 685). 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. 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 The notice is mandatory except where there is actual knowledge of the proposed excavation. VOLUNTARY EASEMENT An easement is voluntary when it is established by the will of the owners. 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. 195 Civil Law pumps in his adjoining property, a voluntary easement was constituted in favor of FMI. of the act Will the action prosper? (2014 Bar) 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 condominium belong to the same person. No one can have an easement over his own property (BogoMedellin v. CA, G.R. No. 124699, July 31, 2003). 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. Abatement 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 Bar) Nuisance v. Trespass Nuisance Injury is consequential. Trespass Direct infringement of another’s right or property. Injury is direct and immediate. Nuisance v. Negligence Basis Condition Negligence Liability is based on lack of proper care or diligence. Act complained Abatement is not available as a remedy. The remedy is action for damages. 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. Kinds of Nuisance 1. As to the number of persons affected: (2005 Bar) 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 an individual or few persons only. 2. 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; b. Nuisance per accidens – That kind of nuisance by reason of location, surrounding or in a manner it is conducted or managed; 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. NUISANCE Use of one’s own property which causes injury to another. of is already done which caused the injury to the plaintiff. Nuisance Liability attaches regardless of the degree of care or skill exercised to avoid the injury. There is a Nuisance per sev. Nuisance per accidens PER SE 196 PER ACCIDENS PROPERTY As a matter of law. As a matter of fact. Need only be proved in any locality. Depends upon its location and surroundings, the manner of its conduct or other circumstances. May be summarily abated under the law of necessity. 1. 2. It must be attractive; Dangerous to children of tender years. Q: Is a swimming pool an attractive nuisance? 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). May be abated only with reasonable notice to the person alleged to be maintaining or doing such nuisance. XPN: Swimming characteristics Q: Boracay West Cove, applied for a zoning compliance covering the construction of a threestorey 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? pool with dangerous slide 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. 2. 3. 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). Prosecution under the RPC or any local ordinance; Civil action; or Abatement, without judicial proceeding (NCC, Art. 699) Remedies against private nuisances 1. 2. Civil action; or Abatement, without judicial proceedings (NCC, Art. 705). 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. However, it is indispensable that the procedure for extra-judicial abatement of a public nuisance by a private person be followed (NCC, Art. 706). 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 (Jarco Marketing Corp. v. CA, G.R. No. 129792, December 21, 1999). 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). Extra-judicial abatement (2002 Bar) Requisites of extra-judicial abatement (BAR VID) 1. The nuisance must be specially 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; Basis for liability The attractiveness is an invitation to children. Safeguards to prevent danger must therefore be set up. Elements of attractive nuisance 197 Civil Law 5. 6. Abatement is Approved by the district health officer and executed with the assistance of the local police; and Value of destruction does not exceed P3,000 2. NOTE: An extra-judicial abatement can only be applied for if what is abated is a nuisance per se and not nuisance per accidens. 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 of the 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). Derivative – Are those which arise or depend upon a pre-existing or preceding right or title of another person: a. Law; e.g. hidden treasure (NCC, Art. 438), improvements on the land of another (NCC, Art. 445), alluvium (NCC, Art. 447), abandoned river beds (NCC, Art. 461), falling fruits into the tenement of another (NCC, Art. 681) b. Donation (Art. 725) c. Succession mortis causa (NCC, Art. 774); and d. “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). The right to question the existence of a nuisance DOES NOT prescribe; it is imprescriptible. 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). MODES OF ACQUIRING OWNERSHIP 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. Requisites of occupation TITLE 1. 2. 3. Serves merely to give the occasion for its acquisition or existence. 4. 5. Means Occupation v. Possession Remote cause BASIS Means whereby that essence is transmitted. Occupation; Law; Donation; Tradition; Intellectual creation; Prescription;or Succession; Classification of modes of acquiring ownership 1. Original – Those which do not arise or depend upon any pre-existing right or title of another person: a. Occupation (NCC, Art. 713); b. Intellectual Creation (NCC, Art. 721); and c. Acquisitive Prescription (NCC, Art. 1106). POSSESSION Merely raises the presumption of ownership when exercised in the concept of owner. As to property involved Involves only corporeal personal property. Any kind of property. As regards ownership of the thing by another Requires that the object be without an owner. The property may be owned by somebody. As regards the intent to acquire There must be an intent to acquire ownership. May be had in the concept of a mere holder. May not take May exist w/o As regards 198 OCCUPATION Mode of acquiring ownership. As regards acquisition of ownership Modes of acquiring ownership (OLD TIPS) (2007 Bar) 1. 2. 3. 4. 5. 6. 7. There must be Seizure of a thing; Which must be a Corporeal personal property; Which must be Susceptible of appropriation by nature; The thing must be Without an owner; and There must be an Intention to appropriate. PROPERTY possession As to period As to leading to another mode of acquisition place w/o some form of possession. occupation. occupation because once the requisites of abandonment had been fulfilled; automatically, the reversion operates (Pineda, 2009). Short duration. Generally longer. Abandoned land (one with an owner before) becomes patrimonial land of the State susceptible of acquisition thru acquisitive prescription (Paras, 2008). Cannot lead to May lead to another mode of another modeacquisition. prescription. Prescription v. Occupation PRESCRIPTION Derivative mode – somebody else was the owner. Longer period of possession is required. Things susceptible of occupation 1. Things that are without an owner – Res nullius; abandoned; OCCUPATION Original mode – no previous owner. Shorter period. NOTE: Stolen property cannot be subject of occupation. 2. 3. 4. 5. 6. 7. 8. DONATION Animals that are the object of hunting and fishing (NCC, Art. 715); 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 – A thing is abandoned when: a. The expectation to recover is gone (spes recuperandi); and b. The intent to return or have it returned is given up (spes rivertandi). Swarm of bees that has escaped from its owner, under certain conditions (NCC, Art. 716); Domesticated animals that have escaped from their owners, under certain conditions (NCC, Art. 716); Transfer of pigeons to another breeding place without fraud or artifice (NCC, Art. 717); and Transfer of fish to another breeding place without fraud or artifice (NCC, Art. 717). 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). Requisites of donation (ACID) 1. 2. 3. 4. Donor must have Capacity to make the donation; He must have donative Intent (animus donandi); There must be Delivery in certain cases; and 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). Essential features or elements of a true donation 1. Acquisition of ownership over a wild animal by occupation 2. 3. 4. Wild animals are considered res nullius when not yet captured. After its capture, animals that escaped become res nullius again. Alienation of property by the donor during his lifetime, which is accepted; Irrevocability by the donor of the donation; Animus Donandi (donative intent); and Consequent impoverishment of the donor (diminution of his assets). CHARACTERISTICS Q: When can land be the object of occupation? EXTENT TO WHICH DONOR MAY DONATE PROPERTY A:It depends. 1. If without an owner, it pertains to the State (Regalian Doctrine). 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. 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). Ownership of land cannot be acquired by occupation Future properties as subject of donation (2003 Bar) When the land is without owner, it pertains to the State. The State need not acquire abandoned lands by Future properties cannot be subject of donations. 199 Civil Law Donations cannot comprehend future properties. Art. 757). NOTE: Future property means anything which the donor cannot dispose of at the time of the donation (NCC, Art. 751) (2009 Bar). 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. Donation of future inheritance or the inchoate right to inherit KINDS OF DONATION Future inheritance or the inchoate right to inherit cannot be donated because it is future property. 1. According to motive or cause: a. Simple; b. Remuneratory (1st kind); c. Remuneratory (2nd kind): Conditional or Modal donations; or d. Onerous donations. 2. As to perfection or extinguishment: 1. Pure; 2. With a condition; or 3. With a term. Ownership and usufruct of a property may be donated to different persons separately. However, all the donees are however required to be living at the time of donation (NCC, Art. 756). 3. According to effectivity: a. Inter vivos( NCC, Art. 729); b. Mortis causa(NCC, Art. 728); or c. Propter nuptials. Limitation on the amount that can be donated Kinds of donation according to motive or cause 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 1. 2. If the donor has forced heirs, he cannot give or receive by donation more than what he can give or receive by will; If the donor has no forced heirs, donation may include all present property provided he reserves in full ownership or in usufruct: a. The amount necessary to support him and those relatives entitled to support from him; b. Property sufficient to pay the donor’s debt contracted prior to the donation. PURPOSE FORM Simple (2007 Bar) Pure liberality Same to that of forms in donations. Remuneratory (First kind) (2007 Bar) To reward past merits, Same to that of forms services rendered by in donations. the donee to the donor provided the same do not constitute a demandable debt. Remuneratory (Second kind) 1. Consideration for 1. Onerous – Same future services; or form of that of 2. Donor imposes contracts. certain conditions, 2. Gratuitous – Same limitations or form of that of charges upon the donations. donee, whose value is inferior to the donation given. Onerous Imposes upon the Same as that of donee a reciprocal contracts. obligation; Burdens, charges or services are equal or greater in value to that of the donation. 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). RESERVATIONS AND REVERSIONS Effect if the donor violates the requirement for reservation under NCC, Art. 750 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). Reversion in donation Kinds of donation according to perfection or extinguishment 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, 1. 200 Pure donation – It is one which is not subject to any condition; PROPERTY 2. 3. 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 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. DONATION MORTIS CAUSA These are donations which are to take effect upon the death of the donor. Effect of illegal or impossible conditions NOTE: It partakes of the nature of testamentary provisions and governed by the rules on succession (NCC, Art. 728). Like in testamentary dispositions (Art. 873), only the illegal or impossible conditions are disregarded. The donation itself remains valid. Donation mortis causa must comply with the formalities prescribed by law for the validity of wills DONATION INTERVIVOS 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) indicates 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). Limitations imposed by law in making donations inter vivos 1. 2. 3. Donor must Reserve sufficient means for his support and for his relatives who are entitled to be supported by him (NCC, Art. 750); Donation cannot comprehend Future property except donations between future husband and wife (FC, Art. 84); and No person may give by way of donation More than he may give by will. Some inter vivos donations The following donations have been held to be inter vivos: a. A donation where the causes of revocation have been specified; b. A donation where the donor reserved for himself alifetime usufruct of the property, for if he were stillthe owner, there would be no need of said reservation; c. A donation where the donor warrants the title tothe thing which he is donating— there would be no need of warrantywere he not be transferring the title; d. Where the donor immediately transferred the ownership,possession and administration of the propertyto the donee, but stipulated that the right of thedonee to harvest and alienate the fruits would beginonly after the donor’s death.(But if what had beentransferred in the meantime was only the administrationof the property, the donation is mortis causa); e. Where the donor stated that while he is alive hewould not dispose of the property or take away theland “because I am reserving it to him (the donee)upon my death.” (The Court held this to be intervivos because in effect, he had already renouncedthe right to dispose of his property); and f. A donation where the donees “should not as yet get thepossession until our demise,” the administration remainingwith the donor spouses, or either one surviving. Some mortis causa Donations The following have been held to be mortis causa: a. Where the donor has reserved (expressly or impliedly)the option to revoke the donation at any time beforedeath, even without the consent of the done; b. Where the donation will be void if the transferee diesahead of the transferor. c. If before the donor’s death, it is revocable at his will; d. If the donor retains full or naked ownership andcontrol over the property while he is still alive; e. If what was in the meantime transferred to the done was merely the administration of the property; and f. If title will pass only after donor’s death. Donation inter vivos v. Donation mortis causa BASIS As to when it takes effect As to cause or consideration 201 INTER VIVOS Takes effect during the lifetime of the donor, independently of his death. Cause is donor’s pure MORTIS CAUSA Takes effect upon donor’s death. In contemplation Civil Law generosity. On predecease Valid if donor survives the done. Void if donor survives. On revocability Generally irrevocable except for grounds provided for by law. Always revocable at any time and for any reason before the donor’s death. Must comply with the formalities of donations. Must comply with the formalities of a will. Acceptance during donor’s lifetime. 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 On formalities On when acceptance is made On when property is conveyed to the done On tax payable a. of donor’s death without intention to dispose of the thing in case of survival. b. 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). HOW MADE AND ACCEPTED Persons who must accept the donation 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 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. ONEROUS DONATIONS (2007 Bar) Rule prior to knowledge of acceptance Onerous donation is a donation given for which the donor received a valuable consideration which is the equivalent of the property so donated. Prior to learning of the acceptance, there is as yet noperfected donation (no donation at all), hence, the donor maygive the property to somebody else, for he has not really partedwith the disposition of the property. 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 done 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. L9449, February 12, 1915). 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. Kinds of onerous donations 1. 2. Donations made to incapacitated persons Totally onerous – When the burden is equal to or greater than the value of the property donated; and Partially onerous – When the burden is lesser than the value of the donation (Pineda, 1999). 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). Laws that apply to onerous donations 1. 2. Portion exceeding the value of the burden – simple donations; and Portion equivalent to the burden – law on contracts (Pineda, 1999). Persons who must accept the donation made in favor of a minor Totally onerous – Rules on contracts. Partially onerous If the donation is pure and simple and does not require written acceptance, the minors can accept 202 PROPERTY the donation by themselves. If the donation needs written acceptance, it may be accepted by their guardian or legal representatives. QUALIFICATIONS OF DONOR/DONEE PERFECTION OF DONATION DONOR Donation is perfected from the moment the donor knows of the acceptance by the donee (NCC, Art. 734). 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). 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. NOTE: “Making of donation” shall be construed to mean perfectionof thedonation, otherwise if “making” means “giving,” Art. 737 wouldin some cases be inconsistent with Art. 734 which states that“the donation is perfected from the moment the donor knows ofthe acceptance by the donee.” To avoid a contradiction, the rulemay be stated thus: “at the time the donation is perfected, boththe donor and the donee must be capacitated.” FORMALITIES FOR DONATION OF REAL/PERSONAL PROPERTIES Formalities required for donation 1. 2. 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. 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. Status of a donation made by an incapacitated person 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). Q: May an emancipated minor by himself make donation mortis causa? A:YES, because at the age of 17, a person of sound mind can already make a valid will. 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. 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. Donation by a guardian or trustee Guardians and trustees may of course donate their own properties, unless they are otherwise disqualified by the law, but not the property 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 benefi ts, in some way, the ward. 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) DONEE 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. All those who are not specially disqualified by law. Q: May an unborn child be a donee or a donor? A: An unborn child may be a donee but not a donor. 203 Civil Law 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). excess of the value of donation received, unless the contrary is intended. 2. 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. Where there is no stipulation regarding the payment of debts (NCC, Art. 759): a. Donee is generally not liable to pay donor’s debts; b. Donee is responsible only if donation has been made in fraud of creditors; 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. When a person is “specially disqualified’’ to accept a donation “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). c. The donee shall not be liable beyond the value of donation received. DOUBLE DONATIONS There is double donation when the same thing has been donated to two or more persons. Natural and juridical persons may be donees The rule on double sale under Art. 1544 of NCC shall be applicable. Since the law does not distinguish, both natural and juridical persons may become donees. An unregistered partnership may become a donee 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. Rule: First in time, stronger in right 1. If movable, one who first take possession in good faith. 2. If immovable, one who recorded in registry of property in good faith. If no inscription, one who first took possession in good faith. EFFECT OF DONATION/LIMITATIONS In absence thereof, one who can present oldest title. IN GENERAL EXCESSIVE/INOFFICIOUS Rights and actions the donee acquires Rule in case of an excessive or inofficious donation The donee is subrogated to the rights and actions which in case of eviction would pertain to the donor. 1. Liability of donors for eviction of hidden defects 1. 2. 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 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. Rules regarding the liability of the donee to pay the debts of donor 1. Where donor imposes obligation upon the donee, (NCC, Art. 758) the donee is liable: a. To pay only debts previously contracted; and b. For debts subsequently contracted only when there is an agreement to that effect. 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 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. 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 NOTE: But he is not liable for debts in 204 PROPERTY pauliana (NCC, Art. 381). Grounds for revocation of donation 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. 1. Under Art. 760 a. Birth of a donor’s child or children (legitimate, legitimated, or illegitimate) after the donation, even though born after his death; b. Appearance of a donor’s child who is missing and thought to be dead by the donor; or c. Subsequent adoption by the donor of a minor child. 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 to give support to the donor. VOID DONATIONS Donations prohibited by law (1990, 2000 Bar) (LAW SCRA POP) Prohibition on donation inter vivos 1. By persons guilty of Adultery or concubinage at the time of donation (NCC, Art. 739); NOTE: It is enough that there is judicial finding of guilt. Criminal conviction is not needed. 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. 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. Those made to a public Officer or his wife, descendants and ascendants, by reason of his office; NOTE: The list of grounds for revocation by reason of ingratitude under Art. 765 is exclusive. Relative Incapacity to Succeed: 4. By individuals, associations or corporations not permitted by Law to make donations (NCC, Art. 1027); 5. By a Ward to the guardian before the approval of accounts (NCC, Art. 1027); 6. By Spouses to each other during the marriage or to persons of whom the other spouse is a presumptive heir (FC, Art. 87); 7. To Relatives of such priest, etc. within the fourth degree, or to the church to which such priest belongs (NCC, Art. 1027); 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). 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). 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). 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. Q: For purposes of prescription of action, what is the rule in case of concurrence of two or more grounds for revocation or reduction? REVOCATION OR REDUCTION (1991, 2003, 2006 Bar) A: In the event that two or more causes are present, the earliest among them shall be the starting point in GROUNDS FOR REVOCATION AND REDUCTION 205 Civil Law the reckoning of the period of prescription of the action. BASIS PRESCIPTIVE PERIOD Execution of a donation subject to a condition Birth of child Four years A donor may execute a donation subject to a condition, the non-fulfilment of which authorizes the donor to go to court to seek its revocation (not reduction). Legitimation Four years Recognition of an illegitimate child Four years Adoption Four years Appearance of a child believed to be dead Four years Noncompliance with any condition imposed Four years Revocation of donation in a conditional donation A donor cannot revoke a conditional donation unilaterally, that is, without going to court, even if the donee had breached any of the obligations 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 (Ongsiako v. Ongsiako, G.R. No. 7510, March 30, 1957). Q: Can the creditors of the deceased file an action for reduction of inofficious donation? A: NO. Only compulsory heirs or their heirs and successors in interest may sue for reduction of inofficious donations. The remedy of the creditor is to sue, during the lifetime of the donor, for the annulment of inofficious donation made in fraud of creditors (NCC, Art. 1387); or they can go against the estate of the deceased and not against the donees. EFFECTS OF REVOCATION OR REDUCTION OF DONATION Obligations of the donee upon the revocation or reduction of donation 1. 2. 3. Return the thing or the object of the donation; If the property had already been alienated and could not be recovered anymore, its value shall be paid to the donor. The value shall be the price of the property estimated at the time of the perfection of the donation; If the property had been mortgaged, the donor may pay the mortgage obligations, subject to reimbursement by the done (NCC, Art. 762). Act of ingratitude Obligation of the donee to return the fruits 1. 2. If due to non-compliance with any condition imposed on the donation – Fruits acquired after non-compliance shall be returned; and If due to causes stated under Art. 760, ingratitude, or inofficious donations – fruits acquired from the time the complaint is filed shall be returned (NCC, Art. 768). One year RECKONING PERIOD From the birth of the first child. From birth of the legitimated child, not from the date of marriage of the parents. From the date the recognition of the child by any means enumerated in Art. 712 of the Family Code. From the date of filing of the original petition for adoption, provided a decree of adoption is issued thereafter. From the date an information was received as to the existence or survival of the child believed to be dead. From the noncompliance with the condition. From the time the donor had learned of the donee’s act of ingratitude, provided it was possible for him to file an action. Q: What if the donor dies within the four-year prescriptive period? A: The right of action to revoke or reduce is transmitted to his heirs (Pineda, 1999). PRESCRIPTION Q: Jose, single, donated a house and lot to his only niece, Maria, who was of legal age and who accepted the donation. The donation and Maria's acceptance thereof were evidenced by a Deed of Period of prescription of action for revocation or reduction of donation 206 PROPERTY Donation. Maria then lived in the house and lot donated to her, religiously paying real estate taxes thereon. Twelve years later, when Jose had already passed away, a woman claiming to be an illegitimate daughter of Jose filed a complaint against Maria. Claiming rights as an heir, the woman prayed that Maria be ordered to reconvey the house and lot to Jose's estate. In her complaint she alleged that the notary public who notarized the Deed of Donation had an expired notarial commission when the Deed of Donation was executed by Jose. Can Maria be made to reconvey the property? What can she put up as a defense? (2015 Bar) If the property is already transferred in the name of the buyer or mortgagee, the remedy of the donor is to recover the value of the property determined as of the time of the donation (NCC, Art. 767). Waiver of actions to revoke donations The donor CANNOT make a renunciation of actions to revoke in advance. Such waiver is void. However, the donor may renounce an action to revoke if the act of ingratitude had already been done. PRESCRIPTION A: NO. Maria cannot be compelled to reconvey the property. The Deed of Donation was void because it was not considered a public document. However, a void donation can trigger acquisitive prescription (Solis v. CA, G.R. Nos. 46753-54, August 25, 1989; Doliendo v. Biarnesa, G.R. No. 2765, December 27, 1906). The void donation has a quality of titulo colorado enough for acquisitive prescription especially since 12 years had lapsed from the deed of donation. DEFINITION One acquires ownership and other real rights through the lapse of time in the manner and under the conditions laid down by law. In the same way, rights and actions are lost by prescription (NCC, Art. 1106). Maria can set up the defense that the action has prescribed. An action for revocation of the donation on the ground that it impaired the legitime of a compulsory heir may only be filed within ten (10) years from the time the cause of action accrues which is at the time of the death of Jose. The facts are not clear as to when Jose died but on the assumption that he died ten years prior to the filing of the action, the same has clearly prescribed. Two concepts of prescription 1. Acquisitive prescription - The acquisition of right by the lapse of time under the conditions laid down by law (NCC, Article 1106, par. 1), which may be ordinary or extra-ordinary. a. INGRATITUDE b. Q: Are there any other grounds for revocation of donation by reason of ingratitude other than those enumerated under Art. 765 of NCC? A:NONE.The grounds under Art. 765 are exclusive. Ordinary acquisitive prescription- requires possession of things in good faith and with just title for the time fixed by law which is 10 years; and Extraordinary acquisitive prescription- the acquisition of ownership and other real rights without the need of title or of good faith or any other condition and would prescribe in 30 years (De Leon, 2011). Requisites of prescription as a mode of acquiring ownership Q: Suppose the husband of the donee had maligned the donor, is there a ground for revocation by reason of ingratitude? 1. 2. 3. A: None. The act must be imputable to the donee himself and not to another (Pineda, 1999). 4. Mortgages and alienations effected before the notation of the action for revocation Capacity to acquire by prescription; A thing capable of acquisition by prescription; Possession of the thing under certain conditions; and Lapse of time provided by law. NOTE: The first two requisites apply to both ordinary and extraordinary prescription, but the last two requisites vary for each kind. If there are mortgages and alienations effected before the notation of the complaint for revocation in the Registry of Property, such alienations and mortgages shall remain valid and must be respected (NCC, Art. 766). 2. NOTE: Alienations and mortgages after the registration of the pendency of the complaint shall be void. Remedy of the donor 207 Extinctive prescription or limitation of actions– It involves loss of property rights or actions through the possession by another of a thing for the period provided by law or failure to bring the necessary action to enforce one’s right with in the period fixed by law. Rights and actions are lost by the lapse of time (NCC, Articles 1106 and 1139). Civil Law NOTE: It is also referred to as prescription of actions, TIME OF FILING OF THE ACTION statute of limitations, and statute of repose. TRANSMISSIBILITY OF ACTION EXTENT OF REDUCTION RIGHTS TO THE FRUITS 1. Failure of the donor to reserve sufficient means for support (Art. 750) Any time by the donor or by relatives entitled to support during the donor’s lifetime (NCC, Art. 750). Not transmissible. NOTE: the duty to give and right to receive support are personal (FC, Art. 195). Donation reduced to extent necessary to provide support (NCC, Art. 750). Donee is entitled to the fruits as owner of the property donated (NCC, Art. 441) 2. Inofficiousness for being in excess of what the donor can give by will (NCC, Art. 750, 771) Within five years after the donor’s death (NCC, Articles 771 and 1149) Transmissible to donor’s heirs as donation shall be reduced as regards the excess at donor’s death (NCC, Art. 771). Donation effective during the donor’s lifetime subject to reduction only upon his death with regard to the excess (NCC, Art. 771). Donee appropriates fruits (NCC, Art. 441). 3. Birth, appearance or adoption of a child (NCC, Art. 760) [Same as in no. 1 Revocation] Within four years from birth of first child, legitimation (recognition), adoption, judicial declaration of filiation or receipt of info of existence of the child believed to be dead(NCC, Art. 763). [Same as in no. 1 Revocation] [Same as in no. 1 Reduction] To children & descendants of donor upon his death [NCC, Art. 763(2)]. Donation reduced to extent necessary to provide support (NCC, Art. 750). Donee appropriates fruits not affected by reduction (NCC, Art. 441). When donation is revoked for any of the cause mentioned in Art. 760, the donee shall not return the fruits except from the filing of the complaint (NCC, Art. 768). 4. Fraud against creditors (NCC, Art. 759) Within four years from perfection of donation or from knowledge by the creditor of the donation (NCC, Art. 1389). To creditor’s heirs or successors-in-interest (NCC, Art. 1178). Property returned for the benefit of creditors subject to the rights of innocent third persons (NCC, Art. 1387). 208 Fruits shall be returned in case donee acted in bad faith; if impossible to return, indemnify the donor’s creditor for damages (NCC, Art. 1388). PROPERTY Acquisitive prescription v. Extinctive prescription Applicabilit y Legal effect As to requisite As a defense ACQUISITIVE PRESCRIPTIO N EXTINCTIVE PRESCRIPTIO N Applicable to ownership and other real rights. Applicable to all kinds of rights, whether real or personal. Expressly vests the property and raised a new title in the occupant. Produces extinction of rights or bars a right of action. The relationship between the occupant and he land in terms of possession is capable of producing legal consequences. It is the possessor who is the actor. warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. It applies even to imprescriptible actions e.g. an action to annul a void contract may be barred by laches. As to creation Prescription is purely statutory in origin and is founded on ground of public policy. Time limit is imposed for a party to enforce his claim so that title to property and other rights will be stabilized. It protects the person who is diligent and vigilant in asserting his right, and conversely punishes the person who sleeps on his right (Fernandez v. Cuerva, G.R. No. L21114 November 28, 1967). Results in the loss of a real or personal right or bars the cause of action to enforce said right. One does not look to the act of the possessor but to the neglect of the owner. Possession of a Inaction by the claimant who is owner or not the owner. neglect of one with a right to bring his action. Can be proven under the general issue without its being affirmatively pleaded. A creation of equity which, as such, is applied not really to penalize neglect or sleeping upon one's right, but rather to avoid recognizing a right when to do so would result in a clearly inequitable situation (Chavez v. Bonto-Perez, G.R. No. 109808, March 1, 1995). As a defense GR: Evidentiary in nature and requires full blown trial. Should be affirmatively pleaded and proved to bar the action or claim of the adverse party. XPNs: 1) When the plaintiff’s complaint on its face or the evidence he presented shows clearly that indeed the action has prescribed at the time it was filed; or 2) If, before trial, a party has no means of knowing that opponent’s claim has already lapsed, prescription as a defense may be pleaded later as soon as the true nature of the claim is discovered (De Leon, 2011). Prescription v. Laches PRESCRIPTION LACHES Concept One acquires The failure or neglect, ownership and other for an unreasonable real rights through the and unexplained lapse of time in the length of time, to do manner and under the that which by action laid down by exercising due law. diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, The burden of proof 209 Evidentiary in nature and cannot be established by mere allegations in the pleadings.The party alleging laches must adduce in court evidence proving such allegation (Apo v. Sps. Roberto, G.R. No. 198356, April 20, 2015). Civil Law 4. 5. 6. rests on the part claiming it. Failure to plead constitutes as a waiver of defense and cannot be raised for the first time on trial or appeal. Recover property subject to expressed trust; Probate of a will; and Quiet title. ACQUISITIVE PRESCRIPTION Who may acquire by prescription(PSM) CHARACTERISTICS 1. Persons who are capable of acquiring property by other legal modes; 2. State; and 3. Minors – through guardians of personally. Basis of acquisitive prescription It is based on the assertion of a usurper of an adverse right for such a long period of time, uncontested by the true owner of the right, as to give rise to the presumption that the latter has given up such right in favour of the former (Tolentino, Civil Code of the Philippines, Vol. IV, p. 2). Persons against whom prescription may run 1. 2. 3. 4. 5. Minors and other incapacitated persons who have parents, guardians or other legal representatives; Absentees who have administrators, either appointed by them before their disappearance, or appointed by the courts; Persons living abroad, who have managers or administrators; Juridical persons, except the State and its subdivisions (NCC, Art. 1108); and Prescription, acquisitive and extinctive, runs in favor of, or against a married woman (NCC, Art. 1110). This presupposes a situation where the parties involved are a married woman and another person not her husband. Q: What are the basic requirements of prescription as a mode of acquiring ownership? A: 1. 2. 3. 4. 5. Actual possession of a property, which is susceptible of prescription; Possession must be in the concept of an owner and not that of a mere holder (NCC, Art. 1118); Possession must be public or open (NCC, Art. 1118); Possession must be peaceful (NCC, Art. 1118); Possession must be continuous and not interrupted (NCC, Art. 1118); Possession must be adverse, that is, exclusive and not merely tolerated; Possession must satisfy the full period required by law (Pineda Succession and Prescription, p. 606, 2009); Prescription may be in favor of or against the married woman. Persons who are disqualified from administering their property have a right to claim damages from their legal representatives whose negligence has been the cause of prescription. Things subject to prescription 6. All things within the commerce of men; a. Private property; and b. Patrimonial property of the state It requires possession of things in good faith and with just title for the time fixed by law. 7. ORDINARY PRESCRIPTION Good faith Note: Patrimonial property of the state is the property it owns but which is not devoted to public use, public service, or the development of national wealth. It is wealth owned by the state in its private, as distinguished from its public, capacity (Paras, 2008). Q: When is a possessor in good faith? A:If he is not aware of the existence of any flaw or defect in his title or mode of acquisition which invalidates it (NCC, Art. 526 in relation to Art. 1128) and has reasonable belief that the person from whom he received the thing was the owner thereof, and could transmit his ownership (NCC, Art. 1127). Things not subject to prescription 1. 2. 3. 4. Public domain; Intransmissible rights; Movables possessed through a crime; and Registered land. Q: When must good faith exist? A:It must exist not only from the beginning but throughout the entire period of possession fixed by law(Pineda Succession and Prescription, p. 643, 2009 ed). Rights not extinguished by prescription 1. 2. 3. Demand right of way; Abate public /private nuisance; Declare contract void; Just title 210 PROPERTY It means that the possessor obtained the possession of the property through one of the modes recognized by law for acquiring ownership but the transferor or grantor was not the owner of the property or he has no power to transmit the right (NCC, Art. 1129). Q: How about ownership and other real rights over immovables? A: They prescribe through uninterrupted adverse possession for 30 years, without need of title or of good faith (NCC, Art. 1137). Note:Just title is never presumed, it must be proved (NCC, Art. 1130). Q: What are the rules for the computation of time necessary for prescription? Note:The title for prescription must be true and valid (NCC, Art. 1130). A: 1. True title One which actually exists and is not just a pretended one. 2. Note:An absolutely simulated or fictitious title is void and cannot be a basis for ordinary prescription(Pineda Succession and Prescription, p. 646, 2009). 3. Valid title Q: Emilio died, leaving 8 children. In 1960, His eldest child, Flores, took possession of and cultivated the land, caused the cancellation of the tax declaration in Emilio’s name covering a parcel of land and caused the issuance of another in his own name. The co‐heirs of Flores discovered the cancellation. Upon Flores’ death, the heirs of his sisters together with his surviving sisters filed a complaint in 1999 against the heirs of Flores for partition of the lot and declaration of nullity of the documents. Did the heirs of Flores acquire ownership over the lot by extraordinary acquisitive prescription? A title which is sufficient to transmit ownership of the property or right being conveyed had the transferor or grantor been the real owner thereof. EXTRAORDINARY PRESCRIPTION Prescription where the possessor is in bad faith. It does not require good faith or just title but possession for a period longer than ordinary acquisitive prescription (Pineda Succession and Prescription, p. 607, 2009). Requisites of extraordinary prescription (CLASG) 1. 2. 3. 4. 5. A: YES. While the action to demand partition of a co‐ owned property does not prescribe, a co‐owner may acquire ownership thereof by prescription, where there exists a clear repudiation of the co‐ownership, and the co‐owners are apprised of the claim of adverse and exclusive ownership. In this case, the respondents never possessed the lot, much less asserted their claim thereto until 1999 when they filed the complaint for partition. In contrast, Flores took possession of the lot after Emilio’s death and exercised acts of dominion thereon‐ tilling and cultivating the land, introducing improvements, and enjoying the produce thereof. The statutory period of prescription commenced in 1960 when Flores, who had neither title nor good faith, secured a tax declaration in his name and may, therefore, be said to have adversely claimed ownership of the lot. On said date, respondents were also deemed to have become aware of the adverse claim. Flores’s possession thus ripened into ownership through acquisitive prescription after the lapse of 30 years (Heirs of Restar v. Heirs of Cichon, G.R. No. 161720, November. 22, 2005). Capacity of the possessor to acquire by prescription; Susceptibility of object to prescription; Adverse possession of the character prescribed by law; Lapse of time required by law; and Good faith of possessor or proof of just title. PERIOD Q: What are the periods as regards prescription as a mode of acquisition of ownership? A: 1. 2. The present possessor may complete the period necessary for prescription by tacking his possession to that of his grantor or predecessor in interest; It is presumed that the present possessor who was also the possessor at a previous time, has continued to be in possession during the intervening time, unless there is proof to the contrary; and The first day shall be excluded and and the last day included (NCC, Art 1138). Movables a. 4 years ‐ If in good faith; and b. 8 years‐ If in bad faith. Immovables a. 10 years‐ If in good faith; and b. 30 years‐ If in bad faith. Q: How does ownership of personal property prescribe? A: Through uninterrupted possession for 8 years, without need of any other condition (NCC, Art. 1132). Q: Sixto, owner of a parcel of land, died. He was survived by his wife and three children. The 211 Civil Law subject land was donated by his wife to Silverio, who immediately entered into possession of the land, built a fence around it, constructed a residential house, declared it for tax purposes and paid the taxes thereon, and resided there until his death. After 45 years from the time of donation, Soledad, one of Sixto’s children, filed a complaint for recovery of ownership, and possession against Silverio. Who is the rightful owner of the land? he require Anthony to account for all the fruits he has harvested from the property while in possession? A: Since Anthony is a possessor in good faith, Anthony cannot be made to account for the fruits he gathered before he was served with summons. A possessor in good faith is entitled to the fruits received before the possession was legally interrupted by the service of summons (NCC, Art. 544). After Anthony was served with summons, he became a possessor in bad faith and a builder, planter, sower in bad faith. He can also be made to account for the fruits but he may deduct expenses for the production gathering and preservation of the fruits (NCC, Art. 443). A:Silverio became the rightful owner of the land by extraordinary acquisitive prescription. In extraordinary prescription ownership and other real rights over immovable property are acquired through uninterrupted adverse possession thereof for 30 years without need of title or of good faith. Q: If there are standing crops on the property when Carlo recovers possession, can Carlo appropriate them? (2008 Bar) When Soledad filed the case, Silverio was in possession of the land for 45 years counted from the time of the donation. This is more than the required 30 years of uninterrupted adverse possession without just title and good faith. Such possession was public, adverse and in the concept of an owner. He declared the land for taxation purposes and religiously paid the realty taxes thereon. Together with his actual possession of the land, these tax declarations constitute strong evidence of ownership of the land occupied by him (Calicdan v. Cendeña, G.R. No. 155080, February. 5, 2004). A: The value of the standing crops must be prorated depending upon the period of possession and the period of growing and producing the fruits. Anthony is entitled to a part of the net harvest and a part of the expenses of cultivation in proportion to his period of possession. However, Carlo may allow Anthony to gather these growing fruits as an indemnity for the expenses of cultivation. If Anthony refuses to accept this concession, he shall lose the right to indemnity under Art. 443 (NCC, Art. 545, par. 3). Q: Anthony bought a piece of untitled agricultural land from Bert. Bert, in turn, acquired the property by forging Carlo’s signature in a deed of sale over the property. Carlo had been in possession of the property for eight years, declared it for tax purposes, and religiously paid all taxes due on the property. Anthony is not aware of the defect in Bert’s title, but has been in actual physical possession of the property from the time he bought it from Bert, who had never been in possession. Anthony has since then been in possession of the property for one year. EXTINCTIVE PRESCRIPTION CHARACTERISTICS Basis of extinctive prescription It based on the probability, born of experience, that the alleged right which accrued in the past never existed or has already been extinguished; or if it exists, the inconvenience caused by the lapse of time should be borne by the party negligent in the assertion of his right (Tolentino, Civil Code of the Philippines, Vol. IV, p. 2). Can Anthony acquire ownership of the property by acquisitive prescription? How many more years does he have to possess it to acquire ownership? Requisites: A: YES Anthony can acquire ownership of the property by ordinary acquisitive prescription which requires just title and good faith (NCC, Art. 1117). There was just title because a deed of sale was issued in his favor even though it was forged, which fact he was not aware of. He needs to possess the land in good faith and in the concept of owner for a total of ten years in order to acquire ownership. Since Anthony possessed the land for only one year, he has not completed the ten‐year period. Even if Anthony tacks the 8‐year period of possession by Carlo who in the deed of sale is supposed to be his grantor or predecessor in interest [NCC, Art. 1138(1)], the period is still short of ten years. 1. 2. 3. 4. Capacity to acquire by prescription; A thing capable of acquisition by prescription; Possession of the thing under certain conditions; and Lapse of time provided by law. PERIODS Q: What are the periods as regards prescription of actions to recover movables and immovables? A: 1. If Carlo is able to legally recover his property, can 212 Movables a. 4 years‐ If in good faith; and PROPERTY b. 2. 8 years ‐ If in bad faith(NCC, Art. 1140 in relation to Art. 1132). Note: Distinguished from laches Immovables a. 10 years ‐ If in good faith b. 30 years ‐ If in bad faith Property of public dominion INSTANCES WHEN PRESCRIPTION IS NOT ALLOWED NOTE: In contrast, where private property is taken by the Government for public use without first acquiring title thereto either through expropriation or negotiated sale , the owner’s action to recover the land or the value thereof does not prescribe. NO PRESCRIPTION APPLICABLE When it is possessed through a crime such as robbery, theft, or estafa. NOTE: The person who cannot invoke the right of prescription is the offender or person who committed the crime or offense, not a subsequent transferee who did not participate in the crime or offense, unless the latter knew the criminal nature of the acquisition of the property by the transferor(NCC, Art. 1133, Pineda Succession and Prescription, p. 651, 2009). 1. An action to recover a registered land by the owner; and 2. Right to petition for the issuance for the issuance of a Writ of Possession filed by the applicant for registered land. By Offender Registered Lands (P.D. 1529) Right of reversion or reconveyance to the State of the public properties registered and which are not capable of private appropriation or private acquisition does not prescribe. Prescription and laches cannot apply to registered land covered by the Torrens system" because "under the Property Registration Decree, no title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession" (Jakosalem vs. Barangan, G.R. No. 175025, February 15, 2012)(Del Castillo, J.) PRESCRIPTION OR LIMITATION OF ACTIONS ACTIONS PRESCRIPTIVE PERIOD Recover Movables Eight years (good faith)or Four years (bad faith) from the time the possession is lost (NCC, Art. 1140, Pineda Succession and Prescription, p. 666, 2009). NOTE: Similarly, an action to recover possession of a registered land never prescribes. 1. Action legal to demand a right of way 2. To abate a nuisance Action to quiet title if plaintiff in possession Recover Immovables Imprescriptible 10 years (Recover real right of possession) (NCC, Art. 555(4); and Pineda Succession and Prescription, p. 667, 2009). Imprescriptible Applies to both action and defense. Void contracts Action demand partition to 30 years (Recover ownership) (NCC, Art. 1141). Note: However, an action to annul a voidable contract prescribes after four years. As long as the co‐ownership is recognized expressly or impliedly (NCC, Art. 494). Mortgage Action 10 years from default of mortgagor (NCC, Art. 1142). Based on written contract 10 years Note: If contract is oral or quasi, 213 Civil Law prescriptive period is six years (NCC, Art. 1145) Based on obligation created by law Based on judgment 10 years from the time the right of action accrues 10 years from the day judgment became final and executory (NCC, Art. 1144) Based upon an injury to the rights of plaintiff Four years Based on quasi‐ delicts Four years (NCC, Art. 1146) Forcible entry and detainer One year Defamation One year (NCC, Art. 1147) All other actions not specified Five years (NCC, Art. 1149) INTERRUPTION Q: What are the grounds for interruption of prescriptive period? A: 1. 2. 3. When they are filed before the court; When there is a written extrajudicial demand by the creditors; or When there is any written acknowledgment of the debt by the debtor (NCC, Art. 1155) 214 OBLIGATIONS AND CONTRACTS c. Unilateral acts (Tolentino, 2002). OBLIGATIONS 2. Active subject [creditor (CR) or obligee] - The person demanding the performance of the obligation. It is he in whose favor the obligation is constituted, established or created (Pineda, 2000). 3. Passive subject [debtor (DR) or obligor] - The one bound to perform the prestation to give, to do, or not to do (Pineda, 2000). 4. Object or prestation - The subject matter of the obligation which has a corresponding economic value or susceptible of pecuniary substitution in case of noncompliance. It is a conduct that may consist of giving, doing, or not doing something (Pineda, 2000). GENERAL PRINCIPLES An obligation is a juridical necessity to give, to do, or not to do(Art. 1156). It is a juridical relation or a juridical necessity whereby a person (creditor) may demand from another (debtor) the observance of a determinative conduct (giving, doing, or not doing), and in case of breach, may demand satisfaction from the assets of the latter(Makati Stock Exchange v. Campos,G.R. No. 138814, April 16, 2009). It is a juridical necessity because in case of noncompliance, the courts of justice may be called upon by the aggrieved party to enforce its fulfillment or, in default thereof, the economic value that it represents. NOTE: In order to be valid, the object or prestation must be: 1. Licit or lawful; 2. Possible, physically & judicially; 3. Determinate or determinable; and 4. Pecuniary value or possible equivalent in money. Art. 1156 refers only to civil obligations which are enforceable in court when breached. It does not cover natural obligations (Articles. 1423-1430) because the latter are obligations that cannot be enforced in court being based merely on equity and natural law and not on positive law (Pineda, 2000). Absence of any of the first three makes the object void. NOTE: Some writers add a fifth one: the form in which the obligation is manifested. This element, however, cannot be considered as essential. There is no particular form required to make obligations binding, except in certain rare cases (Tolentino, 1991). When there is a right, there is a corresponding obligation. Right is the active aspect while obligation is the passive aspect. Thus, it is said that the concepts of credit and debt are two distinct aspects of unitary concept of obligation (Pineda, 2000). GR: The law does not require any form in obligations arising from contracts for their validity or binding force (Art. 1356). XPNs: 1) 2) DIFFERENT KINDS OF PRESTATION BASIS When the form is essential to the validity of the contract as required by law (Art. 1346); When the contract is unenforceable unless it is in a certain form, such as those under the Statute of Frauds as formulated in Art. 1403. As to what the obligation consists of OBLIGATION TO GIVE OBLIGATION TO DO OBLIGATION NOT TO DO Consists in the delivery of a thing to the creditor Covers the rendering of works or services whether physical or mental Refraining from doing certain acts Sale, deposit, pledge, donation, antichresis Contract for professional services like painting, modeling, singing, etc. Negative easement, restraining order or injunction (Pineda, 2000) Obligations arising from other sources (Art. 1157) do not have any form at all (De Leon, 2010). ELEMENTS OF AN OBLIGATION The following are the elements of an obligation (JAPO): 1. Examples Juridical tie or vinculum juris or efficient cause The efficient cause by virtue of which the debtor becomes bound to perform the prestation (Pineda, 2000). CLASSIFICATION OF OBLIGATIONS From the viewpoint of: 1. Creation a. Legal – Imposed by law (Art. 1158) ; NOTE: The vinculum juris is established by: a. Law; b. Bilateral acts; 215 Civil Law b. 2. 3. Conventional – Established by the agreement of the parties (eg. Contracts). b. Nature a. Personal – to do; not to do; b. Real – to give. Object a. Determinate / specific - Particularly designated or physically segregated from all others of the same class; b. Generic – Designated merely by its class or genus; c. Limited generic – Generic objects confined to a particular class or source (Tolentino, 2002).(e.g. An obligation to deliver one of my horses). 4. Performance a. Positive - To give; to do; b. Negative – Not to do (ex. An obligation not to run for an elective post). 5. Person obliged a. Unilateral – Only one party is bound; b. Bilateral – Both parties are bound. 10. Imposition of penalty a. Simple – there is no penalty imposed for violation of the terms thereof (NCC. 1226); b. Obligation with penalty – obligation which imposes a penalty for violation of the terms thereof (NCC. 1226; Pineda, 2000). 11. Sanction a. Civil – Gives a right of action to compel their performance; b. Natural– Not based on positive law but on equity and natural law; does not grant a right of action to enforce their performance, but after voluntary fulfillment by the obligor, they authorize retention of what has been delivered rendered by reason thereof. Moral – Cannot be enforced by action but are binding on the party who makes it in conscience and natural law. NOTE : A bilateral obligation may be reciprocal or non-reciprocal. Reciprocal obligations are those which arise from the same cause, wherein each party is a debtor and a creditor of the other, such that the performance of one is conditioned upon the simultaneous fulfillment of the other. 6. 7. 8. 9. SOURCES OF OBLIGATIONS 1. 2. 2. 3. 4. Existence of burden or condition a. Pure –Not burdened with any condition or term. It is immediately demandable (Art. 1179); b. Conditional – Subject to a condition which may be suspensive (happening of which shall give rise to the obligation) or resolutory (happening of which terminates the obligation) (NCC. 1181). Law; Contracts; Quasi-contracts; Delict; Quasi-delict. This enumeration is exclusive. No obligation exists if its source is not one of those enumerated inArt. 1157 of the NCC(Navales v. Rias, G.R. No. L-3489, September 7, 1907). Note: Actually, there are only two sources (i.e., law and contracts) because obligations arising from quasi-contracts, delicts and quasi-delicts are imposed by law (Leung Ben v. O’Brien, 38 Phil. 182). Character of responsibility or liability a. Joint – Each debtor is liable only for a part of the whole liability and to each creditor shall belong only a part of the correlative rights (8 Manresa 194 ; NCC. 1207); b. Solidary – Debtor is answerable for the whole of the obligation without prejudice to his right to collect from his co-debtors the latter’s shares in the obligation (NCC. 1207). Time of perfection GR: d. Law – From the time designated by the law creating or regulating them; e. Contracts –From the time of the perfection of the contract. Susceptibility of partial fulfillment a. Divisible – Obligation is susceptible of partial performance (NCC. 1223; and 1224); b. prestations (NCC. 1199); Facultative – Only one prestation has been agreed upon, but the obligor may render one in substitution of the first one (NCC. 1206). e.g. meeting of the minds. XPNs: a. Indivisible – Obligation is not susceptible of partial performance (NCC. 1225). b. Right to choose and substitution a. Alternative – Obligor may choose to completely perform one out of the several 216 When the parties made stipulation on the right of the creditor to the fruits of the thing; When the obligation is subject to a suspensive condition, it arises upon fulfillment of the condition; OBLIGATIONS AND CONTRACTS c. f. When the obligation is with a period, there is already an existing obligation but demandable only when the period expires or becomes due. Rules governing the obligations arising from contracts GR: These obligations arising from contracts shall be governed primarily by the stipulations, clauses, terms and conditions of the parties’ agreements. Quasi Contracts, delicts, quasi-delict – From the time designated by the law creating or regulating them. XPN: Contracts with prestations that are unconscionable or unreasonable (Pineda, 2009). OBLIGATION EX LEGE Binding force of obligation ex contractu Obligations derived from law are not presumed. Only those expressly determined in the Code or in special laws are demandable and shall be regulated by the precepts of the law which establishes them and as to what has not been foreseen by the provisions of Book IV of NCC (NCC, Art. 1158). Obligations arising from contracts have the force of law between the parties and should be complied with in good faith (NCC, Art. 1159). This is known as the “principle of obligatory force of contracts” (Rabuya, 2017). NOTE: If there is conflict between the NCC and a special law, the latter prevails unless the contrary has been expressly stipulated in the NCC (NCC, Art. 18; Paras, 2008). Good faith is performance in accordance with the stipulation, clauses, terms and conditions of the contract (Pineda, 2000). GR: Neither party may unilaterally evade his obligation in the contract. Characteristics of a legal obligation 1. Does not need the consent of the obligor; 2. Must be expressly set forth in the law creating it and not merely presumed; and 3. In order that the law may be a source of obligation, it should be the creator of the obligation itself (NCC, Art. 1158). XPNs: Unilateral evasion is allowed when the: 1. Contract authorizes such evasion; or 2. Other party assents thereto. OBLIGATION EX QUASI – CONTRACTU Determining whether an obligation arises from law or from some other source 1. 2. Quasi-contract A juridical relation arising from lawful, voluntary and unilateral acts based on the principle that no one shall be unjustly enriched or benefited at the expense of another (NCC, Art. 2142). Arises from law if it establishes obligation; Arises from the act itself if the law merely recognizes the existence of an obligation generated by an act (Manresa). Distinguished from “implied contracts” e.g. 1. According to Art. 2014 of the NCC, a loser in a game of chance may recover his loss from the winner, with legal interest from the time he paid the amount lost (Leung Ben v. O’Brien, G.R. No. L13602, April 6, 1918); 2. The obligation of the spouses to support each other; 3. The obligation of the employers under the Worker’s Compensation Act; 4. The obligations of the owners of the dominant and servient estates in legal easements and others scattered in the NCC and in special laws (Jurado, 2009); 5. The obligation to pay taxes (Rabuya, 2017). An implied contract, in the proper sense, is a contract which arises when the intention of the parties is not expressed, but an agreement in fact, creating an obligation, is implied or presumed from their acts, or where there are circumstances which show a mutual intent to contract. An implied contract requires consent while quasicontract, being a unilateral contract, does not. The basis of an implied contract is the will of the parties while the basis of a quasi-contract is law, to the end that there be no unjust enrichment(Rabuya, 2017). Characteristics of a quasi-contract(LUV) OBLIGATION EX CONTRACTU 1. It must be Lawful; 2. It must be Unilateral; and 3. It must be Voluntary (Pineda, 2000). Requisites of a contractual obligation 1. It must contain all the essential requisites of a contract (NCC, Art. 1318); and 2. It must not be contrary to law, morals, good customs, public order, and public policy (NCC, Art. 1306). Presumptive consent Since a quasi-contract is a unilateral contract created by the sole act(s) of the gestor, there is no express consent given by the other party. The consent needed 217 Civil Law in a contract is provided by law through presumption (Pineda, 2000). XPNs: Crimes of treason, rebellion, espionage, contempt and others wherein no civil liability arises on the part of the offender either because there are no damages to be compensated or there is no private person injured by the crime (Reyes, 2008). Principal forms of quasi-contracts 1. Negotiorum gestio (inofficious manager)–Arises when a person voluntarily takes charge of the management of the business or property of another without any power from the latter (NCC, Art. 2144); 2. Solutio indebiti (unjust enrichment) – Takes place when a person received something from another without any right to demand for it, and the thing was unduly delivered to him through mistake (NCC, Art. 2154). Implied institution of the civil action in a criminal case GR: When a criminal action is instituted, the civil action for the recovery of the civil liability arising from the offense charged shall be deemed instituted with the criminal action (Sec. 1, Rule 111, Rules of Court). NOTE: The delivery must not be through liberality or some other cause. XPNs: When the offended party: Solutio indebiti (SI) v. Accion in rem verso (AIRV) 1. 2. 3. 1. Mistake is an essential element in SI which is not necessary in AIRV; 2. An AIRV is merely an auxilliary action, available only when there is no other remedy on contract, quasi-contract, crime or quasi-delict (Rabuya, 2017). Scope of civil liability (IRR) 1. 2. 3. Rule in case of excess of payment of interest If the borrower pays interest when there has been no stipulation therefor, the provisions of the Code concerning solutio indebiti, or natural obligations, shall be applied, as the case may be. GR: The acquittal of the accused in criminal case on the ground of reasonable doubt does not preclude the filing of a subsequent civil action and only preponderance of evidence is required to prove the latter. XPNs: When the acquittal is on the basis that: 1. The accused did not commit the crime charged; or 2. There is a declaration in the decision of acquittal that no negligence can be attributed to the accused and that the fact from which the civil action might arise did not exist (NCC, Art. 29). Contract v. Quasi-contract QUASI-CONTRACT There is a meeting of the minds or consent; the parties must have deliberately entered into a formal agreement There is no consent but the same is supplied by fiction of law; to prevent injustice Restitution; Reparation for damage caused; and Indemnity for consequential damages (Art. 104, RPC). Acquittal in criminal case If the payment of interest is made out of mistake, solutio indebiti applies; hence, the amount must be returned to the debtor. If the payment was made after the obligation to pay interest has already prescribed, natural obligation applies; hence, the creditor is authorized to retain the amount paid. CONTRACT Waives the civil action; Reserves the right to institute it separately; and Institutes the civil action prior to the criminal action (Rule 111, Sec. 1, Rules of Court). OBLIGATIONS EX QUASI – DELICTO Quasi-delict or tort An act or omission arising from fault or negligence which causes damage to another, there being no preexisting contractual relations between the parties (NCC, Art. 2176). *For further discussion on quasi contracts, please see the discussion of quasi contract on Credit Transactions NOTE: A single act or omission may give rise to two or more causes of action. Thus, an act or omission may give rise to an action based on delict, quasi‐delict or contract. OBLIGATIONS EX DELICTO Delict An act or omission punishable under the law. Basis In negligence cases, prior conduct should be examined, that is, conduct prior to the injury that resulted, or in proper case, the aggravation thereof. GR: Art. 100 of the RPC provides: “Every person criminally liable for a felony is also civilly liable.” Elements of a quasi-delict 218 OBLIGATIONS AND CONTRACTS 1. 2. 3. 4. Negligent or wrongful act or omission; Damage or injury caused to another; Causal relation between such negligence or fault and damage; and No pre-exisitng contractual relationship between the parties (NCC, Art. 2176). compromise. As to the quantum of evidence is required Instances when Art. 2176 is inapplicable 1. 2. 3. 4. 5. When there was a pre‐existing contractual relation because the breach of contract is the source of the obligation (Robles v. Yap Wing, 41 SCRA 267, G.R. No. L-20442, October 4, 1971); Guilt must be proved beyond reasonable doubt. Guilt may be proved by preponderance of evidence. NOTE: However, if the act that breaches the contract is tortuous, the pre‐existing contractual relation will not bar the recovery of damages (Singson v. BPI, G.R. No. L-24837, June 27, 1968); NOTE: Inasmuch as civil liability co-exists with criminal responsibility in negligence cases, the offended party has the option between an action for enforcement of civil liability based on culpa criminal under Art. 100 of the RPC and an action for recovery of damages based on culpa aquiliana under NCC, Art. 2177. When the fault or negligence is punished by law as a crime, Art. 100 of RPC shall be applicable; NATURE AND EFFECTS OF OBLIGATIONS If the action for quasi‐delict is instituted after 4 years, it is deemed prescribed (Afialda v. Hisole, G.R. No. L-2075, November 29, 1949); When the injury suffered by a person is the result of a fortuitous event without human intervention; Types of real obligations 1. Determinate/specific – Particularly designated or physically segregated from all others of the same class; 2. Indeterminate/Generic – Is designated merely by its class or genus; 3. Delimited generic – Generic objects confined to a particular class (Tolentino, 2002); e.g. An obligation to deliver one of my horses. If there is no damage or injury caused to another (Walter A. Smith & Co. v. Cadwallader Gibson Lumber Company, G.R. No. L-32640, December 29, 1930). Delict v.Quasi-delict BASIS DELICT As to the kind of intent present Presence of criminal or malicious intent or criminal negligence. Only negligence As to the whether private or public interest is concerned Concerned with public interest. Concerned with private interest. As to the kind of liability arises Generally, the act or omission gives rise to two liabilities: criminal and civil liability. The act or omission gives rise only to a civil liability. Criminal liability is not subject to a The civil liability can be compromised. As to availability of a compromise QUASI-DELICT Obligations of a debtor in an obligation to deliver The obligations of the debtor (in an obligation to deliver) depends upon the kind thing involved: BASIS 219 SPECIFIC GENERIC What the obligation consists of Deliver the thing which is neither of superior nor inferior quality if Deliver the thing quality and agreed upon circumstances (NCC, Art. 1165). have not been stated by the parties. (NCC, Art. 1246). Required diligence to be observed Take care of the thing with the proper diligence of a good father of a family unless the law requires or parties stipulate another standard of care If the object is generic, but the source is specified or delimited, the obligation is to preserve the source. Civil Law (NCC, Art.1163). Damages, in both cases (NCC, Art. 1170). NOTE: May be exclusive or in addition to the above-mentioned remedies NOTE: In an obligation to deliver a specific thing, the creditor has the right to demand preservation of the thing, its accessions, accessories, and the fruits. The creditor is entitled to the fruits and interests from the time the obligation to deliver the thing arise. What delivery comprises of Effect of breach of obligation Effect of fortuitous event Deliver all accessions, accessories and fruits of the thing even though they may not have been mentioned (NCC, Art. 1166). Delivery of another thing within the same genus as the thing promised if such thing is damaged due to lack of care or a general breach is committed. Pay damages in case of breach of obligation by reason of delay, fraud, negligence, contravention of the tenor thereof (NCC, Art. 1170). Pay damages in case of breach of obligation by reason of delay, fraud, negligence, contravention of the tenor thereof (NCC, Art. 1170). Right of the creditor to the fruits The creditor has a right to the fruits of the thing from the time the obligation to deliver it arises. However, he shall acquire no real right over it until the same has been delivered to him (NCC, Art. 1164). Obligation is not Fortuitous event extinguished extinguishes the (genus nunquam obligation. peruit – genus never perishes). SOURCE OF OBLIGATION WHEN OBLIGATION ARISES Law, quasi-delict, quasi-contract, or crime. Based on specific provisions of applicable law. Subject to a suspensive condition. From the happening of the condition. Subject to a supensive term/period. From the constitution, creation or perfection of obligation. Pure From the constitution, creation or perfection of the obligation. Remedies of the creditor in case of failure to deliver the thing due Nature of the right of the creditor with respect to fruits The following are the remedies of the creditor in case of failure to deliver the thing due (Pineda, 2000) 1. 2. SPECIFIC GENERIC Specific performance. Specific performance (delivery of anything belonging to the same species). Rescission (action to rescind under NCC, Art. 1380). Ask that the obligation be complied with at the debtor’s expense with a right to recover damages. Resolution (action for cancellation under NCC, Art. 1191). Resolution or specific performance, with damages in either case (NCC, Art. 1191). Before delivery – Personal right; After delivery – Real right. Personal right v. Real right 220 PERSONAL RIGHT REAL RIGHT The right or power of a person (creditor) to demand from another (debtor), as a definitepassive subject, the fulfillment of the latter’s obligation to give, to do, or not to do. The right or interest of a person over a specific thing (i.e. ownership, possession, mortgage), without a definite subject against whom the right may be OBLIGATIONS AND CONTRACTS Specific performance is not a remedy in positive personal obligations personally enforced. If specific performance will be allowed, it will amount to involuntary servitude which is prohibited by the Constitution (Pineda, 2000). BREACHES OF OBLIGATIONS There is a definite active subject and a definite passive subject. Binding and enforceable only against a particular person. Degree of diligence required There is only a definite active subject without any passive subject. 1. 2. 3. Directed against the whole World. a. b. Principle of “balancing of equities” in actions for specific performance In decreeing specific performance, equity requires not only that the contract be just and equitable in its provisions, but that the consequences of specific performance likewise be just and equitable. The general rule is that this equitable relief will not be granted if, under the circumstances of the case, the result of the specific performance of the contract would be harsh, inequitable, and oppressive or result in an unconscionable advantage to the plaintiff (Agcaoili v. GSIS, G.R. No. 30056, August 30, 1988). That reasonable diligence which an ordinary prudent person would have done under the same circumstances. Forms of breach of obligations 1. Positive - To do; Negative - Not to do. 2. Remedies in personal obligations 1. Positive personal obligations a. Not purely personal act – To have obligation executed at debtor's expense plus damages; b. Purely personal act - Damages only. Voluntary – Debtor is liable for damages if he is guilty of: a. Default (mora) b. Fraud (dolo) c. Negligence (culpa) d. Breach through contravention of the tenor thereof (NCC, Art. 1170). Involuntary –Debtor is unable to perform the obligation due to fortuitous event thus not liable for damages. Effects of breach of obligation If a person obliged to do something fails to do it, or if he does it in contravention of the tenor of the obligation or what has been poorly done be undone, the same shall be executed at his cost (NCC, Art. 1167). When positive personal oblugations considered breached: a. If the debtor fails to perform the obligation; or b. Even in case of performance but the same is done either in a poor manner or in contravention of the tenor of the obligation (NCC, Art. 1167). 2. XPNs: Common carriers requiring extraordinary diligence (NCC, Arts. 1998-2002); Banks require the highest degree of deligence, being imbued with public interest. Diligence of a good father of a family Types of personal obligations 1. 2. That agreed upon; In the absence of such, that which is required by the law; GR: In the absence of the foregoing, diligence of a good father of a family When the obligation consists in not doing, and the obligor does what has been forbidden him, it shall also be undone at his expense (NCC, Art.1168). Instances where the remedy under Art. 1168 is not available Negative personal obligation – To have the prohibited thing undone at the expense of the debtor plus damages. However, if thing cannot be physically or legally undone, only damages may be demanded (8 Manresa 58). 1. 221 Where the effects of the act which is forbidden are definite in character – Even if it is possible for the creditor to ask that the act be undone at the expense of the debtor, consequences contrary to the object of the obligation will have been produced which are permanent in character. Civil Law 2. Where it would be physically or legally impossible to undo what has been undone – Because of: 4. The very nature of the act itself; 5. A provision of law; or 6. Conflicting rights of third persons. NOTE: In either case, the remedy is to seek recovery for damages (NCC, Art. 1168). appears to be patently unreasonable length of time to approve or disapprove a credit card purchase. The culpable failure of AmEx herein is not the failure to timely approve petitioner’s purchase, but the more elemental failure to timely act on the same, whether favorably or unfavorably (Pantaleon v. American Express, G.R. No. 174269, May 8, 2009). DELAY (MORA) OR DEBTOR’S DEFAULT MORA SOLVENDI Those obliged to deliver or to do something incur in delay from the time the obligee (creditor) judicially or extrajudicially demands from them the fulfillment of their obligation. Requisites (PDF-MJ) In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligations, delay by the other begins (NCC, Art. 1169). (2002 Bar) 1. Obligation Pertains to the debtor; 2. Obligation is Determinate, due and demandable, and liquidated; 3. Obligation has not been performed on its Maturity date; 4. There is Judicial or extrajudicial demand by the creditor; and 5. Failure of the debtor to comply with such demand. Kinds of delay Non-applicability of mora solvendi Ordinary delay – This is the mere failure to perform an obligation at the stipulated time. Extraordinary delay or legal delay – This delay already equates to non-fulfillment of the obligation and arises after the extrajudicial or judicial demand has been made upon the debtor (Pineda, 2000). Mora solvendi does not apply in natural obligations because performance is optional or voluntary on the debtor’s part. One can never be late in not giving or doing something. Instances when demand by the creditor is not necessary in order that delay may exist Kinds of legal delay or default GR: No demand = no default [NCC, Art. 1169 (2)]. XPNs: Demand by the creditor shall not be necessary in order that delay may exist when: Mora solvendi – Default on the part of the debtor/obligor a. Ex re – Default in real obligations (to give); b. Ex personae – Default in personal obligations (to do); 2. Mora accipiendi – Default on the part of the creditor/oblige; Compensatio morae – Default on the part of both the debtor and creditor in reciprocal obligations. 1 1. 2. 3. Causes of cessation of the effects of mora 1. 2. Renunciation (express/implied); or Prescription. The obligation or the law expressly so declares; or From the nature and the circumstances of the obligation it appears that the designation of time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract; or Demand would be useless, as when the obligor has rendered it beyond his power to perform [Art. 1169 (2)]. Q: “A” borrowed P2,000 from “B” on December 1, 1956. He executed a promissory note promising to pay the indebtedness on December 1, 1958. Upon the arrival of the designated date for payment, is demand necessary in order that “A” shall incur in delay? Q: American Express Card (AMEX) failed to approve Pantaleon’s credit card purchases which urged the latter to commence a complaint for moral and exemplary damages against AMEX. He said that he and his family experienced inconvenience and humiliation due to the delays in credit authorization during his vacation trip in Amsterdam and in the United States. Did AMEX commit a breach of its obligations to Pantaleon? A: YES. In order that the first exception provided for in Art. 1169 of the NCC can be applied, it is indispensable that the obligation or the law should expressly add that the obligor shall incur in delay if he fails to fulfill the obligation upon the arrival of the designated date or that upon the arrival of such date demand shall not be necessary (Bayla v. Silang Traffic Co., G.R. Nos. L-48195 and 48196, May 1, 1942). A: YES. Generally, the relationship between a credit card provider and its cardholders is that of creditordebtor, with the card company as the creditor extending loans and credit to the cardholder, who as debtor is obliged to repay the creditor. One hour Effects of mora solvendi 222 OBLIGATIONS AND CONTRACTS 1. Debtor may be liable for damages (NCC, Art. 1155) or interests; and Demand is only necessary in order for a party to incur delay when the respective obligations are to be performed on separate dates. NOTE: The interest begins to run from the filing of the complaint when there is no extrajudicial demand. 2. 3. Effect of non-compliance of both parties in reciprocal obligations When the obligation has for its object a determinate thing, the debtor may bear the risk of loss of the thing even if the loss is due to fortuitous event; If neither party complies with his prestation, default of one compensates for the default of the other. Rescission or resolution. Rules on compensatio morae Debtor’s liability may be mitigated even if he is guilty of delay If the debtor can prove that loss would nevertheless transpire even if he had not been in default, the court may equitably mitigate his liability [NCC, Art. 2215(4); Pineda, 2000] Time of delay MORA ACCIPIENDI Requisites 1. 2. 3. Offer of Performance by a capacitated debtor; Offer must be to Comply with the prestation as it should be performed; and Refusal of the creditor without just cause (Pantaleon v. Amex, supra). 2 3 4 5 6 Reciprocal Obligations Default or delay begins from extrajudicial or judicial demand – mere expiration of the period fixed is not enough in order that debtor may incur delay. Delay by the other party begins from the moment one of the parties fulfills his obligation. a. The obligation or the law expressly so dictates; Effects of mora accipiendi 1 Unilateral Obligations Responsibility of debtor is limited to fraud and gross negligence; Debtor is exempted from risk of loss of thing; creditor bears risk of loss; Expenses by debtor for preservation of thing after delay is chargeable to creditor; If the obligation bears interest, debtor does not have to pay it from time of delay; Creditor liable for damages; and Debtor may relieve himself of obligation by consigning the thing. b. Time is of the essence; XPNs c. Demand would be useless, as debtor has rendered it beyond his power to perform; or When different dates for the performance of obligation is fixed by the parties. d. Debtor has acknowledged that he is in default. COMPENSATIO MORAE Reciprocal obligations Reciprocal obligations are those which arise from the same cause, wherein each party is a debtor and a creditor of the other, such that performance of one is conditioned upon the simultaneous fulfillment of the other from the moment one of the parties fulfills his obligation, delay by the other party begins (ASJ Corporation v. Evangelista, G.R. No. 158086, February 14, 2008). It is an intentional evasion of the faithful performance of the obligation (8 Manresa 72). Delay in reciprocal obligations Kinds of fraud FRAUD (Deceit or Dolo) One party incurs in delay from the moment the other party fulfills his obligation, while he himself does not comply or is not ready to comply in a proper manner with what is incumbent upon him. Basis 223 Fraud in the performance Fraud in the perfection Civil Law Fraud as mentioned in Art. 1171 It occurs after the valid execution of the contract. It is Time of occurrence employed in the performance of a preexisting obligation. It occurs before or simultaneous with the creation or perfection of the obligation. Consent Consent is free and not vitiated. Consent is vitiated by serious deception or misrepresentation. Effect It is not a ground for annulment of the contract. It is a ground for annulment of the contract. Action for damages only. Action for annulment with damages. Remedy It is incidental fraud or fraud in the performance of the obligation and not the fraud in the execution of the contract or causal fraud. It is the intentional evasion of the normal fulfillment of the obligation (Pineda, 2000). Waiver of action arising from future fraud With respect to fraud that has already been committed (past fraud), the law does not prohibit renunciation of the action for damages based on the same since such can be deemed an act of generosity. What is renounced is the effect of fraud, particularly the right to indemnity. However, the law prohibits any waiver of an action for future fraud since the same is contrary to law and public policy. Waiver for future fraud is void (NCC, Art. 1171). Remedies of the defrauded party 1. 2. 3. CULPA OR NEGLIGENCE The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and the place. When negligence shows bad faith, the provisions of Art. 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which expected of a good father of a family shall be required (NCC, Art. 1173). Dolo causante v. Dolo incidente Basis Nature Dolo causante (casual fraud) Dolo incidente (incidental fraud) This is the kind of fraud which is not This is the the efficient cause essential cause for the giving of the of the consent consent to the without which contract, as it refers the party merely to an would not have incident therein and, agreed to enter which even if not into the present, the contract contracting party (NCC, Art. would have still 1338). agreed to the contract. Effect It renders the contract voidable. It does not affect the validity of the contract. Remedy Annulment with damages. Contract remains valid. Remedy is claim for damages only. Specific performance (NCC, Art. 1233); or Resolution of the contract (Art. 1191); and Damages, in either case. Test of negligence Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. (Picart v. Smith, G.R. No. L-12219, March 15, 1918). 224 OBLIGATIONS AND CONTRACTS Fraud v. Negligence Effect of good faith or bad faith of the obligor BASIS FRAUD NEGLIGENCE As to the intention to cause damage There is deliberate intention to cause damage. There is no deliberate intention to cause damage or injury even if the act was done voluntarily. Liability cannot be mitigated. Liability may be mitigated. As to the mitigation of liability As to the waiver of future fraud Waiver for future fraud is void. If the obligor acted in good faith, he is responsible for the natural and probable consequences of the breach of contract and which the parties have reasonably foreseen at the time of the constitution of the obligation. If the obligor is guilty of fraud, bad faith, malice or wanton attitude, he shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation. Contributory negligence of the creditor GR: It reduces or mitigates the damages which he can recover. XPN: If the negligent act or omission of the creditor is the proximate cause of the event which led to the damage or injury complained of, he cannot recover GR: Waiver for future negligence may be allowed in certain cases. Kinds of negligence or culpa XPN: Nature of the obligation or public policy requires extraordinary diligence. (e.g. common carrier). 1. 2. NOTE: When negligence is so gross that it amounts to wanton attitude on the part of the debtor or such negligence shows bad faith, the laws in case of fraud shall apply. 3. Culpa contractual (contractual negligence) Negligence which results from the breach of contract; Culpa aquiliana (civil negligence or tort or quasidelict) Acts or omissions that cause damage to another, there being no contractual relation between the parties (NCC, Art. 2176);and Culpa criminal (criminal negligence) – Those which results in the commission of a crime or a delict. BASIS CULPA CONTRACTUAL (CONTRACT) CULPA AQUILIANA/ CULPA EXTRA-CONTRACTUAL (QUASI-DELICT) Existence of negligence Negligence is merely an incident in the performance of an obligation. Contractual relations There is always a preexisting contractual relation. GR: There is no preexisting contractual relation. There is no preexisting contractual relation. Source of obligation The source of obligation of defendant to pay damages is the breach or non-fulfillment of the contract. The source of obligation is defendant’s negligence itself. The source of obligation is an act or omission punishable by law. Proof of negligence Proof of the existence of the contract and of its breach or nonfulfillment is sufficient prima facie to warrant recovery. The negligence of the defendant must be proved. Accused shall be presumed innocent until the contrary is proved beyond reasonable doubt. Negligence is substantive and independent. 225 CULPA CRIMINAL (DELICT) Negligence is substantive and independent. Civil Law Defense available Defense of “good father of a family” in the selection & supervision of the employees is not a proper complete defense though it may mitigate damages. Defense of “good father of a family” in the selection & supervision of the employees is a proper and complete defense. Respondeat superior or command responsibility or the master and servant rule. Proof needed The employee’s guilt is automatically the employer’s civil guilt, if the former is insolvent. Preponderance of evidence. Preponderance of evidence. GR: There is no liability for loss in case of fortuitous event. The act of contravening the tenor or terms or conditions of the contract is also known as “violatio,” i.e. failure of common carrier to take its passenger to their destination safely (Pineda, 2000). XPNs:(LaNS-PC-BaG) 1. Law; 2. Nature of the obligation requires the assumption of risk; 3. Stipulation; 4. The debtor is guilty of dolo, malice or bad faith, has Promised the same thing to two or more persons who does not have the same interest (NCC, Art. 1165); 5. The debtor Contributed to the loss (Tan v. Inchausti & Co., G.R. No. L-6472, March 7, 1912); 6. The possessor is in Bad faith (NCC, Art. 552); or 7. The obligor is Guilty of fraud, negligence or delay or if he contravened the tenor of the obligation (Juan Nakpil v. United Construction Co., Inc. v. CA, G.R. No. L-47851, April 15, 1988). Under NCC,Art. 1170, the phrase “in any manner contravene the tenor” of the obligation includes any illicit act which impairs the strict and faithful fulfillment of the obligation, or every kind of defective performance. Such violation of the terms of contract is excused in proper cases by fortuitous events. FORTUITOUS EVENT / CASO FORTUITO An occurrence or happening which could not be foreseen, or even if foreseen, is inevitable (NCC, Art. 1174). (2002, 2008 Bar) Requisites: (CODE) 2. 3. 4. Proof of guilt beyond reasonable doubt. Stevedoring Corp., G.R. No. L-21749, September 29, 1967). Liability for loss due to fortuitous event CONTRAVENTION OF TENOR OF OBLIGATION(VIOLATIO) 1. Defense of “good father of a family” in the selection & supervision of the employees is not a proper defense. Act of God v. Act of Man Cause of breach is independent of the will of the debtor; The Event is unforeseeable or unavoidable; Occurrence renders it absolutely impossible for the debtor to fulfill his obligation in a normal manner - impossibility must be absolute not partial, otherwise not force majeure; and Debtor is free from any participation in the aggravation of the injury to the creditor. NOTE: The fortuitous event must not only be the proximate cause but it must also be the only and sole cause. Contributory negligence of the debtor renders him liable despite the fortuitous event (Pineda, 2000). If the negligence was the proximate cause, the obligation is not extinguished. It is converted into a monetary obligation for damages. ACT OF GOD ACT OF MAN Fortuitous event Force majeure Event which is absolutely independent of human intervention Event caused by the legitimate or illegitimate acts of persons other than the obligor e.g.Earthquakes, storms, floods, epidemics e.g.Armed invasion, robbery, war (Pineda, 2000). Difficulty to foresee NOTE: There is no essential difference between fortuitous event and force majuere; they both refer to causes independent of the will of the obligor (Tolentino, 2002). The mere difficulty to foresee the happening is not impossibility to foresee the same (Republic v. Luzon Q: MIAA entered into a compromise agreement with ALA. MIAA failed to pay within the period 226 OBLIGATIONS AND CONTRACTS stipulated. Thus, ALA filed a motion for execution to enforce its claim. MIAA filed a comment and attributed the delays to its being a government agency and the Christmas rush. Is the delay of payment a fortuitous event? for the construction of the research and laboratory facilities of the XY Corp. XY Corp paid 50%of the 10M contract price on the other hand AB agreed to complete the work for 18months. After 17 months,work was only 45% completedas AB Corp experienced work slippage due to labor unrest. (a) Can the labor unrest be considered a fortuitous event? (b) Can XY Corp. unilaterally and immediately cancel the contract? (c) Must AB Corp. return the 50% down payment? (2008 Bar) A: NO. The act-of-God doctrine requires all human agencies to be excluded from creating the cause of the mischief. Such doctrine cannot be invoked to protect a person who has failed to take steps to forestall the possible adverse consequences of loss or injury. Since the delay in payment in the present case was partly a result of human participation - whether from active intervention or neglect - the whole occurrence was humanized and was therefore outside the ambit of a caso fortuito. A: a.) NO. Labor unrest is not a fortuitous event that will excuse AB Corp. from complying with its obligation of constructing the research and laboratory facilities of XY Corp. The labor unrest, which may even be attributed in large part to AB Corp. itself, is not the direct cause of non-compliance by AB Corp. It is independent of its obligation. It is similar to the failure of a DBP borrower to pay her loan just because her plantation suffered losses due to the cadang-cadang disease. It does not excuse compliance with the obligation (DBP v. Vda. De Moll, G.R. No. L-25802, January 31, 1972). AB Corp. could have anticipated the labor unrest which was caused by delays in paying the laborer’s wages. The company could have hired additional laborers to make up for the work slowdown. First, processing claims against the government are certainly not only foreseeable and expectable, but also dependent upon the human will. Second, the Christmas season is not a caso fortuito, but a regularly occurring event. Third, the occurrence of the Christmas season did not at all render impossible the normal fulfillment of the obligation. Fourth, MIAA cannot argue that it is free from any participation in the delay. It should have laid out on the compromise table the problems that would be caused by a deadline falling during the Christmas season. Furthermore, it should have explained to ALA the process involved for the payment of ALA’s claim (MIAA v. Ala Industries Corp., G.R. No. 147349, February 13, 2004). b.)YES, XY Corp. may unilaterally cancel the obligation but this is subject to the risk that the cancellation of the reciprocal obligation being challenged in court and if AB Corp. succeeds, then XY Corp. will be declared in default and be liable for damages. Effects of fortuitous events 1. 2. On determinate obligation – The obligation is extinguished. On generic obligation – The obligation is not extinguished (genus nun quam peruit – genus never perishes). c.)NO, under the principle of quantum meruit, AB Corp. had the right to retain payment corresponding to his percentage of accomplishment less the amount of damages suffered by XY Corp. because of the delay or default. Q. Kristina brought her diamond ring for cleaning to a jewelry shop which failed to fuilfill its promise to return such ring in February 1, 1999. Kristina went back to the shop on February 6, 1999 but she was informed that the ring was stolen by a thief the night before. Kristina filed an action for damages against the jewelry shop which put up the defense of force majeure. Will the action prosper or not? (2000 Bar) Q: X, a dressmaker, accepted clothing materials from Karla to make two dresses for her. On the day X was supposed to deliver Karla’s dresses, X had an urgent matter to attend to and told Karla to deliver those the next day. That night, however, a robber broke into her shop and took everything including Karla’s dresses. X claims she is not liable to deliver Karla’s dresses or to pay for the clothing materials considering she herself was a victim of the robbery which was a fortuitous event and over which she had no control. Do you agree? Why? (2015 Bar) A : YES. The action will prosper. Since the defendant was already in default for not having delivered the ring when delivery was demanded by plaintiff at due date, the defendant is liable for the loss of the thing and even when the loss was due to force majeure. The defendant who is obliged to deliver incurred delay from the time the plaintiff extrajudicially demands the fulfillment of the obligation (NCC, Art. 1169). The defendant shall be held liable for the loss of the thing even it was due to fortuitous event. A: NO. The law provides that except when it is otherwise declared by stipulation or when the law provides or the nature of the obligation requires the assumption of risk, no person shall be liable for those events which could not be foreseen or which though foreseen were inevitable (NCC, Art. 1174). Q. AB Corp entered into a contract with XY Corp 227 Civil Law properties of the debtor through levying by attachment and execution upon all the property of the debtor, except such as are exempt by law from execution; (2) exercise all the rights and actions of the debtor, save those personal to him (acción subrogatoria); and (3) seek rescission of the contracts executed by the debtor in fraud of their rights (acción pauliana). It is thus apparent that an action to rescind, or an acción pauliana, must be of last resort, availed of only after the creditor has exhausted all the properties of the debtor not exempt from execution or after all other legal remedies have been exhausted and have been proven futile (Metropolitan Bank and Trust Company v. International Exchange Bank, G.R. No. 176008, August 10, 2011). In this case, X cannot invoke fortuitous event as a defense because she had already incurred delay at the time of the occurrence of the loss (NCC, Art. 1165). REMEDIES In case of breach of obligation, the following are the remedies available: 5. 6. 7. 8. Specific performance, or substituted performance by a third person in case of an obligation to deliver a generic thing, and in obligations to do, unless it is a purely personal act; Rescission (or resolution in reciprocal obligations); Damages, in any case; or Subsidiary remedies of creditors: a. Accion subrogatoria b. Accion pauliana c. Accion directa Q: While the case was pending, Felix donated his parcels of land in favor of his children. Judgment was rendered against Felix. Four years after the said donation,the sheriffsought to enforce the alias writ of execution and discovered that Felix no longer had any property and had conveyed the subject properties to his children. Thus, Philam filed an accion pauliana for rescission of the donations. Felix countered that an action for rescission of the donation had already prescribed since the time of prescription has to run from the date of registration. Has the action filed by Philam prescribed? SPECIFIC PERFORMANCE Remedies in performance 1. 2. 3. connection with specific Exhaustion of the properties of the debtor (not exempt from attachment under the law); Accion subrogatoria (subrogatory action) – An indirect action brought in the name of the debtor by the creditor to enforce the former’s rights except: a. Personal rights of the debtor; b. Rights inherent in the person of the debtor; c. Properties exempt from execution. e.g.family home Accion pauliana (rescissory action) – An action to impugn or assail the acts done or contracts entered into by the debtor in fraud of his creditor. A: NO. Philam only learned about the unlawful conveyances made by Felix more than four years after the donations were effected, when its counsel accompanied the sheriff to Butuan City to attach the properties. There they found that he no longer had any properties in his name. It was only then that Philam's action for rescission of the deeds of donation accrued because then it could be said that Philam had exhausted all legal means to satisfy the trial court's judgment in its favor. Since Philam filed its complaint for accion pauliana against petitioners barely a month from its discovery that Felix had no other property to satisfy the judgment award against him, its action for rescission of the subject deeds clearly had not yet prescribed (Khe Hong Cheng v. CA, G.R. No. 144169, March 28, 2000). NOTE: Resort to the remedies must be in the order stated above (NCC, Art. 1177). Q: Sacramento Steel Corporation (SSC) executed 5 separate deeds of chattel mortgage constituted over various equipment for International Exchange Bank (IEB) which subsequently, SSC defaulted in the payment of its obligations. IEB’s demand for payment went unheeded. Meanwhile, Metropolitan Bank and Trust Company (Metro Bank) filed a motion for intervention as a creditor of SSC.which it contends that the mortgage contracts between IEB and SSC were entered into to defraud the latter’s creditors. Thus, it prayed for the rescission of the chattel mortgaged executed by SSC in favor of IEB. Will the action to rescind the mortgage prosper? NOTE: The debtor is liable with all his property, present and future, for the fulfillment of his obligations, subject to the exemptions provided by law (De Leon, 2003). Substitute performance It is a remedy of the creditor in case of nonperformance by the debtor where another party performs the obligation or the same is performed at the expense of the debtor. Applicability of substitute performance A: NO. Jurisprudence is clear that the following successive measures must be taken by a creditor before he may bring an action for rescission of an allegedly fraudulent contract: (1) exhaust the 4. 228 Positive personal obligation: a. If not purely personal – Substitute performance; the obligation shall be OBLIGATIONS AND CONTRACTS b. 5. executed at debtor’s cost if he fails to do it (NCC, Art. 1167). Purely personal – No substitute performance may be demanded because of the personal qualifications taken into consideration. The only remedy is damages. to pay Seneca and to deliver possession of 2 condominium units to Seneca upon its completion. Seneca filed a complaint for rescission of the offsetting against Vermen alleging that the latter had stopped issuing purchase orders of construction materials without valid reason, thus resulting in the stoppage of deliveries of construction materials on its part, in violation of the Offsetting Agreement. Can the agreement be rescinded? Real obligation: a. Generic thing – Substitute performance; delivery may be made by a person other than the debtor since the object is merely designated by its class or genus. The creditor may ask that the obligation be complied with at the expense of the debtor (NCC, Art. 1165). b. Specific thing – Specific performance may be demanded, that is, the creditor may compel the debtor to make the delivery. A: YES, because the provisions of the offsetting agreement are reciprocal in nature. Art. 1191 of the Civil Code provides the remedy of rescission (more appropriately, the term is "resolution") in case of reciprocal obligations, where one of the obligors fails to comply with that is incumbent upon him (Vermen Realty Development Corp. v. CA and Seneca Hardware Co., Inc., G.R. No. 101762, July 6, 1993). RESCISSION (RESOLUTION) (NCC, ART. 1191) Q: Ong and spouses Robles executed an "agreement of purchase and sale" of two parcels of land. Ong partially paid the spouses by depositing sums of money with the BPI in accordance with their stipulation that Ong pay the loan of the spouse with BPI. To answer for Ong’s balance, he issued 4 post-dated checks which were dishonored. Ong failed to replace the checks and to pay the loan in full. Can the contract entered into by Ong and the spouses be rescinded? It refers to the cancellation of the contract or reciprocal obligation in case of breach on the part of one, which breach is violative of the reciprocity between the parties. This is properly called resolution. (2005, 2008 Bar) NOTE: The rescission under Art. 1380 is rescission based on lesion or fraud upon creditors. Applicability A: NO. The agreement of the parties in this case may be set aside, but not because of a breach on the part of Ong for failure to complete payment of the purchase price. Rather, his failure to do so brought about a situation which prevented the obligation of the spouses to convey title from acquiring an obligatory force. Rescission or resolution is applicable in reciprocal obligations, since it is implied therein. Characteristics of the right to rescind 4. 5. 3. 4. 5. 6. Can be demanded only if plaintiff is ready, willing and able to comply with his own obligation and defendant is not; Not absolute; Needs judicial approval in the absence of a stipulation allowing for extra-judicial rescission, in cases of non-reciprocal obligations; Subject to judicial review if availed of extrajudicially; May be waived expressly or impliedly; and Implied to exist in reciprocal obligations therefore need not be expressly stipulated upon. The agreement of purchase and sale shows that it is in the nature of a contract to sell. Ong’s failure to complete payment of the purchase price is a nonfulfillment of the condition of full payment which rendered the contract to sell ineffective and without force and effect. The breach contemplated in Art. 1191 is the obligor’s failure to comply with an obligation. In this case, Ong’s failure to pay is not even a breach but merely an event which prevents the vendor’s obligation to convey title from acquiring binding force. Fulfillment or rescission of the obligation NOTE: In a contract to sell, the payment of the purchase price is a positive suspensive condition, the failure of which is not a breach, casual or serious, but a situation that prevents the obligation of the vendor to convey title from acquiring an obligatory force (Ong v. CA, G.R. No. 97347, July 6, 1999). GR: The injured party can only choose either fulfillment or rescission of the obligation, and not both. XPN: If fulfillment has become impossible, Art. 1191 allows the injured party to seek rescission even after he has chosen fulfillment (Ayson-Simon v. Adamos, G.R. No. L-39378, August 28, 1984). Q: Can a contract be rescinded extra-judicially despite the absence of a special contractual obligation therefore? Q: Vermen and Seneca entered into an "offsetting agreement", where Seneca is obliged to deliver construction materials to Vermen, who is obliged 229 Civil Law A: YES. An extrajudicial rescission based on grounds not specified in the contract would not preclude a party to treat the same as rescinded. The rescinding party, however, by such course of action, subjects himself to the risk of being held liable for damages when the extrajudicial rescission is questioned by the opposing party in court. In other words, the party who deems the contract violated may consider it resolved or rescinded, and accordingly, without previous court action, but it proceeds at its own risk. For it is only the final judgment of the corresponding court that will conclusively and finally settle whether the action taken was or was not correct in law (Nissan Car Lease Phils, Inc., v. LICA Management and Proton, G.R. No. 176986, January 13, 2016). 4. Effects of subrogatory action 1. The creditor may exercise the subrogatory action in behalf of the debtor not only up to the amount of his credit but in its totality. NOTE: The excess (if any) must be returned to the debtor. 2. 3. DAMAGES The bringing of action does not entitle the creditor to preference. The defendant (the debtor of the debtor) may avail himself of all defenses available against the creditor. NOTE: In order to exercise action subrogatoria, a previous approval of the court is not necessary (Tolentino, 1991). Liability for damages Those liable under Art. 1170 shall pay damages only if aside from the breach of contract, prejudice or damage was caused (Berg v. Teus, G.R. No. L-6450, October 30, 1954). ACCION PAULIANA Accion pauliana NOTE: If action is brought for specific performance, damages sought must be asked in the same action; otherwise the damages are deemed waived (Daywalt v. Augustinian Corp, G.R. No. L-13505, February 4, 1919). An action where the creditor files in court for the rescission of acts or contracts entered into by the debtor designed to defraud the former (NCC, Art. 1177). Kinds of damages (MENTAL) 3. 4. 5. 6. 7. 8. The debtor whose right of action is exercised must be Indebted to the creditor. NOTE: When the creditor could not collect in any manner, accion pauliana may be resorted by him to rescind a fraudulent alienation of property (Regalado, v. Luchsinger and Co., 5 Phil 625, GR L2250, February 17, 1906). Moral; Exemplary; Nominal; Temperate; Actual; Liquidated. Requisites (PAPIL) 1. 2. SUBSIDIARY REMEDIES ACCION SUBROGATORIA 3. 4. An action whereby the creditor, whose claim has not been fully satisfied, may go after thedebtor defendant debtor’s debtor (third person) (NCC, Art. 1177). 5. Defendant must be Indebted to plaintiff; The fraudulent act performed by the debtor subsequent to the contract gives Advantage to another; The creditor is Prejudiced by such act; The creditor must have Pursued all properties of the debtor subject to execution; and The creditor has no other Legal remedy. Accion subrogatoria is different and distinct from active subjective subrogation governed by Articles 1300 to 1304. In the latter, there is change of creditors whereas in the former there is no change of creditors; the creditor merely acts in the name and for the account of the debtor after exhausting the assets of the latter but not enough to satisfy the claims of the creditor. e.g. Alienations of property, payment of debts which are not due, renunciation of rights such as the right of usufruct or an inheritance, assignment of credit, and remission of debts. Requisites (IPIN) The right of a person to go directly against another who is not a privy to the contract (NCC, Articles 1652, 1608, 1729 and 1893). 1. 2. 3. ACCION DIRECTA Accion directa The debtor’s assets must be Insufficient to satisfy claims against him; The creditor must have Pursued all properties of the debtor subject to execution; The right of action must Not be purely personal; and NOTE: 1. Subsidiary liability of sublessee for the rent (NCC, Art. 1652); 230 OBLIGATIONS AND CONTRACTS 2. 3. 4. Right of sellers a retro to redeem property from persons other than the buyer a retro (NCC, Art. 1608); Subsidiary liability of owners to laborers and material men (NCC, Art. 1729); and The principal may sue the substitute of the agent with respect to the obligations which the substitute has contracted under the substitution (NCC, Art. 1893). Uncertain but past event as a condition An uncertain but past event itself can never constitute a condition because in order to be classified as a condition, the requisites of futurity and uncertainty are required. Neither can it constitute a term or period because in order to be classified as a term or period, the requisites of futurity and certainty are required. But the proof or ascertainment of the fact or event, as distinguished from the fact or event itself may either constitute a condition or a term depending upon the circumstances of each case (Jurado, 2009). KINDS OF CIVIL OBLIGATIONS Constructive fulfillment of a condition PURE AND CONDITIONAL OBLIGATION The condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment (NCC, Art. 1186). Pure obligation An obligation whose performance does not depend upon a future or uncertain event, or upon a past event or upon a past event unknown to the parties, demandable at once (NCC, Art. 1179). Q: Ramon, the judicial administrator of the estate of Juan, found out that Rodriguez had enlarged the area of the land which he purchased from Juan before his death. Thus, Ramon demanded Rodriguez to vacate the portion allegedly encroached by him. Rodriguez refused and contested there was indeed a conditional sale with the balance of the purchase price payable within five years from the execution of the deed of sale. Ramon then filed an action for recovery of possession of the disputed lot. Is the contract of sale a conditional one? NOTE: Other obligations which are demandable at once are: 1. Obligations with a resolutory condition; and 2. Obligations with a resolutory term or period [NCC, Arts. 1179 (2) and 1193 (2)]. The most distinctive characteristic of a pure obligation is its immediate demandability. This quality, however, must not be understood in such a way as to lead to absurd interpretations which would literally require the obligor or debtor to comply immediately with his obligation. A distinction must be made between: 1. 2. A: NO. The stipulation that the "payment of the full consideration based on a survey shall be due and payable in five years from the execution of a formal deed of sale" is not a condition which affects the efficacy of the contract of sale. It merely provides the manner by which the full consideration is to be computed and the time within which the same is to be paid. But it does not affect in any manner the effectivity of the contract (Heirs of San Andres v. Rodriguez, G.R. No. 135634, May 31, 2000). The immediate demandability of the obligation; and Its performance or fulfillment by the obligor or debtor. Although the obligee or creditor can demand the performance of the obligation immediately, the quality of immediate demandability is not infringed or violated when a reasonable period is granted for performance (Jurado, 2009). Conditional obligation An obligation subject to a condition and the effectivity of which is subordinated to the fulfillment or non-fulfillment of a future and uncertain event, or upon a past event unknown to the parties (Pineda, 2000). Condition A condition is an event which is future and uncertain, upon which the efficacy or extinguishment of an obligation depends. It has two requisites: first, futurity; and second, uncertainty. 231 Civil Law Period v. Condition BASIS PERIOD CONDITION As to time Refers to the future. May refer to past event unknown to the parties. It will happen at an exact date or at an indefinite time, but is definite to arrive. May or may not happen. Characteristic Futurity and certainty. Futurity and uncertainty. The effect of its happening to the obligation No effect upon the existence of the obligation but only in its demandability. May give rise to an obligation (suspensive) or the cessation of one already existing (resolutory). As to fulfillment If fulfillment is Valid. But the court is dependent upon the sole empowered to fix the will of the duration of the debtor period. No retroactivity. Retroactivity conditional obligation never existed (Gaite v. Fonacier, GR L-11827, July 31, 1961; Cheng v. Genato, 300 SCRA 722, GR 129760, December 29, 1998; Pineda, 2000). Effects of fulfillment condition(1999 Bar) 1. of the suspensive Real obligations GR: Retroacts to the day of the constitution of the obligation. XPNs: There is no retroactive effect with respect to the fruits and interest: 4. 5. 2. In reciprocal obligations, the fruits and interests shall be deemed to have been mutually compensated; and In unilateral obligations, the debtor appropriates the fruits and interest received before the fulfillment of the condition unless contrary to the intention of the parties (NCC, Art. 1187). Personal obligations – the court determines the retroactive effect of the condition fulfilled (NCC, Art. 1187). Rights of the parties before the fulfillment of the condition 1. Annulled Creditor – May bring the appropriate actions for the preservation of his right (NCC, Art. 1188), such as: a. b. c. The moment the condition is fulfilled, the effects will retroact on the day of the constitution of the obligation. d. e. 2. Action for prohibition/restraining the alienation of the thing pending the happening of the suspensive condition; Petition for the annotation of the creditor’s right with the proper registry; Action to demand security if the debtor has become insolvent; Action to set aside alienations made by the debtor in fraud of creditors; or Action against adverse possessors to interrupt the running of prescriptive period. Debtor – May recover what, during the same time, he has paid by mistake in case of a suspensive condition (NCC, Art. 1188). Effect of loss, deterioration and improvement in an obligation to deliver a determinate thing subject to a suspensive condition Suspensive condition A condition the fulfillment of which will give rise to the acquisition of a right. While the condition has not arrived yet, in the meantime, the rights and obligations of the parties are suspended. NOTE: In suspensive condition or condition precedent, the efficacy or the obligatory force is subordinated to the happening of a “future and uncertain event”; if the suspensive condition does not take place the parties would stand as if the 232 BASIS WITH DEBTOR’S FAULT WITHOUT DEBTOR’S FAULT Loss Obligation is not extinguished. Obligation extinguished. OBLIGATIONS AND CONTRACTS Effects of fulfillment of resolutory condition 1. Real obligations: Debtor pays damages. Deterioration Creditor may choose between rescission of obligation or fulfillment (with indemnity for damages in either case). 3. Improvement 4. a. Impairment borne by creditor. b. c. 2. By the thing’s nature or through time – Inure to the benefit of the creditor; At the debtor’s expense – Debtor shall have no right other than that granted to a usufructuary. Personal obligations – The courts shall determine, in each case, the retroactive effect of the condition that has been complied with. (NCC, Art. 1187; NCC, Art. 1190). Suspensive conditionv. Resolutory condition NOTE: The abovementioned do not apply to indeterminate or generic things on the basis of the maxim “genus nun quam peruit” (genus never perishes). It will only apply when the object or thing to be given is specific. Requisites for the application of Art.1189 (SuRF LIDS) 1. 2. 3. 4. 5. The parties shall return to each other what they have received (mutual restitution); Obligation is extinguished; In case of loss, deterioration or improvement of the thing, NCC, Art. 1189, with respect to the debtor, shall be applied to the party who is bound to return (NCC, Art. 1190). Must be aReal obligation; Object of the obligation is aSpecific thing; Obligation is subject to a Suspensive condition. The condition is Fulfilled; and There is Loss, Deterioration or Improvement of the thing during the pendency of the happening of the condition. NOTE: The same conditions apply to an obligor in obligations subject to a resolutory condition. In such cases, the third requisite must read, “subject to a resolutory condition.” Positive suspensive condition BASIS SUSPENSIVE CONDITION RESOLUTORY CONDITION Effect of fulfilment Obligation arises or becomes effective. Obligation is extinguished. Effect of nonfulfillment If not fulfilled, no juridical relation is created. If not fulfilled, juridical relation is consolidated. When rights are acquired Rights are not yet acquired, but there is hope or expectancy that they will soon be acquired. Rights are already vested, but subject to the threat or danger of extinction. Q: The late Don Lopez, Sr., who was then a member of the Board of Trustees of CPU, executed a deed of donation in favor of the latter involving a parcel of land subject to the condition that it shall be utilized for the establishment and use of a medical college. However, the heirs of Don Lopez, Sr., filed an action for annulment of the donation, reconveyance and damages against CPU alleging that CPU did not comply with the conditions of the donation. Are the conditions imposed resolutory or suspensive? A condition which requires a positive act on the part of the obligor that gives rise to the acquisition of rights. In case of a contract to sell, the obligation to deliver the subject properties becomes demandable only upon the happening of the positive suspensive condition (payment of full purchase price). Without full payment, there can be no breach of contract to speak of because the seller has no obligation yet to turn over the title (Reyes v. Tuparan, G.R. No. 188064, June 1, 2011). A: Under Art. 1181 of the CC, on conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition. Thus, when a person donates land to another on the condition that the latter would build upon the land a school, the condition imposed was not a condition precedent or a suspensive condition but resolutory. It is not correct to say that the school house (or the Resolutory condition (1999 Bar) A condition where the rights already acquired are lost upon fulfillment of the condition. It is also known as condition subsequent. 233 Civil Law establishment and use of a medical college in this case) had to be constructed before the donation became effective, that is, before the donee could become the owner of the land, otherwise, it would be invading the property rights of the donor. The donation had to be valid before the fulfillment of the condition. If there was no fulfillment or compliance with the condition, the donation may now be revoked and all rights which the donee may have acquired under it shall be deemed lost and extinguished (Central Philippine University v. CA, G.R. No. 112127, July 17, 1995). Mixed condition It is the performance or fulfillment of the condition which depends partly upon the will of a party to the obligation and partly upon chance and or the will of a third person. NOTE: Casual and mixed conditions are valid, unlike purely potestative conditions. Q: Suppose that the debtor executed a promissory note promising to pay his obligation to the creditor as soon as he has received funds derived from the sale of his property in a certain place, is the condition potestative or mixed? Negative resolutory condition An act, which if not done, would give rise to a cause of action against the obligor. It contemplates a situation where rights are already acquired but subjectto an obligation, the non-fulfillment of which does not affect the rights already acquired but merely gives a cause of action in favor of the other party. In a contract of sale, the buyer’s non-payment of the price is a negative resolutory condition. In such case, the seller has lost and cannot recover the ownership of the property unless he takes action to set aside the contract of sale (Heirs of Atienza v. Espidol, G.R. No. 180665, August 11, 2010). A: In the case of Hermosa v. Longara (93 Phil. 971, G.R. L-5267, October 27, 1953), the condition is mixed because its fulfillment depends not only upon the will of the debtor but also upon the concurrence of other factors, such as the acceptability of the price and other conditions of the sale, as well as the presence of a buyer, ready, able and willing to purchase the property. Impossible conditions (1997, 2007 Bar) GR: Impossible conditions annul the obligation which depends upon the parties but not of a third person. Potestative Condition (1997, 2000, 2003 Bar) A condition which depends upon the will of one of the contracting parties (NCC, Art. 1182). XPNs: 1. Pre-existing obligation; 2. Obligation is divisible; 3. In simple or remuneratory donations; 4. In case of conditions not to do an impossible thing; and 5. In testamentary dispositions. Effects of potestative conditions upon the obligation If the condition is potestative in the sense that its fulfillment depends exclusively upon the will of the debtor, and the same is suspensive, both the condition and obligation are VOID. NOTE: In the foregoing, the obligations remain valid, only the condition is void and deemed to have not been imposed. It is applicable only to obligations not to do and gratuitous obligations. However, if the condition is a pre-existing one or the condition is resolutory, only the condition is void, leaving the obligation itself valid because what is left to the sole will of the debtor is not the existence or the fulfillment of the obligation but merely its extinguishment. Other types of conditions 1. 2. 3. If the condition is potestative in the sense that its fulfillment depends exclusively upon the will of the creditor, the obligation shall be valid. This is so because the provision of the first sentence of Art. 1182 extends only to conditions which are potestative to the obligor or debtor. Besides, the creditor is naturally interested in the fulfillment of the condition since it is only by such fulfillment that the obligation arises or becomes effective (Jurado, 2009 citing NCC, Art. 1181 and Manresa). 4. 5. 6. 7. Casual condition 8. It is the performance or the fulfillment of the condition which depends upon chance and/or the will of a third person. 234 Positive – It involves the doing of an act; Negative –Itinvolves the omission of an act; Divisible – Itis susceptible of partial performance; Indivisible – It is not susceptible of partial performance; Conjunctive – There are several conditions in an obligation all of which must be performed; Alternative – There are several conditions in an obligation but only one must be performed; Possible – Itis capable of fulfillment according to the nature, law, public policy or good customs; and Impossible – It is not capable of fulfillment according to nature, law, public policy or good customs (NCC, Art. 1183). OBLIGATIONS AND CONTRACTS Obligation with a period or a term GR: Whenever in an obligation a period is designated, it is presumed to have been established for the benefit of both the creditor and the debtor Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that day comes (NCC, Art. 1193). XPN: When it appears from the tenor of the period or other circumstances that it was established for the benefit of one of the parties (NCC, Art.1196). Term or period Effect of the term or period A certain length of time which determines the effectivity or the extinguishment of the obligations. 8. OBLIGATIONS WITH A PERIOD Requisites of a valid period or term 1. 2. 3. Future; Certain; and Possible, legally and physically (Paras, 2008). 9. “Day certain” It is understood to be that which must necessarily come, although it may not be known when. 2. 3. 4. 5. 6. 7. e.g. “on demand” When it is for the benefit of the debtor – Debtor may oppose any premature demand on the part of the creditor for performance of the obligation, or if he so desires, he may renounce the benefit of the period by performing his obligation in advance. Effect of a fortuitous event to an obligation with a period Kinds of terms or periods 1. When it is for the benefit of the creditor – Creditor may demand the performance of the obligation at any time but the debtor cannot compel him to accept payment before the expiration of the period. Ex die – This is a term or period with suspensive effect. The obligation begins only from a day certain, in other words upon the arrival of the period. In diem – A period or term with a resolutory effect. Up to a certain extent, the obligation remains valid, but upon the arrival of said period, the obligation terminates. Legal – A period granted under the provisions of the law. Conventional or voluntary – The period agreed upon or stipulated by the parties. Judicial – The period or term fixed by the courts for the performance of an obligation or for its termination. Definite – The exact date or time is known and given. Indefinite – It is something that will surely happen but the date of happening is unknown. e.g. “I will pay when my means permit me to do so.” It only relieves the contracting parties from the fulfillment of their respective obligation during the term or period. Instances where the court may fix the period(1991, 1997, 2003 Bar) 1. 2. 3. 4. If the obligation does not fix a period, but from its nature and circumstances it can be inferred that a period was intended by the parties; If the duration of the period depends upon the will of the debtor (1997, 2003 Bar); In case of reciprocal obligations, when there is a just cause for fixing the period; or If the debtor binds himself when his means permit him to do so. NOTE: Once fixed by the courts, the period cannot be changed by the parties (NCC, Art. 1197). Instances where the debtor loses his right to make use of the period When the debtor binds himself to pay when his means permit him to do so, the obligation is deemed with a period (NCC, Art. 1180). This is valid because it is not the payment itself that is dependent upon the will of the debtor, but the moment of payment. 1. 2. As the time of payment is not fixed, the court must fix the same before any action for collection may be entertained, unless, the prior action of fixing the term or period will only be a formality and will serve no purpose but delay (Tiglao v. Manila RailroadCo., 98 Phil. 181, GR. L-7900, January 12, 1956). 3. 4. 5. Benefit of the period 235 When after the obligation has been contracted he becomes insolvent, unless he gives a guaranty or security for the debt; When he does not furnish to the creditor the guaranties or securities which he has promised; When by his own acts he has impaired said guaranties or securities after their establishment; When through a fortuitous event they disappear, unless he immediately gives new ones or equally satisfactory; When the debtor violates any undertaking, in consideration of which the creditor agreed to the period; and Civil Law 6. When the debtor attempts to abscond (NCC, Art. 1198). Facultative obligation It is one where the debtor, who has a reserved right to choose another prestation or thing, is bound to perform one of the several prestations due or to deliver a thing as substitute for the principal. ALTERNATIVE, FACULTATIVE, CONJUNCTIVE OBLIGATIONS Alternative obligation Conjunctive obligation It is one where the debtor is alternatively bound by different prestations but the complete performance of one of them is sufficient to extinguish the obligation. One where the debtor has to perform several prestations; it is extinguished only by the performance of all of them. Facultative obligations v. Alternative obligations BASIS FACULTATIVE OBLIGATIONS ALTERNATIVE OBLIGATIONS Number of prestation Only one object is due. Manner of compliance May be complied with by substitution of one May be complied with by fulfilling any of those that is due. alternately due. Several objects are due. Choice pertains only to debtor. GR: Choice pertain to debtor. Right to choose XPN: Expressly granted to creditor or third person. Effect of fortuitous loss Effect of culpable loss Liability of the debtor Void prestation Fortuitous loss extinguishes the obligation. prestations will Culpable loss obliges the debtor to deliver Culpable loss of any object due will give rise to substitute prestation without liability to debtor. liability to debtor. When substitution has been made and communicated to the creditor, the obligor is liable for the loss of the thing on account of delay, negligence or fraud. The creditor shall have the right of indemnity for damages when, through the fault of the debtor, all the things which are alternatively the object of the obligation have been lost or the compliance of the obligation has become impossible. If principal obligation is void, the creditor If one prestation is void, the others that are cannot compel delivery of the substitute. free from any vices of consent preserve the validity of the obligation. If there is impossibility to deliver the principal Impossibility of prestation thing or prestation, the obligation is extinguished, even if the substitute obligation is valid. Loss of substitute Fortuitous loss of all extinguish the obligation. If some prestations are impossible to perform except one - this one must be delivered. If all prestations are impossible to perform, the obligation is extinguished. Loss of the substitute before the substitution is Where the choice is given to the creditor, the made through the fault of the debtor doesn’t loss of the alternative through the fault of the make him liable. debtor renders him liable for damages. Right to choose prestation in an alternative obligation GR: The right of choice belongs to the debtor 236 OBLIGATIONS AND CONTRACTS XPN: Unless it has been expressly given to the creditor (NCC, Art. 1200). If the obligation is solidary and there is no stipulation to the contrary, the choice by one will binding personally upon him, but not as to the others. Thus, if A and B solidarily bind themselves to deliver a horse or a carabao to C, the selection of A of the horse, when communicated to C will bind him and he cannot later on deliver the carabao. But it is not binding on B who may extinguish the obligation by delivering the carabao (Tolentino, 2002). Limitations on debtor’s right to choose 5. 6. 7. 8. The debtor must absolutely perform the prestation chosen. He cannot compel the creditor to receive part of one and part of the other undertaking; The debtor shall have no right to choose those prestation which are impossible, unlawful or which could not have been the object of the obligation (NCC, Art. 1200); The debtor shall lose the right to choice when among the prestation whereby he is alternatively bound, only one is practicable (NCC, Art. 1202); The selection made by the debtor (or the creditor when it has been expressly granted to him) cannot be subjected by him to a condition or a term unless the creditor (or debtor in case the choice is with the creditor) consents thereto (Tolentino, 2002). Effects of loss of objects in alternative obligations DUE TO FORTUITOUS EVENT Choice Belongs to Debtor Effectivity of the choice in alternative obligations All are lost Debtor released Creditor shall from the have a right to be obligation. indemnified for damages based on the value of the last thing which disappeared or last service which became impossible. Some but not all are lost Debtor shall Debtor shall deliver that deliver that which which he shall he shall choose choose from from among the among the remainder without remainder. damages. Only one remains Deliver that which remains. The choice made takes effect only upon communication of the choice to the other party and from such time the obligation ceases to be alternative (NCC, Art. 1201; NCC, Art. 1205). NOTE: The notice of selection or choice may be in any form provided it is sufficient to make the other party know that the election has been made (Tolentino,2002). When alternative obligation becomes a simple obligation 1. 2. DUE TO DEBTOR’S FAULT When the debtor has communicated the choice to the creditor; When debtor loses the right of choice among the prestations whereby the debtor is alternatively bound, only one is practicable (NCC, Art. 1202). Choice Belongs to Creditor All are lost NOTE: The choice made by the debtor does not require the concurrence of the creditor. Otherwise, it would destroy the very nature of the right to select given to the debtor. Impossibility of choice due to creditor’s acts Some but not all are lost When choice is rendered impossible through the creditor’s fault, the debtor may bring an action to rescind the contract with damages (NCC, Art. 1203). Plurality of parties When there are various debtors or creditors and the obligation is joint, the consent of all is necessary to make the selection effective, because none of them can extinguish the entire obligation. Debtor released Creditor may claim from the the price or value obligation. of any of them with indemnity for damages. Creditor may choose from among the remainder or that which remains if only one subsists. Creditor may claim any of those subsisting OR he may choose any of those were lost, but it is the price or value of with right to damages that can be claimed. Only one Deliver that which remains. In case of remains fault of debtor, creditor has a right to indemnity for damages. 237 Civil Law Character of an obligation JOINT AND SOLIDARY OBLIGATIONS (1992, 2001, 2008 BAR) GR: When two or more creditors or two or more debtors concur in one and the same obligation, the presumption is that the obligation is joint. Joint obligations One where the credit or debt shall be presumed to be divided into as many equal shares as there are creditors or debtors, the credit or debts being considered distinct from one another (NCC, Art. 1208). Each debtor is liable only for a proportionate part of the debt and each creditor to his proportionate share to the credit. XPNs:The obligation shall only be solidary when: (LEN-CJ) 1. 2. 3. Other terms for joint obligations are: (a) joint simply; (b) mancomunada; or (c) pro rata. 4. Solidary obligations 5. It is where each of the debtors obliges to pay the entire obligation while each one of the creditors has the right to demand from any of the debtors, the payment or fulfillment of the entire obligation (NCC, Art. 1207; Pineda, 2000). Q: Chua bought and imported to the Philippines dicalcium phosphate. When the cargo arrived at the Port of Manila, it was discovered that some were in apparent bad condition. Thus, Chua filed with Smith Bell, and Co., Inc. (claiming agent of First Insurance Co.) a formal statement of claim for the loss. No settlement of the claim having been made, Chua then filed an action. Is Smith, Bell, and Co., solidarily liable upon a marine insurance policy with its disclosed foreign principal? Other terms for solidary obligations are: (a) Joint solidarily; (b) Jointly and severally; or (c) In solidum. Joint obligation v. Solidary obligation JOINT OBLIGATION Presumption by law Liability of each debtor Right of the creditor to the fulfillment of the obligation SOLIDARY OBLIGATION A: NO. Art. 1207 of the Civil Code clearly provides that "there is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity." The well-entrenched rule is that solidary obligation cannot lightly be inferred. It must be positively and clearly expressed (Smith, Bell & Co., Inc. v. CA, G.R. No. 110668, February 6, 1997). Presumed by Not presumed. law. Must be (NCC, Art. expressly 1208). stipulated by the parties, or when the law or the nature of the obligation requires solidarity (NCC, Art. 1207). Q: The labor arbiter rendered a decision, the fallo of which states the following respondents as liable, namely: FCMC, Sicat, Gonzales, Chiu Chin Gin, Lo Kuan Chin, and INIMACO. INIMACO questions the execution, alleging that the alias writ of execution altered and changed the tenor of the decision by changing their liability from joint to solidary, by the insertion of the words "AND/OR". Is the liability of INIMACO pursuant to the decision of the labor arbiter solidary or not? Proportionate Obliged to pay part of the the entire entire debt. obligation. Each creditor, if there are several, is entitled only to a proportionate part of the credit. Law requires solidarity; Expressly stipulated that there is solidarity; Nature of the obligation requires solidarity; e.g. Civil liability arising from crime. Charge or condition is imposed upon heirs or legatees and the will expressly makes the charge or condition in solidum (Manresa); or Solidary responsibility is imputed by a final Judgment upon several defendants (Gutierrez v. Gutierrez, 56 Phil 177, GR 34840, September 31, 1931). Each creditor has the right to demand from any of the debtors, the payment or fulfillment of the entire obligation (Tolentino, 1999). A:INIMACO's liability is not solidary but merely joint. Well-entrenched is the rule that solidary obligation cannot lightly be inferred. There is a solidary liability only when the obligation expressly so states, when the law so provides or when the nature of the obligation so requires. In the dispositive portion of the labor arbiter, the word "solidary" does not appear. The said fallo expressly states the following respondents therein as 238 OBLIGATIONS AND CONTRACTS liable, namely: Filipinas Carbon Mining Corporation, Sicat, Gonzales, Chiu Chin Gin, Lo Kuan Chin, and INIMACO. Nor can it be inferred therefrom that the liability of the six respondents in the case below is solidary, thus their liability should merely be joint (INIMACO v. NLRC, G.R. No. 101723, May 11, 2000). 3. In case of insolvency of one of the debtors, the others shall not be liable for his shares. To hold otherwise would destroy the joint character of the obligation (NCC, Art. 1209). Consequences of a joint obligation 1. 2. 2. 3. 4. 5. 6. 7. Each credit is distinct from one another; therefore a joint debtor cannot be required to pay for the share of another with debtor, although he may pay if he wants to. Each debtor is liable only for a proportionate part of the entire debt; Each creditor, if there are several, is entitled only to a proportionate part of the credit; The demand made by one creditor upon one debtor, produces effects of default only as between them; Interruption of prescription caused by the demand made by one creditor upon one debtor, will NOT benefit the co-creditors or the codebtors; Insolvency of a debtor will not increase the liability of his co-debtor; Vices of each obligation emanating from a particular debtor or creditor will not affect the others; In indivisible or joint obligation, the defense of res judicata of one does not extend to the others (8 Manresa, 200-201); The delay on the part of only one of the joint debtors does not produce effects with respect to the others, and if the delay is produced through the acts of only one of the joint creditors, the others cannot take advantage thereof. Effect of breach of a joint indivisible obligation by one debtor If one of the joint debtors fails to comply with his undertaking, and the obligation can no longer be fulfilled or performed, it will then be converted into one of indemnity for damages. Innocent joint debtor shall not contribute to the indemnity beyond his corresponding share of the obligation. SOLIDARY OBLIGATIONS Each one of the debtors is obliged to pay the entire obligation, and each one of the creditors has the right to demand from any of the debtors the payment or fulfillment of the entire obligation. Kinds of solidary obligation 1. 2. 3. Passive – Solidarity on the part of the debtors; Active –Solidarity on the part of the creditors ; Mixed –Solidarity on both sides. JOINT INDIVISIBLE OBLIGATIONS JUDICIAL EFFECTS OF ACTIVE AND PASSIVE SOLIDARITY (TOLENTINO, 2002) The obligation is joint because the parties are merely proportionately liable. It is indivisible because the object or subject matter is not physically divisible into different parts. In other words, it is joint as to liabilities of the debtors or rights of the creditors but indivisible as to compliance (De Leon, 2010). Active solidarity The essence of active solidarity consists in the authority of each creditor to claim and enforce the rights of all, with the resulting obligation of paying every one what belongs to him; there is no merger, much less a renunciation of rights, but only mutual representation. It is thus essentially a mutual agency. Its juridical effects may be summarized as follows: A joint indivisible obligation gives rise to indemnity for damages from the time anyone of the debtors does not comply with his undertaking. The debtors who may have been ready to fulfill their promises shall not contribute to the indemnity beyond the corresponding portion of the price of the thing or of the value of the service in which the obligation consists (NCC, Art. 1224). Effects of different permutations indivisible obligations 1. 2. of 1. joint 2. If there are two or more debtors, compliance with the obligation requires the concurrence of all the debtors, although each for his own share. The obligation can be enforced only by preceding against all of the debtors; If there are two or more creditors, the concurrence or collective act of all the creditors, although each of his own share, is also necessary for the enforcement of the obligation; 3. 239 Since it is a reciprocal agency, the death of a solidary creditor does not transmit the solidarity to each of his heirs but to all of them taken together; Each creditor represents the others in the act of receiving payment, and in all other acts which tend to secure the credit or make it more advantageous. Hence, if he receives only a partial payment, he must divide it among the other creditors. He can interrupt the period of prescription or render the debtor in default, for the benefit of all other creditors; One creditor, however, does not represent the others in such acts as novation (even if the credit becomes more advantageous), compensation and remission. In these cases, even if the debtor Civil Law 4. 5. 6. is released, the other creditors can still enforce their rights against the creditor who made the novation, compensation or remission; The creditor and its benefits are divided equally among the creditors, unless there is an agreement among them to divide differently. Hence, once the credit is collected, an accounting and a distribution of the amount collected should follow; The debtor may pay to any solidary creditor, but if a judicial demand is made on him, he must pay only to the plaintiff; and Each creditor may renounce his right even against the will of the debtor, and the latter need not thereafter pay the obligation to the former. Solidarity v. Indivisibility Passive solidarity In passive solidarity, the essence is that each debtor can be made to answer for the others, with the right on the part of the debtor-payor to recover from the others their respective shares. In so far as the payment is concerned, this kind of solidarity is similar to a mutual guaranty. Its effects are as follows: 1. Each debtor can be required to pay the entire obligation; but after the payment, he can recover from the co-debtors their respective shares; 2. The debtor who is required to pay may set up by way of compensation his own claim against the creditor, in this case, the effect is the same as that of payment; 3. The total remission of a debt in favor of a debtor releases all the debtors ; but when this remission affects only the share of one debtor, the other debtors are still liable for the balance of the obligation; 4. All the debtors are liable for the loss of the thing due, even if such loss is caused by only one of them, or by fortuitous event after one of the debtors has incurred in delay; 5. 6. BASIS SOLIDARITY INDIVISIBILITY As to the kind of unity it refers to Refers to the vinculum existing between the subjects or parties. Refers to the prestation or object of the contract. As to the requirement of plurality of parties or subjects Requires the plurality of parties or subjects. Does not require plurality of subjects or parties. As to the effect of breach In case of breach, the liability of the solidary debtors although converted into one of the indemnity for damages remains solidary. In case of breach, it is converted to one of indemnity for damages and the indivisibility of the obligation is terminated and so each debtor is liable only for his part of the indemnity. As to the effect of death of a party Death of solidary debtor terminates the solidarity, the tie or vinculum being intransmissible to the heirs. Heirs of the debtor remain bound to perform the same prestation. Rules in solidary obligations (1998, 2003 Bar) The interruption of prescription as to one debtor affects all the others; but the renunciation by one debtor of the prescription already had does not prejudice the others, because the extinguishment of the obligation by prescription extinguishes also the mutual representation among the solidary debtors; and 1. 2. The interest due by reason of the delay by one of the debtors are borne by all of them. 3. NOTE: Example of words that connote solidary obligation: a) joint and several; b) in solidum; c) individually and collectively; d) each will pay the whole value; e) “I promise to pay” and there are two or more signatures; and f) juntos o separadamente. 240 Anyone of the solidary creditors may collect or demand payment of the whole obligation; there is mutual agency among solidary debtors (NCC, Articles. 1214 and 1215); Any of the solidary debtor may be required to pay the whole obligation; there is mutual guaranty among solidary debtors (NCC, Articles 1216, 1217 & 1222); Each one of solidary creditors may do whatever may be useful to the others, but not anything prejudicial to them (NCC, Article. 1212); however, any novation, compensation, confusion or remission of debt made by any solidary creditors or with any of the solidary debtors shall extinguish the obligation without prejudice to his liability for the shares of other solidary creditors (NCC, Articles. 1215 and 1219). OBLIGATIONS AND CONTRACTS Q: Joey, Jovy and Jojo are solidary debtors under a loan obligation of P300,000.00 which has fallen due. The creditor has, however, condoned Jojo's entire share in the debt. Since Jovy has become insolvent, the creditor makes a demand on Joey to pay the debt. a. b. A: a. b. does not imply that each one of the former has the right to demand, or that each one of the latter is bound to render the entire compliance of the prestation (NCC, Art. 1207). In a joint obligation, there is no mutual agency among the joint debtors such that if one of them is insolvent the others shall not be liable for his share. How much, if any, may Joey be compelled to pay? To what extent, if at all, can Jojo be compelled by Joey to contribute to such payment? (1998 BAR) To whom payment should be made in a solidary obligation GR: To any of the solidary creditors. XPN: If demand, judicial or extra-judicial, has been made by one of the creditors, payment should be made to him (NCC, Art. 1214). Joey can be compelled to pay only the remaining balance of P200,000, in view of the remission of Jojo’s share by the creditor (NCC, Art. 1219). In cases of solidary creditors, one may act for all Each one of the solidary creditors may execute acts which may be useful or beneficial to the others, but he may not do anything which may be prejudicial to them (NCC,Art. 1212). Jojo can be compelled by Joey to contribute P50,000. When one of the solidary debtors cannot, because of his insolvency, reimburse his share to the debtor paying the obligation, such share shall be borne by all his co-debtors, in proportion to the debt of each [NCC, Art. 1217(3)]. NOTE: Prejudicial acts may still have valid legal effects, but the performing creditor shall be liable to his co-creditors (Pineda, 2000). Since the insolvent debtor's share which Joey paid was P100, 000, and there are only two remaining debtors - namely Joey and Jojo - these two shall share equally the burden of reimbursement. Jojo may thus be compelled by Joey to contribute P50, 000. Effects of assignment of rights in a solidary obligation GR: Solidary creditor cannot assign his right because it is predicated upon mutual confidence, meaning personal qualification of each creditor had been taken into consideration when the obligation was constituted (NCC, Art. 1213). Q: Iya and Betty owed Jun P500,000 for advancing their equity in a corporation they joined as incorporators. Iya and Betty bound themselves solidarily liable for the debt. Later, Iya and Jun became sweethearts so Jun condoned the debt of P500,000. May Iya demand from Betty P250,000 as her share in the debt? Explain with legal basis? (2015 Bar) XPNs: 1. Assignment to co-creditor; or 2. Assignment is with consent of co-creditor. DIVISIBLE AND INDIVISIBLE OBLIGATIONS Divisible obligations A: NO. Iya may not demand the P250,000 from Betty because the entire obligation has been condoned by the creditor Jun. In a solidary obligation the remission of the whole obligation obtained by one of the solidary debtors does not entitle him to reimbursement from his co-debtors. (NCC, Art. 1220). Those which have as their object a prestation which is susceptible of partial performance with the essence of the obligation being changed. Indivisible obligations Q: Juancho, Don and Pedro borrowed P150,000 from their friend Cita to put up an internet café orally promising to pay her the full amount after one year. Because of their lack of business knowhow, their business collapsed. Juancho and Don ended up penniless but Pedro was able to borrow money and put up a restaurant which did well. Can Cita demand that Pedro pay the entire obligation since he, together with the two others, promised to pay the full amount after one year? Defend your answer (2015 BAR). Those which have as their object a prestation which is not susceptible of partial performance, because otherwise the essence of the obligation will be changed. The obligation is clearly indivisible because the performance of the contract cannot be done in parts, otherwise, the value of what is transferred is diminished (Nazareno v. CA, G.R. No. 138842, October 18, 2000). Divisible v. Indivisible obligations DIVISIBLE A: NO. The obligation in this case is presumed to be joint. The concurrence of two or more creditors or two or more debtors in one and the same obligation 241 INDIVISIBLE Civil Law Susceptibility of an obligation to be performed Non-susceptibility to be performed partially partially. Partial performance is tantamount to nonperformance. exceptional cases mentioned in NCC,Art. 1225 (2) that they are divisible. NOTE: The divisibility of the object does not necessarily determine the divisibility of the obligation; while the indivisibility of the object carries with it the indivisibility of the obligation. Effect of illegality of a part of a contract 2.1. Divisible contract – The illegal part is void and unenforceable. Legal part is valid and enforceable (NCC, Art. 1420). 3.2. Indivisible contract – Theentire contract is indivisible and unenforceable. Test of divisibility Whether or not the prestation is susceptible of partial performance, not in the sense of performance in separate or divided parts, but in the sense of the possibility of realizing the purpose which the obligation seeks to obtain. If a thing could be divided into parts and as divided, its value is impaired disproportionately, that thing is indivisible (Pineda, 2000). Partial performance in indivisible obligation GR : In indivisible obligations, partial performance is equivalent to non-performance. XPNs :(NCC, Articles 1234 and 1235). 1. Where the obligation has been substantially performed in good faith, the debtor may recover as if there had been complete performance, minus the damages suffered by the creditor; and 2. Where the creditor accepts performance knowing its incompleteness and without protest, the obligation is deemed fully performed. Obligations that are deemed indivisible 1. 2. 3. Obligations to give definite things; Those which are not susceptible of partial performance; Even the object or service may be physically divisible, an obligation is indivisible if so provided (i) by law or (i) intended by the parties (NCC, Art. 1225). OBLIGATIONS WITH A PENAL CLAUSE An obligation with a penal clause is one with an accessory undertaking by virtue of which the obligor assumes a greater liability in case of breach of the obligations (Jurado, 2009). NOTE: A pledge or mortgage is one and indivisible by provision of law, and the rules apply even if the obligation is joint and not solidary (NCC, Art. 2089). Penal clause Obligations that are deemed divisible A penal clause is an accessory undertaking to asume greater liability in case of breach. It is attached to an obligation in order to insure performance. The penalty is generally a sum of money. But it can also be any othe thing stipulated by the parties, inlcuding an act or abstention. When the object of the obligation involves: 1.Certain number of days of work; 2.Accomplishment of work by metrical unit; 3.Analogous things which are by their nature susceptible of partial performance (NCC, Art. 1225). Double functions: Factors to determine whether an obligation is divisible of indivisible 1. To provide for liquidated damages; and 2. To strengthen the coercive force of the obligation by the threat of greater responsibility in case of breach. a) The will or intention of the parties (express or implied); b) The objective or purpose of the stipulated prestation; c) The nature of the thing; and d) The provisions of law affecting the prestation. OBLIGATIONS TO GIVE OBLIGATIONS TO DO In obligations to give, those for the delivery of certain objects such as an animal or a chair are indivisible [NCC, 1225 (1)]. In obligations to do, indivisibility is also presumed, and it is only when they are under the Kinds of penalties 242 1. As to origin a. Legal - It is legal when it is constituted by law. b. Conventional - It is constituted by agreement of the parties. 2. As to purpose a. Compensatory - It is compensatory when it is established for the purpose of OBLIGATIONS AND CONTRACTS b. 3. indemnifying the damages suffered by the obligee or creditor in case of breach of the obligation. Punitive - It is punitive when it is established for the purpose of punishing the obligor or debtor in case of breach of the obligation. NOTE: The nullity of the penal clause does not carry with it that of the principal obligation. For example, the penal clause may be void because it is contrary to law, morals, good custom, public order or public policy. In such case, the principal obligation subsists if valid. GR: The nullity of the principal obligation carries with it that of the penal clause (NCC, Art. 1230). As to effect a. Subsidiary - It is subsidiary when only the penalty may be demanded in case of breach of the obligation; b. Joint - It is joint when the injured party may demand the enforcement of both the penalty and the principal obligation. XPNs: The penal clause subsists even if the principal obligation cannot be enforced: Q: Can the debtor just choose penalty over non-fulfillment? 1. When the penalty if undertaken by a third person precisely for an obligation which is unenforceable, voidable, or natural, in which case it assumes the form of a guaranty which is valid underNCC,Art. 2052; and A: GR: The debtor cannot exempt himself from the performance of the obligation by paying the penalty (NCC, Art. 1227). 2. When the nullity of the principal obligation itself gives rise to the liability of the debtor for damages. XPN: When the right has been expressly reserved to the debtor (NCC, Art. 1227). Instances where penalty may be reduced by the courts (PIU) Creditor cannot demand both the fulfillment of the principal obligation and the penalty 1. 2. 3. GR: The creditor cannot demand the fulfillment of the obligation and the satisfaction of the penalty at the same time (NCC, Art. 1227). Q: When can the creditor enforcement of the penalty? XPNs: 1. When the right has been clearly granted to him; 2. If the creditor has decided to require the fulfillment of the obligation, the performance thereof should become impossible without his fault, the penalty may be enforced (NCC, Art. 1227). demand the A: Only when the non-performance is due to the fault or fraud of the debtor. But the creditor does not have to prove that there was fault or fraud of the debtor. The non-performance gives gives rise to the presumption of fault; and in order to avoid the payment of penalty, the debtor has the burden of proving an excuse – either that the failure of the performance was due to force majeure or to the acts of the creditor himself. NOTE: The creditor need not present proof of actual damages suffered by him in order that the penalty may be demanded (NCC, Art. 1228). In this jurisdiction, there is no difference between a penalty and liquidated damages, so far as the results are concerned. Whatever differences exist between them as a matter of language, they are treated the same legally (Rabuya, 2017). NOTE: When there are several debtors in an obligation with a penal clause, the divisibility of the principal obligation among the debtors does not necessarily carry with it the divisibility of the penalty among them. Effect of incorporating a penal clause in an obligation EXTINGUISHMENT OF OBLIGATIONS GR: The penalty fixed by the parties is a compensation or substitute for damages in case of breach. Modes of extinguishment of an obligation Principal modes(PaLoCo3N) 1. Payment or performance; 2. Loss of the thing due; 3. Condonation or remission of debt; 4. Confusion or merger; 5. Compensation; 6. Novation (NCC, Art. 1231). XPNs: Damages shall still be paid even if there is a penal clause if: 1. 2. 3. Partial performance of the obligation; Irregular performance of the obligation; Penalty is Unconscionable even if there has been no performance. There is a stipulation to the contrary; The debtor refuses to pay the agreed penalty; or The debtor is guilty of fraud in the fulfillment of the obligation (NCC, Art. 1126). Other Modes (PARF) 243 Civil Law 7. 8. 9. 10. Annulment; Rescission; Fulfillment of a resolutory condition; Prescription (NCC, Art. 1231). It provides the rule that if a good-faith attempt to perform does not precisely meet the terms of an agreement or statutory requirements, the performance will still be considered complete if the essential purpose is accomplished (Black’s Law Dictionary, 2009). NOTE: The enumeration is not exclusive. Other causes not expressly mentioned (Rabuya, 2017) 11. Death – in obligations which are of purely personal character; 12. Arrival of resolutory period; 13. Mutual dissent; 14. Change of civil status; 15. Happening of unforseen events. Mutual desistance as extinguishing obligations another mode Requisites 1. 2. of It is a concept derived from the principle that since mutual agreement can create a contract, mutual disagreement by the parties can likewise cause its extinguishment (Saura v. Development Bank of the Phils., G.R.No. 24968, April 27, 1972). Identity of the thing GR: Thing paid must be the very thing due and cannot be another thing even if of the same or more quality and value. XPNs: 1. Dation in payment; 2. Novation of the obligation; and 3. Obligation is facultative. PAYMENT OR PERFORMANCE Payment is the fulfillment of the obligation by the realization of the purposes for which it was constituted (Jurado, 2010) - (1998, 2009 Bar) NOTE: In an obligation to do or not to do, an act or forbearance cannot be substituted by another act or forbearance against the obligee’s will. Payment may consist not only in the delivery of money but also the giving of a thing (other than money), the doing of an act, or not doing of an act (NCC, Art. 1232). Indivisibility GR: Debtor cannot be compelled by the creditor to perform obligation in parts and neither can the debtor compel the creditor to accept obligation in parts. Characteristics of payment 1. 2. 3. Integrity – The payment of the obligation must be completely made; Identity – The payment of the obligation must consist the performance of the very thing due; Indivisibility – The payment of the obligation must be in its entirety. XPNs: When: 1. 2. 3. Integrity XPNs: 2. 3. Partial performance has been agreed upon; Part of the obligation is liquidated and part is unliquidated; or To require the debtor to perform in full is impractical. Acceptance by a creditor of a partial payment NOT an abandonment of its demand for full payment GR: Payment or performance must be complete (NCC, Art. 1233). 1. Attempt in good-faith to comply with obligation; Slight deviation from the obligation; and the omission or defect of the performance is technical and unimportant; and does not pervade the whole, or is not material that the object which the parties intended to accomplish is not attained (Tolentino, 2002). When creditors receive partial payment, they are not ipso facto deemed to have abandoned their prior demand for full payment. Substantial performance performed in good faith (NCC, Art. 1234); When the obligee accepts the performance, knowing its incompleteness or irregularity and without expressing any protest or objection; (NCC, Art. 1235); or Debt is partly liquidated and partly unliquidated, but the liquidated part of the debt must be paid in full. To imply that creditors accept partial payment as complete performance of their obligation, their acceptance must be made under circumstances that indicate their intention to consider the performance complete and to renounce their claim arising from the defect. Substantial Performance Doctrine 244 OBLIGATIONS AND CONTRACTS NOTE: While Art. 1248 of the Civil Code states that creditors cannot be compelled to accept partial payments, it does not prohibit them from accepting such payments (Selegna Management and Development Corp. v. UCPB, G.R. No. 165662, May 30, 2006). b. 2. Requisites of a valid payment 1. 2. 3. 4. 5. Can be subrogated to all rights of the creditor. If the payment was made without knowledge or against the will of the debtor – Can recover only insofar as payment has been beneficial to the debtor (right of conditional reimbursement). NOTE: Payment made by a third person who does not intend to be reimbursed by the debtor is deemed to be a donation, which requires the debtor's consent. But the payment is in any case valid as to the creditor who has accepted it (NCC, Art. 1238). The person who pays the debt must be the debtor; The person to whom payment is made must be the creditor; The thing to be paid or to be delivered must be the precise thing or the thing required to be delivered by the creditor; The manner (if expreslly agreed upon), time, and place of payment, etc.; and Acceptance by the creditor. Person to whom payment is made Persons entitled to receive the payment: 1. The person in whose favor the obligation has been constituted; 2. His successor in interest; or 3. Any person authorized to receive it (NCC, Art. 1240). Kinds of payment 1. Normal - When the debtor voluntarily performs the prestation stipulated; 2. Abnormal - When he is forced by means of a judicial proceeding, either to comply with the prestation or to pay the indemnity (Tolentino, 1991). NOTE: Payment made to one having apparent authority to receive the money will, as a rule, be treated as though actual authority had been given for its receipt. Likewise, if payment is made to one who by law is authorized to act for the creditor, it will work a discharge (Sps. Miniano v. Concepcion, G.R. No. 172825, October 11, 2012). Person who pays The following persons may effect payment and compel the creditor to accept the payment: 1. 2. 3. 4. Payment to an unauthorized person GR: Payment to an unauthorized person is not a valid payment (NCC, Art. 1241). Debtor himself; His heirs and assigns; His agents and representatives; or Third persons who have a material interest in the fulfilment of the obligation ([NCC, Art. 1236 (1)]. XPNs: 1. Payment to an incapacitated person if: a. He kept the thing delivered; or b. It has been beneficial to him (NCC, Art. 1241); 2. Payment to a third person insofar as it redounded to the benefit of the creditor; and PAYMENT MADE BY THIRD PERSONS GR: The creditor is not bound to accept payment or performance by a third person. Benefit to the creditor need not be proved: (RRE) a. If after the payment, the third person acquires the creditor’s Rights; b. If the creditor Ratifies the payment to the third person; or c. If by the creditor’s conduct, the debtor has been led to believe that the third person had authority to receive the payment (Estoppel) (NCC, Art. 1241). XPNs: 1. When made by a third person who has interest in the fulfillment of the obligation; and 2. Contrary stipulation (NCC, Art. 1236). NOTE: The rules on payment by a third person (NCC, Article. 1236 to 1238) cannot be applied to the case of a third person who pays the redemption price in sales with right of repurchase. This is so because the vendor a retro is not a debtor within the meaning of the law (Jurado, 2010). 3. NOTE : Payment made to the creditor by the debtor after the latter has been judicially ordered to retain the debt shall not be valid. (NCC, Art. 1243). Rights of a third person who made the payment 1. Payment in good faith to the possessor of credit (NCC, Art. 1242). If the payment was made with knowledge and consent of the debtor: a. Can recover entire amount paid (absolute reimbursement); or SPECIAL FORMS OF PAYMENT 245 Civil Law immediately extinguished by reason of the performance of a prestation different from that due (Caltex Philippines, Inc. v. IAC, G.R. No. 72703, November 13, 1992). Dation in Payment Alienation by the debtor of a particular property in favor of his creditor, with the latter’s consent, for the satisfaction of the former’s money obligation to the latter, with the effect of extinguishing the said money obligation. Q: Lopez obtained a loan in the amount of P20,000.00 from the Prudential Bank. He executed a surety bond in which he, as principal, and PHILAMGEN as surety, bound themselves jointly and severally for the payment of the sum. He also executed a deed of assignment of 4,000 shares of the Baguio Military Institution in favor of PHILAMGEN. Is the stock assignment made by Lopez dation in payment or pledge? Application of Payment Designation of the particular debt being paid by the debtor who has two or more debts or obligations of the same kind in favor of the same creditor to whom the payment is made . A: The stock assignment constitutes a pledge and not a dacion en pago. Dation in payment is the delivery and transmission of ownership of a thing by the debtor to the creditor as an accepted equivalent of the performance of the obligation. Lopez’s loan has not yet matured when he "alienated" his 4,000 shares of stock to Philamgen. Lopez's obligation would arise only when he would default in the payment of the principal obligation which is the loan and Philamgen had to pay for it. Since it is contrary to the nature and concept of dation in payment, the same could not have been constituted when the stock assignment was executed. In case of doubt as to whether a transaction is a pledge or a dation in payment, the presumption is in favor of pledge, the latter being the lesser transmission of rights and interests (Lopez v. CA, G.R. No. L-33157, June 29, 1982). Payment by Cession Debtor cedes his property to his creditors so the latter may sell the same and the proceeds realized applied to the debts of the debtor. Tender of Payment Voluntary act of the debtor whereby he offers to the creditor for acceptance the immediate performance of the former’s obligation to the latter. Consignation Act of depositing the object of the obligation with the court or competent authority after the creditor has unjustifiably refused to accept the same or is not in a position to accept it due to certain reasons or circumstances. Q: Cebu Asiancars Inc., with the conformity of the lessor, used the leased premises as a collateral to secure payment of a loan which Asiancars may obtain from any bank, provided that the proceeds of the loan shall be used solely for the construction of a building which, upon the termination of the lease or the voluntary surrender of the leased premises before the expiration of the contract, shall automatically become the property of the lessor. Meeting financial difficulties and incurring an outstanding balance on the loan, Asiancars conveyed ownership of the building on the leased premises to MBTC, by way of "dacion en pago."Is the dacion en pago by Asiancars in favor of MBTC valid? DATION IN PAYMENT (dacion en pago) The delivery and transmission of ownership of a thing by the debtor to the creditor as an accepted equivalent of the performance of the obligation. The property given may consist not only of a thing but also of a real right (Tolentino, 2002) (2009 Bar) NOTE: The undertaking partakes of the nature of sale, that is, the creditor is really buying the thing or property of the debtor, payment for which is to be charged against the debtor’s debt. As such, the essential elements of a contract of sale, namely, consent, object certain, and cause or consideration must be present. A: YES. MBTC was a purchaser in good faith. MBTC had no knowledge of the stipulation in the lease contract. Although the same lease was registered and duly annotated, MBTC was charged with constructive knowledge only of the fact of lease of the land and not of the specific provision stipulating transfer of ownership of the building to the Jaymes upon termination of the lease. While the alienation was in violation of the stipulation in the lease contract between the Jaymes and Asiancars, MBTC’s own rights could not be prejudiced by Asiancars’ actions unknown to MBTC. Thus, the transfer of the building in favor of MBTC was valid and binding (Jayme v. CA, G.R. No. 128669, October 4, 2002). The requisites for dacion en pago are: 1. 2. 3. There must be a performance of the prestation in lieu of payment (animo solvendi) which may consist in the delivery of a corporeal thing or a real right or a credit against the third person; There must be some difference between the prestation due and that which is given in substitution (aliud pro alio); and There must be an agreement between the creditor and debtor that the obligation is 246 OBLIGATIONS AND CONTRACTS Assignment of credit judgment ordering CF Sharp to pay 83,158,195 Yen and damages for the delay at the rate of 6% per annum. Unable to execute the decision in Japan, Northwest Airlines filed a case to enforce said foreign judgment with the RTC of Manila. What is the rate of exchange that should be applied for the payment of the amount? An agreement by virtue of which the owner of a credit, known as the assignor, by a legal cause, such as sale, dation in payment, exchange or donation, and without the consent of the debtor, transfers his credit and accessory rights to another, known as the assignee, who acquires the power to enforce it to the same extent as the assignor could enforce it against the debtor. It may be in the form of sale, but at times it may constitute a dation in payment, such as when a debtor, in order to obtain a release from his debt, assigns to his creditor a credit he has against a third person. As a dation in payment, the assignment of credit operates as a mode of extinguishing the obligation; the delivery and transmission of ownership of a thing (in this case, the credit due from a third person) by the debtor to the creditor is accepted as the equivalent of the performance of the obligation. A: The repeal of R.A.529 by R.A. 8183 has the effect of removing the prohibition on the stipulation of currency other than Philippine currency, such that obligations or transactions may now be paid in the currency agreed upon by the parties. Just like R.A. 529, however, the new law does not provide for the applicable rate of exchange for the conversion of foreign currency-incurred obligations in their peso equivalent. It follows, therefore, that the jurisprudence established in R.A. 529 regarding the rate of conversion remains applicable. Thus, in Asia World Recruitment, Inc. v. National Labor Relations Commission(GR 113363, August 24, 1999), the SC, applying RA 8183, sustained the ruling of the NLRC that obligations in foreign currency may be discharged in Philippine currency based on the prevailing rate at the time of payment. It is just and fair to preserve the real value of the foreign exchange-incurred obligation to the date of its payment (C.F. Sharp v. Northwest Airlines, G.R. No. 133498, April 18, 2002). FORM OF PAYMENT 1. Payment in cash – all monetary obligations shall be settled in Philippine currency. However, the parties may agree that the obligation be settled in another currency at the time of payment (R.A. 8183, Sec. 1). 2. Payment in check or other negotiable instrument – not considered payment, they are not considered legal tender and may be refused by the creditor except when: a. the document has been encashed; or b. it has been impaired through the fault of the creditor (NCC, Art. 1249). PAYMENT BY NEGOTIABLE INSTRUMENT (2008 BAR) Rule on tender payment as to checks Q: When does payment by a negotiable instrument produce the effect of payment? PAYMENT IN CASH (2008 Bar) A: (1) Only when it is cashed, or (2) when through the fault of the creditor, they have been impaired [NCC, Art. 1249 (2)]. Legal tender A check does not constitute a legal tender, thus a creditor may validly refuse it. However, this does not prevent a creditor from accepting a check as payment – the creditor has the option and the discretion of refusing or accepting it (Far East Bank & Trust Company v. Diaz Realty, Inc, G.R. No. 138588, August 23, 2001). Legal tender means such currency which in a given jurisdiction can be used for the payment of debts, public and private, and which cannot be refused by the creditor (Tolentino, 2002). The legal tender covers all notes and coins issued by the Bangko Sentral ng Pilipinas and guaranteed by the Republic of the Philippines. The amount of coins that may be accepted as legal tender are: 1. 2. NOTE: While it is true that the delivery of a check produces the effect of payment only when it is cashed, pursuant to Art. 1249 of the CC, the rule is otherwise if the debtor is prejudiced by the creditor's unreasonable delay in presentment. The payee of a check would be a creditor under this provision and if its non-payment is caused by his negligence, payment will be deemed effected and the obligation for which the check was given as conditional payment will be discharged (Papa v. Valencia, G.R. No. 105188, January 23, 1998). One-Peso, Five-Pesos, 10-Pesos coins in amount not exceeding P1,000.00 25 centavos or less – in amount not exceeding P100. 00 (BSP Circular No. 537, Series of 2006, July 18, 2005). Q: Northwest Airlines, through its Japan Branch, entered into an International Passenger Sales Agency Agreement with CF Sharp, authorizing the latter to sell its air transport tickets. CF Sharp failed to remit the proceeds of the ticket sales, thus, Northwest Airlines filed a collection suit before the Tokyo District Court which rendered Q: Diaz & Company obtained a loan from Pacific Banking Corp which was secured by a real estate mortgage. ABC rented an office space in the 247 Civil Law building constructed on the properties covered by the mortgage contract. The parties then agreed that the monthly rentals shall be paid directly to the mortgagee for the lessor's account. Thereafter, FEBTC purchased the credit of Diaz & Company in favor of PaBC, but it was only after two years that Diaz was informed about it. Diaz asked the FEBTC to make an accounting of the monthly rental payments made by Allied Bank. Diaz tendered to FEBTC the amount of P1,450,000.00 through an Interbank check, in order to prevent the imposition of additional interests, penalties and surcharges on its loan but FEBTC did not accept it as payment, instead, Diaz was asked to deposit the amount with the FEBTC’s Davao City Branch Office. Was there a valid tender of payment? NOTE: Requisites for application of Art. 1250, NCC (Rabuya, 2017). 1. That there was an official declaration of extraordinary inflation or deflation from the BSP; 2. That the obligation was contractual in nature; and 3. That the parties expressly agreed to consider the effects of the extraordinary inflation or deflation. PLACE OF PAYMENT GR: Payment must be made in the place designated in the obligation (NCC, Art. 1251). XPN: If there is no express designation or stipulation in the obligation: 1. At the place where the thing might be at the time the obligation was constituted – If the obligation is to deliver a determinate thing; 2. At the domicile of the debtor – In any other case (NCC, Art. 1251). A: YES. True, jurisprudence holds that, in general, a check does not constitute legal tender, and that a creditor may validly refuse it. It must be emphasized, however, that this dictum does not prevent a creditor from accepting a check as payment. In other words, the creditor has the option and the discretion of refusing or accepting it (FEBTC v. Diaz Realty Inc., G.R. No. 138588, August 23, 2001). NOTE: Governs only unilateral obligations since reciprocal obligations are governed by special rules (Jurado, 2010). Burden of proving payment in an action for sum of money Moreover, if the debtor changes his domicile in bad faith or after he has incurred in delay, the additional expenses shall be borne by him. The party who pleads payment as a defense has the burden of proving that such payment has, in fact, been made. The foregoing are without prejudice, however, to the venue under the Rules of Court. EXTRAORDINARY INFLATION OR DEFLATION (2001 Bar) APPLICATION OF PAYMENTS It is the designation of the debt to which the payment must be applied when the debtor has several obligations of the same kind in favor of the same creditor (NCC, Art. 1252). Extraordinary inflation Exists when there is a decrease or increase in the purchasing power of the Philippine currency which is unusual or beyond the common fluctuiation iin the value of said currency and such decrease or increase could not have been reasonably foreseen or was manifestly beyond the contemplation of the parties at the time of the establishment of the obligation (Tolentino, 2002). Requisites: 1. There is only one debtor and creditor; 2. The debtor owes the creditor two or more debts; 3. Debts are of the same kind or identical nature; 4. e.g. both debts are money obligations obtained on different dates; 5. All debts are due and demandable, except: a. When there is mutual agreement between the parties (Tolentino, 2002); b. The application is made by the party for whose benefit the term has been constituted [NCC, Art. 1252(1]). 6. The payment made is not sufficient to cover all obligations.Right of the debtor in the application of payments In case an extraordinary inflation or deflation of the currency stipulated should supervene, the value of the currency at the time of the establishment of the obligation shall be the basis of payment, unless there is an agreement to the contrary (NCC, Art. 1250). When the currency is devaluated in terms beyond what could have been reasonably forseen by the parties, the doctrine of unforseen risks can be applied, and the effects of the devaluation should not be borne by the creditor alone. The revaluation of the credit in such cases must be made according to the principles of good faith and in view of the circumstances of each particular case, recognizing the real value of the credit as in consonance with the intent of the parties. GR: The law grants to the debtor a preferential right to choose the debt to which his payment is to be 248 OBLIGATIONS AND CONTRACTS applied. But the right of the debtor is not absolute; he cannot impair the rights granted by law to the creditor (Tolentino, 2002). NOTE: If the debts happen to be of same nature and burden, the payment shall be applied proportionately. XPN: Debtor’s failure to ascertain which debt his payment is to be applied. – The right of the debtor to choose to which debt his payment will be applied against may be transferred to the creditor when he fails to make the application and subsequently he accepts a receipt from the creditor evidencing the latter’s choice of application. Under this circumstance, the debtor cannot complain of the application made by the creditor unless there be a cause for invalidating such act. Effect of creditor’s refusal As far as the debtor is concerned, the right to make an application of payment must be exercised at the time payment is made (Bachrach v. Golingco, G.R. No. 13761, July 12, 1919). The assignment or cession contemplated here is the abandonment of the universality of the property of the debtor for the benefit of his creditors in order that such property may be applied to the payment of the credits. If the debtor makes a proper application of payment, but the creditor refuses to accept it because he wants to apply it to another debt, such creditor will incur in delay (Tolentino, 1991). PAYMENT BY CESSION Cession Limitation upon right to apply payment The initiative comes from the debtor, but it must be accepted by the creditors in order to become effective. A voluntary assignment cannot be imposed upon a creditor who is not willing to accept it. If the debt produces interests, payment of the principal shall not be deemed to have been made until the interest have been covered (NCC, Art. 1253). NOTE: This applies only in the absence of a verbal or written agreement to the contrary; in other words, it is merely directory, and not mandatory (Magdalena Estate, Inc. v. Rodriguez, G.R. No. L18411, December 17, 1966). If the offer is not accepted by the creditors, the same end may be attained by a proceeding in insolvency instituted in accordance with Insolvency Law. Legal application of payment Debtor abandons all of his property for the benefit of his creditors in order that from the proceeds thereof, the latter may obtain payment of credits. Circumstances evidencing payment by cession If both the creditor and the debtor failed to exercise the right of application of payment, legal application (the law makes the application) of payment will be now govern. Requisites: 1. 2. 3. Rules on legal application of payment The payment should be applied to the more onerous debts: 1. When a person is bound as principal in one obligation and as surety in another, the former is more onerous. 2. When there are various debts, the oldest ones are more burdensome. 3. Where one bears interest and the other does not, even if the latter is the older obligation, the former is considered more onerous. 4. Where there is an encumbrance, the debt with a guaranty is more onerous than that without security. 5. With respect to indemnity for damages, the debt which is subject to the general rules on damages is less burdensome than that in which there is a penal clause. 6. The liquidated debt is more burdensome than the unliquidated one. 7. An obligation in which the debtor is in default is more onerous than one in which he is not (Tolentino, 2002). Plurality of debts; Partial or relative insolvency of the debtor; and Acceptance of the cession by the creditors Dation in payment v. Payment in cession DATION IN PAYMENT PAYMENT IN CESSION Number of creditors Maybe one creditor. Plurality of creditors. Financial condition of the debtor Not necessarily in state of financial difficulty. Debtor must be partially or relatively insolvent. Object Thing delivered is considered as equivalent of performance. Universality or property of debtor is what is ceded. Extent of the extinguishment 249 Civil Law Payment extinguishes obligation to the extent of the value of the thing delivered as agreed upon, proved or implied from the conduct of the creditor. NOTE: Once the consignation has been duly made, the debtor may ask the judge to order the cancellation of the obligation (NCC, Art. 1260). Merely releases debtor for net proceeds of things ceded or assigned, unless there is contrary intention. Requisites of consignation 5. 6. Ownership Ownership is transferred to CR upon delivery. 7. Ownership is not transferred. 8. Novation An act of novation. 9. Not an act of novation. NOTE: Requirement No. 5 may be complied with by the service of summons upon the defendant creditor together with a copy of teh complaint. Presumption of insolvency Does not presuppose insolvency. There was a debt due; The consignation of due obligation was made because of some legal cause provided under NCC,Art. 1256; The previous notice of the consignation had been given to the person interested in the performance of the obligation; The amount or thing due was placed at the disposal of the court; and That after the consignation had been made the persons interested were notified thereof. Presupposes insolvency. After this notice, the creditor may: (a) Accept the thing or amount deposited, in which case the matter of the payment is terminated; (b) Refuse to accept the thing or amount, in which case a trial must be held to determine the validity of consignation. TENDER OF PAYMENT AND CONSIGNATION Tender of payment The definitive act of offering to the creditor what is due him together with the demand that the creditor accept the same (FEBTC v. Diaz Realty Inc., G.R. No. 138588, August 23, 2001). The creditor may neither accept nor refuse in which case the debtor may ask the court to cancel the obligation after showing that the requisites of consignation have been complied with (NCC, Art. 1260). Tender of payment is the manifestation by debtors of their desire to comply with or to pay their obligation (Sps. Benos v. Sps. Lawilao, G.R. No. 172259, December 5, 2006). NOTE: Tender of payment must be valid and unconditional (Sps. Rayos v. Reyes, G.R. No. 150913, February 20, 2003). NOTE: If the creditor refuses the tender of payment without just cause, the debtors are discharged from the obligation by the consignation of the sum due (Sps. Benos v. Sps. Lawilao, G.R. No. 172259, December 5, 2006). Substantial compliance is not enough. The giving of notice to the persons interested in the performance of the obligation is mandatory. Failure to notify the persons interested in the performance of the obligation will render the consignation void (Dalton v. FGR Realty and Development Corp., G.R. No. 172577, January 19, 2011). There must be a fusion of intent, ability and capability to make good such offer, which must be absolute and must cover the amount due (FEBTC v. Diaz RealtyInc., G.R. No. 138588, August 23, 2001). Tender of payment is a preparatory act which precedes consignation. The tender of payment by itself does not cause the extinguishment of the obligation unless completed by consignation. (Tolentino, 1991). Consignation is necessarily judicial. Art. 1258 of the CC specifically provides that consignation shall be made by depositing the thing or things due at the disposal of judicial authority. The said provision clearly precludes consignation in venues other than the courts (Spouses Oscar and Thelma Cacayorin v. Armed Forces and Police Mutual Benefit Association, Inc., G.R. No. 171298, April 15, 2013). Consignation Act of depositing the object of the obligation with the court or competent authority after the creditor has unjustifiably refused to accept the same or is not in a position to accept it due to certain reasons or circumstances (Pineda, 2000). Consignation and tender of payment must not be encumbered by conditions (Sps. Rayos v. Reyes,G.R. No. 150913, February 20, 2003). Q: Dorotea leased portions of her 2,000 sq. m. lot to Monet, Kathy, Celia and Ruth for five (5) years. 250 OBLIGATIONS AND CONTRACTS Two (2) years before the expiration of the lease contract, Dorotea sold the property to PM Realty and Development Corp. The following month, Dorotea and PM Realty stopped accepting rental payments from all the lessees because they wanted to terminate the lease contracts. Due to the refusal to accept rental payments, the lessees, Ruth, et al., filed a complaint for consignation of the rentals before the RTC of Manila without notifying Dorotea. Is the consignation valid? (2014 Bar) Nature Antecedent of consignation or preliminary act to consignation. Effect It does not by itself extinguish the obligation. A: NO. Art. 1257 of the Civil Code provides that in order that the consignation of the thing due may release the obligor, it must first be announced to the persons interested in the fulfillment of the obligation. Moreover, Art. 1258 of the same code provides that consignation having been made, the interested parties shall also be notified thereof. In this case Dorotea, an interested party, was not notified of the consignation. The consignation is therefore not valid for non-compliance with NCC,Art. 1257. It extinguishes the obligation when declared valid. Character Extrajudicial. Judicial for it requires the filing of a complaint in court (Pineda, 2000). Q: In an ejectment case, X refused to vacate the land alleging that Y had sold to him the additional area, the payment of which would be effected five years after the execution of a formal deed of sale. However, the parties failed to execute a deed of sale. During the pendency of the action, X deposited the payment for the additional area with the court. Is there a valid consignation? Effectivity of consignation as payment GR: Consignation shall produce effects of payment only if there is a valid tender of payment. XPNs: It shall, however, not produce the same effect in the following cases. When: (ARTIT) 1. Creditor is Absent or unknown, or doesn’t appear at place of payment; 2. Creditor Refuses to issue a receipt without just cause; 3. Title of the obligation has been lost; 4. Creditor is Incapacitated to receive payment at the time it is due; or 5. Two or more persons claim the right to collect (NCC, Art. 1256). A: NO. Under Art. 1257 of the CC, consignation is proper only in cases where an existing obligation is due. In this case, the contracting parties agreed that full payment of purchase price shall be due and payable within five years from the execution of a formal deed of sale. At the time Rodriguez deposited the amount in court, no formal deed of sale had yet been executed by the parties, and, therefore, the fiveyear period during which the purchase price should be paid had not commenced. In short, the purchase price was not yet due and payable (Heirs of San Andres v. Rodriguez, G.R. No. 135634, May 31, 2000). NOTE: The expenses of consignation, when properly made, shall be charged against the creditor (NCC, Art. 1259). Q: Under a pacto de retro sale, X sold to Y his lot and the building erected thereon. They agreed that half of the consideration shall be paid to the bank to pay off the loan of X. After paying the first installment, Y, instead of paying the loan to the bank, restructured it twice. Eventually, the loan became due and demandable. Thus, X paid the bank. On the same day, Y also went to the bank and offered to pay the loan, but the bank refused to accept the payment. Y then filed an action for consignation without notifying X. Is there a valid consignation by Y of the balance of the contract price? Right of the debtor to withdraw the thing deposited Before the creditor has accepted the consignation, or before a judicial declaration that the consignation has been properly made, the debtor may withdraw the thing or the sum deposited, allowing the obligation to remain in force (NCC, Art.1260). NOTE: If, the consignation having been made, the creditor should authorize the debtor to withdraw the same, he shall lose every preference which he may have over the thing. The co-debtors, guarantors and sureties shall be released (NCC, Art. 1261). A: NO. Y filed the petition for consignation against the bank without notifying X, resulting to the former’s failure to prove the payment of the balance of the purchase price and consignation. In fact, even before the filing of the consignation case, Y never notified X of their offer to pay (Sps. Benos v. Sps.Lawilao, G.R. No. 172259, December 5, 2006). Tender of Payment v. Consignation TENDER OF PAYMENT Principal or consummating act for the extinguishment of the obligation. CONSIGNATION 251 Civil Law GR: The obligation is not extinguished because a generic thing never perishes (genus nun guam perit (NCC, Art. 1263). LOSS OF THE THING DUE XPNs: a. In case of generic obligations whose object is a particular class or group with specific or determinate qualities (delimited generic obligation); b. In case the generic thing has already been segregated or set aside, in which case, it has become specific. Loss here is not contemplated in its strict and legal meaning and is not limited to obligations to give, but extends to those which are personal, embracing therefore all causes which may render impossible the performance of the prestation. In some Codes, this is designated as impossibility of performance. NOTE: The impossibility of performance must be subsequent to the execution of the contract in order to extinguish the obligation; if the impossibility already existed when the contract was made, the result is not extinguishment but inefficacy of the obligation under NCC, Articles 1348 and 1493. 3. Types of impossibility to perform an obligation to do When a thing is considered lost (DOPE) 1. 2. 3. 4. 1. It Disappears in such a way that its existence is unknown; It goes Out of commerce; It Perishes; or Its Existence is unknown or if known, it cannot be recovered. 2. If the obligation is a: Effect of partial loss Determinate obligation to give: 1. Requisites a. The thing lost must be determinate; b. The thing lost is without fault of the debtor; and c. The thing is lost before the debtor has incurred delay (NCC, Art. 1262) 2. GR:The obligation is extinguished when the object of the obligation is lost or destroyed (NCC, Art. 1262). Due to the fault or negligence of the debtor – Creditor has the right to demand the rescission of the obligation or to demand specific performance, plus damages, in either case. Due to fortuitous event: a. Substantial loss – Obligation is extinguished. b. Unsubstantial loss – The debtor shall deliver the thing promised in its impaired condition (NCC, Art. 1264). Effect when the thing is lost in the possession of the debtor XPNs: (LAS-CD-PCG) a. Law provides otherwise (NCC, Art. 1262); b. Nature of the obligation requires the Assumption of risk; c. Stipulation to the contrary; d. Debtor Contributed to the loss; e. Loss the of the thing occurs after the debtor incurred in Delay; f. When debtor Promised to deliver the same thing to two or more persons who do not have the same interest (NCC, Art. 1165); g. When the debt of a certain and determinate thing proceeds from a Criminal offense (NCC, Art. 1268);and h. When the obligation is Generic (NCC, Art. 1263). 2. Legal impossibility – Act stipulated to be performed is subsequently prohibited by law. Physical impossibility – Act stipulated could not be physically performed by the

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